European Court of Human Rights

On 29 January and 8 March 1982, acting on the President’s instructions, the Registrar invited the Commission and the Government to supply several documents and also particulars on a factual aspect of the case; these were received on 3 February, 16 February, 2 March and 9 March.

There appeared before the Court:

-  for the Government:

       Mr. J. Niset, Legal Adviser

                            at the Ministry of Justice,                                            Agent,

       Miss Anne de Bluts, avocet,                                                      Counsel;

-  for the Commission:

       Mr. G. Tenekides,                                                                   Delegate,

       Mr. M. Lancaster, the applicant’s lawyer

                            before the Commission, assisting the Delegate (Rule 29 §   

                            1, second sentence, of the Rules of Court).

The Court heard their arguments and observations as well as their replies to questions put by the Court and one of its members. A supplementary written reply from the Agent of the Government was received by the Registrar on 1 June 1982.

AS TO THE FACTS

I.  THE PARTICULAR FACTS OF THE CASE

A. From the opening of proceedings until reference of the case to the Court of Cassation

In the final event, the Assize Court convicted the applicant of the murder of Mr. Dulon and acquitted him as regards the other charges; it accepted that there were mitigating circumstances and sentenced him on 10 November 1978 to eighteen years’ hard labour. It also recorded that on account of his nationality it had not been possible to obtain the extradition to Belgium of Mr. Santos de Sousa, who had been arrested in Portugal.

B. Submissions of the public prosecutor’s department attached to the Court of Cassation

(a) Before 1955, although there were no written rules on the subject, the Court of Cassation had delivered eight judgments in which it had been held that a judicial officer who had acted as public prosecutor in criminal proceedings could not thereafter sit in the case as a judge and, in particular, on the assize court bench. The Court of Cassation founded this prohibition on a general and absolute principle that was said to derive from the very nature of the functions. The avocat général summarised the judgments as follows:

"It is of little moment - that the judicial officer in the public prosecutor’s department intervened in the case only occasionally or by chance...;

- that his intervention did not implicate one or more of the accused by name;

- that his intervention did not involve a formal step in the process of investigation.

It suffices that the judicial officer in the public prosecutor’s department personally played some part in the conduct of the prosecution in the case in question.

There is incompatibility as soon as the judicial officer, during the course of the prosecution, has personally intervened in the case in the capacity of member of the public prosecutor’s department."

(b) The second period (1955-1968), during which the Court of Cassation apparently did not have occasion to rule on the problem of incompatibility between the functions of public prosecutor and the functions of judge, was marked by two new factors: the incorporation of the Convention into the Belgian domestic legal system and the developments in domestic case-law with regard to the general principle of law whereby cases must be impartially examined by the court.

The litigant’s right to "an impartial tribunal", within the meaning of Article 6 § 1 (art. 6-1) of the Convention, could imply either that a judge was simply obliged to withdraw if he were at all biased as regards the case or, alternatively, that he was under the more extensive duty of withdrawing whenever there was a legitimate reason to doubt whether he offered the requisite guarantees of impartiality. The avocat général rejected the first interpretation, which he described as "restrictive", in favour of the second, the "extensive", interpretation; he relied notably on Article 31 of the Vienna Convention on the Law of Treaties (account to be taken of the object and purpose) and on the Delcourt judgment of 17 January 1970 (Series A no. 11, pp. 14-15, § 25 in fine). As regards the general principle of law whereby cases must be impartially examined by the court, he also referred to judgments of the Belgian Court of Cassation and the Belgian Conseil d’État. In addition, he cited the following passage from an inaugural address of 1 September 1970 to the Court of Cassation: "any judge whose impartiality may legitimately give rise to doubts must refrain from taking part in the decision".

(c) The third period saw the entry into force of Articles 127 and 292 of the Judicial Code (see paragraph 22 below) and the application by the Court of Cassation of the second of these Articles to cases where a decision had been given by a judge who had previously acted as a member of the public prosecutor’s department. According to the avocat général, the five judgments that he listed followed the same approach as those delivered in the first period and established that:

(i)  notwithstanding Article 292 of the Judicial Code, the general principle of law whereby cases must be impartially examined by the court had retained its full force;

(ii) for the purposes of that Article, the expression "dealing with a case in the exercise of the functions of public prosecutor" signified intervening therein in the capacity of prosecuting party;

(iii) there could not be said to have been such an intervention if, in the case concerned, a judicial officer in the public prosecutor’s department had simply

- appeared at a hearing at which the court did no more than adopt a purely procedural measure; or

- taken some step which was manifestly without effect on the conduct of the prosecution.

In the light of the foregoing, the avocat général concluded that the Court of Cassation should "set aside the judgment under appeal ... whether on the sixth ground adduced by the appellant or on the ground, to be taken into consideration by the Court of its own motion, of violation either of Article 6 § 1 (art. 6-1) of the Convention ... or of the general principle of law whereby cases must be impartially examined by the court".

The avocat général stressed that the covering note of 4 February 1977 emanated from the investigating judge, the person who quite naturally was best informed not only as to the background to the case but also as to the identity of the judicial officer or officers in the public prosecutor’s department who were dealing with the prosecution. And Mr. Preuveneers had added to the covering note, in manuscript, the words "for the attention of Mr. P. Van de Walle", thereby indicating the specific addressee for whom the note was personally intended:

"If the investigating judge marked this covering note as being for Mr. P. Van de Walle’s attention, it is logical to suppose that he knew that that judicial officer had personally played some part or other in the conduct of the prosecution.

What other reasonable explanation can be given for such a course of action ... which surely would not have been taken unless the two officers had been in contact regarding the investigation of the case?

It is of little moment that other judicial officers in the public prosecutor’s department intervened in the case, for example to follow up the investigating judge’s covering note, or that Mr. Van de Walle intervened only by chance or occasionally, or that such intervention has not been shown to have implicated the appellant or a co-accused by name or ... to have involved a formal step in the process of investigation.

Finally, there would be no reasonable explanation for the handwritten words ... if Mr. Van de Walle’s intervention in the case had until then been limited to steps that were purely routine or ... were manifestly without effect on the conduct of the prosecution."

Even if the Court of Cassation were not to allow the appeal on the sixth ground, which was based on Article 127 of the Judicial Code, the circumstances described above were, in the opinion of the avocat général, Mr. Velu, sufficient to give rise to legitimate doubts as to whether the President of the Assize Court had offered the guarantees of impartiality required both by Article 6 § 1 (art. 6-1) of the Convention and by the general principle whereby cases must be impartially examined by the court.

C. Judgment of the Court of Cassation

As regards the sixth ground of appeal, the Court of Cassation observed firstly that the mere despatch of the covering note of 4 February 1977 did not necessarily show that Mr. Van de Walle had "acted in the case as public prosecutor", within the meaning of Article 127 of the Judicial Code.

The Court of Cassation also took into consideration of its own motion Article 6 § 1 (art. 6-1) of the Convention and the general principle of law establishing the right to the impartiality of the court. It was true that both of these norms obliged a judge to refrain from taking part in the decision if there were a legitimate reason to doubt whether he offered the guarantees of impartiality to which every accused person was entitled. However, the Court held that the documents which it could take into account did not reveal that after the public prosecutor’s department had received the covering note mentioned in the ground of appeal, Mr. Van de Walle, who was then a senior deputy to the Brussels procureur du Roi, had taken any decision or intervened in any manner whatsoever in the conduct of the prosecution relating to the facts in question. Admittedly, for a judge’s impartiality to be regarded as compromised on account of his previous intervention in the capacity of judicial officer in the public prosecutor’s department, it was not essential that such intervention should have consisted of adopting a personal standpoint in the matter or taking a specific step in the process of prosecution or investigation. Nevertheless, it could not be assumed that a judicial officer in the public prosecutor’s department had intervened in a case in or on the occasion of the exercise of his functions as such an officer merely because there was a covering note which had been addressed to him personally by the investigating judge but which had not been shown by any evidence to have been received by the officer or to have caused him to take even an indirect interest in the case. In this connection, the Court of Cassation noted finally that it was not the senior deputy Van de Walle who had replied to the covering note.

II. THE RELEVANT LEGISLATION AND PRACTICE

A. The public prosecutor’s department (ministère public)

All the judicial officers in the public prosecutor’s department form a hierarchical body which is generally recognised as being characterised by unity, indivisibility and independence.

In addition to the departments of the procureur général at the Court of Cassation and of the procureurs généraux at the Courts of Appeal, there is a procureur du Roi for each district; subject to the supervision and directions of the procureur général attached to the Court of Appeal, a procureur du Roi acts as public prosecutor before the District Courts, the Courts of First Instance, the Commercial Courts and the District Police Courts (Article 150 of the Judicial Code). He is aided by one or more deputies who are subject to his personal supervision and directions, including one or more senior deputies appointed by Royal Decree who assist him in the management of the public prosecutor’s department (Article 151 of the Judicial Code).

One of the above-mentioned sections - section B - deals with indictable and non-indictable offences (crimes et délits) against the person. Mr. P. Van de Walle was the head of this section during the period in question, until his appointment to the Brussels Court of Appeal (see paragraph 12 above). According to the Government, the procureur du Roi regarded himself at that time as personally responsible for cases - like Mr. Piersack’s - involving an indictable offence, the number whereof was actually fairly small; he worked on those cases directly with the deputy in charge of the file - on this occasion, Mrs. del Carril and then Mr. De Nauw -, rather than through the intermediary of the senior deputy whose principal role was to countersign documents, if not to act as a "letter-box". The applicant contested this version of the facts, maintaining that the Government were giving an exaggerated view of the "autonomy" enjoyed by the deputies vis-à-vis the senior deputies.

B. Assize courts

Each assize court is composed of a President and two other judges (assesseurs); for criminal matters, it sits with a jury of twelve members (Articles 119 to 124 of the Judicial Code).

The President’s duties include directing the jurors in the exercise of their functions, summing-up the case on which they have to deliberate, presiding over the whole of the procedure and determining the order in which those wishing to do so shall address the court; he also keeps order in court (Article 267 of the Code of Criminal Procedure). He is entitled by law to take, at his discretion and on his own initiative, any steps which he may consider expedient for the purpose of establishing the truth, and he is bound in honour and conscience to make every effort to that end, for example by ordering of his own motion the attendance of witnesses or the production of documents (Articles 268 and 269).

To be valid, the jury’s verdict must be adopted by a majority for or against the accused; if the voting is equal, he is acquitted (Article 347). However, if he is found guilty on the principal count by no more than the simple majority of seven votes to five - as was the case for Mr. Piersack (see paragraph 14 above) -, the President and the two other judges deliberate together on the same question; if a majority of them does not agree with the majority of the jury, the accused is acquitted (Article 351). If there is a finding of guilt, the judges retire with the jurors to the jury-room and they deliberate as a single body, under the chairmanship of the President of the Court, on the sentence to be imposed in accordance with the criminal law; the decision is taken by an absolute majority (Article 364).

C. Incompatibilities

PROCEEDINGS BEFORE THE COMMISSION

The report contains one separate, concurring opinion.

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

AS TO THE LAW

I.  THE ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)

"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal established by law. ..."

1. "Independent tribunal"

2. "Impartial tribunal"

According to the Government, at the relevant time it was the procureur du Roi himself, and not the senior deputy, Mr. Van de Walle, who handled cases involving an indictable offence; they maintained that each of the deputies - on this occasion, Mrs. del Carril and then Mr. De Nauw - reported to the procureur on such cases directly and not through Mr. Van de Walle, the latter’s role being principally an administrative one that was unconnected with the conduct of the prosecution and consisted, inter alia, of initialling numerous documents, such as the covering notes of 13 January and 20 June 1977 (see paragraphs 9, 11 and 19 above). As regards the covering note of 4 February 1977 (see paragraph 10 above), the investigating judge, Mr. Preuveneers, was said to have written thereon the words "for the attention of Mr. P. Van de Walle" solely because he knew that Mrs. del Carril was frequently on sick-leave. In addition, so the Government stated, there was no evidence to show that Mr. Van de Walle had received that note and, in any event, it was not he but Mrs. del Carril who had replied to Mr. Preuveneers.

(a) As regards the first approach, the Court notes that the applicant is pleased to pay tribute to Mr. Van de Walle’s personal impartiality; it does not itself have any cause for doubt on this score and indeed personal impartiality is to be presumed until there is proof to the contrary (see the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25, § 58).

However, it is not possible to confine oneself to a purely subjective test. In this area, even appearances may be of a certain importance (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17, § 31). As the Belgian Court of Cassation observed in its judgment of 21 February 1979 (see paragraph 17 above), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts must inspire in the public in a democratic society.

(b) It would be going too far to the opposite extreme to maintain that former judicial officers in the public prosecutor’s department were unable to sit on the bench in every case that had been examined initially by that department, even though they had never had to deal with the case themselves. So radical a solution, based on an inflexible and formalistic conception of the unity and indivisibility of the public prosecutor’s department, would erect a virtually impenetrable barrier between that department and the bench. It would lead to an upheaval in the judicial system of several Contracting States where transfers from one of those offices to the other are a frequent occurrence. Above all, the mere fact that a judge was once a member of the public prosecutor’s department is not a reason for fearing that he lacks impartiality; the Court concurs with the Government on this point.

(c) The Belgian Court of Cassation, which took Article 6 § 1 (art. 6-1) into consideration of its own motion, adopted in this case a criterion based on the functions exercised, namely whether the judge had previously intervened "in the case in or on the occasion of the exercise of ... functions as a judicial officer in the public prosecutor’s department". It dismissed Mr. Piersack’s appeal on points of law because the documents before it did not, in its view, show that there had been any such intervention on the part of Mr. Van de Walle in the capacity of senior deputy to the Brussels procureur du Roi, even in some form other than the adoption of a personal standpoint or the taking of a specific step in the process of prosecution or investigation (see paragraph 17 above).

(d) Even when clarified in the manner just mentioned, a criterion of this kind does not fully meet the requirements of Article 6 § 1 (art. 6-1). In order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation. If an individual, after holding in the public prosecutor’s department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality.

Yet previously and until November 1977, Mr. Van de Walle had been the head of section B of the Brussels public prosecutor’s department, which was responsible for the prosecution instituted against Mr. Piersack. As the hierarchical superior of the deputies in charge of the file, Mrs. del Carril and then Mr. De Nauw, he had been entitled to revise any written submissions by them to the courts, to discuss with them the approach to be adopted in the case and to give them advice on points of law (see paragraph 19 above). Besides, the information obtained by the Commission and the Court (see paragraphs 9-11 above) tends to confirm that Mr. Van de Walle did in fact play a certain part in the proceedings.

Whether or not Mr. Piersack was, as the Government believe, unaware of all these facts at the relevant time is of little moment. Neither is it necessary to endeavour to gauge the precise extent of the role played by Mr. Van de Walle, by undertaking further enquiries in order to ascertain, for example, whether or not he received the covering note of 4 February 1977 himself and whether or not he discussed this particular case with Mrs. del Carril and Mr. De Nauw. It is sufficient to find that the impartiality of the "tribunal" which had to determine the merits (in the French text: "bien-fondé") of the charge was capable of appearing open to doubt.

3. "Tribunal established by law"

In order to resolve this issue, it would have to be determined whether the phrase "established by law" covers not only the legal basis for the very existence of the "tribunal" - as to which there can be no dispute on this occasion (Article 98 of the Belgian Constitution) - but also the composition of the bench in each case; if so, whether the European Court can review the manner in which national courts - such as the Belgian Court of Cassation in its judgment of 21 February 1979 (see paragraph 17 above) - interpret and apply on this point their domestic law; and, finally, whether that law should not itself be in conformity with the Convention and notably the requirement of impartiality that appears in Article 6 § 1 (art. 6-1) (cf., in the context of Article 5 (art. 5), the Winterwerp judgment of 24 October 1979, Series A no. 33, pp. 19-20, §§ 45-46, and the X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, pp. 18-19, § 41).

In the particular circumstances, it does not prove to be necessary to examine this issue, for in the present case the complaint, although made in a different legal context, coincides in substance with the complaint which has been held in the preceding paragraph to be well-founded; besides, the applicant did not revert to the former complaint either in his written observations of April 1980 on admissibility or during the hearings of 10 December 1980 before the Commission and of 25 March 1982 before the Court.

II. THE APPLICATION OF ARTICLE 50 (art. 50)

Counsel for the Government replied that, were the Court to find a violation, publication of the judgment would itself constitute adequate just satisfaction. She added that she was unaware of the authorities’ present view on early release of the applicant.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6 § 1 (art. 6-1) of the Convention;

2. Holds that the question of the application of Article 50 (art. 50) is not ready for decision;

accordingly,

(a) reserves the whole of the said question;

(b) invites the Commission to submit to the Court, within two months from the delivery of the present judgment, the Commission’s written observations on the said question and, in particular, to notify the Court of any friendly settlement at which the Government and the applicant may have arrived;

(c) reserves the further procedure and delegates to the President of the Chamber power to fix the same if need be.

Done in English and in French, the French text being authentic, at the Human Rights Building, Strasbourg, this first day of October, one thousand nine hundred and eighty-two.

Gérard WIARDA

President

Marc-André EISSEN

Registrar