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You are here: BAILII >> Databases >> European Court of Human Rights >> VERMEULEN v. BELGIUM - 19075/91 [1996] ECHR 7 (20 February 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/7.html
Cite as: 32 EHRR 15, (2001) 32 EHRR 15, [1996] ECHR 7
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In the case of Vermeulen v. Belgium (1),
The European Court of Human Rights, sitting, in
accordance with Rule 51 of Rules of Court A (2), as a Grand
Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr R. Macdonald,
Mr C. Russo,
Mrs E. Palm,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Sir John Freeland,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
Mr K. Jungwiert,
Mr P. Kuris,
Mr J. Van Compernolle, ad hoc judge,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 1 September 1995 and
22 January 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 58/1994/505/587. 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.
2. Rules A apply to all cases referred to the Court before the
entry into force of Protocol No. 9 (P9) (1 October 1994) and
thereafter only to cases concerning States not bound by that
Protocol (P9). They correspond to the Rules that came into force
on 1 January 1983, as amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") and by the
Government of the Kingdom of Belgium ("the Government") on
8 December 1994 and 9 January 1995, 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. 19075/91) against Belgium lodged with the
Commission under Article 25 (art. 25) by a Belgian national,
Mr Frans Vermeulen, on 6 November 1991.
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 Articles 44
and 48 (art. 44, 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 para. 1 (art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated
that he wished to take part in the proceedings and designated the
lawyers 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 January 1995, in the presence of the Registrar, the President
drew by lot the names of the other seven members, namely
Mr F. Matscher, Mr I. Foighel, Mr A.N. Loizou, Sir John Freeland,
Mr A.B. Baka, Mr M.A. Lopes Rocha and Mr K. Jungwiert (Article 43
in fine of the Convention and Rule 21 para. 4) (art. 43).
On 6 February 1995 Mr De Meyer withdrew pursuant to
Rule 24 para. 2, as the case raised issues similar to those in
the cases of Delcourt v. Belgium - 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) - and Borgers v. Belgium, from
which he had withdrawn (judgment of 30 October 1991, Series A
no. 214-B, p. 25, para. 3). On 31 March 1995 the delegate of the
Agent of the Government informed the Registrar that
Professor J. Van Compernolle had been appointed to sit as ad hoc
judge (Article 43 of the Convention and Rule 23) (art. 43).
4. As President of the Chamber (Rule 21 para. 5),
Mr Ryssdal, acting through the Registrar, consulted the Agent of
the Government, the applicant's lawyers and the Delegate of the
Commission on the organisation of the proceedings (Rules 37
para. 1 and 38). Pursuant to the order made in consequence, the
Registrar received the applicant's memorial on 12 May 1995 and
the Government's memorial on 15 May.
5. On 2 February 1995 the President decided in the interests
of the proper administration of justice that the instant case and
the case of Lobo Machado v. Portugal (21/1994/468/549) should be
heard on the same day.
6. On 24 May 1995 the Chamber relinquished jurisdiction in
favour of a Grand Chamber (Rule 51). In accordance with Rule 51
para. 2 (a) and (b), the President and the Vice-President
(Mr Ryssdal and Mr R. Bernhardt), together with the other members
of the original Chamber, became members of the Grand Chamber.
On 8 June 1995, in the presence of the Registrar, the President
drew by lot the names of the additional judges, namely
Mr F. Gölcüklü, Mr L.-E. Pettiti, Mr B. Walsh, Mr R. Macdonald,
Mr C. Russo, Mrs E. Palm, Mr R. Pekkanen, Mr J.M. Morenilla and
Mr P. Kuris.
7. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 30 August 1995. The Court had held a preparatory meeting
beforehand.
8. There appeared before the Court:
(a) for the Government
Mr C. Debrulle, Head of Department,
Ministry of Justice, Agent,
Mr L. Simont, avocat,
Mr E. Jakhian, avocat, Counsel;
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicant
Mr M. De Boel, avocat,
Mr P. Traest, avocat, Counsel.
The Court heard addresses by Mr Danelius, Mr De Boel,
Mr Traest, Mr Jakhian and Mr Simont, and also their replies to
a question put by one of its members.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
9. Mr Vermeulen is a Belgian citizen who lives at Diksmuide
(West Flanders).
10. On 6 May 1987, on an application by the department of the
procureur du Roi and without any adversarial hearing, the Furnes
Commercial Court adjudicated the applicant bankrupt and declared
his company - Vermeulen & Verstraete Business Consultancy, Ltd
(Zakenkantoor Vermeulen & Verstraete p.v.b.a.) - insolvent. It
had heard the opinion of the deputy procureur du Roi but had not
heard the applicant himself, who was in custody in Ghent prison
on account of criminal proceedings against him for forgery,
uttering, fraud and misappropriation.
The applicant applied to the court to set aside that
judgment and rehear the case.
11. On 4 May 1988 the court declared the application
admissible, ordered that the proceedings should be reopened and
put the case on the special list pending the outcome of the
criminal investigation that was under way in respect of
Mr Vermeulen.
In a written opinion that was read out at the hearing of
the case on 6 April 1988, the deputy procureur du Roi had
submitted that the application to set aside was admissible but
unfounded.
12. On 29 June 1989, on an appeal by the applicant against
the judgment of 4 May 1988, in which the Commercial Court had not
rescinded the bankruptcy order, the Ghent Court of Appeal,
exercising its power to determine also the merits of the case,
upheld the judgment of 6 May 1987 (see paragraph 10 above),
having heard the submissions to that effect of the deputy
procureur du Roi that had been read out at the hearing of the
case on 27 April 1989.
13. The applicant lodged an appeal on points of law against
the Court of Appeal's judgment, but the Court of Cassation
dismissed it on 10 May 1991. At the hearing on the same day it
had heard in turn Mr Caenepeel, the judge rapporteur,
Mr Vermeulen's lawyer and Mr du Jardin, the avocat général (a
member of the procureur général's department). The avocat
général made oral submissions and subsequently took part in the
court's deliberations.
14. On 17 March 1995 the Antwerp Court of Appeal acquitted
the applicant of all the criminal offences with which he had been
charged (see paragraph 10 above).
II. RELEVANT DOMESTIC LAW
A. Insolvency declared by the court of its own motion
15. The relevant Articles of the Commercial Code provide:
Article 437
"Any trader who ceases payments and whose credit has been
impaired shall be considered insolvent.
..."
Article 442
"Insolvency shall be declared in a judgment of the
Commercial Court delivered either on the bankrupt's own
admission or on a petition by one or more creditors or of
the court's own motion.
..."
16. Proceedings for a declaration of insolvency by the court
of its own motion are opened at the instance of the Commercial
Court. The procureur du Roi or a member of his department
delivers an opinion, in accordance with Article 764, 9°, of the
Judicial Code (see paragraph 18 below).
B. The procureurs' and auditeurs' departments (ministère
public)
17. Article 138 of the Judicial Code provides:
"Subject to the provisions of Article 141, the department
of the procureur du Roi shall act as prosecuting
authority in the manner laid down by law.
In civil matters it shall intervene by way of legal
proceedings, applications or opinions. It shall act of
its own motion in the instances prescribed by law and
also on each occasion that public policy requires its
intervention."
18. Article 764 of the Judicial Code lists the cases which,
unless they are being tried by a magistrate, are to be referred
to the procureur du Roi, failing which the proceedings will be
null and void. They include, at 9°, those relating to
insolvency, compositions with creditors and extensions of time
for payments.
19. By 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."
The fairly rare instances in which the Court of Cassation
hears a case on its merits include trials of ministers
(Article 90 of the Constitution), actions against judges for
misuse of their authority (Articles 613, 2°, and 1140 to 1147 of
the Judicial Code) and disciplinary proceedings against certain
judges or other members of the national legal service
(Articles 409, 410 and 615 of the same Code).
Other than in these circumstances, the procureur
général's department at the Court of Cassation carries out, with
complete independence, the duties of adviser to the court.
20. As to the disciplinary hierarchy of the ministère public,
the following provisions of the Judicial Code should be
mentioned:
Article 400
"The Minister of Justice shall exercise supervisory
authority over all the officials of the ministère public;
the procureur général at the Court of Cassation likewise
over his counterparts at the courts of appeal; and the
latter over the members of their own departments and of
those of the auditeurs généraux at the Industrial Appeals
Tribunals and over the procureurs du Roi attached to the
lower courts, the auditeurs attached to the industrial
tribunals and their deputies."
Article 414
"The procureur général at the Court of Appeal may impose
on the officials of the ministère public subordinate to
him the penalties 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 the avocats généraux at
that court and the procureurs généraux at the courts of
appeal.
The Minister of Justice may likewise warn and reprimand
any official of the ministère public or recommend to the
King his suspension or dismissal."
C. Procedure in the Court of Cassation
21. In respect of the procedure to be followed in the Court
of Cassation, in both civil and criminal proceedings, the
Judicial Code provides:
Article 1107
"After the report has been read out, submissions are
heard from counsel present at the hearing. Their
addresses shall relate exclusively to the issues of law
raised in the grounds for appeal or to objections to the
admissibility of the appeal.
The procureur général's department shall then make its
submissions, after which 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 points 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 lodge an appeal on
points 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).
22. Since 30 October 1991, when the European Court of Human
Rights gave judgment in the Borgers case previously cited, an
appellant in the Court of Cassation has been able, at least in
criminal cases, to address the court after the representative of
the procureur général's department, who does not subsequently
attend the court's deliberations.
PROCEEDINGS BEFORE THE COMMISSION
23. In his application of 6 November 1991 to the Commission
(no. 19075/91), Mr Vermeulen complained that the Furnes
Commercial Court had not given him a hearing before adjudicating
him bankrupt of its own motion and that the representative of the
procureur général's department had attended the Court of
Cassation's deliberations; he relied on Article 6 para. 1
(art. 6-1) of the Convention.
24. In decisions of 29 June 1992 and 19 October 1993 the
Commission declared the complaint concerning the proceedings in
the Court of Cassation admissible and the remainder of the
application inadmissible. In its report of 11 October 1994
(Article 31) (art. 31), it expressed the opinion by eleven votes
to five that there had been a violation of Article 6 para. 1
(art. 6-1). The full text of the Commission's opinion and of the
three dissenting opinions contained in the report is reproduced
as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the
printed version of the judgment (in Reports of Judgments and
Decisions - 1996), but a copy of the Commission's report is
obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
25. In their memorial the Government asked the Court to hold
that
"the presence of a representative of the procureur
général's department at the deliberations of the Court of
Cassation cannot amount to a breach of Article 6 para. 1
(art. 6-1) of the Convention, either in civil proceedings
in general or in the instant case".
26. The applicant asked the Court to
"find a breach of Article 6 para. 1 (art. 6-1) of the
Convention and award just satisfaction pursuant to
Article 50 (art. 50) of the Convention".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
27. Mr Vermeulen alleged a breach of Article 6 para. 1
(art. 6-1) of the Convention, which provides:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing ... by an
... impartial tribunal ..."
He complained, firstly, that he had not been able to
reply, through his lawyer, to the avocat général's submissions
or to address the court last at the hearing on 10 May 1991 before
the Court of Cassation (see paragraph 13 above); and, secondly,
that the representative of the procureur général's department had
taken part in the deliberations that had followed immediately
afterwards. Although the instant case was a civil one, it could
not, he maintained, be distinguished to such an extent from the
Borgers case (see paragraph 3 above) that it had to be decided
differently.
The Commission accepted these submissions in substance.
28. The Government argued that the fundamental differences
between criminal and civil proceedings in the Court of Cassation
dictated that the Borgers precedent should not be followed.
While, in criminal proceedings, an uninformed accused might take
the member of the procureur général's department for his "ally"
or his "opponent" objectively speaking (see the Borgers judgment
previously cited, p. 32, para. 26), this would seem to be ruled
out in civil proceedings, where the true role of the procureur
général's department could not give rise to any misunderstanding;
in such proceedings appearances corresponded better with the
reality.
In criminal proceedings the department of the
procureur du Roi which conducted the prosecution in the lower
courts was not represented; the appellant consequently appeared
before the Court of Cassation opposite a member of the procureur
général's department. At a civil hearing, on the other hand,
nothing of the kind occurred; appellant and respondent were both
represented by a member of the Court of Cassation Bar, so that
neither of them - even supposing they were present, which they
rarely were - could confuse the procureur général's department
with the opposing side. Matters had been no different in the
instant case, as Mr Vermeulen, the appellant before the Court of
Cassation, had had the trustee in bankruptcy as his opponent (see
paragraph 10 above).
In criminal as in civil proceedings, the procureur
général's department at the Court of Cassation had no other
function than to advise that court neutrally and objectively as
an amicus curiae, so that he might even make different
submissions on each of the grounds raised by one and the same
appellant. That proved that in reality he was nobody's
"opponent" or "ally".
That, the Government continued, was all the more true in
civil proceedings, as in those the argument was strictly confined
to the grounds raised by the appellant and the procureur
général's department could not of its own motion raise any
others, even ones based on public policy. The latter's role was
therefore even more distinct from that of the only true
adversaries, the parties to the case.
In short, as the procureur général's department at the
Court of Cassation was not a party to the proceedings, there was
no occasion to apply to it the principle of equality of arms, at
least not in civil cases.
29. The Court notes, firstly, that the nature of the
functions of the procureur général's department at the Court of
Cassation - as the Government agreed - does not vary according
as the case is a civil or a criminal one. In both instances its
main duty, at the hearing as at the deliberations, is to assist
the Court of Cassation and to help ensure that its case-law is
consistent. The fact that it cannot raise grounds of appeal of
its own motion concerns only the scope of its functions, not
their nature.
30. It should be noted, secondly, that the procureur
général's department acts with the strictest objectivity. On
this point, the findings in the Delcourt and Borgers judgments
(see pp. 17-19, paras. 32-38, and p. 31, para. 24, respectively)
regarding the independence and impartiality of the Court of
Cassation and its procureur général's department remain wholly
valid.
31. As in its judgment in the Borgers case (see p. 32,
para. 26), the Court considers, however, that great importance
must be attached to the part actually played in the proceedings
by the member of the procureur général's department, and more
particularly to the content and effects of his submissions.
These contain an opinion which derives its authority from that
of the procureur général's department itself. Although it is
objective and reasoned in law, the opinion is nevertheless
intended to advise and accordingly influence the Court of
Cassation. In this connection, the Government emphasised the
importance of the department's contribution to ensuring the
consistency of the court's case-law.
32. In its judgment in the Delcourt case the Court noted in
its reasons for holding that Article 6 para. 1 (art. 6-1) was
applicable that "the judgment of the Court of Cassation ... may
rebound in different degrees on the position of the person
concerned" (pp. 13-14, para. 25). It has reiterated that idea
on several occasions (see, mutatis mutandis, the following
judgments: Pakelli v. Germany, 25 April 1983, Series A no. 64,
p. 17, para. 36; Pham Hoang v. France, 25 September 1992,
Series A no. 243, p. 23, para. 40; and Ruiz-Mateos v. Spain,
23 June 1993, Series A no. 262, p. 25, para. 63). The same
applies in the instant case, since the appeal on points of law
bore on the lawfulness of Mr Vermeulen's bankruptcy.
33. Regard being had, therefore, to what was at stake for the
applicant in the proceedings in the Court of Cassation and to the
nature of the submissions made by Mr du Jardin, the avocat
général, the fact that it was impossible for Mr Vermeulen to
reply to them before the end of the hearing infringed his right
to adversarial proceedings. That right means in principle the
opportunity for the parties to a criminal or civil trial to have
knowledge of and comment on all evidence adduced or observations
filed, even by an independent member of the national legal
service, with a view to influencing the court's decision (see,
among other authorities and mutatis mutandis, the following
judgments: Ruiz-Mateos, previously cited, p. 25, para. 63;
McMichael v. the United Kingdom, 24 February 1995, Series A
no. 307-B, pp. 53-54, para. 80; and Kerojärvi v. Finland,
19 July 1995, Series A no. 322, p. 16, para. 42).
The Court finds that this fact in itself amounts to a
breach of Article 6 para. 1 (art. 6-1).
34. The breach in question was aggravated by the avocat
général's participation in the court's deliberations, albeit only
in an advisory capacity. The deliberations afforded the avocat
général, if only to outward appearances, an additional
opportunity to bolster his submissions in private, without fear
of contradiction (see the Borgers judgment previously cited,
p. 32, para. 28).
The fact that his presence gave the procureur général's
department the chance to contribute to maintaining the
consistency of the case-law cannot alter that finding, since
having a member present is not the only means of furthering that
aim, as is shown by the practice of most other member States of
the Council of Europe.
There has therefore been a breach of Article 6 para. 1
(art. 6-1) in this respect also.
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
35. Article 50 (art. 50) of the Convention provides:
"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
36. Mr Vermeulen claimed 93,957,922 Belgian francs (BEF) in
compensation for the pecuniary damage resulting from the fact
that he had not been able to exercise his profession "in a
dignified manner" after he had been adjudicated bankrupt.
He also sought "a considerable sum" in respect of the
non-pecuniary damage stemming from the professional and family
difficulties which had followed the Court of Cassation's
dismissal of his appeal.
37. The Government and the Delegate of the Commission rightly
submitted that there was no causal link between the breach
complained of and the alleged pecuniary damage; it was not, they
said, possible to speculate as to what would have been the
outcome if the proceedings had satisfied the requirements of
Article 6 para. 1 (art. 6-1).
As to the non-pecuniary damage, the Court considers it
sufficiently compensated by the finding of a breach.
B. Costs and expenses
38. The applicant also sought BEF 437,739 for costs and
expenses occasioned by the bankruptcy proceedings and his
representation before the Convention institutions.
39. The Government did not express a view.
40. Like the Delegate of the Commission, the Court considers
that of the costs incurred in the proceedings of the national
courts, only those relating to the proceedings in the Court of
Cassation fall to be taken into account, as the bankruptcy order
in respect of the applicant was not, as such, the subject of the
present judgment.
On an equitable basis it assesses the costs incurred for
Mr Vermeulen's representation in the Court of Cassation and at
Strasbourg at BEF 250,000.
C. Default interest
41. According to the information available to the Court, the
statutory rate of interest applicable in Belgium at the date of
adoption of the present judgment is 8% per annum.
FOR THESE REASONS, THE COURT
1. Holds by fifteen votes to four that there has been a
breach of Article 6 para. 1 (art. 6-1) of the Convention;
2. Holds unanimously that this judgment constitutes in
itself sufficient just satisfaction in respect of the
alleged non-pecuniary damage;
3. Holds unanimously that the respondent State is to pay the
applicant, within three months, 250,000 (two hundred and
fifty thousand) Belgian francs for costs and expenses, on
which sum simple interest at an annual rate of 8% shall
be payable from the expiry of the above-mentioned three
months until settlement;
4. 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
20 February 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the following
separate opinions are annexed to this judgment:
(a) joint dissenting opinion of Mr Gölcüklü, Mr Matscher
and Mr Pettiti;
(b) dissenting opinion of Mr Van Compernolle.
Initialled: R. R.
Initialled: H. P.
JOINT DISSENTING OPINION OF JUDGES GÖLCÜKLÜ, MATSCHER
AND PETTITI
(Translation)
It is an old tradition in the legal systems of
continental Europe for Crown or State Counsel's department to be
represented in the higher courts (of appeal or cassation), both
civil and criminal, and to be able to intervene either orally or
in writing; the institution goes back to the time when the codes
were compiled and is closely bound up with the idea underlying
them. The role of the department when discharging this function
was to see to it that the law was correctly interpreted and to
ensure the uniformity and consistency of the case-law. Whereas
in the systems of Germanic origin the role of Crown or State
Counsel's department in civil proceedings has been gradually
limited to certain aspects of the law of persons and of the
family (in the relevant countries the department in practice now
acts only as prosecuting authority in criminal proceedings), in
the legal systems of Roman origin the department has retained its
original role, even in civil proceedings in the Court of
Cassation and to some extent also in the courts of appeal. The
institution of Advocate-General at the Court of Justice of the
European Communities and of the Delegate of the Commission at our
Court is based on similar ideas.
Belgian law is of the Roman type and makes provision for
the procureur général at the Court of Cassation to be present and
to be able to intervene, for the purpose explained above.
In our view, to see the procureur général, when he acts
in civil proceedings, as an adversary of either of the parties
is to misunderstand the nature of the institution, since his role
- of what one might call an amicus curiae - is solely that of a
neutral and objective guardian of the lawfulness of the
proceedings and of the uniformity and consistency of the
case-law. To that extent, his participation in the hearing and
- in an advisory capacity - in the deliberations in no way
offends against the principle of equality of arms as he is placed
above the parties.
As regards systems of civil procedure which reflect
traditions that have proved themselves in national law and are
well received by legal practitioners, we consider that when
interpreting Article 6 (art. 6) in respect of matters such as the
role of the procureur général at the Court of Cassation, the
European Court must make sure that it does not, through excessive
formalism, overturn such traditions.
While saying that, we should also like to point out that,
in our view, the relevant legal arrangements in Belgium and in
other countries, such as France and Italy, may seem rather
strange, and a legal system could well do without them - witness
the fact that the custom of having Crown or State Counsel's
department represented and able to intervene in civil proceedings
has been almost entirely abandoned in a large number of European
countries, without any adverse effect on the case-law.
Nevertheless, we see no reason to criticise legal systems
which wish to maintain this practice, as doing so will not lead
to better, real protection of parties' interests, especially
since, as the Court pointed out in its judgment in the Dombo
Beheer B.V. v. the Netherlands case (27 October 1993, Series A
no. 274, p. 19, para. 32), the national authorities have a wider
margin of appreciation under Article 6 (art. 6) in civil
proceedings.
Furthermore, in the Borgers v. Belgium judgment
(30 October 1991, Series A no. 214-B) the Court based its finding
of a breach of Article 6 para. 1 (art. 6-1) mainly on the
combination of two things: the fact that it was impossible for
the accused to reply to the submissions of the procureur
général's department before the end of the hearing and the
presence of that department's representative at the Court of
Cassation's deliberations. In the instant case - a civil one,
it should be emphasised - the Court finds a breach in each of
those features, even taken separately, and thus goes even further
than in the Borgers case concerning a criminal matter.
Of course, the situation is different in criminal
proceedings, and here we wholly endorse the Court's conclusions
in the Borgers v. Belgium judgment.
DISSENTING OPINION OF JUDGE VAN COMPERNOLLE
(Translation)
I regret that I cannot concur in the present judgment.
For its scope to be appreciated, it must be remembered
that it was essentially with regard to the principle of equality
of arms and the role of appearances that the Court in its
judgment in the Borgers case - a criminal one - held that there
had been a breach of Article 6 para. 1 (art. 6-1) of the
Convention. The central argument underpinning the reasoning in
that judgment lay in the consideration that "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" (Borgers judgment of 30 October 1991,
Series A no. 214-B, pp. 31-32, para. 26).
In the present judgment - which, it should be emphasised,
relates to civil proceedings - this reasoning is not reiterated.
The procureur général's department at the Court of Cassation is
not regarded as "objectively speaking" an "opponent" in respect
of whom the principle of equality of arms would require both that
the parties should have a right of reply and that the department
should be excluded from any participation in the deliberations.
In a statement of principle, it is the right to adversarial
proceedings which becomes the keystone of the judgment in its
finding of a double breach of Article 6 (art. 6).
Personally, I cannot agree with this analysis.
1. It seems to me to be wrong to apply the adversarial
principle to the intervention of an independent member of the
national legal service who, after the parties have addressed the
court, does no more than give, as an amicus curiae, an opinion
on the case whose objectivity and impartiality are indisputable.
The fact that the parties cannot reply to that opinion in no way
puts in doubt their right to a fair hearing, which was fully
exercised in the adversarial proceedings in which they took part
as opponents.
It must also be pointed out that in this matter the
cassation proceedings governed by the Belgian Judicial Code
broadly correspond to the procedure applicable in several
international courts, whose rules of procedure likewise provide
for submissions to be made, after the parties have addressed the
court, by an independent legal officer who is not a member of the
bench (see, for instance, Rule 44 of the Rules of Procedure of
the Benelux Court of Justice and Article 59 of the Rules of
Procedure of the Court of Justice of the European Communities).
2. It seems to me to be equally wrong to link the finding of
a breach of Article 6 (art. 6) of the Convention on account of
the participation of the procureur général's department in the
Court of Cassation's deliberations to the adversarial principle
in a civil case.
Seeing that the procureur général's department at the
Court of Cassation cannot be perceived as a party to the dispute
any more than as objectively speaking the ally or the opponent
of any party, the - purely advisory - intervention of an
independent and impartial member of the national legal service,
in the sole interest of contributing to the uniformity and
consistency of the case-law, in no way affects the right to a
fair hearing.
3. As Judges Gölcüklü, Matscher and Pettiti judiciously
remark in their dissenting opinion, it should also be pointed out
- but as a subsidiary observation, as far as I am concerned -
that in the aforementioned Borgers judgment the Court based its
finding of a breach of Article 6 (art. 6) on the combination of
two things: the fact that it was impossible for the accused to
reply to the submissions of the procureur général's department
before the end of the hearing and the presence of that
department's representative at the Court of Cassation's
deliberations. In the present judgment - which relates to a
civil case - the Court finds a breach in each of those features
taken separately. There is nothing, in my opinion, to justify
this greater degree of severity when, as the Court held in its
judgment in the Dombo Beheer B.V. v. the Netherlands case
(27 October 1993, Series A no. 274, p. 19, para. 32), the
national authorities have a wider margin of appreciation under
Article 6 (art. 6) in civil proceedings.