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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DE CUBBER v. BELGIUM - 9186/80 [1984] ECHR 14 (26 October 1984)
URL: http://www.bailii.org/eu/cases/ECHR/1984/14.html
Cite as: (1985) 7 EHRR 236, [1984] ECHR 14
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In the De Cubber case (*),
_______________
(*) The case is numbered 8/1983/64/99. The second figure indicates
the year in which the case was referred to the Court and the
first figure its place on the list of cases referred in that year;
the last two figures indicate, respectively, the case's order on the
list of cases and of originating applications (to the Commission)
referred to the Court since its creation.
_______________
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court (**), as a Chamber composed of the
following judges:
_______________
(**) The revised Rules of Court, which entered into force on
1 January 1983, are applicable to the present case.
_______________
Mr. G. Wiarda, President,
Mr. W. Ganshof van der Meersch,
Mrs. D. Bindschedler-Robert,
Mr. F. Gölcüklü,
Mr. F. Matscher,
Sir Vincent Evans,
Mr. R. Bernhardt,
and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold,
Deputy Registrar
Having deliberated in private on 25 May and 2 October 1984,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The present case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 12 October 1983,
within the period of three months laid down by Articles 32 para. 1 and
47 (art. 32-1, art. 47) of the Convention. The case originated in an
application (no. 9186/80) against the Kingdom of Belgium lodged with
the Commission on 10 October 1980 under Article 25 (art. 25) by a
Belgian citizen, Mr. Albert De Cubber.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Belgium recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
purpose of the request was to obtain a decision as to whether or not
the facts of the case disclosed a breach by the respondent State of
its obligations under Article 6 para. 1 (art. 6-1).
2. In response to the inquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings pending before the Court and
designated the lawyer who would represent him (Rule 30).
3. The Chamber of seven judges to be constituted included, as ex
officio members, Mr. W. Ganshof van der Meersch, the elected judge of
Belgian nationality (Article 43 of the Convention) (art. 43), and
Mr. G. Wiarda, the President of the Court (Rule 21 para. 3 (b) of the
Rules of Court). On 27 October 1983, the President drew by lot, in the
presence of the Registrar, the names of the five other members, namely
Mr. M. Zekia, Mrs. D. Bindschedler-Robert, Mr. G. Lagergren,
Mr. F. Gölcüklü and Mr. F. Matscher (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43). Subsequently,
Sir Vincent Evans and Mr. R. Bernhardt, substitute judges, replaced
Mr. Zekia and Mr. Lagergren, who were prevented from taking part in
the consideration of the case (Rules 22 para. 1 and 24 para. 1).
4. Having assumed the office of President of the Chamber
(Rule 21 para. 5) and having on each occasion consulted, through the
Registrar, the Agent of the Belgian Government ("the Government"), the
Commission's Delegate and Mr. De Cubber's lawyer, Mr. Wiarda
- decided, on 17 November 1983, that there was no call at that stage
for memorials to be filed (Rule 37 para. 1);
- directed, on 9 February 1984, that the oral proceedings should open
on 23 May (Rule 38).
On 16 April, the Registrar received, from the applicant's lawyer, her
client's claims under Article 50 (art. 50) of the Convention.
5. The hearings were held in public at the Human Rights Building,
Strasbourg, on the appointed day. Immediately before they opened, the
Court had held a preparatory meeting.
There appeared before the Court:
- for the Government
Mr. J. Niset, Legal Adviser at the
Ministry of Justice, Agent,
Mr. André De Bluts, avocat, Counsel;
- for the Commission
Mr. M. Melchior, Delegate;
- for the applicant
Mrs. F. De Croo-Desguin, avocat, Counsel.
The Court heard addresses by Mr. De Bluts for the Government, by
Mr. Melchior for the Commission and by Mrs. De Croo-Desguin for the
applicant, as well as their replies to questions put by it and by
several of its members.
6. On 4 April and on 7, 14, 18 and 23 May, the Commission, the
Government and the applicant, as the case may be, filed various
documents, either on their own initiative or in response to a request
made by the Registrar in accordance with the President's instructions.
AS TO THE FACTS
I. The particular circumstances of the case
7. The applicant is a Belgian citizen born in 1926. He lives in
Brussels and is a sales manager.
8. On 4 April 1977, he was arrested by the police at his home and
taken to Oudenaarde where he was questioned in connection with a car
theft.
Warrants of arrest for forgery and uttering forged documents were
issued against the applicant on the following day, on 6 May and
on 23 September 1977. The first warrant - notice no. 10.971/76 -
was issued by Mr. Pilate, an investigating judge at the Oudenaarde
criminal court (tribunal correctionnel), and the second and third
- notices nos. 3136/77 and 6622/77 - by Mr. Van Kerkhoven, the other
investigating judge at the same court.
9. Prior to that, in the capacity of judge (juge assesseur) of
the same court sitting either on appeal (judgment of 3 May 1968) or at
first instance (judgments of 17 January, 7 March and
28 November 1969), Mr. Pilate had already dealt with criminal
proceedings brought against Mr. De Cubber in connection with a number
of offences; those proceedings had led variously to an unconditional
or conditional discharge (relaxe) (17 January and 7 March 1969,
respectively) or to conviction.
More recently, Mr. Pilate had had to examine, in his capacity of
investigating judge, a criminal complaint filed by Mr. De Cubber
(16 November 1973) and, in his capacity of judge dealing with the
attachment of property (juge des saisies), certain civil cases
concerning him (1974-1976). In regard to each of these cases, the
applicant had applied to the Court of Cassation to have the case
removed, on the ground of bias (suspicion légitime; Article 648 of the
Judicial Code), from Mr. Pilate or from the Oudenaarde court as a
whole; each of these requests had been held inadmissible or unfounded.
10. At the outset Mr. Van Kerkhoven dealt with cases nos.
3136/77 and 6622/77 but he was on several occasions prevented by
illness from attending his chambers. He was replaced, initially on
an occasional and temporary basis and, as from October 1977, on a
permanent basis, by Mr. Pilate, who retained responsibility for case
no. 10.971/76.
11. In case no. 6622/77, a single-judge chamber of the Oudenaarde
court (Mr. De Wynter) sentenced Mr. De Cubber on 11 May 1978 to one
year's imprisonment and a fine of 4,000 BF. He did not appeal against
this decision.
12. After preliminary investigations lasting more than two years,
a chamber of the court (the chambre du conseil) ordered the joinder of
cases nos. 10.971/76 and 3136/77 and on 11 May 1979 committed
Mr. De Cubber for trial. These cases related to several hundred
alleged offences committed by fifteen accused, headed by the
applicant; there were no less than nineteen persons intervening to
claim damages (parties civiles).
For the purpose of the trial, the court, which over the years had nine
or ten titular judges, sat as a chamber composed of a president and
two judges, including Mr. Pilate. Mr. De Cubber stated that he
protested orally against the latter's presence, but he did not have
recourse to any of the legal remedies open to him for this purpose,
such as a formal challenge (procédure de récusation; Article 828 of
the Judicial Code).
After a hearing which lasted two half-days on 8 and 22 June 1979, the
court gave judgment on 29 June 1979. Mr. De Cubber was acquitted on
two counts and convicted on the remainder, note being taken of the
fact that he was a recidivist. He was accordingly sentenced, in
respect of one matter, to five years' imprisonment and a fine of
60,000 BF and, in respect of another, to one year's imprisonment
and a fine of 8,000 BF; his immediate arrest was ordered.
13. Both the applicant and the public prosecutor's department
appealed. On 4 February 1980, the Ghent Court of Appeal reduced the
first sentence to three years' imprisonment and a fine of 20,000 BF
and upheld the second. In addition, it unanimously imposed a third
sentence, namely one month's imprisonment and a fiscal fine (amende
fiscale), for offences which the Oudenaarde court had - wrongly, in
the Court of Appeal's view - treated as being linked with others by
reason of a single criminal intent.
14. Mr. De Cubber appealed to the Court of Cassation, raising
some ten different points of law. One of his grounds, based on
Article 292 of the Judicial Code (see paragraph 19 below) and
Article 6 para. 1 (art. 6-1) of the Convention, was that Mr. Pilate
had been both judge and party in the case since after conducting the
preliminary investigation he had acted as one of the trial judges.
The Court of Cassation gave judgment on 15 April 1980 (Pasicrisie
1980, I, pp. 1006-1011). It held that this combination of functions
violated neither Article 292 of the Judicial Code nor any other legal
provision - such as Article 6 para. 1 (art. 6-1) of the Convention -
nor the rights of the defence. On the other hand, the Court of
Cassation upheld a plea concerning the confiscation of certain items
of evidence and, to this extent, referred the case back to the Antwerp
Court of Appeal; the latter court has in the meantime (on
4 November 1981) directed that the items in question be returned.
The Court of Cassation also quashed, of its own motion and without
referring the case back, the decision under appeal in so far as the
appellant had been sentenced to a fiscal fine. The remainder of the
appeal was dismissed.
II. The relevant legislation
A. Status and powers of investigating judges
15. Investigating judges, who are appointed by the Crown "from
among the judges of the court of first instance" (Article 79 of the
Judicial Code), conduct the preparatory judicial investigation
(Articles 61 et seq. of the Code of Criminal Procedure). The object
of this procedure is to assemble the evidence and to establish any
proof against the accused as well as any circumstances that may tell
in his favour, so as to provide the chambre du conseil or the chambre
des mises en accusation, as the case may be, with the material which
it needs to decide whether the accused should be committed for trial.
The procedure is secret; it is not conducted in the presence of both
parties (non contradictoire) nor is there any legal representation.
The investigating judge also has the status of officer of the criminal
investigation police (police judiciaire). In this capacity, he is
empowered to inquire into serious and lesser offences (crimes et
délits), to assemble evidence and to receive complaints from any
person claiming to have been prejudiced by such offences (Articles 8,
9 in fine and 63 of the Code of Criminal Procedure). When so acting,
he is placed under the "supervision of the procureur général (State
prosecutor)" (Article 279 of the Code of Criminal Procedure and
Article 148 of the Judicial Code), although this does not include a
power to give directions. "In all cases where the suspected offender
is deemed to have been caught in the act", the investigating judge may
take "directly" and in person "any action which the procureur du Roi
(public prosecutor) is empowered to take" (Article 59 of the Code of
Criminal Procedure).
16. Save in the latter category of case, the investigating judge
can take action only after the matter has been referred to him either
by means of a formal request from the procureur du Roi for the opening
of an inquiry (Articles 47, 54, 60, 61, 64 and 138 of the Code of
Criminal Procedure) or by means of a criminal complaint coupled with a
claim for damages (constitution de partie civile; Articles 63 and
70).
If a court includes several investigating judges, it is for the
presiding judge to allocate cases amongst them. In principle, cases
are assigned to them in turn, from week to week; however, this is not
an inflexible rule and the presiding judge may depart therefrom, for
example if the matter is urgent or if a new case has some connection
with one that has already been allocated.
17. In order to facilitate the ascertainment of the truth, the
investigating judge is invested with wide powers; according to the
case-law of the Court of Cassation, he may "take any steps which are
not forbidden by law or incompatible with the standing of his office"
(judgment of 2 May 1960, Pasicrisie 1960, I, p. 1020). He can, inter
alia, summon the accused to appear or issue a warrant for his
detention, production before a court or arrest (Articles 91 et seq. of
the Code of Criminal Procedure); question the accused, hear witnesses
(Articles 71 to 86 and 92 of the same Code), confront witnesses with
each other (Article 942 of the Judicial Code), visit the scene of the
crime (Article 62 of the Code of Criminal Procedure), visit and search
premises (Articles 87 and 88 of the same Code), take possession of
evidence (Article 89), and so on. The investigating judge has to
report to the chambre du conseil on the cases with which he is dealing
(Article 127); he takes, by means of an order, decisions on the
expediency of measures requested by the public prosecutor's
department, such orders being subject to an appeal to the chambre des
mises en accusation of the Court of Appeal.
18. When the investigation is completed, the investigating
judge transmits the case-file to the procureur du Roi, who will return
it to him with his submissions (Article 61, first paragraph).
It is then for the chambre du conseil, which is composed of a single
judge belonging to the court of first instance (Acts of
25 October 1919, 26 July 1927 and 18 August 1928), to decide - unless
it considers it should order further inquiries - whether to discharge
the accused (non-lieu; Article 128 of the Code of Criminal Procedure),
to commit him for trial before a district court (tribunal de police;
Article 129) or a criminal court (tribunal correctionnel; Article 130)
or to send the papers to the procureur général attached to the Court
of Appeal (Article 133), depending upon the circumstances.
Unlike his French counterpart, the Belgian investigating judge is thus
never empowered to refer a case to the trial court himself. Before
taking its decision, the chambre du conseil - which sits in camera -
will hear the investigating judge's report. This report will take
the form of an oral account of the state of the investigations; the
investigating judge will express no opinion therein as to the
accused's guilt, it being for the public prosecutor's department to
deliver concluding submissions calling for one decision or another.
B. Investigating judges and incompatibilities
19. Article 292 of the 1967 Judicial Code prohibits "the
concurrent exercise of different judicial functions ... except where
otherwise provided by law"; it lays down that "any decision given by a
judge who has previously dealt with the case in the exercise of some
other judicial function" shall be null and void.
This rule applies to investigating judges, amongst others.
Article 127 specifies that "proceedings before an assize court shall
be null and void if the presiding judge or another judge sitting is a
judicial officer who has acted in the case as investigating judge
...".
Neither can an investigating judge sit as an appeal-court judge, for
otherwise he would have "to review on appeal, and thus as
last-instance trial judge, the legality of investigation measures ...
which [he] had taken or ordered at first instance" (Court of
Cassation, 18 March 1981, Pasicrisie 1981, I, p. 770, and Revue de
droit pénal et de criminologie, 1981, pp. 703-719).
20. On the other hand, under the third paragraph of Article 79 of
the Judicial Code, as amended by an Act of 30 June 1976,
"investigating judges may continue to sit, in accordance with their
seniority, to try cases brought before a court of first instance".
According to the drafting history and decided case-law on this
provision, it is immaterial that the cases are ones previously
investigated by the judges in question: they would in that event be
exercising, not "some other judicial function" within the meaning of
Article 292, but rather the same function of judge on the court of
first instance; it would be only their assignment that had changed
(Parliamentary Documents, House of Representatives, no. 59/49
of 1 June 1967; Court of Cassation, 8 February 1977, Pasicrisie 1977,
I, p. 622-623; Court of Cassation judgment of 15 April 1980 in the
present case, see paragraph 14 above).
In the case of Blaise, the Court of Cassation confirmed this line of
authority in its judgment of 4 April 1984, which followed the
submissions presented by the public prosecutor's department. After
dismissing various arguments grounded on general principles of law,
the Court of Cassation rejected the argument put forward by the
appellant on the basis of Article 6 para. 1 (art. 6-1) of the
Convention:
"However, as regards the application of Article 6 para. 1 (art. 6-1)
..., when a case requires a determination of civil rights and
obligations or of a criminal charge, the authority hearing the case at
first instance and the procedure followed by that authority do not
necessarily have to satisfy the conditions laid down by the
above-mentioned provision, provided that the party concerned or the
accused is able to lodge an appeal against the decision affecting him
taken by that authority with a court which does offer all the
guarantees stipulated by Article 6 para. 1 (art. 6-1) and has
competence to review all questions of fact and of law. In the present
case, the appellant does not maintain that the court of appeal which
convicted him did not offer those guarantees ...
In any event, the principles and the rule relied on in the ground of
appeal do not have the scope therein suggested;
From the sole fact that a trial judge inquired into the case as an
investigating judge it cannot be inferred that the accused's right to
an impartial court has been violated. It cannot legitimately be
feared that the said judge does not offer the guarantees of
impartiality to which every accused is entitled.
The investigating judge is not a party adverse to the accused, but a
judge of the court of first instance with the responsibility of
assembling in an impartial manner evidence in favour of as well as
against the accused.
... ."
PROCEEDINGS BEFORE THE COMMISSION
21. In his application of 10 October 1980 to the Commission
(no. 9186/80), Mr. De Cubber raised again several of the pleas which
he had unsuccessfully made to the Belgian Court of Cassation. He
alleged, inter alia, that the Oudenaarde criminal court had not
constituted an impartial tribunal, within the meaning of Article 6
para. 1 (art. 6-1) of the Convention, since one of the judges,
Mr. Pilate, had previously acted as investigating judge in the same
case.
22. On 9 March 1982, the Commission declared the application
admissible as regards this complaint and inadmissible as regards the
remainder. In its report of 5 July 1983 (Article 31) (art. 31), the
Commission expressed the unanimous opinion that there had been a
violation of Article 6 para. 1 (art. 6-1) on the point in question.
The full text of the Commission's opinion is reproduced as an annex
to the present judgment.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
23. Under Article 6 para. 1 (art. 6-1),
"In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing ... by an ... impartial
tribunal ... ."
One of the three judges of the Oudenaarde criminal court who, on
29 June 1979, had given judgment on the charges against the applicant
had previously acted as investigating judge in the two cases in
question: in one case he had done so from the outset and in the other
he had replaced a colleague, at first on a temporary and then on a
permanent basis (see paragraphs 8, 10 and 12 above). On the strength
of this, Mr. De Cubber contended that he had not received a hearing by
an "impartial tribunal"; his argument was, in substance, upheld by the
Commission.
The Government disagreed. They submitted:
- as their principal plea, that Mr. Pilate's inclusion amongst the
members of the trial court had not adversely affected the impartiality
of that court and had therefore not violated Article 6 para. 1
(art. 6-1);
- in the alternative, that only the Ghent Court of Appeal, whose
impartiality had not been disputed, had to satisfy the requirements of
that Article (art. 6-1);
- in the further alternative, that a finding of violation would entail
serious consequences for courts, such as the Oudenaarde criminal
court, with "limited staff".
A. The Government's principal plea
24. In its Piersack judgment of 1 October 1982, the Court
specified that impartiality can "be tested in various ways": a
distinction should be drawn "between a subjective approach, that is
endeavouring to ascertain the personal conviction of a given judge in
a given case, and an objective approach, that is determining whether
he offered guarantees sufficient to exclude any legitimate doubt in
this respect" (Series A no. 53, p. 14, para. 30).
25. As to the subjective approach, the applicant alleged before
the Commission that Mr. Pilate had for years shown himself somewhat
relentless in regard to his (the applicant's) affairs (see
paragraphs 45-47 of the Commission's report), but his lawyer did not
maintain this line of argument before the Court; the Commission, for
its part, rejected the Government's criticism that it had made a
subjective analysis (see paragraphs 63, 68-69 and 72-73 of the report;
verbatim record of the hearings held on 23 May 1984).
However this may be, the personal impartiality of a judge is to be
presumed until there is proof to the contrary (see the same judgment,
loc. cit.), and in the present case no such proof is to be found in
the evidence adduced before the Court. In particular, there is
nothing to indicate that in previous cases Mr. Pilate had displayed
any hostility or ill-will towards Mr. De Cubber (see paragraph 9
above) or that he had "finally arranged", for reasons extraneous to
the normal rules governing the allocation of cases, to have assigned
to him each of the three preliminary investigations opened in respect
of the applicant in 1977 (see paragraphs 8, 10 and 16 above;
paragraph 46 of the Commission's report).
26. However, it is not possible for the Court to confine itself to
a purely subjective test; account must also be taken of
considerations relating to the functions exercised and to internal
organisation (the objective approach). In this regard, even
appearances may be important; in the words of the English maxim quoted
in, for example, the Delcourt judgment of 17 January 1970 (Series A
no. 11, p. 17, para. 31), "justice must not only be done: it must also
be seen to be done". As the Belgian Court of Cassation has observed
(21 February 1979, Pasicrisie 1979, I, p. 750), 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 in
a democratic society must inspire in the public and above all, as far
as criminal proceedings are concerned, in the accused (see the
above-mentioned judgment of 1 October 1982, pp. 14-15, para. 30).
27. Application of these principles led the European Court, in its
Piersack judgment, to find a violation of Article 6 para. 1
(art. 6-1): it considered that where an assize court had been
presided over by a judge who had previously acted as head of the very
section of the Brussels public prosecutor's department which had been
responsible for dealing with the accused's case, the impartiality of
the court "was capable of appearing open to doubt" (ibid., pp. 15-16,
para. 31). Despite some similarities between the two cases, the Court
is faced in the present proceedings with a different legal situation,
namely the successive exercise of the functions of investigating judge
and trial judge by one and the same person in one and the same case.
28. The Government put forward a series of arguments to show that
this combination of functions, which was unquestionably compatible
with the Judicial Code as construed in the light of its drafting
history (see paragraph 20, first sub-paragraph, above), was also
reconcilable with the Convention. They pointed out that in Belgium an
investigating judge is fully independent in the performance of his
duties; that unlike the judicial officers in the public prosecutor's
department, whose submissions are not binding on him, he does not have
the status of a party to criminal proceedings and is not "an
instrument of the prosecution"; that "the object of his activity" is
not, despite Mr. De Cubber's allegations, "to establish the guilt of
the person he believes to be guilty" (see paragraph 44 of the
Commission's report), but to "assemble in an impartial manner evidence
in favour of as well as against the accused", whilst maintaining "a
just balance between prosecution and defence", since he "never ceases
to be a judge"; that he does not take the decision whether to commit
the accused for trial - he merely presents to the chambre du conseil,
of which he is not a member, objective reports describing the progress
and state of the preliminary investigations, without expressing any
opinion of his own, even assuming he has formed one (see
paragraphs 52-54 of the Commission's report and the verbatim record of
the hearings held on 23 May 1984).
29. This reasoning no doubt reflects several aspects of the
reality of the situation (see paragraphs 15, first sub-paragraph,
17 in fine and 18 above) and the Court recognises its cogency.
Nonetheless, it is not in itself decisive and there are various other
factors telling in favour of the opposite conclusion.
To begin with, a close examination of the statutory texts shows the
distinction between judicial officers in the public prosecutor's
department and investigating judges to be less clear-cut than
initially appears. An investigating judge, like "procureurs du Roi
and their deputies", has the status of officer of the criminal
investigation police and, as such, is "placed under the supervision of
the procureur général"; furthermore, "an investigating judge" may, in
cases "where the suspected offender is deemed to have been caught in
the act", "take directly" and in person "any action which the
procureur du Roi is empowered to take" (see paragraph 15, second
sub-paragraph, above).
In addition to this, as an investigating judge he has very
wide-ranging powers: he can "take any steps which are not forbidden by
law or incompatible with the standing of his office" (see paragraph 17
above). Save as regards the warrant of arrest issued against the
applicant on 5 April 1977, the Court has only limited information as
to the measures taken by Mr. Pilate in the circumstances, but, to
judge by the complexity of the case and the duration of the
preparatory investigation, they must have been quite extensive (see
paragraphs 8 and 12 above).
That is not all. Under Belgian law the preparatory investigation,
which is inquisitorial in nature, is secret and is not conducted in
the presence of both parties; in this respect it differs from the
procedure of investigation followed at the hearing before the trial
court, which, in the instant case, took place on 8 and 22 June 1979
before the Oudenaarde court (see paragraphs 12 and 15 above). One
can accordingly understand that an accused might feel some unease
should he see on the bench of the court called upon to determine the
charge against him the judge who had ordered him to be placed in
detention on remand and who had interrogated him on numerous occasions
during the preparatory investigation, albeit with questions dictated
by a concern to ascertain the truth.
Furthermore, through the various means of inquiry which he will have
utilised at the investigation stage, the judge in question, unlike his
colleagues, will already have acquired well before the hearing a
particularly detailed knowledge of the - sometimes voluminous - file
or files which he has assembled. Consequently, it is quite
conceivable that he might, in the eyes of the accused, appear,
firstly, to be in a position enabling him to play a crucial role in
the trial court and, secondly, even to have a pre-formed opinion which
is liable to weigh heavily in the balance at the moment of the
decision. In addition, the criminal court (tribunal correctionnel)
may, like the court of appeal (see paragraph 19 in fine above), have
to review the lawfulness of measures taken or ordered by the
investigating judge. The accused may view with some alarm the
prospect of the investigating judge being actively involved in this
process of review.
Finally, the Court notes that a judicial officer who has "acted in the
case as investigating judge" may not, under the terms of Article 127
of the Judicial Code, preside over or participate as judge in
proceedings before an assize court; nor, as the Court of Cassation
has held, may he sit as an appeal-court judge (see paragraph 19
above). Belgian law-makers and case-law have thereby manifested their
concern to make assize courts and appeal courts free of any legitimate
suspicion of partiality. However, similar considerations apply to
courts of first instance.
30. In conclusion, the impartiality of the Oudenaarde court was
capable of appearing to the applicant to be open to doubt. Although
the Court itself has no reason to doubt the impartiality of the member
of the judiciary who had conducted the preliminary investigation (see
paragraph 25 above), it recognises, having regard to the various
factors discussed above, that his presence on the bench provided
grounds for some legitimate misgivings on the applicant's part.
Without underestimating the force of the Government's arguments and
without adopting a subjective approach (see paragraphs 25
and 28 above), the Court recalls that a restrictive interpretation of
Article 6 para. 1 (art. 6-1) - notably in regard to observance of the
fundamental principle of the impartiality of the courts - would not be
consonant with the object and purpose of the provision, bearing in
mind the prominent place which the right to a fair trial holds in a
democratic society within the meaning of the Convention (see the
above-mentioned Delcourt judgment, Series A no. 11, pp. 14-15,
para. 25 in fine).
B. The Government's first alternative plea
31. In the alternative, the Government submitted, at the hearings
on 23 May 1984, that the Court should not disregard its previous
case-law; they relied essentially on the Le Compte, Van Leuven
and De Meyere judgment of 23 June 1981 and on the Albert and Le Compte
judgment of 10 February 1983.
In both of these judgments, the Court held that proceedings instituted
against the applicants before the disciplinary organs of the Ordre des
médecins (Medical Association) gave rise to a "contestation" (dispute)
over "civil rights and obligations" (Series A no. 43, pp. 20-22,
paras. 44-49, and Series A no. 58, pp. 14-16, paras. 27-28). Since
Article 6 para. 1 (art. 6-1) was therefore applicable, it had to be
determined whether the individuals concerned had received a hearing by
a "tribunal" satisfying the conditions which that Article lays down.
Their cases had been dealt with by three bodies, namely a Provincial
Council, an Appeals Council and the Court of Cassation. The European
Court did not consider it "indispensable to pursue this point" as
regards the Provincial Council, for the reason which, in its judgment
of 23 June 1981, was expressed in the following terms:
"Whilst Article 6 para. 1 (art. 6-1) embodies the 'right to a court'
..., it nevertheless does not oblige the Contracting States to submit
'contestations' (disputes) over 'civil rights and obligations' to a
procedure conducted at each of its stages before 'tribunals' meeting
the Article's various requirements. Demands of flexibility and
efficiency, which are fully compatible with the protection of human
rights, may justify the prior intervention of administrative or
professional bodies and, a fortiori, of judicial bodies which do not
satisfy the said requirements in every respect; the legal tradition
of many member States of the Council of Europe may be invoked in
support of such a system." (Series A no. 43, pp. 22-23, paras. 50-51)
The judgment of 10 February 1983 developed this reasoning further:
"In many member States of the Council of Europe, the duty of
adjudicating on disciplinary offences is conferred on jurisdictional
organs of professional associations. Even in instances where
Article 6 para. 1 (art. 6-1) is applicable, conferring powers in this
manner does not in itself infringe the Convention ... . Nonetheless,
in such circumstances the Convention calls at least for one of the two
following systems: either the jurisdictional organs themselves comply
with the requirements of Article 6 para. 1 (art. 6-1), or they do not
so comply but are subject to subsequent control by a judicial body
that has full jurisdiction" - that is to say, which has the competence
to furnish "a [judicial] determination ... of the matters in dispute,
both for questions of fact and for questions of law" - "and does
provide the guarantees of Article 6 para. 1 (art. 6-1)."
(Series A no. 58, p. 16, para. 29)
In the Government's submission, the principles thus stated apply
equally to "criminal charges" within the meaning of Article 6 para. 1
(art. 6-1). As confirmation of this, the Government cited the Oztürk
judgment of 21 February 1984 (Series A no. 73, pp. 21-22, para. 56) in
addition to the above-mentioned judgments of 23 June 1981 and 10
February 1983 (Series A no. 43, pp. 23-24, para. 53, and Series A
no. 58, pp. 16-17, para. 30).
In the particular circumstances, the Government noted,
Mr. De Cubber's complaint was directed solely against the Oudenaarde
court; he had no objection to make concerning the Ghent Court of
Appeal, which in the present case, so they argued, constituted the
"judicial body that has full jurisdiction", as referred to in the
above-quoted case-law.
On the whole of this issue, the Government cited the Blaise judgment
of 4 April 1984, which the Belgian Court of Cassation had delivered in
a similar case, and the concordant submissions of the public
prosecutor's department in that case (see paragraph 20 above).
32. The Commission's Delegate did not share this view; the Court
agrees in substance with his arguments.
The thrust of the plea summarised above is that the proceedings before
the Oudenaarde court fell outside the ambit of 1Article 6 para. 1
(art. 6-1). At first sight, this plea contains an element of paradox.
Article 6 para. 1 (art. 6-1) concerns primarily courts of first
instance; it does not require the existence of courts of further
instance. It is true that its fundamental guarantees, including
impartiality, must also be provided by any courts of appeal or courts
of cassation which a Contracting State may have chosen to set up (see
the above-mentioned Delcourt judgment, Series A no. 11, p. 14 in fine,
and, as the most recent authority, the Sutter judgment of
22 February 1984, Series A no. 74, p. 13, para. 28). However, even
when this is the case it does not follow that the lower courts do not
have to provide the required guarantees. Such a result would be at
variance with the intention underlying the creation of several levels
of courts, namely to reinforce the protection afforded to litigants.
Furthermore, the case-law relied on by the Government has to be viewed
in its proper context. The judgments of 23 June 1981,
10 February 1983 and 21 February 1984 concerned litigation which was
classified by the domestic law of the respondent State not as civil or
criminal but as disciplinary (Series A no. 43, p. 9, para. 11) or
administrative (Series A no. 73, pp. 10-14, paras. 17-33); these
judgments related to bodies which, within the national system, were
not regarded as courts of the classic kind, for the reason that they
were not integrated within the standard judicial machinery of the
country. The Court would not have held Article 6 para. 1 (art. 6-1)
applicable had it not been for the "autonomy" of the concepts of
"civil rights and obligations" and "criminal charge". In the present
case, on the other hand, what was involved was a trial which not only
the Convention but also Belgian law classified as criminal; the
Oudenaarde criminal court was neither an administrative or
professional authority, nor a jurisdictional organ of a professional
association (see the above-mentioned judgments, Series A no. 43,
p. 23, para. 51, Series A no. 58, p. 16, para. 29, and Series A no. 73,
pp. 21-22, para. 56), but a proper court in both the formal and the
substantive meaning of the term (Decisions and Reports, no. 15, p. 78,
paras. 59-60, and p. 87: opinion of the Commission and decision of the
Committee of Ministers on application no. 7360/76, Zand v. Austria).
The reasoning adopted in the three above-mentioned judgments, to which
should be added the Campbell and Fell judgment of 28 June 1984
(Series A no. 80, pp. 34-39, paras. 67-73 and 76), cannot justify
reducing the requirements of Article 6 para. 1 (art. 6-1) in its
traditional and natural sphere of application. A restrictive
interpretation of this kind would not be consonant with the object and
purpose of Article 6 para. 1 (art. 6-1) (see paragraph 30 in fine
above).
33. At the hearings, the Commission's Delegate and the applicant's
lawyer raised a further question, concerning not the applicability of
Article 6 para. 1 (art. 6-1) but rather its application to the
particular facts: had not "the subsequent intervention" of the Ghent
Court of Appeal "made good the wrong" or "purged" the first-instance
proceedings of the "defect" that vitiated them?
The Court considers it appropriate to answer this point although the
Government themselves did not raise the issue in such terms.
The possibility certainly exists that a higher or the highest court
might, in some circumstances, make reparation for an initial violation
of one of the Convention's provisions: this is precisely the reason
for the existence of the rule of exhaustion of domestic remedies,
contained in Article 26 (art. 26) (see the Guzzardi and the
Van Oosterwijck judgments of 6 November 1980, Series A no. 39, p. 27,
para. 72, and Series A no. 40, p. 17, para. 34). Thus, the Adolf
judgment of 26 March 1982 noted that the Austrian Supreme Court had
"cleared ... of any finding of guilt" an applicant in respect of whom
a District Court had not respected the principle of presumption of
innocence laid down by Article 6 para. 2 (art. 6-2) (Series A no. 49,
pp. 17-19, paras. 38-41).
The circumstances of the present case, however, were different.
The particular defect in question did not bear solely upon the conduct
of the first-instance proceedings: its source being the very
composition of the Oudenaarde criminal court, the defect involved
matters of internal organisation and the Court of Appeal did not cure
that defect since it did not quash on that ground the judgment
of 29 June 1979 in its entirety.
C. The Government's further alternative plea
34. In the further alternative, the Government pleaded that a
finding by the Court of a violation of Article 6 para. 1 (art. 6-1)
would entail serious consequences for Belgian courts with "limited
staff", especially if it were to give a judgment "on the general
question of principle" rather than a judgment "with reasoning limited
to the very special" facts of the case. In this connection, the
Government drew attention to the following matters. From 1970 to
1984, the workload of such courts had more than doubled, whereas there
had been no increase in the number of judges. At Oudenaarde and at
Nivelles, for example, taking account of vacant posts (deaths,
resignations, promotions) and occasional absences (holidays, illness,
etc.), there were only six or seven judges permanently in attendance,
all of whom were "very busy", if not overwhelmed with work.
Accordingly, it was virtually inevitable that one of the judges had to
deal in turn with different aspects of the same case. To avoid this,
it would be necessary either to constitute "special benches" - which
would be liable to occasion delays incompatible with the principle of
trial "within a reasonable time" - or to create additional posts, an
alternative that was scarcely realistic in times of budgetary
stringency.
35. The Court recalls that the Contracting States are under the
obligation to organise their legal systems "so as to ensure compliance
with the requirements of Article 6 para. 1 (art. 6-1)" (see the
Guincho judgment of 10 July 1984, Series A no. 81, p. 16, para. 38);
impartiality is unquestionably one of the foremost of those
requirements. The Court's task is to determine whether the
Contracting States have achieved the result called for by the
Convention, not to indicate the particular means to be utilised.
D. Conclusion
36. To sum up, Mr. De Cubber was the victim of a breach of
Article 6 para. 1 (art. 6-1).
II. THE APPLICATION OF ARTICLE 50 (art. 50)
37. The applicant has filed claims for just satisfaction in
respect of pecuniary and non-pecuniary damage, but the Government have
not yet submitted their observations thereon. Since the question is
thus not ready for decision, it is necessary to reserve it and to fix
the further procedure, taking due account of the possibility of an
agreement between the respondent State and the applicant
(Rule 53 paras. 1 and 4 of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a breach of Article 6 para. 1
(art. 6-1);
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 Government to submit to the Court, within the
forthcoming two months, their written observations on the said
question and, in particular, to notify the Court of any agreement
reached between them and the applicant;
(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, and delivered at a public hearing at
the Human Rights Building, Strasbourg, on 26 October 1984.
Signed: Gérard WIARDA
President
Signed: Marc-André EISSEN
Registrar