A dairy association complained of milk quota orders made with retrospective effect under domestic provisions. A regulation had been submitted in draft to the Conseil d’Etat, which had advised that a statute was necessary to give retrospective effect to the proposed new rules and had drafted a single clause bill which had been enacted as the statute. The association’s challenge to the four orders, based on their retrospective effect among other things, came before the Judicial Committee of the Conseil d’Etat, four of whose five members had previously taken part in drawing up the Conseil d’Etat’s opinion on the draft regulation and framing the bill. The association’s challenge was dismissed, and it complained that the Judicial Committee was not an independent and impartial tribunal and that its rights under article 6 of the European Convention had been violated. A majority of the Commission held that there had been no violation of article 6, but a minority dissented, holding (page 203) that, having regard to the importance of appearances and the increased concern of the public that the fair administration of justice should be guaranteed, the association could legitimately fear that its case would not be heard by an independent and impartial tribunal. The Court unanimously upheld this dissent. In paragraphs 44-45 of its judgment it said: ‘The only issue to be determined is whether the Judicial Committee satisfied the impartiality requirement of Article 6 of the Convention, regard being had to the fact that four of its five members had to rule on the lawfulness of a regulation which they had previously scrutinised in their advisory capacity. The Court notes that four members of the Conseil d’Etat carried out both advisory and judicial functions in the same case. In the context of an institution such as Luxembourg’s Conseil d’Etat the mere fact that certain persons successively performed these two types of function in respect of the same decisions is capable of casting doubt on the institution’s structural impartiality. In the instant case, Procola had legitimate grounds for fearing that the members of the Judicial Committee had felt bound by the opinion previously given. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the tribunal in question, and this makes it unnecessary for the Court to look into the other aspects of the complaint.’
Citations:
14570/89, (1995) 22 EHRR 193, [1995] ECHR 33
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Cited – Davidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
Distinguished – Pabla Ky v Finland ECHR 22-Jun-2004
A member of the Finnish Parliament who also sat as an expert member of the Court of Appeal was said to lack independence as a judge.
Held: The complaint was rejected. Also there was no no objective justification for the applicant’s fear as to . .
Cited – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
Lists of cited by and citing cases may be incomplete.
Human Rights
Updated: 04 June 2022; Ref: scu.165372
