European Court of Human Rights

You are here: BAILII >> Databases >> European Court of Human Rights >> H. v. BELGIUM - 8950/80 [1987] ECHR 30 (30 November 1987)
URL: http://www.bailii.org/eu/cases/ECHR/1987/30.html
Cite as: (1988) 10 EHRR 339, [1987] ECHR 30

[New search] [Contents list] [Help]

In the case of H v. Belgium*,

_______________

* Note by the Registrar. The case is numbered 1/1986/99/147. 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, taking its decision in plenary

session pursuant to Rule 50 of the Rules of Court and composed of the

following judges:

Mr. R. Ryssdal, President,

Mr. J. Cremona,

Mr. Thór Vilhjálmsson,

Mr. G. Lagergren,

Mr. F. Gölcüklü,

Mr. F. Matscher,

Mr. J. Pinheiro Farinha,

Mr. L.-E. Pettiti,

Mr. B. Walsh,

Sir Vincent Evans,

Mr. R. Macdonald,

Mr. C. Russo,

Mr. R. Bernhardt,

Mr. J. Gersing,

Mr. A. Spielmann,

Mr. J. De Meyer,

Mr. J. A. Carrillo Salcedo,

Mr. N. Valticos,

and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy

Registrar,

Having deliberated in private on 28 November 1986, 22 April, 22

and 25 June and 27 and 28 October 1987,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The case was brought before the Court by the European

Commission of Human Rights ("the Commission") on 28 January 1986,

within the three-month period laid down in Article 32 § 1 and

Article 47 (art. 32-1, art. 47) of the Convention for the Protection

of Human Rights and Fundamental Freedoms ("the Convention"). It

originated in an application (no. 8950/80) against the Kingdom of

Belgium lodged with the Commission under Article 25 (art. 25) of the

Convention by Mr. H on 20 March 1980. The applicant, who is a Belgian

national, has requested the Court not to disclose his identity.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration by Belgium recognising the compulsory

jurisdiction of the Court (Article 46) (art. 46). The purpose of the

request was to obtain a decision as to whether the facts of the case

disclosed a breach by the respondent State of its obligations under

Article 6 § 1 (art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he

wished to take part in the proceedings before the Court and designated

the lawyer who would represent him (Rule 30).

3. The Chamber of seven judges to be constituted included ex

officio Mr. J. De Meyer, the elected judge of Belgian nationality

(Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the

President of the Court (Rule 21 § 3 (b)). On 19 March 1986, in the

presence of the Registrar, the President drew by lot the names of the

other five members, namely Mr. J. Cremona, Mr. G. Lagergren,

Mr. R. Bernhardt, Mr. A. Donner and Mr. J.A. Carrillo Salcedo

(Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).

4. Mr. Ryssdal assumed the office of President of the Chamber

(Rule 21 § 5) and, through the Registrar, consulted the Agent of the

Belgian Government ("the Government"), the Delegate of the Commission

and the lawyer for the applicant on the need for a written procedure

(Rule 37 § 1). In accordance with the orders made in consequence, the

registry received:

- the applicant's memorial, on 10 June 1986; and

- the Government's memorial, on 7 July.

The Secretary to the Commission informed the Registrar in a letter

received on 14 September 1986 that the Delegate would submit his

observations at the hearing.

5. Having consulted - through the Registrar - the Agent of the

Government, the Delegate of the Commission and the lawyer for the

applicant, the President directed on 1 July 1986 that the oral

proceedings should open on 24 November 1986 (Rule 38).

6. On 23 October 1986, the Chamber decided to relinquish

jurisdiction forthwith in favour of the plenary Court (Rule 50).

7. The hearing was held in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory

meeting immediately beforehand.

There appeared before the Court:

- for the Government

Mr. J. Niset, Legal Adviser at the Ministry of Justice, Agent,

Mr. G. Kirschen, sometime leader of the Brussels Bar

and former Chairman of the National

Council of the Ordre des avocats,

Mr. J.M. Nelissen Grade, avocat

at the Court of Cassation, Counsel;

- for the Commission

Mr. G. Tenekides, Delegate;

- for the applicant

Mr. A. De Clercq, avocat, Counsel.

The Court heard addresses by Mr. Kirschen and Mr. Nelissen Grade for

the Government, Mr. Tenekides for the Commission and Mr. De Clercq for

the applicant, as well as their replies to its questions. The

Government produced several documents at the hearing.

8. On 19 January 1987, the Agent of the Government sent the

Registrar some documents he had asked for on 3 December 1986 on the

Court's instructions.

AS TO THE FACTS

I. The circumstances of the case

9. The applicant, who is a Belgian citizen born in 1929, has a

doctorate in law and lives in Antwerp. He was struck off the Bar roll

of that city and has twice applied unsuccessfully to be reinstated.

1. Removal from the Antwerp Bar roll

10. In 1957, after completing the prescribed period as a pupil

avocat in Antwerp, H was entered on the roll and took chambers.

11. In May 1963, the Council of the Ordre des avocats of Antwerp

commenced disciplinary action against him for having deliberately

given false information to clients.

On 10 June 1963, it struck him off the roll, having satisfied itself

that he had wrongly persuaded a client that he (the client) risked

arrest if he did not immediately pay a sum of 20,000 BF. The Council

had previously dismissed the other charges against H.

On appeal by H, the Brussels Court of Appeal, in a judgment on

31 December 1963, affirmed the decision to strike him off; and

on 22 June 1964, the Court of Cassation dismissed H's appeal on points

of law.

12. H was subsequently prosecuted for fraud and unlawfully holding

himself out as an avocat; he was in custody pending trial from 2 July

to 2 August 1965 and many of his files were seized. He was acquitted

by the Antwerp Criminal Court on 19 January 1968 and made an

unsuccessful claim for compensation.

13. In 1970, the applicant set up as a legal and tax adviser,

after having worked for some time as a commercial traveller.

14. On 25 February 1977, when he was about to apply to have his name

restored to the roll, the police again seized documents at his office.

On 29 November 1978, the chambre du conseil of the Antwerp Court of

First Instance committed him for trial in the Criminal Court for

forgery and fraudulent conversion, but the prosecution ended in an

acquittal on 18 October 1979.

15. H has no criminal convictions.

2. Applications for restoration to the Antwerp Bar roll

(a) First application

16. By a letter of 3 December 1979, the applicant requested the

Council of the Ordre des avocats of Antwerp to restore his name to the

roll. This application was based on Article 471 of the Judicial Code

(see paragraph 30 below).

17. On 17 December, at a sitting of the Council, the bâtonnier

(leader) of the Antwerp Bar appointed a rapporteur.

After deliberating on 7 and 28 January 1980, the Council decided to

hear the applicant and his counsel.

18. The hearing was held on 18 February. According to H's

counsel, the "exceptional circumstances" justifying his restoration to

the roll consisted essentially in the great professional and family

difficulties his client had experienced over the previous fifteen

years, particularly as he had to confine himself to his occupation as

a legal and tax adviser; furthermore his disbarment had not been

followed up with any criminal proceedings and the later prosecutions

had ended in acquittals.

19. The Council of the Ordre dismissed the application on the same

day; although more than ten years had elapsed since H had been struck

off, the explanations offered orally by H's counsel did not disclose

any exceptional circumstances such as would justify restoring his name

to the roll.

(b) Second application

20. On 9 February 1981, the applicant renewed his application. He

appended a memorandum criticising the 1963 decision and to which was

attached an opinion by a retired procureur général (Principal Crown

Prosecutor), B. According to B, the Council of the Ordre should,

under Article 29 of the Code of Criminal Procedure, have reported to

the Antwerp procureur du Roi (Crown Prosecutor) the matters of which

the applicant stood accused; that would have entailed suspending the

disciplinary proceedings until the final decision in the criminal

trial was known.

21. The Council of the Ordre heard H and his counsel on

21 April 1981. Counsel submitted that the decision to disbar H had

been based on the uncorroborated evidence of one of H's clients, and

that from 1963 to 1980 H had run his legal and tax consultancy very

satisfactorily. He added that in 1963 the Council of the Ordre had

not reported the facts to the procureur du Roi, with the result that

no prosecution had been brought and H had not had a chance of securing

an acquittal. He also emphasised H's family difficulties. In

addition, he filed a memorandum in which the applicant explained why

the retired procureur général B was entitled to give an opinion.

22. The Council of the Ordre dismissed the application at the end

of its sitting on 11 May 1981, holding that H had not established that

there were exceptional circumstances; in particular, the consequences

of disbarment did not constitute such circumstances. In response to

the memorandum of 9 February 1981 (see paragraph 20 above), it stated

that the relevant procureur général was aware of the facts before the

decision was given and had ordered a judicial investigation.

The decision was served on the applicant on 16 June 1981.

II. Relevant domestic law

23. In Belgium the councils of the Ordre des avocats have

exclusive jurisdiction to decide on applications for restoration to

the roll.

1. The Council of the Ordre des avocats

24. For each of the Bars the Council of the Ordre, together with

the bâtonnier and the general assembly, is an administrative organ of

the profession of avocat.

25. It consists of the bâtonnier and from two to sixteen other

members, according to the number of avocats on the Bar roll and the

list of pupil avocats; the Antwerp Council has sixteen members in

addition to the bâtonnier.

The members are directly elected by the general assembly of the Ordre,

to which all avocats on the roll are convened (Article 450 of the

Judicial Code); the election is held before the end of each judicial

year.

26. The Council exercises numerous functions of an administrative,

regulatory, adjudicative, advisory and disciplinary nature. In the

instant case it is sufficient to mention the following.

27. Under Article 432 of the 1967 Judicial Code, which enshrines

the case-law of the Court of Cassation on the subject (judgment

of 15 January 1920, Pasicrisie 1920, I, p. 24), the Council draws up

the roll of avocats and the list of pupil avocats, and no appeal lies

from its decisions in this matter. The principle of the Council's

having responsibility for its roll is justified by the need to

restrict access to the profession to persons of unimpeachable

integrity.

28. It is also the Council's duty to "protect the honour of the Ordre"

and to "maintain the principles of dignity, probity and scrupulousness

on which the profession is founded" (Article 456).

29. As a disciplinary body, it punishes "offences and misconduct"

(ibid.). It will hear such cases "on an application by the bâtonnier,

either of his own motion or following a complaint or after receipt of

a written accusation from the procureur général" (Article 457).

The avocat concerned is summoned within two weeks by registered letter

and, if he so requests, is granted time to prepare his defence

(Article 465). Within eight days of the decision's being given, it is

notified by registered post to the procureur général and the avocat

concerned (Article 466).

The main penalties which the Council may impose are warning, censure,

reprimand, suspension for not more than one year and striking off the

roll or the list of pupil avocats (Article 460). The avocat concerned

has a right both of objection (opposition) (Article 467) and, like the

procureur général, of appeal (appel) (Article 468). At the time the

events in this case occurred (see paragraph 11 above), appeal lay to

the Court of Appeal (Article 29 of the Imperial Decree of

14 December 1810 regulating the practice of the profession of avocat

and the discipline of the Bar). Today, this jurisdiction is exercised

by disciplinary appeals boards, consisting of the President of the

Court of Appeal, who presides, and four avocats sitting as assessors

(Article 473 of the Judicial Code).

Decisions of the courts of appeal in such matters could be appealed

against on points of law (section 15(1) of the Judicature Act of

4 August 1832). The same now applies to decisions of the disciplinary

appeals boards (Article 614 § 1 of the Judicial Code).

2. Restoration to the roll after disbarment

30. Restoration to the roll of an avocat who has been struck off

it is governed by Article 471 of the Judicial Code:

"No avocat who has been disbarred may be entered on a roll of the

Ordre or on a list of pupil avocats until ten years have elapsed from

the date on which the decision to strike off became final and unless

exceptional circumstances warrant it.

No such entry shall be permitted without the reasoned consent of the

Council of the Ordre to which the avocat belonged or, as the case may

be, the leave of the relevant disciplinary appeal authority if the

disbarment was ordered by it.

No appeal shall lie against a refusal to restore to the roll."

This text reproduces with minor variations Article 1 of a resolution

adopted on 13 February 1962 by the Council of the Brussels Ordre.

That resolution went some way towards removing the finality of

disbarment and read as follows:

"The Council of the Ordre may ..., on his application, restore to the

roll an avocat who has been struck off.

This measure, which is of an exceptional nature and lies wholly within

the discretion of the Council of the Ordre, regard being had to the

higher interests of the Bar and to whether reformation of the person

concerned is clearly established, shall be permissible only after ten

years have elapsed from the time when the disbarment penalty became

final.

The Council shall take its decision in accordance with the procedure

provided for in Rule 32 of the Rules of Procedure, as in the case of

the admission of a pupil avocat. ..."

31. Although Article 471 of the Judicial Code is the last

provision in Book III ("The Bar"), Section I ("General provisions"),

Chapter IV ("Disciplinary matters"), the Council does not use the

disciplinary procedure (Article 465-469) when dealing with an

application for restoration to the roll; nor is its decision a

disciplinary one (Cass. 18 March 1965, Pasicrisie 1965, I, p. 734).

The general law does not make any specific provisions; and the Antwerp

Bar did not have any internal rules of procedure at the relevant time.

The Council normally takes its decision in the same way and following

the same procedure as on an application for admission.

32. According to figures provided by the Government (and which

were not disputed), 47 avocats have been struck off in Belgium since

the Judicial Code came into force on 10 October 1967. Of the five

applications for restoration to the roll made by avocats who have been

struck off, three have been successful (Oudenaarde, Charleroi and

Courtrai Bars). The Antwerp Bar has had to deal only with H's

applications, which were unsuccessful. None of the decisions in

question is available to the public.

PROCEEDINGS BEFORE THE COMMISSION

33. H lodged his application (no. 8950/80) with the Commission on

20 March 1980. He alleged that the procedure followed by the Council

of the Ordre des avocats of Antwerp when considering his applications

for restoration to the roll had infringed Article 6 (art. 6)

of the Convention.

34. The Commission declared the application admissible on

16 May 1984.

In its report of 8 October 1985 (made under Article 31) (art. 31),

it expressed the opinion (by 10 votes to 2) that there had been a

violation of Article 6 § 1 (art. 6-1) in that the applicant had not

been able to have his case heard by a tribunal within the meaning of

that provision.

The full text of its opinion and of the dissenting opinion contained

in the report is reproduced as an annex to this judgment*.

FINAL SUBMISSIONS TO THE COURT

35. At the hearing on 24 November 1986, the Government reiterated

the final submissions made in their memorial, in which they requested

the Court

"to hold that the facts in the present case do not disclose any

violation by Belgium of its obligations under the European Convention

on Human Rights".

AS TO THE LAW

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

36. The applicant contended that the Council of the Ordre des

avocats of Antwerp did not hear his case in a manner consonant with

Article 6 § 1 (art. 6-1) of the Convention, which provides:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by law.

Judgment shall be pronounced publicly but the press and public may be

excluded from all or part of the trial in the interests of morals,

public order or national security in a democratic society, where the

interests of juveniles or the protection of the private life of the

parties so require, or to the extent strictly necessary in the opinion

of the court in special circumstances where publicity would prejudice

the interests of justice."

In view of the submissions made, the first issue to be resolved is the

applicability of Article 6 § 1 (art. 6-1).

A. Applicability of Article 6 § 1 (art. 6-1)

1. Existence of a "contestation" (dispute) over a right

37. As to whether there was a "contestation" (dispute) over a

right, the Court would refer to the principles that have been laid

down in its earlier decisions, notably the Benthem judgment

of 23 October 1985 (Series A no. 97, pp. 14-15, § 32).

38. In seeking to be restored to the roll of the Ordre in

accordance with Article 471 of the Judicial Code in 1979 and again in

1981, the applicant raised a matter relating to the determination of a

right. Restoration to the roll was a prerequisite of resuming practice

as an avocat, which he had been prohibited from doing since being

struck off in 1963. The Council of the Ordre decided the question on

each occasion against him.

39. The applicant claimed that he had the right to resume practice

of the profession of avocat if the legal requirements were satisfied;

the Commission agreed that he had such a right.

The Government argued that decisions on admission and a fortiori

readmission to the roll came within the discretionary power of the

councils of the Ordre, in accordance with the traditional principle of

responsibility for the roll (see paragraph 27 above). Such decisions

were final, no appeal lying either to the ordinary courts or to the

Conseil d'Etat. In short, the Government claimed, Belgian law did not

provide for any right of admission to the Bar, still less any right of

readmission.

40. In the instant case the Court is not called upon to rule on

the general question of the right of access to the profession of

avocat in Belgium. The only issue before it relates to the procedure

for restoration to the roll of the Ordre of an avocat who has been

struck off.

Article 6 § 1 (art. 6-1) extends only to "contestations" (disputes)

over (civil) "rights and obligations" which can be said, at least on

arguable grounds, to be recognised under domestic law; it does not in

itself guarantee any particular content for (civil) "rights and

obligations" in the substantive law of the Contracting States (see,

for example, the W v. the United Kingdom judgment of 8 July 1987,

Series A no. 121, pp. 32-33, § 73).

In order to ascertain whether or not the right claimed by the

applicant exists in Belgium, the Court must consider the nature both

of disbarment and of the reasons justifying subsequent readmission.

41. Striking off is ordered for professional misconduct and is a

disciplinary sanction - the heaviest one available to the Council of

the Ordre.

In the Government's view, this is a permanent sanction, as the Council

is never under any obligation to readmit to the roll.

The Court notes, however, that Article 471 of the Judicial Code

permits an avocat who has been struck off to seek readmission after

"ten years have elapsed from the date on which the decision to strike

off became final and [if] exceptional circumstances warrant it" (see

paragraph 30 above).

42. While the first of these two conditions can scarcely give rise

to any difficulties, the second condition - that there must be

"exceptional circumstances" - is capable of being interpreted and

applied in a wide variety of ways in the absence of a more precise

statutory definition of such circumstances.

Nor do previous decisions of the councils of the Ordre clarify the

issue. These decisions are very few in number and they remain

inaccessible to the public, including disbarred avocats contemplating

submitting an application for readmission (see paragraph 32 above).

Furthermore, from what the Court has been able to see, the reasoning

given in them scarcely seems to provide any information.

43. Having regard to the terms of Article 471, the applicant could

arguably maintain that in Belgian law he had the right to practise the

profession of avocat again, since he had satisfied the conditions

prescribed in that Article. This is true even though the Council of

the Ordre had some discretion in deciding whether one of the

conditions - whether there were "exceptional circumstances" justifying

readmission - had been met. In support of his application H raised

matters of law and fact susceptible of judicial assessment.

The Council of the Antwerp Ordre therefore had to determine a

"contestation" (dispute) concerning a right asserted by H.

2. Whether the disputed right was a civil one

44. The applicant and the Commission regarded the right in issue

as a civil one. The Government maintained the contrary on account of

the fundamental differences which they claimed distinguished the

profession of avocat from the other professions, such as the medical

profession.

45. As in previous cases, the Court does not consider that it has

in the present proceedings to give an abstract definition of the

concept of "civil rights and obligations". Rather, it must analyse

the special characteristics of the profession of avocat in Belgium,

since the disputed right is indissolubly bound up with that

profession.

46. Such an analysis admittedly discloses features of public law.

(a) In the first place, the Belgian State itself laid down the way in

which the Bars should be organised and the conditions attaching to the

practice of the profession of avocat, such as access, rights, duties

and so on (see the Van der Mussele judgment of 23 November 1983,

Series A no. 70, p. 15, § 29).

State intervention by means of a statute or delegated legislation has

nonetheless not prevented the Court from holding - notably in several

cases relating to the medical profession (König; Le Compte, Van Leuven

and De Meyere; and Albert and Le Compte) - that the right in issue had

a civil character. In the instant case likewise, such intervention

cannot suffice to establish that the right asserted by the applicant

did not have this character.

(b) In the second place, the contribution of avocats to the

administration of justice involves them in the operation of a public

service.

The Government maintained that avocats, who are traditionally

described as "officers of the court" (auxiliaires de la justice), are,

rather, agents of the judicial system in the same way as judges. As

evidence of this, the Government cited in particular the monopoly of

the right of audience; the possibility of being officially assigned by

the court in both criminal and civil proceedings; the duty in some

cases to stand in for judges and members of Crown prosecutors'

departments; and the duty of the Council of the Ordre to set up a

Legal Advice and Defence Office to assist persons of limited means.

The Court notes that as regards certain of its functions the Bar in

Belgium is in a sense part of the judicial system, as the provisions

in the 1967 Code concerning the Bar (Articles 428-506) appear in the

part entitled "Judicial Organisation". This attachment is not

decisive, however. It does not preclude the practice of the

profession of avocat, as such, from having a civil character.

Moreover, there is no concomitant joint or individual subordination to

the country's courts. On the contrary, in virtue of its traditional

independence, the Bar has complete responsibility for its roll, on the

one hand, and for discipline, on the other. Under the Judicial Code,

which enshrines the Court of Cassation's case-law on the subject, the

Council of the Ordre draws up the roll, and no appeal lies from its

decisions in this matter (see paragraph 27 above). The power of

determining appeals against disciplinary decisions by the Council of

the Ordre has been vested since 1967 in disciplinary appeals boards

consisting of the President of the Court of Appeal and four avocats;

previously it had been vested in the Court of Appeal (see paragraph 29

above).

47. Whilst the foregoing two factors do not, therefore, suffice to

establish that Article 6 (art. 6) is inapplicable, several

considerations weigh in favour of the opposite conclusion.

(a) To begin with, the profession of avocat has traditionally been

treated as one of the independent professions in Belgium. According

to the terms of Article 444 of the Judicial Code, "avocats perform the

duties of their office freely in the interests of justice and truth".

Once entered on the roll of the Ordre, a member of the Bar is free to

practise or not. Unless officially assigned to a case by the court,

he has clients whom he chooses voluntarily and directly, without any

intervention by a public authority; he can refuse to act if his

conscience so dictates and even for other reasons. The instructions

to act which bind him to his client are revocable at will by either

party and constitute a private-law relationship. As to fees, the

avocat fixes them himself "with the judiciousness to be expected of

[his] office" (Article 459 of the Judicial Code) and subject to the

client's agreement, except that the Council of the Ordre may intervene

on grounds of excessive charging (ibid.).

(b) In the second place, the chambers and clientèle of an avocat

constitute property interests and as such come within the ambit of the

right of property, which is a civil right within the meaning of

Article 6 § 1 (art. 6-1) (see, mutatis mutandis, the Van Marle

and Others judgment of 26 June 1986, Series A no. 101, p. 13, § 41).

(c) It may also be noted that while avocats enjoy an exclusive right

of audience in the courts, they perform numerous important duties out

of court, acting as advisers, conciliators and even arbitrators.

These duties, which sometimes take up a great deal of time, are a

traditional and normal feature of the profession. Yet they often have

no connection with judicial proceedings. That being so, the work of

members of the Bar cannot be said to consist solely in contributing to

the functioning of the country's courts.

48. Having thus examined the various aspects of the profession of

avocat in Belgium, the Court finds that they confer on the asserted

right the character of a civil right within the meaning of

Article 6 § 1 (art. 6-1), which was thus applicable.

B. Compliance with Article 6 § 1 (art. 6-1)

49. It must accordingly be ascertained whether the applicant

enjoyed the "right to a fair hearing" (see the Golder judgment of

21 February 1975, Series A no. 18, p. 18, § 36). As no appeal lay

against the decisions of the Council of the Ordre des avocats of

Antwerp (see paragraph 30 above), it must be determined whether the

Council satisfied the requirements of Article 6 § 1 (art. 6-1), and in

particular whether it was in fact an "independent" and "impartial"

"tribunal", and whether it gave H a "fair" and "public" hearing. It

was not disputed in the instant case that the Council was an

institution "established by law" and that it heard the case "within a

reasonable time".

50. The applicant and the Commission took the view that the

Council of the Ordre did not afford the safeguards inherent in the

concept of a "tribunal", while the Government contended that, although

the body in question was not usually a "tribunal", it had acted as one

in the instant case.

According to the Court's case-law, a "tribunal" is characterised in

the substantive sense of the term by its judicial function, that is to

say determining matters within its competence on the basis of rules of

law and after proceedings conducted in a prescribed manner (see, inter

alia, the Sramek judgment of 22 October 1984, Series A no. 84, p. 17,

§ 36).

The Council of the Ordre des avocats performs many functions -

administrative, regulatory, adjudicative, advisory and disciplinary

(see paragraph 26 above). This variety of functions provided the main

ground for the Commission's conclusion that the Council was not a

"tribunal".

The Court does not share this view, which is at variance with its

case-law (see in particular the Le Compte, Van Leuven and De Meyere

judgment of 23 June 1981, Series A no. 43, pp. 14 and 24, §§ 26 and

55, and the Campbell and Fell judgment of 28 June 1984, Series A

no. 80, pp. 18-19 and 40-41, §§ 33 and 81). This kind of plurality

of powers cannot in itself preclude an institution from being a

"tribunal" in respect of some of them.

Moreover, the Council of the Ordre, when taking its decision on the

application for readmission made by the applicant (who had been struck

off in 1963), was performing a judicial function further to its

disciplinary responsibilities. It took action in the case on

occasions that were separated by a considerable lapse of time (in 1963

and then in 1979-81) and in different contexts (disbarment and

application for readmission).

51. There can be no question about the independence of the members

of the Council of the Ordre des avocats. They are elected by their

peers (see paragraph 25 above) and are not subject to any authority,

being answerable only to their own consciences.

52. Similarly, the Court sees nothing in the evidence before it to

give it any reason to doubt their personal impartiality. Having

regard to what follows, it does not consider it necessary to express a

view on the structural impartiality of the Council of the Ordre.

53. As regards the fairness of the proceedings, H was able to have

the assistance of a lawyer to represent him and was able to appear in

person when his two applications for readmission were considered; he

also filed pleadings in support of his second application (see

paragraphs 17-18 and 20 above).

Nonetheless, the relevant procedure of the Council of the Ordre des

avocats of Antwerp is open to criticism in two respects.

In the first place, it was very difficult for the applicant to adduce

appropriate evidence of the "exceptional circumstances" which might,

in law, have brought about his restoration to the roll and, more

generally, to argue his case with the requisite effectiveness; in

particular, neither the applicable provisions nor the previous

decisions of the councils of the Ordre gave any indication of what

could amount to "exceptional circumstances" (see paragraph 30 above).

At the same time, he had cause to fear that there was some risk of

being dealt with arbitrarily, especially as there was no provision

allowing him a right of challenge (cf. the Le Compte, Van Leuven and

De Meyere judgment previously cited, Series A no. 43, pp. 16 and 25,

§§ 31 and 58) and as the Antwerp Bar did not have any internal rules

of procedure (see paragraph 31 above).

The procedural safeguards thus appear unduly limited. Their

inadequacy is of especial importance in view of the seriousness of

what is at stake when a disbarred avocat seeks restoration to the roll

(see, mutatis mutandis, the De Wilde, Ooms and Versyp judgment

of 18 June 1971, Series A no. 12, pp. 42-43, § 79) and the imprecise

nature of the statutory concept of "exceptional circumstances".

Furthermore, this very lack of precision made it all the more

necessary to give sufficient reasons for the two impugned decisions on

the issue in question. Yet in the event the decisions merely noted

that there were no such circumstances, without explaining why the

circumstances relied on by the applicant were not to be regarded as

exceptional.

54. As to whether the proceedings were public, the Judicial Code

provides that in some circumstances decisions of the Council of the

Ordre in disciplinary matters may be given in public (Article 460 § 3)

and that proceedings before disciplinary appeals boards may be held in

public (Article 476); but it is silent in respect of restoration to

the roll. In the instant case, H's applications were not heard in

public, nor were the decisions of the Council of the Ordre

"pronounced" in public.

Unless cured at a later stage of the procedure, such a defect may

deprive the person concerned of one of the safeguards set forth in the

first sentence of Article 6 § 1 (art. 6-1) of the Convention (see,

mutatis mutandis, the Albert and Le Compte judgment of

10 February 1983, Series A no. 58, p. 18, § 34).

The grounds for H's applications related directly to the practice of

the profession of avocat, which might conceivably raise questions

coming within the exceptions allowed for in Article 6 § 1 (art. 6-1).

However, the material before the Court does not suffice to show that

the circumstances were such as to warrant the hearings' not being held

in public (ibid.).

The rule requiring a public hearing, as embodied in Article 6 § 1

(art. 6-1), may also yield in certain circumstances to the will of the

person concerned. Admittedly, the nature of some of the rights

safeguarded by the Convention is such as to exclude a waiver of the

entitlement to exercise them, but the same cannot be said of certain

other rights. Thus neither the letter nor the spirit of Article 6 § 1

(art. 6-1) prevents an avocat from waiving, of his own free will and

in an unequivocal manner, the entitlement to have his case heard in

public; conducting disciplinary proceedings of this kind in private

does not contravene the Convention (loc. cit., p. 19, § 35).

The evidence adduced does not establish that H intended to waive his

right to a public hearing (ibid.). He cannot be blamed for not having

demanded to exercise a right which was not afforded him by the

practice of the Belgian Bars and that he had little prospect of

securing. As to the fact that H wished to remain anonymous in the

proceedings before the Convention institutions, it is not decisive in

this context, as those proceedings are quite different both in their

purpose and in their nature and scope.

55. In short, the Council of the Ordre did not in the instant case

satisfy the requirements of Article 6 § 1 (art. 6-1), and there was

therefore a breach of that provision.

II. APPLICATION OF ARTICLE 50 (art. 50)

56. The applicant claimed just satisfaction in respect of

prejudice sustained and of costs and expenses. He relied

on Article 50 (art. 50), which reads:

"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."

A. Prejudice

57. At the hearing on 24 November 1986, counsel for H emphasised

the extent of the damage his client had allegedly suffered as a result

of having been struck off the roll.

Non-pecuniary damage was evaluated at 50 million Belgian francs (BF);

this was said to have arisen from the ordeal the applicant and his

family had gone through. Pecuniary damage was assessed at

52 million BF; this corresponded to the income which the applicant

would have earned over a period of twenty-six years (beginning ten

years after he was struck off and ending on his seventieth birthday)

if he had been able to resume practising his profession.

The Government disputed that there had been any pecuniary damage,

which at all events could only be assessed as from the refusal of

readmission. In their submission, H had carried on another occupation

after he had been struck off and nothing showed that he would have

secured readmission to the Bar if he had had a remedy before a

tribunal satisfying the conditions of Article 6 § 1 (art. 6-1). As to

non-pecuniary damage, a finding that the Convention had been violated

would constitute sufficient satisfaction.

For his part, the Delegate of the Commission recommended compensation

for considerable prejudice.

58. The Court would point out, firstly, that in the instant case

an award of just satisfaction can only be based on the fact that the

applicant was not afforded some of the safeguards provided for in

Article 6 § 1 (art. 6-1) when his applications for readmission were

considered by the Council of the Ordre des avocats of Antwerp (see,

mutatis mutandis, the Le Compte, Van Leuven and De Meyere judgment of

18 October 1982, Series A no. 54, pp. 7-8, § 15, and the Bönisch

judgment of 2 June 1968, Series A no. 103, p. 8, § 11). There are

accordingly no grounds for taking the disbarment and its consequences

into consideration.

59. As regards pecuniary damage, the evidence does not establish a

causal link between the breach of the Convention and any deterioration

in H's financial position.

60. On the other hand, the applicant did suffer non-pecuniary

damage, in respect of which the Court, making its assessment on an

equitable basis as required by Article 50 (art. 50), awards him

compensation in the sum of 250,000 BF.

B. Costs and expenses

61. Counsel for the applicant sought on behalf of his client

reimbursement of costs and lawyer's fees; he assessed costs at

200,000 BF and the fees at 5 per cent of the amount the Court might

award in respect of damages. Despite a written question by the Court,

he did not provide further particulars or any supporting documents.

The Government confined themselves to expressing doubts as to the

method of calculation proposed for the fees. The Delegate of the

Commission submitted that the applicant should be paid the costs and

expenses incurred during the successive proceedings.

62. In the instant case, only the costs and fees relating to the

proceedings before the Commission and the Court fall to be taken into

account (see, mutatis mutandis, the Le Compte, Van Leuven and

De Meyere judgment previously cited, Series A no. 54, p. 9, § 19).

Taking its decision on an equitable basis and applying the criteria

laid down in its case-law, the Court considers that legal costs and

travel and subsistence expenses may be assessed at 100,000 BF.

FOR THESE REASONS, THE COURT

1. Holds by twelve votes to six that Article 6 § 1

(art. 6-1) applied in the instant case;

2. Holds by twelve votes to six that Article 6 § 1 (art. 6-1)

has been violated;

3. Holds by sixteen votes to two that the Kingdom of Belgium is

to pay the applicant the sum of 250,000 (two hundred and fifty

thousand) BF in respect of non-pecuniary damage;

4. Holds unanimously that the Kingdom of Belgium is to reimburse

the applicant 100,000 (one hundred thousand) BF in respect of costs

and expenses;

5. Rejects unanimously the remainder of the claim for just

satisfaction.

Done in English and in French, and delivered at a public hearing in

the Human Rights Building, Strasbourg, on 30 November 1987.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

A declaration by Mr. Matscher and, in accordance with Article 51 § 2

(art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court,

the following separate opinions are annexed to this judgment:

- concurring opinion of Mr. Ryssdal;

- concurring opinion of Mr. Thór Vilhjálmsson;

- joint concurring opinion of Mr. Lagergren, Mr. Pettiti

and Mr. Macdonald;

- joint dissenting opinion of Mr. Gölcüklü, Mr. Matscher,

Sir Vincent Evans, Mr. Bernhardt and Mr. Gersing;

- dissenting opinion of Mr. Pinheiro Farinha;

- separate opinion of Mr. Bernhardt;

- separate opinion of Mr. Gersing;

- separate opinion of Mr. De Meyer.

Initialled: R.R.

Initialled: M.-A.E.

DECLARATION BY JUDGE MATSCHER

(Translation)

As, for reasons explained in the joint dissenting opinion, I voted

that Article 6 (art. 6) of the Convention was not applicable in the

instant case, I could not hold that there had been a breach of that

provision.

I should, however, like to point out that if I had considered that

Article 6 (art. 6) was applicable, I would have had no hesitation in

finding that there had been a violation, as the proceedings before the

Council of the Ordre did not satisfy the requirements of Article 6

(art. 6) of the Convention in several respects.

CONCURRING OPINION OF JUDGE RYSSDAL

(Translation)

I concur in the judgment to the extent that it concerns the

applicability of Article 6 § 1 (art. 6-1) of the Convention. On the

other hand, I regret that I cannot fully endorse it as regards

compliance with that provision, as I consider that several points in

the reasoning call for a slightly different emphasis.

In the first place, greater attention should have been paid in the

judgment to two circumstances which illustrate the large measure of

discretion enjoyed by the Council of the Ordre des avocats when

considering applications for restoration to the roll. Firstly, the

Judicial Code itself, whilst making provision for a readmission

procedure quite distinct from the disciplinary procedure, gives no

more than a bare outline of what the readmission procedure is to

consist of. Secondly, the Antwerp Bar did not have any internal rules

of procedure at the material time. The procedure to be followed in a

given case was accordingly left almost entirely to the Council.

As to the reasoning in the impugned decisions, the judgment goes no

further than noting that it was inadequate. The judgment ought to

have drawn attention to the fact that the Antwerp Bar Council was

under no legal obligation to set out the grounds which prompted it to

reject H's applications for readmission.

Lastly, it may be queried whether it was appropriate to mention the

issue of waiving publicity, albeit only to conclude that the applicant

had not apparently contemplated exercising that option. The practice

of the Belgian Bar in fact totally precluded the possibility of the

hearings being held in public or the decision being delivered in

public.

These brief observations in no way alter my conclusion that the

Council of the Ordre did not in the instant case satisfy the

requirements of Article 6 § 1 (art. 6-1).

I would add that I consider it unfortunate that the Council of the

Ordre, which has the power of decision as authority of first and last

instance, is composed exclusively of practising lawyers.

CONCURRING OPINION OF JUDGE THÓR VILHJÁLMSSON

My reasons for voting for the applicability of Article 6 § 1

(art. 6-1) are those set out in the judgment.

On the other hand, when I voted to the effect that there had been a

violation of this provision, I did so for reasons that are not

completely the same as those stated in the judgment. On this point I

want to make the following remarks.

The applicant requested the Council of the Antwerp Ordre to restore

his name to the roll of the Bar of that city. This request was

rejected by the Council. No appeal lay against this decision. The

Council was, according to the information before the Court, composed

of the bâtonnier, or leader of the Bar, and sixteen other avocats

selected each year by an assembly of the Ordre.

In my opinion, the membership of the Council, the method used to

select the members, and their brief tenure of office result in a lack

of what might be called structural impartiality. I find here a

situation comparable to the lack of independence dealt with in

paragraph 42 of the judgment of our Court in the Sramek case, where it

is stated that "appearances may also be of importance". As was found

in that case with regard to the independence of the institution in

question, I find in this case that the Council of the Ordre may give

litigants reasons to "entertain a legitimate doubt" about its

impartiality. And, to quote further from the Sramek judgment, "such a

situation seriously affects the confidence which the courts must

inspire in a democratic society".

As regards the fairness of the proceedings (paragraph 53 of the

judgment), I am of the opinion that the most relevant point is the

fact that the applicant had an opportunity to present his case to the

Council. It is true, as stated in the judgment, that the procedure was

in other respects open to criticism and this is of some relevance in

the case. It should, nevertheless, be taken into account that the

general rule in Belgian law was that a lawyer who had been struck off

the roll could only be readmitted if there were exceptional

circumstances. It was for the applicant to show that there were such

exceptional circumstances in his case. The arguments that he or his

representatives put forward may or may not have been substantial, but

I find that they did not by their nature necessitate lengthy

discussion in the decision of the Council.

Finally, I agree with what is stated in the judgment on the lack of

publicity (paragraph 54).

JOINT CONCURRING OPINION OF JUDGES LAGERGREN, PETTITI AND MACDONALD

The present judgment recognises the important requirement that

judgments of courts and tribunals should adequately state the reasons

on which they are based. In this respect the judgment follows a

statement of the International Court of Justice in its Advisory

Opinion of 12 July 1973*. In that opinion the International Court

stated that (paragraph 92):

_______________

* Application for Review of Judgment No. 158 of the United Nations

Administrative Tribunal, Advisory Opinion, I.C.J. Reports, p. 166.

_______________

"[C]ertain elements of the right to a fair hearing are well recognized

and provide criteria helpful in identifying fundamental errors in

procedure which have occasioned a failure of justice: for instance,

the right to an independent and impartial tribunal established by law;

the right to have the case heard and determined within a reasonable

time; the right to a reasonable opportunity to present the case to the

tribunal and to comment upon the opponent's case; the right to

equality in the proceedings vis-à-vis the opponent; and the right to a

reasoned decision."

In paragraph 95 of the same Advisory Opinion the International Court

further stated that:

"While a statement of reasons is thus necessary to the validity of a

judgement of the Tribunal, the question remains as to what form and

degree of reasoning will satisfy this requirement. The applicant

appears to assume that, for a judgment to be adequately reasoned,

every particular plea has to be discussed and reasons given for

upholding or rejecting each one. But neither practice nor principle

warrants so rigorous an interpretation of the rule, which appears

generally to be understood as simply requiring that a judgment shall

be supported by a stated process of reasoning. This statement must

indicate in a general way the reasoning upon which the judgment is

based; but it need not enter meticulously into every claim and

contention on either side. While a judicial organ is obliged to pass

upon all the formal submissions made by a party, it is not obliged, in

framing its judgment, to develop its reasoning in the form of a

detailed examination of each of the various heads of claim submitted.

Nor are there any obligatory forms or techniques for drawing up

judgments: a tribunal may employ direct or indirect reasoning, and

state specific or merely implied conclusions, provided that the

reasons on which the judgment is based are apparent. The question

whether a judgment is so deficient in reasoning as to amount to a

denial of the right to a fair hearing and a failure of justice, is

therefore one which necessarily has to be appreciated in the light

both of the particular case and of the judgment as a whole."

JOINT DISSENTING OPINION OF JUDGES GÖLCÜKLÜ, MATSCHER

SIR VINCENT EVANS, BERNHARDT AND GERSING

We share the starting-point of the present judgment that Article 6 § 1

(art. 6-1) extends only to disputes over civil rights and obligations

which can be said, on arguable grounds, to be recognised under

domestic law (see paragraph 40 of the judgment). But in our opinion

this condition is not fulfilled in the present case.

The wording of Article 471 of the Belgian Judicial Code makes it quite

clear that the power of the Council of the Ordre des avocats to

readmit a person to the Bar is a discretionary one which however can

only be exercised if certain conditions are satisfied. The relevant

conditions are:

(a) ten years must have elapsed since the decision to strike the

avocat from the roll; and

(b) exceptional circumstances must warrant readmission (when such

circumstances exist, has never been clarified by law or practice).

If these conditions are fulfilled, restoration to the roll may be

granted. In view of this legal situation, it does not appear that any

right can be considered to exist under domestic law.

This view is supported by the history of the relevant provision of

Belgian law (see paragraph 30 of the judgment and the memorial of the

Government) as well as by the express exclusion of any appeal.

Even if one considers the Belgian law concerning readmission to the

Bar to be highly unsatisfactory, it is not up to the international

judge to interpret the internal law in contradiction to its wording

and the relevant national practice.

Since, in our opinion, no right exists, the question does not arise

whether such rights could be qualified as civil rights under

Article 6 § 1 (art. 6-1) of the Convention.

DISSENTING OPINION OF JUDGE PINHEIRO FARINHA

(Translation)

1. I do not think that Article 6 (art. 6) of the Convention

applied in the instant case. H had no right to be restored to the

roll of the Ordre des avocats - Article 471 of the Judicial Code is

quite clear on this point:

"No avocat who has been disbarred may be entered on a roll of the

Ordre or on a list of pupil avocats until ten years have elapsed from

the date on which the decision to strike off became final and unless

exceptional circumstances warrant it (*) .

No such entry shall be permitted without the reasoned consent of the

Council of the Ordre¹ to which the avocat belonged or, as the case may

be, the leave of the relevant disciplinary appeal authority if the

disbarment was ordered by it.

No appeal shall lie against a refusal to restore to the roll (*).

_______________

(*) My underlining.

_______________

The requirement of exceptional justifying circumstances, the need for

the consent of the Council of the Ordre and the lack of any right of

appeal against a refusal to restore to the roll show that the

applicant does not have a right to readmission, which is in the

discretion of the Council of the Ordre. H had merely a "right of

petition": he could and can apply for readmission. Such a right is

not in any way a civil right; in the present case it is of a

procedural nature and is not protected by Article 6 (art. 6)

of the Convention.

2. Having reached the conclusion that there has not been a violation

of Article 6 (art. 6), I do not consider it logical - as I said in

my dissenting opinion annexed to the Sanchez-Reisse judgment

of 21 October 1986 (Series A no. 107, p. 26) - that the applicant

should, in the same judgment, be awarded just satisfaction on the

basis of facts which do not, in my view, contravene the Convention.

3. On the other hand, I have voted for reimbursement of costs and

expenses - assessed on an equitable basis - because they do not flow

directly from a breach of the Convention but follow from the Court's

judgment.

Such reimbursement does not represent satisfaction for damage but

relates to expenses necessarily incurred in securing a favourable

decision from the European Court of Human Rights.

SEPARATE OPINION OF JUDGE BERNHARDT

If the applicant had - or could plausibly claim - a (civil) right to

be readmitted to the Bar under Belgian law (which I have denied in the

joint dissenting opinion), I would have had little doubt that no

tribunal had determined that right and that Article 6 (art. 6)

of the Convention had been violated.

In my view, the Council of the Ordre cannot be described as a tribunal

in the sense of Article 6 § 1 (art. 6-1) of the Convention. At least

when taken together, the following points show that the Council

neither is designed to act as a tribunal nor in fact does so act.

(1) The Council has mainly administrative functions. There must be

convincing reasons - for instance clear statutory provisions - for

considering the same board for certain purposes as a tribunal.

(2) The Council is composed exclusively of practising lawyers and not

of professional or ordinary lay judges. The lawyers decide on the

capacity of (present or former) colleagues. Such a structure is

hardly compatible with the requirements of an impartial tribunal.

(3) The procedure of the Council is left entirely to be determined by

the Council itself. Can a tribunal, as required by the Convention, be

left without any procedural rules and safeguards?

(4) No publicity is prescribed for the hearings or for the final

decisions. Can a body acting exclusively in camera really be

described as a tribunal?

(5) The Council need not, and does not, give reasons for its

"judgment". Can a board, deciding at first and last instance, be

described as a tribunal if its decisions lack any legal reasoning?

At least in their aggregate, these deficiencies amount to cogent

reasons for not regarding the Council as a tribunal.

SEPARATE OPINION OF JUDGE GERSING

In a joint dissenting opinion I have, with other colleagues, found

Article 6 § 1 (art. 6-1) not to be applicable. Had I shared

the view of the majority as to the applicability of Article 6 § 1

(art. 6-1), I would have voted for a violation thereof, mainly for the

following reasons.

The Council of the Antwerp Ordre could not be considered to be an

impartial tribunal. Its sixteen members were all avocats, the

chairman being the leader of the Bar. Furthermore, the Council did

not have any internal rules of procedure or any provision conferring

on the applicant a right of challenge.

SEPARATE OPINION OF JUDGE DE MEYER

(Translation)

Like the majority of my colleagues, but for reasons different from

those given in the judgment, I consider that Article 6 § 1

(art. 6-1) of the Convention was applicable in the instant case and

that the applicant's right under that provision was violated.

I am further of the view, as regards the application of Article 50

(art. 50) of the Convention, that the applicant should only have been

awarded reimbursement of his costs and expenses.

I. As to the applicability of Article 6 § 1 (art. 6-1)

of the Convention

1. Like several earlier judgments, the Court's judgment in the

instant case gives undue prominence to the concept of "contestation"

(dispute).

I refer to the observations I made on this subject in my separate

opinion in the Pudas case and to those I made jointly with

Mr. Pettiti in my separate opinion in the Bodén case (1).

_______________

(1) Judgments of 27 October 1987, Series A no. 125, pp. 21

and 45.

_______________

I feel bound to reiterate them, the more so as the instant case is

concerned precisely with non-contentious proceedings (2).

_______________

(2) See on this point the observations of Mr. Matscher in his separate

opinion in the Albert and Le Compte case, judgment of

10 February 1983, Series A no. 58, pp. 26-27, § 2, and in

his contribution to the Festschrift für Kurt Wagner,

Vienna 1987, pp. 271-281.

_______________

Nothing in these proceedings disclosed the existence of a

contestation. They concerned merely, as the Court notes, "a matter

relating to the determination of a right" (3). That sufficed for the

applicant to be entitled to the protection of Article 6 § 1 (art. 6-1)

of the Convention.

_______________

(3) Paragraph 38 of the judgment.

_______________

2. The judgment repeats once again the assertion in the James

judgment (4) that Article 6 § 1 (art. 61) of the Convention applies

"only" in respect of "'rights and obligations' which can be said, at

least on arguable grounds, to be recognised under domestic law" (5).

_______________

(4) Judgment of 21 February 1986, Series A no. 98, p. 46, § 81.

(5) Paragraph 40, second sub-paragraph, of the judgment.

_______________

I regret this. For myself, I can only confirm what I said, with five

of my colleagues, about that assertion when it was repeated in the

cases of W, B, R and 0 v. the United Kingdom (6); what I said

subsequently when it was again repeated in the Pudas case; and what I

said with Mr. Pettiti when it was yet again repeated in the Bodén

case (7).

_______________

6) Judgments of 8 July 1987, Series A no. 120, p. 32, and no. 121,

pp. 39, 83 and 128.

(7) Pudas and Bodén judgments previously cited, loc. cit.

_______________

It was unnecessary to repeat the assertion again on this occasion,

since it is stated in the judgment that this excessive requirement was

satisfied in the instant case (8).

_______________

(8) Paragraph 43, first sub-paragraph, of the judgment.

_______________

It was, in my view, inappropriate to repeat pointlessly an assertion

on which there is not a sufficient consensus within the Court and

which is likely to seriously lessen the scope of the protection

afforded by the Convention.

3. In those circumstances, it matters little to me that what the

applicant "could maintain" was, in the words of the judgment,

"arguabl[e] ... in Belgian law" (9).

_______________

(9) Ibid.

_______________

In my opinion, the applicant was entitled purely and simply to have

his case heard by a tribunal affording him the safeguards laid down in

Article 6 § 1 (art. 6-1) of the Convention; it was for a tribunal of

this kind to determine whether the applicant's case could be

"arguably" maintained and whether it could so be maintained, not

narrowly "in Belgian law", but "in law" tout court.

4. I have no difficulty in holding, with the majority of my

colleagues, that the right to be determined in the instant case was a

"civil" one.

I am increasingly inclined to think that a "civil" character, within

the meaning of Article 6 § 1 (art. 6-1) of the Convention, is to be

ascribed to all rights and obligations which do not relate, more

specifically, to the "determination ... of [a] criminal charge".

In my opinion, it is therefore of little importance that the right at

issue displayed "features of public law" (10); even if it had not had

any other features, it ought nonetheless to have been covered by the

judicial protection guaranteed in the provision in question.

_______________

(10) Paragraph 46 of the judgment.

_______________

5. Such protection had, therefore, to be provided in the instant

case, as the applicant had raised "a matter relating to the

determination of a right" (11).

_______________

(11) Paragraph 38 of the judgment.

_______________

II. As to the violation of Article 6 § 1 (art. 6-1) of the Convention

1. The Council of the Ordre, which had to decide on H's

application for restoration to the roll, was, as the Court notes, an

independent (12) tribunal (13).

_______________

(12) Paragraph 51 of the judgment.

(13) Paragraph 50 of the judgment.

_______________

It was also, in my view, an impartial tribunal.

As the Court sees nothing in the evidence before it to give it any

reason to doubt the "personal impartiality" of the members of the

Council of the Ordre, it leaves open the question of the Council's

"structural impartiality" (14).

_______________

(14) Paragraph 52 of the judgment.

_______________

There is nothing in the evidence, either, to give any reason to doubt

the latter any more than the former (15).

_______________

(15) See, mutatis mutandis, the Albert and Le Compte judgment

previously cited, pp. 17-18, § 32.

_______________

The "structural" impartiality of a body such as a council of the Ordre

des avocats has to be presumed, just like the "personal" impartiality

of its members, until the contrary is proved. In particular, the fact

that it contained only members elected by their peers "cannot suffice

to bear out a charge of bias" (16).

_______________

(16) Le Compte, Van Leuven and De Meyere judgment of 23 June 1981,

Series A no. 43, p. 25, § 58. See also the Albert and Le Compte

judgment previously cited, loc. cit.

_______________

2. I consider the reasoning given in the judgment as regards the

fairness of the proceedings (17) to be unconvincing.

_______________

(17) Paragraph 53 of the judgment.

_______________

This is particularly so in that it is stated in the judgment that

there was no provision allowing the applicant a right of challenge

(18), that the Antwerp Bar did not have any internal rules of

procedure (19) and that the reasons given for the two impugned

decisions were not sufficient (20).

_______________

(18) Paragraph 53, fourth sub-paragraph, of the judgment.

(19) Ibid.

(20) Paragraph 53, sixth sub-paragraph, of the judgment.

_______________

3. Whether or not there was a "provision" allowing the applicant

a right of challenge, and whether or not there were any "internal

rules of procedure" (21), seem to me to be of very little importance

in the instant case.

_______________

(21) Paragraph 53, fourth sub-paragraph, of the judgment.

_______________

It may be asked what such "provision" or such "rules" should or could

have contained. It may be asked whether it was possible and desirable

to regulate everything in advance. It may also be asked in what way

the fact that general principles or traditional customary rules were

not formulated in writing in laws or in regulations could hinder the

applicability (Geltung) or application (Wirkung) of those principles

and rules (22).

_______________

(22) See on this point the Sunday Times case of 26 April 1979,

Series A no. 30, pp. 30-33, §§ 46-53.

_______________

What mattered was to ascertain whether, with or without any

"provision", with or without "internal rules of procedure", everything

was properly conducted.

In the instant case nothing warrants the assertion that the lack of

such provisions or rules could have prejudiced the applicant.

In particular, as regards the right of challenge, there is nothing to

show either that the applicant would have wanted to challenge one or

more of the members of the Council of the Ordre (23) or that, if he

had done so, he would have met with a refusal based on the lack of any

"provision" allowing him a right of challenge.

_______________

(23) See, mutatis mutandis, the Le Compte, Van Leuven and De Meyere

judgment previously cited, p. 25, § 58.

_______________

4. The judgment appears to recognise that giving "sufficient

reasons" was, in the instant case, one of the requirements that had to

be satisfied for the proceedings to be "fair" (24).

_______________

(24) Paragraph 53, sixth sub-paragraph, of the judgment.

_______________

Like Mr. Lagergren, Mr. Pettiti and Mr. Macdonald, I welcome this

and consider that all judicial decisions should give an adequate

indication of the reasons on which they are based (25).

_______________

(25) See their concurring opinion above.

_______________

But I take the view that the Court had "scarcely ... any information"

(26) enabling it to say or suggest that, as regards the lack of any

"exceptional circumstances" within the meaning of Article 471 of the

Judicial Code, the reasons given in the two impugned decisions were

insufficient (27); in this respect, the judgment itself seems to me

to be ill-supported by reasoning and, above all, to be ill-founded.

_______________

(26) Paragraph 42, second sub-paragraph, of the judgment.

(27) Paragraph 53, sixth sub-paragraph, of the judgment.

_______________

To be convinced of this, it is sufficient to look at the evidence*.

_______________

* Note by the Registrar. Appendices 3-12 to the Government's

memorial are not available to the public and will not be published

(order made by the President of the Court on 26 October 1987 pursuant

to Rule 55 of the Rules of Court).

_______________

The circumstances which might have justified restoration to the roll

were not mentioned in the letters in which the applicant applied for

readmission (28): both of those letters are terse in the extreme. In

the one of 3 December 1979 the applicant applies, in fifteen words,

for rehabilitation ("eerherstel") and restoration to the roll

("herinschrijving"). In the one of 9 February 1981 he does no more

than apply, in twelve words, for restoration to the roll.

_______________

(28) Cour (86) 100, addendum, documents 3 and 8.

_______________

The letter of 3 December 1979 was not accompanied by any supporting

documents. It was enlarged on orally at the sitting of the Council of

the Ordre on 18 February 1980 by Mr. De Clercq, who, according to the

minutes of the sitting, relied on the following:

(a) the major professional and family difficulties the applicant had

experienced over the previous fifteen years;

(b) the care the applicant had taken to avoid any misunderstanding or

confusion as to the capacity in which he managed his clients' legal

and tax affairs;

(c) the fact that the 1963 decision had not been followed up with any

criminal proceedings and that the prosecutions brought against the

applicant later had ended in acquittals;

(d) the courage and idealism the applicant had shown in continuing,

so far as was still open to him, to make use of his legal skills and

to keep them up through study (29).

_______________

(29) Cour (86) 100, addendum, document 7.

_______________

In its decision given the same day, the Council of the Ordre briefly

noted that these explanations did not disclose the existence of any

exceptional circumstances such as would persuade the Council that it

was appropriate to order restoration to the roll and thus cancel the

effects of the disbarment ordered in 1963 (30).

_______________

(30) Ibid.

_______________

Was there much more to be said in reply to the arguments put forward

by Mr. De Clercq (31)? Was it necessary to invent pointless

sentences merely in order to say (according as the reply was

affirmative or negative) that the arguments had or had not persuaded

the Council that there were "exceptional circumstances"? How, in the

instant case should it have been "explain[ed] why the circumstances

relied on by the applicant were not to be regarded as exceptional"

(32)?

_______________

(31) In the minutes of the sitting on 18 February 1980 these

arguments are reproduced immediately before the text of

the Council's decision.

(32) Paragraph 53, sixth sub-paragraph, of the judgment.

_______________

The letter of 9 February 1981 was accompanied by a memorandum

of 3 February 1981 written at the applicant's request by a retired

procureur général, B. This memorandum consisted mainly of a criticism

of the procedure followed in 1963; it also contained a few

reflections on the consequences the disbarment had had for the

applicant and on the difficulties he had encountered since he had been

struck off (33).

_______________

(33) Cour (86) 100, addendum, document 9. The memorandum begins by

reproducing a letter the applicant sent to B on 9 December 1980, in

which he refers among other things to the "pitiful suffering"

("erbarmelijke lijdensweg") and the worrying situation ("de

toestand ... is ... angstwekkend") which he claims the disbarment

has entailed for him.

_______________

At the sitting of the Council of the Ordre on 21 April 1981,

Mr. De Clercq concentrated on setting out the arguments relating to

the 1963 proceedings, and he stated in particular that B's memorandum

disclosed "wholly exceptional circumstances which were not known at

the time of the first application for restoration to the roll". As

for the rest, he pointed out that from 1963 to 1980 the applicant had

run his legal and tax consultancy in a manner beyond reproach;

reminded the Council of the "major family worries" that the applicant

had had to face during the same period; and affirmed the need to put

an end to a "disastrous situation", which was, he said, out of all

proportion to the offences which had led to disbarment (34).

_______________

(34) Cour (86) 100, addendum, document 10.

_______________

At the same sitting the applicant filed a memorandum which did not

contain any fresh evidence but merely explained why it was B who had

been consulted and why it was legitimate to consult him (35).

_______________

(35) Ibid., document 11.

_______________

The decision of the Council of the Ordre on 11 May 1981 replied at

some length to the criticisms concerning the propriety of the

disbarment procedure. The Council noted that, as to the rest, the

memorandum by B merely repeated the arguments already put forward on

18 February 1980 and that it had not been shown any more convincingly

than on that occasion that there were "exceptional circumstances"

which might justify restoring the applicant to the roll. It pointed

out that disbarment was ordered only where an avocat was deemed

unworthy of ever practising his profession again, and that this

explained why only "exceptional" circumstances could justify

restoration to the roll. The Council added that the seriousness of

disbarment and its consequences could not in itself be used as an

argument justifying restoration to the roll after some time had

elapsed (36).

_______________

(36) Ibid., document 12.

_______________

Once again, it has to be asked whether it was necessary to say much

more on this score (37).

_______________

(37) "While a statement of reasons is thus necessary to the validity

of a judgment of the Tribunal, the question remains as to what form

and degree of reasoning will satisfy this requirement. The applicant