European Court of Human Rights

The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 7 to 17 of the above-mentioned judgment (ibid., pp. 6-10).

Counsel for the Government had replied that, were the Court to find a violation, publication of the judgment would itself constitute adequate just satisfaction.

In its judgment of 1 October 1982, the Court reserved the question and invited the Commission to submit, within the coming two months, its written observations and, in particular, to notify the Court of any friendly settlement at which the Government and the applicant might have arrived (paragraphs 34-35 of the reasons and point 2 of the operative provisions, ibid., p. 17).

- on 1 February 1983, from the Secretary to the Commission, brief observations by its Delegate and copies of the correspondence it had exchanged with the Government and the applicant between October 1982 and January 1983;

- on 14 February and 4 May, from the Agent of the Government, certain supplementary remarks;

- on 7 and 24 March, two letters from Mr. Piersack’s lawyer.

These documents revealed that no friendly settlement had been arrived at.

In his reply dated 29 April and received at the registry on 4 May, the Agent indicated that two days previously the Belgian Minister of Justice had requested the procureur général (State prosecutor) attached to the Court of Cassation to challenge before the latter Court the judgment of 10 November 1978 whereby the Brabant Assize Court had sentenced the applicant to eighteen years’ hard labour for murder (see paragraph 2 above). The Minister had taken this step pursuant to Article 441 of the Code of Criminal Procedure, which provides as follows:

"Where, on production of formal instructions which he has received from the Minister of Justice, the procureur général attached to the Court of Cassation impugns, before the Chamber hearing appeals on points of law in criminal cases involving serious, lesser and petty offences (en matière criminelle, correctionnelle et de police), judicial acts or judgments as being contrary to the law, such acts or judgments may be annulled. ..."

(a) The procureur général referred the matter to the Court of Cassation on 29 April. In his submissions, he urged that the Court of Cassation had "to recognise that the European Court’s judgment had the force of res judicata" and "consequently to conclude that ... the procedural acts before the [Brabant] Assize Court and the latter’s judgment" had violated Article 6 § 1 (art. 6-1) of the Convention and "were therefore contrary to the law, within the meaning of Article 441 of the Code of Criminal Procedure". He also expressed the view that the fact that Mr. Piersack’s appeal on points of law against the judgment in question had been dismissed on 21 February 1979 (Series A no. 53, p. 10, § 17) did not prevent the Court of Cassation from applying Article 441, notably because at the relevant time it had been unaware of "two facts" on which "the European Court had based ... its decision": "firstly, Mr. Van de Walle, the President of the Assize Court, had until 1 November 1977 been the head of the section in the Brussels public prosecutor’s department that was responsible for Piersack’s prosecution"; "secondly, in that capacity, [he] had in fact played a certain part in the proceedings" (ibid., pp. 15-16, § 31).

On 18 May 1983, the Court of Cassation, adopting these submissions, annulled the procedural acts subsequent to the committal for trial before the Assize Court (16 June 1978; ibid., p. 7, § 13) and the judgment of 10 November 1978 to the extent that it had convicted the applicant of, and sentenced him for, the manslaughter (meurtre sans préméditation) of one Michel Dulon (ibid., pp. 6-7, §§ 8 and 14); with these limitations, the case was referred back to the Hainaut Assize Court.

(b) On 7 and 8 June, Mr. Piersack instituted, before the President of the Mons Court of First Instance, sitting as judge hearing urgent applications (siégeant en référé), proceedings against the Belgian State, the procureur général attached to the Mons Court of Appeal, the procureur du Roi (public prosecutor) attached to the Mons Court of First Instance and the Governor of Mons Prison. He claimed that he had been "arbitrarily detained since 18 May 1983"; accordingly, he requested the President to "order [his] immediate release" and to direct the Belgian State to pay to him 3,000 BF "per day since 18 May 1983, by way of damages for unlawful imprisonment".

The President of the Mons Court of First Instance held on 7 September 1983 that he had no jurisdiction in the matter, since "the defendants ha[d] not committed any manifest illegality (voie de fait)": he found that following the judgment of 18 May 1983 the plaintiff had re-acquired "the status of a detainee on remand"; the legal basis for that detention lay in the judgment of 16 June 1978 by the chambre des mises en accusation (Indictments Chamber) (see Series A no. 53, p. 7, § 13), which judgment had not been annulled by the Court of Cassation.

(c) The Hainaut Assize Court, by seven votes to five, convicted Mr. Piersack on 17 October 1983 and sentenced him to eighteen years’ hard labour, a sentence identical to that which had been imposed on 10 November 1978.

The applicant did not appeal on points of law against this judgment since he considered that "this time" he had received a "fair trial".

On 17 September, the Registrar also received from the Secretary to the Commission the reply to a request for information which the Registrar had made on 28 June on the instructions of the Court.

AS TO THE LAW

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

In point of fact, as was rightly affirmed by the Delegate of the Commission, the proceedings subsequently brought in Belgium (see paragraph 6 above) essentially redressed the violation found by the Court on 1 October 1982; those proceedings brought about a result as close to restitutio in integrum as was possible in the nature of things (see, mutatis mutandis, the Neumeister judgment of 7 May 1974, Series A no. 17, p. 18 in fine). Following the annulment by the Court of Cassation on 18 May 1983 of the judgment delivered by the Brabant Assize Court on 10 November 1978, the case was referred back to the Hainaut Assize Court which retried the applicant. Whilst it is true that on 17 October 1983 the Hainaut Assize Court gave him a sentence identical to that originally imposed, the trial before that Court was attended by all the guarantees laid down by the Convention. The applicant himself acknowledged, moreover, that this was so (see paragraph 6 in fine above).

Accordingly, the applicant’s loss of liberty is in no way a consequence of the breach of Article 6 § 1 (art. 6-1) found in the judgment of 1 October 1982.

I.   COSTS INCURRED IN BELGIUM

The applicant further claimed 50,000 BF in respect of fees said to be owed to his lawyer in connection with the same proceedings. This figure must, however, be regarded as excessive since, as the Government pointed out, only one part of the appeal concerned the issue submitted to the Commission and then the Court (see Series A no. 53, p. 7, § 15). Deciding on an equitable basis, the Court awards the sum of 25,000 BF.

Before the Brabant Assize Court delivered its decision the applicant raised no objection as to the composition of the bench. However, following annulment by the Court of Cassation of the judgment of 10 November 1978, the Belgian State may not enforce recovery of the above-mentioned sum of 144,566 BF; nor indeed has the Belgian State ever claimed to be entitled to do so.

The second trial constituted a means of "obtaining reparation" of the breach of Article 6 § 1 (art. 6-1) (see the above-mentioned Zimmermann and Steiner judgment, ibid.), such that it must be taken into consideration for the purposes of an award of just satisfaction.

The applicant is therefore entitled, in principle, to be relieved of any claim on the part of the State to recover the 194,399 BF which he was ordered to pay by the Hainaut Assize Court on 17 October 1983. However, the proceedings instituted against him before the Brabant Assize Court had been prompted by the criminal charge pending against him. Had it not been for the violation of Article 6 § 1 (art. 6-1), he would have had to settle the 144,566 BF awarded against him on 10 November 1978. Whilst he certainly ought not to suffer financially for the failure to observe the requirements of the Convention found to have occurred in his case, neither should he profit therefrom. Accordingly, the relief from liability to be granted to the applicant should be limited to the difference between the two sums that is 49,833 BF.

The Delegate of the Commission found "somewhat excessive" the sum of 300,000 BF claimed as lawyer’s fees. The Government, for their part, did not see why Mr. Piersack should have needed a second defence lawyer in 1983 instead of one as in 1978. The applicant has adduced no evidence to refute this argument. Deciding on an equitable basis, the Court awards the sum of 150,000 BF.

II.   COSTS INCURRED AT STRASBOURG

Mr. Piersack may indeed have incurred liability to pay his lawyer rates higher than those applied by the Commission. The Government, moreover, did not dispute this, but they drew attention to the lack of particulars supplied, the almost automatic valuation of each service rendered at 50,000 BF and the absence of corroborating documentary evidence.

Having regard to the foregoing considerations and to the fact that there was no exchange of written pleadings before it prior to the delivery of the judgment of 1 October 1982 on the merits, the Court adjudges it equitable to award a sum of 100,000 BF, less the 3,500 FF already paid by the Council of Europe.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that the respondent State is to

1.   refrain from recovering, out of the court costs which the Belgian Court of Cassation and the Hainaut Assize Court ordered the applicant to bear on 21 February 1979 and 17 October 1983 respectively, a sum totalling fifty-one thousand nine hundred and seventy-eight Belgian Francs (51,978 BF = 2,145 BF + 49,833 BF);

2.   pay to the applicant two hundred and seventy-five thousand Belgian Francs (275,000 BF), less three thousand five hundred French Francs (3,500 FF), in respect of lawyer’s costs before the Belgian Court of Cassation (25,000 BF), the Hainaut Assize Court (150,000 BF) and the Convention institutions (100,000 BF).

Done in English and in French, the French text being authentic, at the Human Rights Building, Strasbourg, on 26 October 1984.

Gérard Wiarda

President

Marc-André Eissen

Registrar