PROCEDURE

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.

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).

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Government (judgment of 17 January 1970, Series A no. 11, p. 5, para. 7) - and Borgers v. Belgium, from which he had withdrawn (judgment of 30 October 1991, Series A no. 214-B, p. 25, para. 3).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).

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.

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.

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.

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.

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, MrJakhian 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

Mr Vermeulen is a Belgian citizen who lives at Diksmuide (West Flanders).

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 and Verstraete Business Consultancy, Ltd (Zakenkantoor Vermeulen and 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.

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.

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.

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.

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).