CASE OF BORGERS v. BELGIUM

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:
Mr J. Lathouwers, legal officer,
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).
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 o, 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:
"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."
"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."
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:
"Only the Court of Cassation may hear disciplinary proceedings to remove a judge from office."
"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."
"[...] 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 [*].
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."
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.
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.
1. Holds by eighteen votes to four that there has been a violation of Article 6 para. 1 (art. 6-1) of the Convention;