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You are here: BAILII >> Databases >> European Court of Human Rights >> BORGERS v. BELGIUM - 12005/86 [1991] ECHR 46 (30 October 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/46.html
Cite as: 15 EHRR 92, (1993) 15 EHRR 92, [1991] ECHR 46
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In the case of Borgers v. Belgium*,
The European Court of Human Rights, taking its decision in
plenary session pursuant to Rule 51 of the Rules of Court** and
composed of the following judges:
Mr J. Cremona, President,
Mr Thór Vilhjálmsson,
Mrs D. Bindschedler-Robert,
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 A. Spielmann,
Mr N. Valticos,
Mr S.K. Martens,
Mrs E. Palm,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr F. Bigi,
Mr M. Storme, ad hoc judge,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 22 March and 25 September 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 39/1990/230/296. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") and then by the
Belgian Government ("the Government") on 11 July and 26 September
1990, within the three-month period laid down by Article 32 para. 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. 12005/86)
against the Kingdom of Belgium lodged with the Commission under
Article 25 (art. 25) by a Belgian national, Mr André Borgers, on
5 December 1985.
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 Government's application referred to Article 48
(art. 48). The object of the request and of the application 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 (art. 6) of the Convention.
2. In response to the enquiry 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 and designated the
lawyer who would represent him (Rule 30).
3. The Chamber 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 para. 3 (b)). On 27 August 1990,
in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr J. Cremona, Mr F. Matscher,
Mr B. Walsh, Mr C. Russo, Mr N. Valticos, Mr A.N. Loizou and
Mr J.M. Morenilla (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
On 18 July 1990 Mr De Meyer had stated that he wished to withdraw
from the case pursuant to Rule 24 para. 2, because it raised the
same issues as those which had arisen at the time in the Delcourt
case, in which he had acted as Agent and Counsel for the
Government (judgment of 17 January 1970, Series A no. 11, p. 5,
para. 7). On 21 September the Permanent Representative of
Belgium to the Council of Europe informed the Registrar that
Professor M. Storme had been appointed to sit as ad hoc judge
(Article 43 of the Convention and Rule 23) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Government, the Delegate of the Commission and the
applicant's representative on the need for a written procedure
(Rule 37 para. 1). In accordance with the orders made in
consequence, the Registrar received the Government's memorial on
17 December 1990 and that of the applicant on 13 January 1991.
In a letter of 14 January the Secretary to the Commission
informed the Registrar that the Delegate would submit his
observations at the hearing.
5. On 23 January 1991 the Chamber decided to relinquish
jurisdiction forthwith in favour of the plenary Court (Rule 51).
6. Having consulted, through the Registrar, those who would
be appearing before the Court, the President had directed on
12 October 1990 that the oral proceedings should open on
19 March 1991 (Rule 38).
7. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Lathouwers, legal officer,
Ministry of Justice, Agent,
Mr P. Van Ommeslaghe, avocat,
Mr P. Gérard, avocat, Counsel;
(b) for the Commission
Mr S. Trechsel, Delegate;
(c) for the applicant
Mr J. Gillardin, avocat, Counsel.
The Court heard addresses by Mr Van Ommeslaghe, Mr Trechsel and
Mr Gillardin, as well as their replies to its questions.
8. At the final deliberations Mr Cremona, the Vice-President of
the Court, replaced Mr Ryssdal as President, the latter being
unable to take part in the further consideration of the case
(Rule 9).
AS TO THE FACTS
I. The particular circumstances of the case
9. Mr André Borgers, a Belgian national residing at Lummen
(Belgium), is a lawyer who currently practises at the Hasselt
Bar.
10. On 8 November 1981 he was elected provincial counsellor and
thereupon tendered his resignation from the post of substitute
district judge (juge de paix suppléant) which he had held since
12 April 1976, but which under the Judicial Code was incompatible
with his new elected office.
11. On 16 June 1981 he had appeared before the Antwerp Court of
Appeal charged with forgery and using forged documents, the
latter court having jurisdiction by virtue of the privileges
which he enjoyed in this respect as a judicial officer.
On 19 May 1982 it imposed on him a suspended sentence of six months'
imprisonment and fined him 40,000 Belgian francs.
12. The applicant appealed to the Court of Cassation on points
of law. He argued that in its judgment convicting him the Court
of Appeal had failed to give an adequate statement of its reasons
and to attach sufficient weight to the records of the
investigating judge's examinations; he contended further that the
judgment had been delivered following a violation of the rights
of the defence. In accordance with usual practice, the procureur
général's department of the Antwerp Court of Appeal did not
submit a memorial in reply.
13. On 20 March 1984 the Court of Cassation allowed the appeal
and quashed the contested decision on the ground that an adequate
statement of the reasons on which it was based had not been
given. Previously, at the hearing, it had heard the report of
the judge rapporteur, Mr d'Haenens, and the concurring
submissions (conclusions) of Mr Tillekaerts, the avocat général
(a member of the procureur général's department). The latter had
also attended the deliberations in accordance with Article 1109
of the Judicial Code (see paragraph 17 below).
14. The Ghent Court of Appeal, to which the case had been
remitted, convicted the applicant on 14 November 1984 and imposed
on him identical sanctions to those resulting from the earlier
decision (see paragraph 11 above). Mr Borgers again appealed to
the Court of Cassation; he complained inter alia that the
judgment in question had failed to state sufficient reasons and
had misinterpreted the provisions of criminal law concerning
forged documents and statutory limitation.
15. His appeal was dismissed on 18 June 1985, following a
hearing at which the Court heard the report of the judge
rapporteur, Mr d'Haenens, and the concurring submissions of
Mr Tillekaerts, the avocat général, who had again participated in
the deliberations (see paragraph 17 below).
II. Relevant domestic law and practice
A. The "procureur général"'s department at the Belgian Court of
Cassation
16. According to Article 141 of the Judicial Code:
"The procureur général at the Court of Cassation shall not act as
prosecuting authority except where he has instituted proceedings
in which the decision on the merits falls to the Court of
Cassation."
This provision replaced Article 37 of the Prince Sovereign's
Decree of 15 March 1815, which was in issue in the Delcourt case
(already cited, see paragraph 3 above) and which was worded as
follows:
"Even in criminal proceedings, the procureur général at the court
cannot be regarded as a party; his role is only to make
submissions (conclusions), except where he has himself appealed.
In the latter event, he shall put the prosecution case
(réquisitoire) in pleadings which, filed with the registry, shall
be forwarded without further formalities to the rapporteur
appointed by the First President and then distributed with the
report to the members of the procureur général's department."
It is true that where the Court of Cassation hears a case on its
merits, the procureur général's department assumes the role of a
party, but these instances are quite rare. They include the
trial of ministers (Article 90 of the Constitution), civil
proceedings brought against a judge in his official capacity (la
prise à partie) (Article 613, 2°, and Articles 1140 to 1147 of
the Judicial Code) and disciplinary proceedings against certain
judicial officers (Articles 409, 410 and 615 of the same Code).
Apart from these exceptional circumstances, the procureur
général's department at the Court of Cassation carries out, with
full independence, the duties of adviser to the Court. In this
capacity, it is by no means unusual for it to express the opinion
that the court should dismiss an appeal lodged by the prosecuting
authorities of the lower court or should allow an appeal by an
accused; indeed it may even raise an argument against the
conviction or sentence of its own motion.
17. On the procedure to be followed in the Court of Cassation,
whether for civil or criminal proceedings, the Judicial Code
provides as follows:
Article 1107
"After the report has been read out, submissions are taken from
the lawyers present at the hearing. Their pleadings shall relate
exclusively to the issues of law raised in the grounds for appeal
or to the pleas in bar put forward against the appeal.
The procureur général's department shall then make its
submissions, whereafter no further documents shall be accepted."
Article 1109
"The procureur général or a member of his department shall be
entitled to attend the deliberations unless the appeal on a point
of law has been lodged by the procureur général's department
itself; he shall not be entitled to vote in the deliberations."
The procureur général's department may file an appeal on a point
of law either "in the interests of the law" (Articles 1089 and
1090 of the Judicial Code and Article 442 of the Code of Criminal
Procedure) or following a complaint by the Minister of Justice
(Article 1088 of the Judicial Code and Article 441 of the Code of
Criminal Procedure).
The rule which, in such cases, requires the exclusion from the
Court's deliberations of the procureur général or his
representative already applied under the Prince Sovereign's
Decree of 15 March 1815 (see paragraph 16 above), but it was not
expressly laid down therein (see the transcript of the hearing of
30 September 1969 in the Delcourt case, Series B, no. 9, p. 215).
It merely provided, in Article 39:
"In cassation proceedings the procureur général or a member of
his department shall have the right to be present, without
voting, when the court retires to consider its decision."
B. Disciplinary rules governing the judiciary
1. The judicial officials of the "ministère public"
18. Under Article 400 of the Judicial Code the disciplinary
hierarchy applying to the officials of the ministère public is as
follows:
"The Minister of Justice shall exercise supervisory authority
over all the officials of the ministère public, the procureur
général at the Court of Cassation over his counterparts at the
Courts of Appeal and the latter over public prosecutors and their
departments in their courts and the lower courts as well as over
State counsel in the Industrial Appeals Tribunals, the crown
prosecutors and the State counsel in the industrial tribunals and
their substitutes."
The above provision replaced section 154 of the Judiciary
(Organisation) Act of 1869, referred to in the Delcourt judgment
(cited above, Series A no. 11, p. 16, para. 30).
Article 414 of the Judicial Code states as follows:
"The procureur général at the Court of Appeal may impose on the
subordinate officials of the ministère public the sanctions of a
warning, a reprimand or a reprimand with suspension of salary.
The procureur général at the Court of Cassation shall have the
same powers in regard to persons holding the office of avocat
général at that court and those holding the office of procureur
général at the Courts of Appeal.
The Minister of Justice may likewise warn and reprimand all the
officials of the ministère public or recommend to the King their
suspension or their revocation."
2. Judges
19. On the question of disciplinary proceedings against judges
and the role in this matter of the procureur général at the Court
of Cassation, the following provisions of the Judicial Code may
be cited:
Article 409
"Only the Court of Cassation may hear disciplinary proceedings to
remove a judge from office."
Article 413
"Substitute judges" - such as Mr Borgers from 1976 to 1981 (see
paragraph 10 above) - "are, in that capacity, subject to the same
disciplinary authorities as full judges."
Article 418
"[...] disciplinary proceedings [...] against judges [...] shall
be instituted by the competent authority of its own motion; if
their object is the issue of a warning, they shall be instituted
by the authority empowered to order such a measure; in other
cases, they shall be instituted by the first president of the
competent court. Disciplinary proceedings may always be
instituted at the instance of officers of the ministère public."
PROCEEDINGS BEFORE THE COMMISSION
20. In his application of 5 December 1985 to the Commission
(no. 12005/86), Mr Borgers relied inter alia on Article 6 para. 1
(art. 6-1) of the Convention. He complained that an avocat
général at the Court of Cassation had attended the deliberations
of that court; in his view, this had infringed his right to a
fair trial and violated the principle of the equality of arms.
He subsequently criticised, in addition, the fact that he had not
been able to reply to that official's submissions or address the
court last at the hearing on 18 June 1985 (see paragraph 15
above).
21. On 12 April 1989 the Commission declared these complaints
admissible, while finding the remainder of the application
inadmissible. In its report of 17 May 1990 (Article 31 of the
Convention) (art. 31), it expressed the opinion, by fourteen
votes to one, that there had been a violation of Article 6 para. 1
(art. 6-1). The full text of its opinion and of the separate
opinion contained in the report is reproduced as an annex to this
judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 214-A
of Series A of the Publications of the Court), but a copy of
the Commission's report is obtainable from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 para. 1 (art. 6-1)
22. Mr Borgers alleged a violation of Article 6 para. 1
(art.6-1), according to which:
"In the determination ... of any criminal charge against him,
everyone is entitled to a fair ... hearing ... by an ...
impartial tribunal ..."
He complained in the first place that, at the hearing on 18 June 1985
in the Court of Cassation (see paragraph 15 above), he had
been unable to reply to the submissions of the avocat général or
to address the court last; secondly, he objected to the fact that
the avocat général had participated in the deliberations which
took place immediately after the hearing. He argued that as, in
accordance with Articles 400 and 414 of the Judicial Code (see
paragraph 18 above), the ministère public formed a single unit
for institutional and disciplinary purposes, the official in
question could indeed have been seen as his opponent. That
official's presence at the deliberations had served only to
aggravate the breach of the principle of equality of arms which
had already occurred at the stage of argument.
The Commission shared this opinion in substance and invited the
Court to reconsider the view taken in its judgment in the
Delcourt case of 17 January 1970 (paragraph 3 above).
23. According to the Government, on the other hand, the
procureur général's department at the Court of Cassation could
not be considered equivalent to the prosecutor's offices of the
lower courts. As it did not act as prosecuting authority, save
in exceptional cases (see paragraph 16 above), it was in their
view neither party to the proceedings nor the opponent of anyone.
Its sole task was to advise the Court and thereby help to ensure
that its case-law was consistent: at the hearing, by making
submissions; at the deliberations, by assisting in the drafting
of the judgment. Its total impartiality was derived in
particular from the independence which it enjoyed vis-à-vis the
Minister of Justice and the lack of any hierarchical link between
the procureur général of the Court of Cassation and the officials
of the ministère public in the lower courts. Recent statistics
confirmed moreover that, as had been the case in the past, the
submissions of the procureur général's department were frequently
in favour of the convicted person (see the above-mentioned
Delcourt judgment, Series A no. 11, pp. 18-19, para. 34). In
short, the Government contended that the disputed proceedings had
not given rise to a breach of the applicant's right to a fair
trial before an impartial court or infringed the principle of
equality of arms.
24. The Court notes in the first place that the findings in the
Delcourt judgment on the question of the independence and
impartiality of the Court of Cassation and its procureur
général's department remain entirely valid (Series A no. 11,
pp. 17-19, paras. 32-38). It is true that the Judicial Code has
entered into force since then, but it substantially confirmed the
existing rules in this field, through provisions whose wording
was moreover examined at the hearing on 29 September 1969 (Series
B no. 9, pp. 170 et seq.). Having regard to the grounds set out
in that judgment, the Court does not perceive any breach of the
Convention requirements on this issue.
It is, however, necessary to consider whether the proceedings
before the Court of Cassation also respected the rights of the
defence and the principle of the equality of arms, which are
features of the wider concept of a fair trial (see, among other
authorities, the Ekbatani judgment of 26 May 1988, Series A
no. 134, p. 14, para. 30). This has undergone a considerable
evolution in the Court's case-law, notably in respect of the
importance attached to appearances and to the increased
sensitivity of the public to the fair administration of justice
(see, among other authorities, mutatis mutandis, the following
judgments: Piersack v. Belgium of 1 October 1982, Series A
no. 53, pp. 14-15, para. 30; Campbell and Fell v. the United Kingdom
of 28 June 1984, Series A no. 80, pp. 39-40, para. 18; Sramek v.
Austria of 22 October 1984, Series A no. 84, p. 20, para. 42;
De Cubber v. Belgium of 26 October 1984, Series A no. 86, p. 14,
para. 26; Bönisch v. Austria of 6 May 1985, Series A no. 92, p. 15,
para. 32; Belilos v. Switzerland of 29 April 1988, Series A
no. 132, p. 30, para. 67; Hauschildt v. Denmark of 24 May 1989,
Series A no. 154, p. 21, para. 48; Langborger v. Sweden of
22 June 1989, Series A no. 155, p. 16, para. 32; Demicoli v.
Malta of 27 August 1991, Series A no. 210, p. 18, para. 40;
Brandstetter v. Austria of 28 August 1991, Series A no. 211,
p. 21, para. 44).
25. In this connection too the Government stressed that, both
in criminal and civil proceedings, the procureur général's
department at the Court of Cassation was in no way a party to the
proceedings before that court - save in exceptional cases which
were not material in this instance -, with the result that it
could not be regarded as an opponent; its role was confined to
giving the Court an impartial and independent opinion on the
legal issues raised and, in criminal proceedings, to drawing
attention, even of its own motion, to any point of law having
regard to which the contested decision should be quashed.
26. No one questions the objectivity with which the procureur
général's department at the Court of Cassation discharges its
functions. This is shown by the consensus which has existed in
Belgium in relation to it since its inception and by its approval
by Parliament on various occasions.
Nevertheless the opinion of the procureur général's department
cannot be regarded as neutral from the point of view of the
parties to the cassation proceedings. By recommending that an
accused's appeal be allowed or dismissed, the official of the
procureur général's department becomes objectively speaking his
ally or his opponent. In the latter event, Article 6 para. 1
(art. 6-1) requires that the rights of the defence and the
principle of equality of arms be respected.
27. In the present case the hearing on 18 June 1985 before the
Court of Cassation concluded with the avocat général's
submissions to the effect that Mr Borger's appeal should not be
allowed (see paragraph 15 above). At no time could the latter
reply to those submissions: before hearing them, he was unaware
of their contents because they had not been communicated to him
in advance; thereafter he was prevented from doing so by statute.
Article 1107 of the Judicial Code prohibits even the lodging of
written notes following the intervention of the member of the
procureur général's department (see paragraph 17 above).
The Court cannot see the justification for such restrictions on
the rights of the defence. Once the avocat général had made
submissions unfavourable to the applicant, the latter had a clear
interest in being able to submit his observations on them before
argument was closed. The fact that the Court of Cassation's
jurisdiction is confined to questions of law makes no difference
in this respect.
28. Further and above all, the inequality was increased even
more by the avocat général's participation, in an advisory
capacity, in the Court's deliberations. Assistance of this
nature, given with total objectivity, may be of some use in
drafting judgments, although this task falls in the first place
to the Court of Cassation itself. It is however hard to see how
such assistance can remain limited to stylistic considerations,
which are in any case often indissociable from substantive
matters, if it is in addition intended, as the Government also
affirmed, to contribute towards maintaining the consistency of
the case-law. Even if such assistance was so limited in the
present case, it could reasonably be thought that the
deliberations afforded the avocat général an additional
opportunity to promote, without fear of contradiction by the
applicant, his submissions to the effect that the appeal should
be dismissed.
29. In conclusion, having regard to the requirements of the
rights of the defence and of the principle of the equality of
arms and to the role of appearances in determining whether they
have been complied with, the Court finds a violation of
Article 6 para. 1 (art. 6-1).
II. THE APPLICATION OF ARTICLE 50 (art. 50)
30. Under Article 50 (art. 50) of the Convention,
"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. Damage
31. Initially Mr Borgers claimed an overall amount of
1,000,000 Belgian francs as compensation for the non-pecuniary
damage deriving from the professional and family difficulties
which had resulted from the failure of his appeal. At the
hearing before the Court, he apparently changed his position to
that of the Commission. In the latter's view, there could be no
speculation as to what would have been the outcome of these
proceedings had no violation occurred. The Government too
stressed the lack of causal connection between the breach and the
alleged damage.
The Court shares the Commission's view that the finding of a
violation of Article 6 para. 1 (art. 6-1) constitutes in itself
sufficient just satisfaction in this respect.
B. Cost and expenses
32. The applicant also claimed a sum of 113,250 Belgian francs
for the expenses and fees, which he itemised, of the lawyer who
represented him before the Court. Neither the Commission nor the
Government formulated observations on this question.
In the Court's opinion, the amount claimed is consistent with the
criteria laid down in its case-law. Mr Borgers should therefore
be awarded the entire amount.
FOR THESE REASONS, THE COURT
1. Holds by eighteen votes to four that there has been a
violation of Article 6 para. 1 (art. 6-1) of the Convention;
2. Holds by twenty votes to two that Belgium is to pay the
applicant, within three months, 113,250 (one hundred and thirteen
thousand two hundred and fifty) Belgian francs in respect of
costs and expenses;
3. Dismisses 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 October 1991.
Signed: John CREMONA
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the
following separate opinions are annexed to this judgment:
- dissenting opinion of Mr Cremona;
- dissenting opinion of Mr Thór Vilhjálmsson;
- concurring opinion of Mr Pinheiro Farinha and Mr Morenilla;
- dissenting opinion of Mr Martens;
- dissenting opinion of Mr Storme.
Initialled: J. C.
Initialled: M.-A. E.
DISSENTING OPINION OF JUDGE CREMONA
With respect, I am unable to agree with the present judgment.
First of all, one must not be unduly impressed by the admittedly
unusual character of the Belgian system which, one must
nevertheless accept, rests on a broad consensus and has worked
well for over a century and a half to the extent that the Belgian
Parliament has on more than one occasion confirmed it. One may
of course have different views as to its necessity or perhaps
even wisdom, but it is not for the Court to go into that matter
and tell the respondent State what system to adopt. What is
essential is that there should be no incompatibility with the
Convention and I am satisfied that there is none in the instant
case.
In this system the procureur général at the Court of Cassation
(which court deals only with the law) is in effect, as was stated
in Delcourt (paragraph 34), an adjunct and adviser of that court,
who with total objectivity (accepted also in the present
judgment) gives the court the benefit of his opinion on the law
with a view to ensuring the uniformity of judicial precedent, and
discharges a function of a quasi-judicial nature.
As such, the said procureur général (which term is here used to
include members of his department, notably the avocat général)
does not expect, nor on the other hand can he be expected, to be
hailed as an ally when, as so often happens in practice, he
expresses a legal opinion which accords with the line taken by
the accused, and be dismissed as a foe when he does not, because
in actual fact - and this is the reality of the situation
examined by the Court in Delcourt - at no time is he either one
or the other. Appearances cannot, chameleon-like, change in
respect of the same individual according to his interest in a
case, because if the majority view is correct, the same
individual may in one case consider the procureur général at the
Court of Cassation as an ally and in another case as a foe. And
if there are two separate questions of law involved in a single
appeal, he may even do so in one and the same case. The same
applies also if there are two successive appeals to the Court of
Cassation on two separate issues in the same case. This is in
fact what actually happened in the present case, where the legal
opinion of the very same avocat général was in favour of the
applicant's first appeal, which was in fact upheld, and against
his second appeal, which was rejected. Obviously, the applicant
was quite happy with one and, no less obviously, unhappy with the
other. Surely a practising barrister and former judge, himself
assisted by another barrister and quite familiar with the system,
would be the last person to labour under false impressions in
this regard.
I must say at this point that I am not much impressed by the host
of judgments cited in paragraph 24 insofar as they are held out
as some sort of justification for overruling Delcourt. In actual
fact these were cases of alleged lack of impartiality (and/or
independence) and the importance attached in the relative
judgments to the question of appearances was in that context.
But in the present judgment the Court says that, having regard to
the grounds set out in Delcourt, it does not perceive any breach
of the Convention requirements on the issue of the impartiality
and independence of the Court of Cassation and its procureur
général's department. It then passes on to consider the case
under the head of equality of arms and rights of the defence
(paragraph 24). But here the cited judgments, which as already
stated were really concerned with impartiality and independence,
do not help or at any rate do not directly do so.
In any event, if those judgments are invoked as precedents for
overruling Delcourt in view of the importance attached by them to
appearances as part of an evolutionary process in the Court's
jurisprudence, it is to be noted that in Delcourt too appearances
were clearly given importance. But then the truly important
thing is that, looking behind appearances, the Court found in
that case that the reality of the situation, in the light
especially of the true role of the procureur général at the Court
of Cassation, disclosed no breach of the requirements of a "fair
trial" under Article 6 (art. 6), and in my view should have done
the same also in the present case. After all, surely to look
behind appearances at the realities of a given situation is in
itself, as a general proposition of both law and common sense,
perfectly sound. It is also something which the Court has
explicitly done in quite a number of other cases besides Delcourt
(see, for instance, the judgments of Deweer, Series A no. 35,
p. 23, para. 44; Van Droogenbroeck, Series A no. 50, pp. 20-21,
para. 38; Sporrong and Lönnroth, Series A no. 52, pp. 24-25,
para. 63). Whether in individual cases it ultimately concluded
for or against a violation, and in fact it has done both, is of
course beside the point.
Again, the importance attached to the increased sensitivity of
the public to the fair administration of justice, also (rather
vaguely) referred to in connection with the evolutionary process
in the Court's jurisprudence and which surely cannot have
exploded in intensity since Delcourt, cannot serve as a ground
for overruling that judgment.
In Delcourt, after a very careful examination of the issue from
all aspects, including that of appearances, the Court in effect
performed an evaluating exercise which should not be disturbed
too easily and which to my mind is, as such, still valid.
In conclusion, I do not think that the judgments cited in
paragraph 24 are in effect valid precedents for overruling
Delcourt, nor do I see any other reason cogent enough to justify
overruling a previous judgment of the Court on the basis of which
the respondent State has for so many years acted in good faith.
Lastly, as is common practice, I have voted on the compensation
payable under Article 50 (art. 50) in view of the majority
decision on the merits.
DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON
I have not found it possible to vote with the majority of the
Court on the main question in this case, i.e. whether or not
there has been a breach of Article 6 para. 1 (art. 6-1) of the
Convention.
The issues that have to be considered are set out in paragraph 24
of the judgment. I have nothing to add to what is said in the
first sub-paragraph, with which I agree fully.
As to the relevance of the fact that the avocat général stated
his opinion in open court and was the last speaker before the
Court retired for deliberations behind closed doors, I would like
to quote the following from paragraph 29 of the Delcourt
judgment:
"In the present case, the two appeals to the Court of Cassation
were both instituted by [the applicant]; under Belgian law, the
respondent party was not the procureur général's department at
the Court of Cassation but the procureur général's departments at
whose behest the lower courts had pronounced the decisions under
appeal ... Indeed, the procureur général's departments at the
Court of First Instance and the Court of Appeal did not even
avail themselves of their right to reply in writing to [the
applicant's] memorial and the relevant legislation did not even
permit them to appear at the hearing before the Court of
Cassation - still less be present at the deliberations."
In paragraph 34 of the Delcourt judgment the Court added:
"The procureur général's department at the Court of Cassation is,
in a word, an adjunct and an adviser of the Court. It discharges
a function of a quasi-judicial nature."
I find the facts set out in that case comparable to the facts in
the present case and the legal analysis in the Delcourt judgment
still valid. The question of equality of arms does not arise in
this connection in my opinion, because the avocat général was not
engaged in argument with the applicant. His duty was to form an
opinion on the legal issues before the Court of Cassation after
the applicant had presented his arguments. He then had a duty to
make his views public at a particular stage of the proceedings.
I am of the opinion that it has not been substantiated that this
constituted a failure to respect the rights of the defence and
the principle of equality of arms.
The presence of the avocat général at the deliberations of the
judges of the Court of Cassation has also to be considered. As I
have already stated, I see the avocat général not as an opponent
of the applicant but rather as an assistant to the judges. Even
if the avocat général were considered to be to some extent bound
by his public statement, that would hardly matter. The strong
traditions of the judiciary in Belgium and the ability of the
judges, deriving from their education and training, provided the
necessary effective guarantees of independence and impartiality.
I find no violation here of the principle of fair trial.
The third and last question is that of appearances. The
functions of the procureur général's department at the Court of
Cassation in Belgium are grounded on old and well-known
traditions. Assessing all the circumstances, I find it
established that the objective impartiality of the Court cannot
be challenged.
CONCURRING OPINION OF JUDGES PINHEIRO FARINHA AND MORENILLA
(Translation)
1. We agree with the operative provisions of the judgment, but,
to our regret, we cannot accept what the majority says in
paragraphs 24 and 28.
2. We reject the affirmation that the findings in the Delcourt
judgment on the question of the independence and impartiality of
the procureur général's department "remain entirely valid". We
believe that, quite to the contrary, the Court ought expressly to
have departed from the contents of paragraphs 32-38 of that
judgment.
3. As regards the independence of the procureur général's
department at the Court of Cassation, we observe that, under
Articles 400 and 414 of the Judicial Code, the Minister of
Justice is empowered to exercise supervisory authority over all
the officials of the ministère public and in particular to impose
on them the sanctions of "a warning" or "a reprimand" or "to
recommend to the King their suspension or revocation"; we also
note the hierarchical structure of the ministère public deriving
from the first and second paragraphs of the aforesaid Article 414.
4. It follows that the avocat général who made his final
submissions in the cassation proceedings and who participated in
the deliberations of the Court remained a member of the ministère
public.
5. We have absolutely no doubts as to the integrity of the
members of the procureur général's department and their
intellectual independence, but we point out that they remain
representatives of the prosecutor in criminal cases and therefore
- in procedural terms - the accused's opponents.
6. In our opinion, with all due respect to the members of the
majority, it is not possible to talk of equality or inequality of
arms where there are no opposing parties. In this case there was
no equality of arms in view of the "unusual" right (see the
Delcourt judgment, pp. 16-17, para. 30 in fine) of the ministère
public in Belgium, in accordance with Article 1109 of the
Judicial Code (see paragraph 17), to attend the secret
deliberations of the Court.
7. The rights of the defence required, as the majority
acknowledged at paragraph 27, that "once the avocat général had
made submissions unfavourable to the applicant" the latter be
accorded the right to submit observations on those submissions
before the hearing was closed. This requirement was not
satisfied by Article 772 of the Judicial Code, according to which
exceptionally the hearing may be reopened, because in the present
case no "document" or "new fact" had been discovered. Moreover
it seems that Article has as yet never been applied in the Court
of Cassation.
DISSENTING OPINION OF JUDGE MARTENS
I. Introduction
1. In its judgment (hereinafter "the judgment") the Court has
overruled the Delcourt decision. By its own standards it could
do so only if it were persuaded that there were cogent reasons
for such a course1. Such reasons were particularly called for
since what was at stake was whether the proceedings before the
highest court of a member State comply with the requirement of
fairness under Article 6 para. 1 (art. 6-1) of the Convention
- a delicate question which in the Delcourt judgment had been
answered in the affirmative by a unanimous Court. Moreover the
Court's overruling of that decision may affect the proceedings
before the highest courts in several other member States as
well2.
In my opinion there are no such reasons. Moreover, the Court has
failed to do what a court that overrules an important judgment
should do: it failed to state its reasons for doing so clearly
and convincingly.
I will elaborate on these two points and conclude this opinion
with some considerations on a more general aspect of this case
which also causes me concern.
II. Are Articles 1107 and 1109 of the Belgian Judicial Code
compatible with the Convention?
a. Introductory remarks
2.1. Firstly I note, like the Court in paragraph 24 of its
judgment, that although the relevant national legislation has
been changed since the Delcourt judgment, the changes were not
essential, were already known to the Court when it considered its
decision in that case, and have been taken into account
explicitly3.
2.2. Secondly, it is common ground that the impugned proceedings
were in every respect in conformity with Articles 1107 and 1109
of the Belgian Judicial Code. In such a case I persist in
thinking that both logic and truthfulness demand that the first
step must be to ascertain whether these provisions are compatible
with the Convention4.
It is not only required by logic and truthfulness but also out of
fairness to Belgium.
The Delcourt judgment is one of those rare judgments where the
Court examined the compatibility of national provisions with the
Convention: it explicitly defined the object of its examination
in this way both at the beginning (see para. 27 in fine) and at
the end of its judgment (see para. 37). At the outset therefore
Belgium is entitled to expect that a judgment overruling the
Delcourt decision does the same.
There is, however, a more compelling reason to be quite explicit
on this point. As a result of the judgment Belgium will have to
change its legislation and is therefore entitled to expect that
the judgment enables it to ascertain whether Articles 1107 and
1109 as such violate Article 6 para. 1 (art. 6-1), or do so only
in certain cases. The more so as it was the Commission's thesis
(as explained by its Delegate) that these provisions violate the
Convention only as far as criminal cases are concerned5. It is
true that the Court did not adopt the arguments on which this
proposition was based. Nevertheless, in paragraph 26 it has also
limited itself to criminal cases. In my opinion Belgium and the
other member States which have a particular interest in the
outcome of this case should not have been left to guess whether
or not the Court's new doctrine is restricted to such cases.
b. The "procureur général"'s functions and the manner in which
he performs them
2.3. The first step in examining complaints about national
procedure should be "to concentrate on the realities of the
situation"6: the Court should not, of course, blindly accept
national doctrine, but should itself analyse and assess the
procedure. Therefore, the starting point for ascertaining
whether Articles 1107 and 1109 are compatible with the
requirements of a fair trial within the meaning of paragraph 1 of
Article 6 (art. 6-1) should be an examination of the procedural
position the procureur général occupies in the proceedings before
the Belgian Court of Cassation and of the manner in which he
performs his function7. In this examination I have carefully
taken into account the critical comments made in this respect
about the Delcourt judgment.
2.4. One of the judgment's fiercest critics, Cappelletti, has
written8 that the "ambiguity of the role and the status of the
ministère public remains a typical feature of this institution".
In a way that is true. As it is - to a certain extent - also
true that "the ministère public is, and has been throughout a
century-long history, an institutional method of assuring that
the 'public interest' (...) is adequately represented"9. Neither
can there be much doubt that there is a historical connection
between this function of the ministère public and those of its
representative at the courts of cassation in France, Italy, the
Netherlands and Belgium10: the latter functions undoubtedly once
originated from (or at least were closely connected with) the
task "to insure that the (lower) courts correctly and uniformly
apply the law" which in former days was incumbent upon the
ministère public11.
One should be careful, however, not to draw over hasty
conclusions from these general and historical considerations as
to the actual functions of the procureur général at the Belgian
Court of Cassation. In particular, it would, in my opinion, be
wrong to conclude therefrom that because the procureur général at
the Belgian Court of Cassation is a member of the ministère
public his functions are "to represent the public interest".
This is the case when he brings an appeal in the interests of the
law. But apart from that, it would be erroneous to consider his
role as "representing the public interest". This may be
illustrated by the fact that his position and the manner in which
he performs his functions do not in any way depend on whether the
appeal concerns a civil or a criminal case12, or on any other
special feature of an appeal instituted by one of the parties to
the case13.
His role is - as the Court said in paragraph 34 of its Delcourt
judgment - that of an independent and impartial adjunct to and
adviser of the Court of Cassation. It was not disputed - and
explicitly accepted also in the present judgment (paragraphs 16,
24 and 26) - that to all practical purposes the procureur général
offers the same guarantees with respect to independence and
impartiality as the judges in the Court of Cassation. In my
opinion the term "adjunct" is well chosen14: in a way the
procureur général is an "extraordinary member" of the Court of
Cassation15.
As to the manner of performing his functions this "extraordinary
member" differs in two respects from ordinary members:
(1) he expresses his opinion in open court, before the secret
deliberations; he does so after the parties have, at the hearing,
declared that they maintain the claims made in the memorials
already submitted, or (very exceptionally16) have orally
elucidated their submissions; in other words, when he takes the
floor, the case has been fully pleaded and all members of the
Court have already formed their (at least preliminary) opinion;
(2) subsequently the extraordinary member, like the ordinary
members, attends17 the secret deliberations but is not entitled
to vote.
2.5 As often in legal debate it may be illuminating to alter the
facts slightly. Imagine a legal system where each case before
the Court of Cassation is prepared by one of the five judges, the
juge rapporteur. Imagine further that under that system and
before the deliberations, the juge rapporteur has to state in
open court his full opinion, i.e. the conclusions he has come to
after having studied the file and having heard the parties. I
would think that under such a system it would stand to reason
that the juge rapporteur is only in a position to do so after the
case has been fully pleaded and that, consequently, the parties
will not be allowed to comment upon his speech or, if they are,
that he will have "the last word". It would also stand to reason
that the juge rapporteur, who presumably has a better knowledge
of the file than his brethren, takes part in the deliberations.
In such a system these features not only stand to reason but
there is in my mind no doubt that they cannot be regarded as
incompatible with the requirements of a fair procedure. The
public submissions of the juge rapporteur constitute, in this
system, the first stage of the process by which the Court forms
its judgment (which is arrived at in camera) and I fail to
appreciate why fairness demands that the parties, who already
have had every opportunity to defend their case, should at that
stage be heard again: lites finiri oportet.
Nor can I see any reason why such a juge rapporteur should not
take part in the deliberations. By expressing his opinion in
open court he has, admittedly, committed himself and therefore
has a particular interest in having his view of the law accepted
by his colleagues18. While it is true that even Supreme Court
judges may have their pride, should we not assume that the juge
rapporteur is sufficiently trained to overcome this when he is
convinced that the view expressed in camera by his colleagues is
the better one? And if not, do not his fellow judges form the
majority?
It follows from the analysis of the position of the procureur
général and the manner in which he performs his functions as set
out in paragraph 2.4 above that there is no decisive difference
between his position and that of the imaginary juge rapporteur.
Consequently, the conclusions drawn with regard to that judge are
equally valid with regard to the procureur général.
In conclusion: I fully share the analysis and the assessment of
the Delcourt judgment.
III. The Court's reasoning
a. Introductory remarks
3.1. The reasons given by the Court for coming to a different
conclusion may, for present purposes, be divided into two parts.
The second sub-paragraph of paragraph 24 of the judgment contains
the Court's "general considerations". There the Court notes
that, although the independence and the impartiality of the Court
of Cassation and its procureur général's department meet the
requirements of the Convention, it remains to be seen whether the
same may be said about the proceedings before that court. It
suggests that, especially as far as the notion of fair trial is
concerned, there has been "a considerable evolution", impliedly
since the Delcourt judgment. The Court continues by indicating
the characteristics of that evolution, which concerned notably:
(a) "the importance attached to appearances" and (b) "the
increased sensitivity of the public to the fair administration of
justice".
The starting point for the Court's "specific considerations" is
paragraph 26 where it then applies this "evolved" notion of fair
trial to the proceedings before the Belgian Court of Cassation.
I will first discuss the Court's "general considerations" and
then make some remarks on paragraph 26.
b. The increased sensitivity of the public to the fair
administration of justice
3.2. The point made by the Court suggests that since the Delcourt
judgment there have been "societal changes" in this respect which
warrant overruling19. Thus it echoes a similar observation made
during the hearing before the Court by counsel for the applicant.
Counsel provided no specific grounds for his suggestion that
since the Delcourt judgment there had been an evolution in this
respect. Neither does the Court. It merely refers to its
case-law (to be discussed in paragraph 3.4); but there one will look
in vain for a factual basis for the alleged "increased
sensitivity of the public".
Yet, general allegations such as this require a proper basis in
fact. While the legal profession in various member States
undoubtedly shows an increased awareness of the possibilities
offered by the Convention, this should not be confounded with
"societal changes" which eventually may entail - and justify -
changing the Court's case-law!
For my part, I am not aware of any specific grounds for the
Court's thesis.
Admittedly, there were some critical remarks on the Delcourt
judgment in commentaries at the time of the decision, but these
can hardly serve as an illustration of societal changes since
then. There is no evidence whatsoever of recent, serious and
widespread national or international criticism of the proceedings
before the Belgian Court of Cassation; nor - which, in view of
the information provided in note 2, one would have expected if
there was really any considerable increase in sensitivity on this
point - of proceedings before the French or the Netherlands
courts of cassation20.
In conclusion, I must say, with due respect, that I find this
ground for overruling wholly unconvincing.
c. The importance attached to appearances
3.3. As regards the second characteristic of the "evolution"
perceived by the Court, I note that from the list of judgments
given in paragraph 24 one reference is conspicuously lacking: the
Delcourt judgment itself. Yet, that judgment is, to the best of
my knowledge, the first judgment in which "appearances" made
their entry into the Court's case-law. They did so in the wake
of the maxim "justice must not only be done; it must be seen to
be done" (paragraph 31)21 to which the Court then - albeit
somewhat tentatively - referred to for the first time.
All of the decisions referred to in paragraph 24 of the judgment
concerned "impartiality"22: nearly all of them the impartiality
of judges (or other members of tribunals and boards); two
(Bönisch and Brandstetter) the impartiality of a court-appointed
expert.
It is my understanding that in this case-law "appearances" stands
for: objective, perceivable factors, observed by or at least
known to the parties or the public, whilst the repeatedly quoted
English maxim serves as a justification for not regarding it as
decisive whether the judge - or, as the case may be, the expert -
is actually biased. The idea is that when these factors are such
that there is a possibility of the judge or the expert being
prejudiced, it is immaterial whether he actually is, because any
judge in such circumstances should withdraw in the interests of
public confidence in the administration of justice. The
"principle of equality of arms" on the other hand requires that
any court-appointed expert in such circumstances be considered as
a party expert or witness.
3.4. A further point to be made is that, admittedly, since the
Delcourt judgment introduced this notion of "appearances" the
case-law using that doctrine has become rather extensive. That,
however, does not justify suggesting that since then there has
been an "evolution". On the contrary, analysis of that case-law
shows that the role of and the weight attached to "appearances"
are stationary.
In its Delcourt judgment as well as in various later judgments23,
the Court stressed that appearances have a certain importance,
but are not decisive24, adding that what is decisive is whether,
in the Court's view, fears as to impartiality are "objectively
justified". The Court has recently reiterated this cautious
approach in paragraphs 40 and 41 of its Demicoli judgment and in
paragraphs 44 and 61 of its Brandstetter judgment.
This cautious approach implies - as for example the Hauschildt
judgment clearly illustrates - that the Court's remarks in
paragraph 48 of its de Jong, Baljet and van den Brink judgment of
22 May 1984 are also relevant to this context, viz. that
"in determining Convention rights one must (...) look beyond the
appearances (...) and concentrate on the realities of the
situation"25.
In order to judge whether fears as to impartiality are
objectively justified, one needs to make a very careful
assessment of the objective reality which lies behind
appearances. Such assessment will frequently include a weighing
of interests since what is at stake is often not only the
confidence which the courts must inspire, but also the public
interest in having a rational and smoothly operating judicial
system26.
There can be little doubt that the latter interest is indeed at
the root of the formula: "objectively justified", for it is this
public interest that prevents yielding without more ado to any
and all of the purely subjective apprehensions of laymen. The
formula shows that the Court was - rightly - not prepared to be
led in this fashion by "the sensitivity of the public".
Accordingly, in the Hauschildt case (most members of) the
minority and the majority agreed that the mere fact that a judge
has already been involved in making preliminary decisions cannot
be held in itself to justify fears as to his impartiality, even
- as the Court stressed in paragraph 49 of its judgment - if
"this kind of situation may occasion misgivings on the part of
the accused ..., misgivings which are understandable, but which
nevertheless cannot necessarily be treated as objectively
justified"27. Otherwise, the Court seems to suggest, that kind
of subjective "feeling" would all too easily disrupt judicial
machinery! A similar approach is to be found in paragraph 44 of
the Brandstetter judgment.
In conclusion I must say, again with due respect, that I find as
also wholly unconvincing the suggestion that the "evolution" of
the Court's case-law as to the importance to be attached to
"appearances" warrants overruling the Delcourt decision.
d. The "specific" part of the Court's reasoning: paragraphs 26
et seq.
3.5. Before going into the "specific part" of the Court's
reasoning I would like to stress that in my opinion the above
analysis of the Court's case-law on "appearances" shows that the
formula "objectively justified" in principle implies two tests:
the first is whether the circumstances are such that (not only a
layman, but also) the Court cannot exclude the possibility that
the judge (or the expert) is prejudiced; and the second is
whether, nevertheless, in the particular case in which this
arises other public interests are to be deemed more important
than the confidence the courts should inspire.
3.6. In the light of paragraph 24 of the judgment one would
expect that, in answering the question whether the proceedings
before the Belgian Court of Cassation meet the requirements
implied in the notion of a fair trial the Court would have
applied these two tests. But when one looks at paragraph 26
(which obviously constitutes the pivot of this part of the
Court's reasoning) one cannot help noting that the term
"appearances" is conspicuously lacking. That is all the more
noticeable as the Commission had based its finding that an
accused is entitled to regard an avocat général who submits that
the appeal be dismissed as his opponent (mainly if not wholly) on
"appearances": see paragraph 54 of its report.
3.7. Although the term may be lacking, the wording of paragraph 26,
and especially that of the second sub-paragraph, seems
nevertheless to suggest that the finding is based on the concept
of "appearances" (which, as a matter of fact, crops up in
paragraph 28): "from the point of view" of the accused the
opinion of the avocat général cannot be regarded as "neutral"
and, accordingly, by recommending that the appeal of the accused
be dismissed the avocat général becomes "objectively speaking"
his opponent (with the consequence that the rights of the defence
and the principle of equality of arms apply).
The Court was evidently at pains to suggest that it did not just
rely on (understandable) "misgivings" which an adverse conclusion
of the avocat général "may occasion on the part of the accused",
but that it had "weighed" those "misgivings" and had found them
"objectively justified". The words "objectively speaking" are,
presumably, especially chosen to convey that impression because
of their resemblance with the expression "objectively justified"
discussed above (see paragraph 3.4). Thus these words seek to
suggest that not only a layman, but also the Court itself, cannot
but conclude that an avocat général who submits that the
accused's appeal be dismissed is to be regarded as the accused's
opponent. That conclusion would, however, be wholly
incomprehensible. Firstly, because Article 141 of the Judicial
Code (see paragraph 16 of the judgment) makes it clear that
officials of the procureur général's office cannot be considered
a party to the appeal in the ordinary sense of that notion.
Secondly and more importantly, because under the case-law as it
stands (see paragraph 3.5 above) this conclusion would imply that
the court is saying that in view of the opinion of the avocat
général it cannot exclude the possibility that he is prejudiced.
That, however, would be clearly incompatible with the Court's
finding that these officials meet the requirements of judicial
independence and impartiality and discharge their functions with
objectivity (see paragraphs 22 and 26 of the judgment).
I cannot, therefore, but infer from the fact that the Court only
suggests that it has come to this conclusion and refrains from
giving any argument whatsoever that as a matter of fact there is
no more than a pretense of objectivity and that in substance the
Court, without more ado, has made decisive the subjective
perception of legal reality by a layman. The reference to the
"sensitivity of the public" in paragraph 24 shows that the Court
was well aware of what it was doing.
3.8. It cannot be said that the Court thus merely applies the
case-law referred to in paragraph 24 and discussed above. Nor
that the Court only further develops the principles already laid
down in that case-law. Not at all. This is something quite
different, something quite new and something quite dangerous.
A layman's perceptions of procedural institutions and practices
are, of course, not immaterial per se, but at the risk of
jeopardising legal certainty they can only be held to be decisive
under very special circumstances and conditions.
This can be illustrated by the same process as used above if we
imagine a case where the submissions of a court-appointed expert
are decisive for the chances of acquittal of the accused. There
too the accused will probably consider the expert, when his
report is unfavourable, to be his opponent. But under the case-
law of the Court as it stood before the judgment in this case
this layman's perception does not suffice to hold that under the
principle of equality of arms any person the defence might wish
to call, in whatever capacity, in order to refute the views
professed by the expert should be examined under the same
conditions as the expert! Under the Court's case-law as it stood
the principle of equality of arms only comes into play in such a
case if the special circumstances of the case are such as to give
rise to fears on the part of the accused as to the expert's lack
of objectivity and if the Court finds those fears "objectively
justified" (in the sense I have indicated above in
paragraph 3.4)!
3.9. As I have explained in paragraph 3.4, under the Court's
case-law as it stood, even the layman's perception that under the
circumstances there is a possibility or even a probability of the
judge or the expert being prejudiced is never decisive. That
perception should be "weighed" and, in addition, weighed against
other interests. The same considerations that have inspired that
case-law demand that the layman's perception according to which a
perfectly neutral adjunct to and adviser of the Court of
Cassation, when advising with due objectivity that the accused's
appeal be dismissed, has become his opponent, be treated
likewise.
In paragraph 3.8 I have already explained why I cannot but
conclude that in this case the Court failed to give the proper
weight to the perceptions of the accused. In this context I note
that there is no trace of a further weighing of interests. Yet,
in my opinion, there were some further, relevant factors to be
taken into account. I confine myself to two.
Firstly, there is the fact that before the Belgian Court of
Cassation the accused, as a rule, is assisted by a (specialised)
lawyer, who is of course well aware of the real situation and who
will undoubtedly be able to disabuse those rare clients28 who
labour under the idea that the avocat général has become their
opponent because he has submitted that their appeal be dismissed.
Secondly, there is the public interest in having a rational and
smoothly operating judicial system. The best judge of the
question whether such an interest is involved is, undoubtedly,
the Belgian legislator who, as the Court mentions in passing
(paragraph 26 in pr.), has "on various occasions" in recent times
showed that in his opinion Articles 1107 and 1109 indeed serve
such an interest29.
3.10. These considerations vindicate my remarks in paragraph 1
above, namely, that the Court has failed to state its reasons for
overruling the Delcourt decision clearly and convincingly.
IV. Self-restraint where national procedural provisions are at
stake?
4.1. The foregoing considerations amply explain my vote. There
is, however, one more general aspect of this case that, although
rather delicate, merits a separate discussion.
In my view, it is quite something for an international court to
hold that the very proceedings (in criminal cases) before the
highest court in one of the member States are "unfair" or (to put
it less bluntly) are in violation of the requirements of a fair
trial under Article 6 para. 1 (art. 6-1). The Court's judgment,
however, does not reveal that the Court even contemplated whether
this particular aspect of the case should have led to some form
of self-restraint. There is, however, room for some comment.
4.2. My starting point is that on the one hand the Convention
does not aim at uniform law but lays down directives and
standards, which, as such, imply a certain freedom for member
States. On the other hand, the Preamble to the Convention seems
to invite the Court to develop common standards. These
contradictory features create a certain internal tension which
requires that the Court to act with prudence and to take care not
to interfere without a convincing justification.
4.3. A further ground for circumspection is that the Court's
decisions may have far-reaching consequences30 for other national
legal systems than that of the respondent State, consequences of
which the Court is not always aware and which, at any rate, it
often cannot adequately appreciate.
4.4. Lastly there is the concept of "fair trial" itself which
calls for careful handling.
To begin with the concept is vague and "open-ended". It needs
"filling in". This gradually occurs as case-law develops more
specific rules. The Court, however, has a tendency always to
rule in concreto, taking into account the specific features of
the case at hand. Thus elaborating the vague notion of "fair
trial" is not without risks: the rules that emerge from such a
case-law develop a momentum of their own and a tendency to
engender specific new rules. These new rules may overstrain a
concept which, after all, refers to very basic principles of
procedure.
As long as it has not elaborated a more comprehensive analytical
view of the notion of "fair trial" the Court should be aware of
these risks.
4.5 The need for caution in this area is all the greater since
the Court is confronted in a double sense with various procedural
systems: its members have been schooled in different procedural
traditions and those of the respondent State permeate the issues
under Article 6 para. 1 (art. 6-1). It may be that those who are
completely unfamiliar with a particular procedural institution
will be more readily inclined to find it incompatible with the
requirements of "fair trial" than those who form part of the same
tradition. There is a risk that the former will be more inclined
to view as a question of fair trial - i.e. as a question
concerning basic principles - issues which in the latter's view
concern merely questions of procedural expediency (about which
procedural law specialists may differ) yet which fall outside the
province of "fair trial".
4.6. These risks, and especially the last, call for greater
prudence because the finding that a national procedure violates
the requirements of "fair trial" is a harsh one. That is, of
course, why it should be persuasive and based on grounds that
also convince those who are familiar with the procedural
traditions of the respondent State. This is imperative for the
Court's credibility and the acceptability of its decision in the
States concerned.
This brings me to my concluding remark. I am familiar both with
the appeal on points of law system and with the institution of
the procureur général at a Court of Cassation. In my opinion the
Belgian - and to a lesser degree the French variant of this
system - is unfortunate. Since it only secures the benefits31
it implies when the procureur général and the Court of Cassation
keep their distance from each other: this confers a greater
freedom on both - the procureur général to propose new solutions
and, if he thinks fit, to criticise the case-law - the Court to
disagree. However, these are considerations of procedural
expediency. I cannot help feeling that it is disproportionate to
hold that the Belgian variant violates the very basic principles
of fair procedure referred to in Article 6 para. 1 (art. 6-1) of
the Convention.
NOTES
1 See paragraph 35 of its judgment in the Cossey case,
judgment of 27 September 1990, Series A no. 184.
2 In its memorial in the Delcourt case (Series B no. 9, p. 134)
the Commission had said that the outcome of the case was
"bound to affect the conduct of subsequent proceedings before the
Court of Cassation in Belgium, and even in other States which
have a similar procedure." (the italics are mine). See in the
same sense the remarks of the Commission's President at the
Court's hearing: Series B, p. 157.
In paragraph 30 of its judgment in that case the Court noted,
however, that "on this last point" (i.e. that the procureur
général withdraws with the judges to attend the deliberations
held in the privacy of chambers) Belgian legislation:
"does not seem to have any equivalent today in other member
States of the Council of Europe, at least in criminal cases".
This statement suggests that the outcome of the case only
concerned Belgium; it was, however - as has already been pointed
out by Nadelmann, AJIL 66 (1972), pp. 509-510 and 516 et seq. -
not entirely correct. See also: M. Cappelletti and J.A.
Jolowicz, Public Interest Parties and the Active Role of the
Judge in Civil Litigation (Milano, 1975), p. 31 and note 54.
Under French practice - as recently described by Boré in both La
cassation en matière civile (Cc) (1980) and La cassation en
matière pénale (Cp) (1985) - the procureur général also attends
the deliberations. It is true that we are told that he does not
participate in them (Boré, Cc, no. 2844, and Boré, Cp, no. 871)
but that makes no difference as far as appearances are concerned.
Moreover, in civil cases it is customary for the president of the
chamber to discuss each case on the list at a conference in his
office between himself, the oldest member of the chamber and the
avocat général (Boré, Cc, no. 2835; see also no. 2831). In
criminal cases the file, the report and the draft judgment
prepared by the judge-rapporteur is sent to the procureur général
before the public hearing (Boré, Cp. no. 846).
It should be noted that as to this last point the practice in
Belgium seems to be the same as in France: see J. Matthijs,
Openbaar Ministerie (1983), para. 263; see also the Delcourt
case, loc. cit., Series B no. 9, p. 214; see for civil cases,
paragraph 5 of the Kaufmann decision of the Commission referred
to in note 5 below.
In Italy, while Article 537 of the Code of Criminal Procedure
does not provide for such participation, under Article 194 of the
Codice di procedura civile the pubblico ministero at the Court of
cassation participated in the deliberations in civil cases, but
was not allowed to vote; see M. Cappelletti and J.M. Perillo,
Civil Procedure in Italy (1965), p. 281. See further, Nadelmann,
op.cit., p. 520 on the history of Article 194 and on a judgment
of the Italian Court of Cassation of 4 October 1969, preventing
an attack on this provision before the Constitutional Court. See
for criticism of the latter judgment (and of the Delcourt
judgment): M. Cappelletti and D. Tallon, Fundamental Guarantees
of the Parties in Civil Litigation (1973), pp. 551 et seq. In a
judgment of 14 January 1974, the Constitutional Court held
Article 380 to be unconstitutional (see: M. Chiavario, Riv. Dir.
Int. 57 (1974), p. 480, note 91, and M. Cappelletti and J.A.
Jolowicz, op.cit., p. 31, note 54).
In the Netherlands the procureur général's participation in the
Supreme Court's proceedings ends with his conclusion which he
presents without any previous consultation with the judges and
without knowing their opinion; he does not attend deliberations;
in other respects his position is, however, similar to that of
his Belgian counterpart; at the hearings he speaks last (Article
328 of the Code of Civil Procedure and Article 440 of the Code of
Criminal Procedure), though in civil cases the parties are
allowed to submit "simple notes" drawing attention to "evident
errors with regard to which there can reasonably be no
discussion" (HR 30 October 1987, NJ 1987, p. 153). During the
last century the impossibility for the parties to reply to the
procureur général's submissions was often criticised (see, for
example, the leader in Weekblad van het regt no. 238 (30 November
1841) and Mr. J. de Wal, Het regt van't laatste woord in cassatie
(1869), but when the present Code of Criminal Procedure was
enacted (1921) Article 440 was justified explicitly by pointing
out the special position of the procureur général at the Supreme
Court. This explanation was severely criticised by the leading
handbook of those days (see A.J. Blok and L.CH. Besier, Het
Nederlandsche Strafproces (1925) II, pp. 445 et seq., who used
arguments in very much the same way as the majority in the
present judgment), but that criticism has not been repeated by
later writers.
It was, however, raised in application no. 3692/68, but rejected
by the Commission in its decision of 5 February 1979 (Yearbook
XIII (1970), pp. 516 et seq.), which relied on the Court's
Delcourt judgment.
The purpose of giving the above data is: (a) to show that the
Belgian system was not as "unusual" as was suggested by the Court
in paragraph 30 of its Delcourt judgment and by the Commission in
paragraph 53 of its report in the present case and (b) to
indicate that overruling that judgment may have consequences for
the proceedings before the courts of cassation of France and The
Netherlands.
3 See the aforementioned Delcourt judgment, pp. 10-12, 16-17,
19, paras. 19, 30 and 36 respectively.
4 See paragraph 7 of my dissenting opinion in the Brogan case,
Series A no. 145-B, p. 50. If this first question is answered in
the affirmative - as I think it should be in the present case -
the reviewer's task is finished. I will therefore not follow the
Court's example and do not propose to examine the applicant's
case in particular.
5 The Delegate therefore maintained that the Commission's
opinion in the present case was compatible with that in its
decision of 9 December 1986 on the application of J. and R.
Kaufmann v. Belgium (application no. 10938/84, DR 50, pp. 98 et
seq.) where the Commission still followed the Delcourt judgment.
6 See paragraph 3.4 below.
7 See also paragraph 3.4 below; the Court followed this method
inter alia in paragraph 31 of the aforementioned Bönisch judgment
of 6 May 1985 and in paragraph 42 of its above-mentioned judgment
in the Brandstetter case.
8 See M. Cappelletti and J.A. Jolowicz, op.cit., (note 2), p. 34.
9 Ibid., p. 20.
10 Mr R. Hayoit de Termicourt, in his "Propos sur le Ministère
Public" held on 15 September 1935 at a formal session of the
Brussel's Court of Appeal, rightly underlines, however, that in
order to understand the position of the ministère public in
Belgium one should also take into account local historical
traditions which often differ from those in France. In our
present context it is interesting to note that the learned
procureur général tells us on page 9 of his address that in those
provinces which now constitute Belgium the predecessors of the
actual ministère public were generally the same time a member of
the court in whose jurisdiction they exercised their other
functions!
11 M. Cappelletti and J.A. Jolowicz, op.cit., p. 30.
12 In paragraph 33 of its Delcourt judgment the Court noted
that in civil matters the procureur général exercises functions
"close to" those which he exercises in criminal matters; in my
opinion in both types of cases he exercises, as far as the
present examination is concerned, identical functions.
13 Article 1109 explicitly makes an exception for those cases
where the appeal has been lodged by the procureur général's
department; accordingly what we are talking about are only
appeals instituted by one of the parties; this should be borne in
mind throughout.
14 I disagree on this point with J. Velu who in his study on
the Delcourt judgment (see note 21) qualified the term as "not
very fortunate" (pp. 61-62) without, however, giving reasons for
this criticism. See also, J.E. Krings, Le rôle du ministère
public dans le procès civil (Rapports belges au IXe Congrès
international de droit comparé, Téhéran 1974), p. 142, who said
that the Court's description according to which the procureur
général "discharges a function of a quasi-judicial nature"
depicts exactely the situation obtaining at the Belgian Court of
Cassation. See also, M. Cappelletti and J.A. Jolowicz, op.cit.
(note 3), p. 31, note 54, who also agree with this
characterisation of the Court.
15 There is a difference between the judges and the procureur
général as to the procedures followed for their appointment;
there may be a difference also as to the groups from which they
are recruited; members of the Court of Cassation are
traditionally recruited amongst judges (of the Courts of Appeal)
only: see J. Rutsaert and A. Meeus in P. Bellet, A. Tunc and A.
Touffait, la Cour judiciaire suprême (1978), p. 254.
16 See J. Rutsaert and A. Meeus, op.cit. (note 22), p. 263;
there one also finds further data about the proceedings before
the Belgian Supreme Court in both civil and criminal cases.
17 Both Article 39 of the Decree of 1815 and Article 1109 of
the Judicial Code give the right "d'assister à la délibération";
accordingly, J. Velu, op.cit., p. 20, note 21, insists that in
this context one should use that term.
18 This was the main point made by Nadelmann (see note 2) an
echo of which is to be found in paragraph 29 of the Court's
judgment.
19 See again paragraph 35 of the Cossey judgment (note 1).
20 Like there was, for example, in the Kostovski case, see
paragraphs 33 and 34 of the Court's judgment in that case
(judgment of 20 November 1989, Series A no. 166).
21 The Court said that, if one refers to that dictum, doubts
may arise "about the satisfactory nature of the system in
dispute". Several writers have been scandalised that the Court
should have allowed itself this censure of a system which it had
found compatible with the Convention. See, for example, Chr. Daubie,
Annales de droit (Louvain) (1974), p. 56; J. Velu,
L'affaire Delcourt (1972), p. 63. In my opinion these writers
have failed to understand the weighing-method adopted in the
Delcourt judgment.
22 I am note unaware that some of these decisions speak about
"independence" rather than of "impartiality". I think, however,
that whoever takes the trouble of carefully comparing the wording
in the series of cases cited in paragraph 42 of the Huber
judgment will agree that today the Court is inclined to treat as
an issue of impartiality what formerly it classified as a
question of independence; but the approach and the criteria used
remain the same. I therefore feel entitled to speak of
impartiality alone.
23 For example, Piersack, para. 39; Sramek, para. 42;
De Cubber, para. 26.
24 The italics are mine. In this context I note that,
according to Lord Denning, The Discipline of the Law (1979),
p. 86, the maxim is a dictum of Lord Hewart CJ and its correct text
is:
"It is not merely of some importance, but it is of fundamental
importance that justice should not only be done, but should
manifestly and undoubtedly be seen to be done."
Is it by accident that in its Delcourt judgment the Court,
presided over by the British judge Sir Humphrey Waldock, chose to
use a much milder form of the maxim and has continued to use that
form instead of the original one?
25 Series A, no. 77, p. 23, para. 48.
26 The German Bundesverfassungsgericht habitually refers to
"the requirement of maintaining an administration of justice
which is able to function effectively" ("Postulat der
Aufrechthaltung einer funktionsfähigen, wirksamen Rechtspflege"):
see, BVerfGE 38, 115-118, where it derives this requirement from
the rule of law and the idea of justice implied therein: justice
can only be brought about when the administration of justice is
able to function effectively.
27 See, for further examples of such assessments: paragraph 30
sub (b) of the Piersack judgment; paragraph 81 in fine of the
Campbell and Fell judgment.
28 "those rare clients": it should not be forgotten that, as
the Government have alleged without being contradicted, the
accused, as a rule, does not attend the hearings before the Court
of Cassation.
29 What is mainly at stake is the interest of the procureur
général in being able to function as an adviser of the Court when
the Court deliberates in chambers. It cannot be excluded that
this interest is also served by the differences of recruitment:
one could suppose that these differences would sometimes result
in a different professional background and thus in a different
approach to cases and as such in a specific and valuable
contribution to the Court's work by the procureur général's
office.
30 Consequences which may effect the organisation of the
judicial system and thereby create considerable budgetary burdens
for the member States involved.
31 I am firmly convinced of these benefits. So firmly that I
repeat what I said elsewhere, viz. that the European Court of
Human Rights should have the benefit of a procureur général's
office too!
DISSENTING OPINION OF JUDGE STORME
(Translation)
1. Although I believe whole-heartedly that the rights of the
defence and the principle of "Waffengleichheit" (equality of
arms) should be scrupulously respected, I have found it
impossible to agree with the majority decision of the Court for a
number of reasons.
I would even venture to add, in so far as this personal style
- which has come from the English judges - is accepted in the
European Court of Human Rights, that a professional career of
more than fourty years at the bar has taught me that it is the
public prosecutor's department (ministère public) which is the
lawyer's principal adversary.
The problem nevertheless resides in the fact, and this is the
"heart of the matter", that the public prosecutor's department,
on the one hand, and the procureur général's department at the
Court of Cassation, on the other, are two completely different
bodies. The Belgian legislature ought, as indeed it tried
unsuccessfully to do, to have used terminology which was formally
distinct and at the same time adapted to the essentially
different functions of the public prosecutor's departments in the
lower courts and of the procureur général's department at the
Court of Cassation.
The principal reason for my dissenting opinion lies in the fact
that the detailed and comprehensive analysis which I have
conducted of the case has not enabled me to understand why the
Borgers case should be decided differently from the Delcourt
case: the complaints are identical; the legislation and judicial
practice in Belgium are the same; the facts of the case are the
same. The two cases are however completely different in one
respect, and I shall return to this in considering the case from
the point of view of appearances, namely as regards the identity
of the applicants: on the one hand, Mr Delcourt, a Belgian
national, appearing before the Court of Cassation without a
lawyer; on the other, Mr Borgers, a lawyer, a substitute judge,
assisted before the Court of Cassation by Mr L. De Gryse, the
current President of the Bar Council of the Court of Cassation,
who lodged two appeals in the Court of Cassation, and who relied
on Article 6 para. 1 (art. 6-1) of the Convention only after the
second proceedings, in which his appeal was dismissed!
I. Note on the general principles concerning the role and the
task of the "procureur général"'s department at the Belgian
Court of Cassation
2. These general principles were excellently and extremely
thoroughly explained at the hearing in the Delcourt case (Eur.
Court H. R., Series B no. 9, 1969-1970, pp. 156-247). It is not
in dispute that these fundamental principles have undergone no
substantive alteration since the introduction in Belgium of the
new Judicial Code (1967-1970) (Delcourt judgment, pp. 10-12,
para. 19; see the present judgment, in particular paragraph 24).
It is accordingly sufficient to set out certain essential
features by way of summary.
3. The Court of Cassation does not "judge", in other words does
not decide on the parties' claims; it only "reviews" the decision
of the lower court, which has ruled on the merits of the case.
It is that decision which is submitted to the Court of Cassation,
whose task is to consider whether the court in question applied
or interpreted correctly the substantive law, the procedural law
or the formal general principles of law.
Neither the Court of Cassation, nor a fortiori its procureur
général's department, inquire into the parties' rights; they
confine themselves to analysing the appealed decision. This is
equally true in criminal proceedings, as the procureur général at
the Court of Cassation does not act as prosecuting authority
(Article 141 of the Judicial Code). Even a public prosecutor of
the lower courts who has lodged an appeal, or against whom an
appeal has been lodged, never submits an additional memorial or a
memorial in reply in the Court of Cassation (paragraph 12 of the
present judgment).
4. In any event, the procureur général's department at the
Court of Cassation cannot be regarded as a party (Delcourt
judgment, para. 29), but rather as onpartijdig adviseur
(= impartial adviser: Mr Faurès, pleadings in the Delcourt case,
Eur. Court H. R., Series B no. 9, 1969-1970, p. 223) - the term
"adviser to the Court" employed in this judgment (paragraph 16 of
the present judgment; cf. Delcourt judgment, para. 34: "an
adjunct and an adviser of the court") may give rise to confusion.
For my part I prefer the designation "amicus curiae".
The procureur général at the Court of Cassation is in fact rather
the guarantor of the consistency of the court's case-law. The
procureur général's department forms a single and permanent unit,
which meets regularly and is thus in a position to draw the
court's attention to the possibilities of divergencies between
the different chambers and sections (Dutch-speaking -
francophone), and to the risks involved in adopting different
reasoning for the same solution. The procureur général fulfills
perfectly the role of maintaining the coherence of the Belgian
case-law, in particular in a country in which cultural,
political, socio-economic, ideological or linguistic differences
could affect the national and uniform nature of the legislation.
5. On the question of procedure, whether civil or criminal, it
is necessary to recall the principles laid down in the Belgian
Judicial Code.
The Belgian Judicial Code of 1967 provides in Article 2 thereof
as follows: "The rules set out in this Code shall apply to all
proceedings, except such as are governed by statutory provisions
which have not been expressly repealed or by principles of law
whose application is not compatible with that of the provisions
of this Code."
This means that the Articles of this Judicial Code are in
principal applicable to all proceedings (civil, criminal,
administrative ...).
Article 772 of the Judicial Code is worded as follows: "If,
during the deliberations, a document or a new and important fact
is discovered by one of the parties in the proceedings, the party
in question may, for so long as the judgment has not been
delivered, request that the hearing be reopened."
This Article applies to cassation proceedings, not only pursuant
to the above-mentioned Article 2, but also by virtue of Article 1042
of the Judicial Code, according to which: "In so far as no
derogation is laid down in the provisions of this Book, the rules
concerning first-instance procedure are applicable to appeal
proceedings." The "rules concerning first-instance procedure"
are Articles 700-1041, in other words Book II of the Judicial
Code, entitled First-instance procedure, and include Article 772.
The second paragraph of Article 1107 of the Judicial Code lays
down a rule of a practical nature ("... no further documents
shall be accepted ...") which in no way excludes the application
of the aforementioned Article 772.
It is therefore indisputable that any new fact makes it possible
for any party to request the reopening of the hearing, even in
cassation proceedings, in accordance with the above-mentioned
Articles 2 and 772 of the Judicial Code.
It is clear at this point that the applicant's complaint that he
had been unable to reply to the avocat général's opinion (see
paragraph 27 of the present judgment) is totally unfounded.
Pursuant to Article 772 of the Judicial Code, Mr Borgers could
have sought the court's leave to submit a reply to the opinion.
6. I do not consider it necessary to examine the Belgian rules
governing disciplinary proceedings for judges, since the present
case does not involve disciplinary proceedings, but proceedings
of a purely criminal law nature.
However, I would draw attention to the fact that institutional
and disciplinary unity of the ministère public, to which this
judgment alludes (paragraphs 22-26 of the present judgment), does
not exist. It is only for disciplinary purposes that it forms a
single unit. Accordingly, to hold that the official of the
procureur général's department (see paragraph 26 of the present
judgment) could become objectively speaking the opponent of the
accused (paragraph 26), seems to me to disregard the general
principles of criminal procedure in the Court of Cassation.
II. Violation of Article 6 para. 1 (art. 6-1)
A. Requirements of the rights of the defence and the principle of
the equality of arms
7. The majority of the Court refers to the principles of the
rights of the defence and of the equality of arms, features of
the wider concept of a fair trial. In this connection it cites
among other authorities the Ekbatani judgment, but seems to
forget that the Delcourt judgment had already mentioned this
wider concept of a fair trial (see paragraph 28 of the Delcourt
judgment).
In the present case too the Court's approach is no different from
that adopted in the Delcourt case.
8. The starting-point of the Court's reasoning concerns the
opinion of the procureur général's department.
This opinion cannot be neutral from the point of view of the
parties (paragraph 26 of the present judgment) and yet it is,
since this opinion of the procureur général's department concerns
only the application and/or interpretation of the (substantive or
procedural) law by the court whose decision has been submitted
for review by the Court of Cassation.
The procureur général's department at the Court of Cassation
- which is in fact not a prosecuting authority in the true sense -
can in no way become the ally or the opponent of the accused
(see, however, paragraph 26 of the present judgment).
Ultimately the procureur général is only the amicus curiae, the
objective adviser of the Court of Cassation. Let us not forget
moreover that the European Court's Rules of Court recognise by
implication the institution of amicus curiae (Rule 37 para. 2).
By giving an opinion, the procureur général at the Belgian Court
of Cassation cannot become an opponent. What is important is
that this opinion should be ojective and impartial, as has always
been the case; this was stressed by the European Court of Human
Rights in the Delcourt judgment (paras. 32-38) and also at
various places in the present judgment (paragraphs 24, 26 and
28).
The European Court's decision is, in my view, based on an
erroneous interpretation of the notion of an opinion. Does an
expert who expresses an opinion unfavourable to one party become
the latter's objective opponent? What is to be thought of
judicial systems - like the Belgian one - in which the courts are
composed of lay judges who are appointed after proposal by trade
unions and management organisations on the basis of their
qualifications and who decide, rather than merely expressing an
opinion.
Finally I consider that it is contradictory to say, on the one
hand, that no one calls in question the impartiality and
independence of the procureur général's department (paragraph 24
of the present judgment) and, on the other, to decide that he is
objectively speaking the opponent of the accused (paragraph 26 of
the present judgment).
9. The requirements of the rights of the defence and of the
principle of the equality of arms are said not to have been
complied with in the examination of the Borgers case in the Court
of Cassation. This violation of Article 6 para. 1 (art. 6-1) is
said to stem from two features of the cassation proceedings: the
submissions (conclusions) of the procureur général's department
and the latter's participation in the deliberations.
1. The submissions
I would recall that in accordance with the general principle laid
down in Article 772 of the Judicial Code (no. 5 above), the
accused was entitled to request a right of reply through the
reopening of the hearing.
In addition, if the procureur général's department were to
communicate his opinion in advance, this would ultimately lead to
a debate between its representative and the accused.
Paradoxically the procureur général would then really become the
accused's opponent.
Finally, it is not a case in this instance of a restriction on
the rights of the defence. The procureur général's submissions
(conclusions) are genuinely a conclusion: they sum up and
conclude the judicial hearing.
2. Participation in the deliberations
It should be noted that the presence of a member of the procureur
général's department in the deliberations is a tradition going
back nearly two centuries, which cannot harm the accused, because
the procureur général's department does not make prosecution
submissions, as the prosecuting authority, but expresses his
views or gives a legal opinion.
In the exceptional cases in which he does make prosecution
submissions, he does not attend the deliberations (Article 1109
of the Judicial Code).
It therefore appears incoherent, and even contradictory, to find,
as the judgment does, that the procureur général gives his
assistance with total objectivity (paragraph 28), but that the
appearance ("it could reasonably be thought that") is sufficient
to find a violation of Article 6 para. 1 (art. 6-1).
The justification for attending the deliberations, given by
Mr procureur général Hayoit de Termicourt in the course of the
debate on the draft Judicial Code in the Belgian Senate,
confirmed moreover in the Delcourt judgment, remains valid: "The
role of the [procureur général] at the deliberations is not to
provoke a decision rejecting an appeal, where the Court intends
to allow it, or conversely. His presence is primarily concerned
with the motivation of the decision. The terms of the Court's
decisions must be carefully chosen. Most decisions contain
statements of a rule, the field of application of which extends
beyond the particular case under consideration. The function of
the [procureur général] during the deliberations is, therefore,
to draw the Court's attention to the possible consequences, in
other fields, of the way in which the rule is worded in the text
of the proposed decision, or to the interpretational difficulties
to which it might give rise, or again, to any discrepancy between
this wording and the wording of other decisions stating the same
rule.
On the other hand, the [procureur général's department] is
particularly well-qualified to lend assistance in this regard,
during the deliberations, to the members of the Chamber examining
an appeal, since all members of the Department appear before both
Chambers of the Court. These considerations seem all the more
worthy of attention because the draft Judicial Code provides for
the creation, within the Court, of a third Chamber, which will
increase the difficulty of maintaining uniformity in the Court's
judicial practice." (Eur. Court H. R., Series B no. 9, Delcourt
case, p. 123.)
As in the Delcourt judgment, I venture to suggest that it is
necessary to look beyond appearances (paragraphs 30 and 31 in
fine of the Delcourt judgment).
Thus we come to the question of appearances, which in all
probability played, if not a decisive role, at least a
predominant one in the evolution of the decision of the European
Court of Human Rights in the Borgers case.
B. Appearances
10. It is clear that the majority of the Court reached its
decision under the influence of the growing importance of the
theory of appearances (see paragraphs 24 and 29 of the present
judgment). However, careful study of the judgments cited (see
paragraph 24 of the present judgment) leads to the inescapable
conclusion that reliance upon appearances must be objectively
justified and that the appearance is a contextual notion, in
other words it varies according to the circumstances of the case
(see the Hauschildt judgment of 24 May 1989, paras. 48 in fine
and 49 in fine).
In the present case recourse to appearances is not justified,
since the Court stresses repeatedly the impartiality,
independence and objectivity of the procureur général's
department (paragraphs 24, 26 and 28 of the judgment). One may
thus repeat what was stressed in the Hauschildt judgment cited
above: "what is decisive is whether this fear can be held
objectively justified" (see the Hauschildt judgment, para. 48 in
fine).
The circumstances of the case and more specifically the identity
of the applicant, already referred to above (see no. 1 of this
opinion), cannot justify a finding that the applicant could rely
on appearances.
11. However, I believe it is much more important to go further
into the notion of appearances in (judicial) law. G. Cornu's
Vocabulaire juridique (Paris, 1987) states as follows: "Theory of
appearance: judicial theory according to which mere appearance is
sufficient to produce effects in respect of a third party who, on
the basis of a legitimate mistake, was unaware of the true
situation (for example contracts concluded by an apparent agent
bind the person whom he appeared to be representing). Apparent
act: ostensible and deceitful act, also referred to as sham act,
which its perpetrators carry out solely (for example fictitious
sale) to conceal the true act which they have carried out (gift),
known as the secret, concealed or unseen act" (pp. 55-56).
The theory of appearances in substantive law serves to sanction a
party which attributes qualities to certain things when he knows
or should know that they do not have them. Accordingly, in
judicial law, appearance means that a judge is portrayed as
impartial, whereas in fact he is not at all so.
In the present case the European Court seeks to apply the theory
of appearances the other way round. It attributes apparent
defects to a judicial system when it knows very well, and
expressly states, that such defects do not really exist. A more
thorough analysis of the true situation leads on the contrary to
the conclusion that the legal situation in which the observer
believed does not exist.
The erroneous application of the theory of appearances brings to
mind the extreme application of the "adversarial system" in the
majority of the common law countries. According to this theory
to allow the judge to direct the argument, to order an enquiry,
an expert opinion or the communication of documents would mean
that he would have "to drop the mantle of judge and assume the
robe of an advocate" (Lord Denning in James v. National Coal
Board [1957], 2 QB 55, 63-64).
Taking such an approach to procedure as a starting point it could
indeed be maintained that all the judges of continental Europe
are partial and dependent because they play an increasingly
activist role in the conduct of the trial.
Under such an approach, what is to be thought of the Lord
Chancellor, who belongs at the same time to the judicial,
legislative and executive authority? Who would dare claim that
when he sits as the presiding judge of a Court, appearances cast
doubt on his impartiality and his independence?
Provided that the fundamental principles of a fair trial are
protected, the historical and sometimes unusual traditions of
each judicial system fall outside the scope of the review of the
European Court of Human Rights.
The Delcourt judgment (para. 31) looked beyond the appearances.
The present judgment, on the other hand, goes no further than
appearance. I conclude that in this case there has been no
infringement of a right to a fair trial.
III. Overruling of the case-law
12. Should the majority decision of the Court be accepted, it
would be inconceivable to find by this judgment that the Belgian
State is retrospectively in violation of the Convention, in other
words ex tunc. The Belgian State could legitimately have
believed that the way in which the function of procureur général
at the Court of Cassation has been discharged not only since 1815
(the Prince Sovereign's Decree), but also and in particular since
the adoption of the Convention for the Protection of Human Rights
and Fundamental Freedoms, was in conformity with that Convention,
and above all since the Delcourt judgment.
This judgment of 17 January 1970 stated expressly as follows:
"So far as concerns the application of that system in the present
case (i.e. the presence of a member of the procureur général's
department at the deliberations) the Court finds that there are
no grounds for holding that the procureur général's department at
the Court of Cassation failed to observe ..., at the hearing or
at the deliberations, the duty to be impartial and independent
which is inherent in its functions" (paragraphs 35 and 38 of the
Delcourt judgment).
And later in the same judgment:
"Article 6 (art. 6) of the Convention does not require, even by
implication, that an accused should have the possibility of
replying to the purely legal submissions of an independent
official attached to the highest court in Belgium as its
assistant and adviser" (paragraph 41 of the Delcourt judgment).
Just as each citizen can, in a State governed by the rule of law,
legitimately expect that the existing legal system will not be
modified rectroactively, States are for their part entitled to
rely on the same legitimate expectations.
Often a radical modification of the case-law interpreting a legal
rule has been accompanied by a "prospective overruling", which
was excellently explained in a judgment of the Illinois Supreme
Court: "We feel justice will be served by holding that ... the
rule herein established shall apply only to cases arising out of
future occurrences" (Molitor case, cited by R. Joliet, Le droit
institutionnnel des communautés européennes, Liège, 1981, p. 214;
see also similarly: the judgments of Defrenne II (8 April 1976),
Gravier (13 February 1985) and Blairot (2 April 1988) of the
Court of Justice of the European Communities; see also and in
particular the Marckx judgment of the European Court of Human
Rights).
This necessity for a "prospective overruling" is all the more
evident as the Belgian State has for some time applied Article 6
(art. 6) of the Convention in the light of the case-law of the
European Court of Human Rights. The fundamental right of a State
to the respect for legitimate expectations generated by the Court
itself would be seriously infringed by a finding of a violation
ex tunc.
13. The instant overruling of the European Court's case-law is
all the more disturbing because it is based not only on the
importance attached to appearances but also in response to "[an]
increased sensitivity of the public to the fair administration of
justice" (see paragraph 24 in fine of the present judgment).
This new notion introduced by the Borgers judgment has no link
with the previous case-law and contains a reference to "the
increased sensitivity of the public" which is in my view
extremely dangerous.
In a case like this one, where the procedural rules criticised by
the Court were approved by the Belgian Parliament on three
different occasions (see paragraph 26 of the present judgment),
it is not for this Court to seek to replace a national
legislature by invoking the sensitivity of the public.
IV. Even if restricted to criminal proceedings the finding
of a violation affects the organisation of the courts
14. In view of the exceptional role which the procureur
général's department at the Court of Cassation fulfills regarding
the consistency and the development of Belgian case-law, the
violation found by the Court can concern only criminal
proceedings and not civil proceedings. The opinion of the
procureur général's department in civil proceedings (and clearly
also social security, commercial, tax proceedings, etc.) can in
no way violate the right of the defence or the principle of the
equality of arms in the context of adversarial proceedings in
which two - or indeed more - parties are opposed.
I remain convinced that the Court's ruling that there has been a
violation is not only unfounded, but also misguided because it
goes to the very essence of the organisation of the courts in
Belgium, particularly in the Belgian Court of Cassation, and this
has never been the objective of the European Convention on Human
Rights.