CASE OF H. v. BELGIUM

1. The case was brought before the Court by the European Commission of Human Rights ("the Commission") on 28 January 1986, within the three-month period laid down in Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It originated in an application (no. 8950/80) against the Kingdom of Belgium lodged with the Commission under Article 25 (art. 25) of the Convention by Mr. H on 20 March 1980. The applicant, who is a Belgian national, has requested the Court not to disclose his identity.
The Commission ’ s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration by Belgium recognising the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 (art. 6-1).
2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings before the Court and designated the lawyer who would represent him (Rule 30).
3. The Chamber of seven judges to be constituted included ex officio Mr. J. De Meyer, the elected judge of Belgian nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 19 March 1986, in the presence of the Registrar, the President drew by lot the names of the other five members, namely Mr. J. Cremona, Mr. G. Lagergren, Mr. R. Bernhardt, Mr. A. Donner and Mr. J.A. Carrillo Salcedo (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).
4. Mr. Ryssdal assumed the office of President of the Chamber (Rule 21 § 5) and, through the Registrar, consulted the Agent of the Belgian Government ("the Government"), the Delegate of the Commission and the lawyer for the applicant on the need for a written procedure (Rule 37 § 1). In accordance with the orders made in consequence, the registry received:
- the applicant ’ s memorial, on 10 June 1986; and
- the Government ’ s memorial, on 7 July.
The Secretary to the Commission informed the Registrar in a letter received on 14 September 1986 that the Delegate would submit his observations at the hearing.
5. Having consulted - through the Registrar - the Agent of the Government, the Delegate of the Commission and the lawyer for the applicant, the President directed on 1 July 1986 that the oral proceedings should open on 24 November 1986 (Rule 38).
6. On 23 October 1986, the Chamber decided to relinquish jurisdiction forthwith in favour of the plenary Court (Rule 50).
7. The hearing was held in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting immediately beforehand.
There appeared before the Court:
at the Ministry of Justice, Agent,
Mr. G. Kirschen, sometime leader
of the Brussels Bar and former Chairman of the National
Council of the Ordre des avocats,
Mr. J.M. Nelissen Grade, avocat
at the Court of Cassation, Counsel;
Mr. A. De Clercq, avocat, Counsel.
The Court heard addresses by Mr. Kirschen and Mr. Nelissen Grade for the Government, Mr. Tenekides for the Commission and Mr. De Clercq for the applicant, as well as their replies to its questions. The Government produced several documents at the hearing.
8. On 19 January 1987, the Agent of the Government sent the Registrar some documents he had asked for on 3 December 1986 on the Court ’ s instructions.
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant, who is a Belgian citizen born in 1929, has a doctorate in law and lives in Antwerp. He was struck off the Bar roll of that city and has twice applied unsuccessfully to be reinstated.
1. Removal from the Antwerp Bar roll
10. In 1957, after completing the prescribed period as a pupil avocat in Antwerp, H was entered on the roll and took chambers.
11. In May 1963, the Council of the Ordre des avocats of Antwerp commenced disciplinary action against him for having deliberately given false information to clients.
On 10 June 1963, it struck him off the roll, having satisfied itself that he had wrongly persuaded a client that he (the client) risked arrest if he did not immediately pay a sum of 20,000 BF. The Council had previously dismissed the other charges against H.
On appeal by H, the Brussels Court of Appeal, in a judgment on 31 December 1963, affirmed the decision to strike him off; and on 22 June 1964, the Court of Cassation dismissed H ’ s appeal on points of law.
12. H was subsequently prosecuted for fraud and unlawfully holding himself out as an avocat; he was in custody pending trial from 2 July to 2 August 1965 and many of his files were seized. He was acquitted by the Antwerp Criminal Court on 19 January 1968 and made an unsuccessful claim for compensation.
13. In 1970, the applicant set up as a legal and tax adviser, after having worked for some time as a commercial traveller.
14. On 25 February 1977, when he was about to apply to have his name restored to the roll, the police again seized documents at his office. On 29 November 1978, the chambre du conseil of the Antwerp Court of First Instance committed him for trial in the Criminal Court for forgery and fraudulent conversion, but the prosecution ended in an acquittal on 18 October 1979.
15. H has no criminal convictions.
2. Applications for restoration to the Antwerp Bar roll
16. By a letter of 3 December 1979, the applicant requested the Council of the Ordre des avocats of Antwerp to restore his name to the roll. This application was based on Article 471 of the Judicial Code (see paragraph 30 below).
17. On 17 December, at a sitting of the Council, the bâtonnier (leader) of the Antwerp Bar appointed a rapporteur.
After deliberating on 7 and 28 January 1980, the Council decided to hear the applicant and his counsel.
18. The hearing was held on 18 February. According to H ’ s counsel, the "exceptional circumstances" justifying his restoration to the roll consisted essentially in the great professional and family difficulties his client had experienced over the previous fifteen years, particularly as he had to confine himself to his occupation as a legal and tax adviser; furthermore his disbarment had not been followed up with any criminal proceedings and the later prosecutions had ended in acquittals.
19. The Council of the Ordre dismissed the application on the same day; although more than ten years had elapsed since H had been struck off, the explanations offered orally by H ’ s counsel did not disclose any exceptional circumstances such as would justify restoring his name to the roll.
20. On 9 February 1981, the applicant renewed his application. He appended a memorandum criticising the 1963 decision and to which was attached an opinion by a retired procureur général (Principal Crown Prosecutor), B. According to B, the Council of the Ordre should, under Article 29 of the Code of Criminal Procedure, have reported to the Antwerp procureur du Roi (Crown Prosecutor) the matters of which the applicant stood accused; that would have entailed suspending the disciplinary proceedings until the final decision in the criminal trial was known.
21. The Council of the Ordre heard H and his counsel on 21 April 1981. Counsel submitted that the decision to disbar H had been based on the uncorroborated evidence of one of H ’ s clients, and that from 1963 to 1980 H had run his legal and tax consultancy very satisfactorily. He added that in 1963 the Council of the Ordre had not reported the facts to the procureur du Roi, with the result that no prosecution had been brought and H had not had a chance of securing an acquittal. He also emphasised H ’ s family difficulties. In addition, he filed a memorandum in which the applicant explained why the retired procureur général B was entitled to give an opinion.
22. The Council of the Ordre dismissed the application at the end of its sitting on 11 May 1981, holding that H had not established that there were exceptional circumstances; in particular, the consequences of disbarment did not constitute such circumstances. In response to the memorandum of 9 February 1981 (see paragraph 20 above), it stated that the relevant procureur général was aware of the facts before the decision was given and had ordered a judicial investigation.
The decision was served on the applicant on 16 June 1981.
23. In Belgium the councils of the Ordre des avocats have exclusive jurisdiction to decide on applications for restoration to the roll.
1. The Council of the Ordre des avocats
24. For each of the Bars the Council of the Ordre, together with the bâtonnier and the general assembly, is an administrative organ of the profession of avocat.
25. It consists of the bâtonnier and from two to sixteen other members, according to the number of avocats on the Bar roll and the list of pupil avocats; the Antwerp Council has sixteen members in addition to the bâtonnier.
The members are directly elected by the general assembly of the Ordre, to which all avocats on the roll are convened (Article 450 of the Judicial Code); the election is held before the end of each judicial year.
26. The Council exercises numerous functions of an administrative, regulatory, adjudicative, advisory and disciplinary nature. In the instant case it is sufficient to mention the following.
27. Under Article 432 of the 1967 Judicial Code, which enshrines the case-law of the Court of Cassation on the subject (judgment of 15 January 1920, Pasicrisie 1920, I, p. 24), the Council draws up the roll of avocats and the list of pupil avocats, and no appeal lies from its decisions in this matter. The principle of the Council ’ s having responsibility for its roll is justified by the need to restrict access to the profession to persons of unimpeachable integrity.
28. It is also the Council ’ s duty to "protect the honour of the Ordre" and to "maintain the principles of dignity, probity and scrupulousness on which the profession is founded" (Article 456).
29. As a disciplinary body, it punishes "offences and misconduct" (ibid.). It will hear such cases "on an application by the bâtonnier, either of his own motion or following a complaint or after receipt of a written accusation from the procureur général" (Article 457).
The avocat concerned is summoned within two weeks by registered letter and, if he so requests, is granted time to prepare his defence (Article 465). Within eight days of the decision ’ s being given, it is notified by registered post to the procureur général and the avocat concerned (Article 466).
The main penalties which the Council may impose are warning, censure, reprimand, suspension for not more than one year and striking off the roll or the list of pupil avocats (Article 460). The avocat concerned has a right both of objection (opposition) (Article 467) and, like the procureur général, of appeal ( appel ) (Article 468). At the time the events in this case occurred (see paragraph 11 above), appeal lay to the Court of Appeal (Article 29 of the Imperial Decree of 14 December 1810 regulating the practice of the profession of avocat and the discipline of the Bar). Today, this jurisdiction is exercised by disciplinary appeals boards, consisting of the President of the Court of Appeal, who presides, and four avocats sitting as assessors (Article 473 of the Judicial Code).
Decisions of the courts of appeal in such matters could be appealed against on points of law (section 15(1) of the Judicature Act of 4 August 1832 ). The same now applies to decisions of the disciplinary appeals boards (Article 614 § 1 of the Judicial Code).
2. Restoration to the roll after disbarment
30. Restoration to the roll of an avocat who has been struck off it is governed by Article 471 of the Judicial Code:
"No avocat who has been disbarred may be entered on a roll of the Ordre or on a list of pupil avocats until ten years have elapsed from the date on which the decision to strike off became final and unless exceptional circumstances warrant it.
No such entry shall be permitted without the reasoned consent of the Council of the Ordre to which the avocat belonged or, as the case may be, the leave of the relevant disciplinary appeal authority if the disbarment was ordered by it.
No appeal shall lie against a refusal to restore to the roll."
This text reproduces with minor variations Article 1 of a resolution adopted on 13 February 1962 by the Council of the Brussels Ordre. That resolution went some way towards removing the finality of disbarment and read as follows:
"The Council of the Ordre may ..., on his application, restore to the roll an avocat who has been struck off.
This measure, which is of an exceptional nature and lies wholly within the discretion of the Council of the Ordre, regard being had to the higher interests of the Bar and to whether reformation of the person concerned is clearly established, shall be permissible only after ten years have elapsed from the time when the disbarment penalty became final.
The Council shall take its decision in accordance with the procedure provided for in Rule 32 of the Rules of Procedure, as in the case of the admission of a pupil avocat. ..."
31. Although Article 471 of the Judicial Code is the last provision in Book III ("The Bar"), Section I ("General provisions"), Chapter IV ("Disciplinary matters"), the Council does not use the disciplinary procedure (Article 465-469) when dealing with an application for restoration to the roll; nor is its decision a disciplinary one (Cass. 18 March 1965, Pasicrisie 1965, I, p. 734). The general law does not make any specific provisions; and the Antwerp Bar did not have any internal rules of procedure at the relevant time. The Council normally takes its decision in the same way and following the same procedure as on an application for admission.
32. According to figures provided by the Government (and which were not disputed), 47 avocats have been struck off in Belgium since the Judicial Code came into force on 10 October 1967. Of the five applications for restoration to the roll made by avocats who have been struck off, three have been successful ( Oudenaarde, Charleroi and Courtrai Bars). The Antwerp Bar has had to deal only with H ’ s applications, which were unsuccessful. None of the decisions in question is available to the public.
PROCEEDINGS BEFORE THE COMMISSION
33. H lodged his application (no. 8950/80) with the Commission on 20 March 1980. He alleged that the procedure followed by the Council of the Ordre des avocats of Antwerp when considering his applications for restoration to the roll had infringed Article 6 (art. 6) of the Convention.
34. The Commission declared the application admissible on 16 May 1984.
In its report of 8 October 1985 (made under Article 31) (art. 31), it expressed the opinion (by 10 votes to 2) that there had been a violation of Article 6 § 1 (art. 6-1) in that the applicant had not been able to have his case heard by a tribunal within the meaning of that provision.
The full text of its opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment*.
35. At the hearing on 24 November 1986, the Government reiterated the final submissions made in their memorial, in which they requested the Court
"to hold that the facts in the present case do not disclose any violation by Belgium of its obligations under the European Convention on Human Rights".
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)
36. The applicant contended that the Council of the Ordre des avocats of Antwerp did not hear his case in a manner consonant with Article 6 § 1 (art. 6-1) of the Convention, which provides:
"In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
In view of the submissions made, the first issue to be resolved is the applicability of Article 6 § 1 (art. 6-1).
A. Applicability of Article 6 § 1 (art. 6-1)
1. Existence of a "contestation" (dispute) over a right
37. As to whether there was a "contestation" (dispute) over a right, the Court would refer to the principles that have been laid down in its earlier decisions, notably the Benthem judgment of 23 October 1985 (Series A no. 97, pp. 14-15, § 32).
38. In seeking to be restored to the roll of the Ordre in accordance with Article 471 of the Judicial Code in 1979 and again in 1981, the applicant raised a matter relating to the determination of a right. Restoration to the roll was a prerequisite of resuming practice as an avocat, which he had been prohibited from doing since being struck off in 1963. The Council of the Ordre decided the question on each occasion against him.
39. The applicant claimed that he had the right to resume practice of the profession of avocat if the legal requirements were satisfied; the Commission agreed that he had such a right.
The Government argued that decisions on admission and a fortiori readmission to the roll came within the discretionary power of the councils of the Ordre, in accordance with the traditional principle of responsibility for the roll (see paragraph 27 above). Such decisions were final, no appeal lying either to the ordinary courts or to the Conseil d ’ Etat. In short, the Government claimed, Belgian law did not provide for any right of admission to the Bar, still less any right of readmission.
40. In the instant case the Court is not called upon to rule on the general question of the right of access to the profession of avocat in Belgium. The only issue before it relates to the procedure for restoration to the roll of the Ordre of an avocat who has been struck off.
Article 6 § 1 (art. 6-1) extends only to "contestations" (disputes) over (civil) "rights and obligations" which can be said, at least on arguable grounds, to be recognised under domestic law; it does not in itself guarantee any particular content for (civil) "rights and obligations" in the substantive law of the Contracting States (see, for example, the W v. the United Kingdom judgment of 8 July 1987, Series A no. 121, pp. 32-33, § 73).
In order to ascertain whether or not the right claimed by the applicant exists in Belgium, the Court must consider the nature both of disbarment and of the reasons justifying subsequent readmission.
41. Striking off is ordered for professional misconduct and is a disciplinary sanction - the heaviest one available to the Council of the Ordre.
In the Government ’ s view, this is a permanent sanction, as the Council is never under any obligation to readmit to the roll.
The Court notes, however, that Article 471 of the Judicial Code permits an avocat who has been struck off to seek readmission after "ten years have elapsed from the date on which the decision to strike off became final and [if] exceptional circumstances warrant it" (see paragraph 30 above).
42. While the first of these two conditions can scarcely give rise to any difficulties, the second condition - that there must be "exceptional circumstances" - is capable of being interpreted and applied in a wide variety of ways in the absence of a more precise statutory definition of such circumstances.
Nor do previous decisions of the councils of the Ordre clarify the issue. These decisions are very few in number and they remain inaccessible to the public, including disbarred avocats contemplating submitting an application for readmission (see paragraph 32 above). Furthermore, from what the Court has been able to see, the reasoning given in them scarcely seems to provide any information.
43. Having regard to the terms of Article 471, the applicant could arguably maintain that in Belgian law he had the right to practise the profession of avocat again, since he had satisfied the conditions prescribed in that Article. This is true even though the Council of the Ordre had some discretion in deciding whether one of the conditions - whether there were "exceptional circumstances" justifying readmission - had been met. In support of his application H raised matters of law and fact susceptible of judicial assessment.
The Council of the Antwerp Ordre therefore had to determine a "contestation" (dispute) concerning a right asserted by H.
2. Whether the disputed right was a civil one
44. The applicant and the Commission regarded the right in issue as a civil one. The Government maintained the contrary on account of the fundamental differences which they claimed distinguished the profession of avocat from the other professions, such as the medical profession.
45. As in previous cases, the Court does not consider that it has in the present proceedings to give an abstract definition of the concept of "civil rights and obligations". Rather, it must analyse the special characteristics of the profession of avocat in Belgium, since the disputed right is indissolubly bound up with that profession.
46. Such an analysis admittedly discloses features of public law.
(a) In the first place, the Belgian State itself laid down the way in which the Bars should be organised and the conditions attaching to the practice of the profession of avocat, such as access, rights, duties and so on (see the Van der Mussele judgment of 23 November 1983, Series A no. 70, p. 15, § 29).
State intervention by means of a statute or delegated legislation has nonetheless not prevented the Court from holding - notably in several cases relating to the medical profession ( König; Le Compte, Van Leuven and De Meyere; and Albert and Le Compte ) - that the right in issue had a civil character. In the instant case likewise, such intervention cannot suffice to establish that the right asserted by the applicant did not have this character.
(b) In the second place, the contribution of avocats to the administration of justice involves them in the operation of a public service.
The Government maintained that avocats, who are traditionally described as "officers of the court" ( auxiliaires de la justice), are, rather, agents of the judicial system in the same way as judges. As evidence of this, the Government cited in particular the monopoly of the right of audience; the possibility of being officially assigned by the court in both criminal and civil proceedings; the duty in some cases to stand in for judges and members of Crown prosecutors ’ departments; and the duty of the Council of the Ordre to set up a Legal Advice and Defence Office to assist persons of limited means.
The Court notes that as regards certain of its functions the Bar in Belgium is in a sense part of the judicial system, as the provisions in the 1967 Code concerning the Bar (Articles 428-506) appear in the part entitled "Judicial Organisation". This attachment is not decisive, however. It does not preclude the practice of the profession of avocat, as such, from having a civil character. Moreover, there is no concomitant joint or individual subordination to the country ’ s courts. On the contrary, in virtue of its traditional independence, the Bar has complete responsibility for its roll, on the one hand, and for discipline, on the other. Under the Judicial Code, which enshrines the Court of Cassation ’ s case-law on the subject, the Council of the Ordre draws up the roll, and no appeal lies from its decisions in this matter (see paragraph 27 above). The power of determining appeals against disciplinary decisions by the Council of the Ordre has been vested since 1967 in disciplinary appeals boards consisting of the President of the Court of Appeal and four avocats; previously it had been vested in the Court of Appeal (see paragraph 29 above).
47. Whilst the foregoing two factors do not, therefore, suffice to establish that Article 6 (art. 6) is inapplicable, several considerations weigh in favour of the opposite conclusion.
(a) To begin with, the profession of avocat has traditionally been treated as one of the independent professions in Belgium. According to the terms of Article 444 of the Judicial Code," avocats perform the duties of their office freely in the interests of justice and truth". Once entered on the roll of the Ordre, a member of the Bar is free to practise or not. Unless officially assigned to a case by the court, he has clients whom he chooses voluntarily and directly, without any intervention by a public authority; he can refuse to act if his conscience so dictates and even for other reasons. The instructions to act which bind him to his client are revocable at will by either party and constitute a private-law relationship. As to fees, the avocat fixes them himself "with the judiciousness to be expected of [his] office" (Article 459 of the Judicial Code) and subject to the client ’ s agreement, except that the Council of the Ordre may intervene on grounds of excessive charging (ibid.).
(b) In the second place, the chambers and clientèle of an avocat constitute property interests and as such come within the ambit of the right of property, which is a civil right within the meaning of Article 6 § 1 (art. 6-1) (see, mutatis mutandis, the Van Marle and Others judgment of 26 June 1986, Series A no. 101, p. 13, § 41).
(c) It may also be noted that while avocats enjoy an exclusive right of audience in the courts, they perform numerous important duties out of court, acting as advisers, conciliators and even arbitrators. These duties, which sometimes take up a great deal of time, are a traditional and normal feature of the profession. Yet they often have no connection with judicial proceedings. That being so, the work of members of the Bar cannot be said to consist solely in contributing to the functioning of the country ’ s courts.
48. Having thus examined the various aspects of the profession of avocat in Belgium, the Court finds that they confer on the asserted right the character of a civil right within the meaning of Article 6 § 1 (art. 6-1), which was thus applicable.
B. Compliance with Article 6 § 1 (art. 6-1)
49. It must accordingly be ascertained whether the applicant enjoyed the "right to a fair hearing" (see the Golder judgment of 21 February 1975, Series A no. 18, p. 18, § 36). As no appeal lay against the decisions of the Council of the Ordre des avocats of Antwerp (see paragraph 30 above), it must be determined whether the Council satisfied the requirements of Article 6 § 1 (art. 6-1), and in particular whether it was in fact an "independent" and "impartial" "tribunal", and whether it gave H a "fair" and "public" hearing. It was not disputed in the instant case that the Council was an institution "established by law" and that it heard the case "within a reasonable time".
50. The applicant and the Commission took the view that the Council of the Ordre did not afford the safeguards inherent in the concept of a "tribunal", while the Government contended that, although the body in question was not usually a "tribunal", it had acted as one in the instant case.
According to the Court ’ s case-law, a "tribunal" is characterised in the substantive sense of the term by its judicial function, that is to say determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner (see, inter alia, the Sramek judgment of 22 October 1984, Series A no. 84, p. 17, § 36).
The Council of the Ordre des avocats performs many functions - administrative, regulatory, adjudicative, advisory and disciplinary (see paragraph 26 above). This variety of functions provided the main ground for the Commission ’ s conclusion that the Council was not a "tribunal".
The Court does not share this view, which is at variance with its case-law (see in particular the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, pp. 14 and 24, §§ 26 and 55, and the Campbell and Fell judgment of 28 June 1984, Series A no. 80, pp. 18-19 and 40-41, §§ 33 and 81). This kind of plurality of powers cannot in itself preclude an institution from being a "tribunal" in respect of some of them.
Moreover, the Council of the Ordre, when taking its decision on the application for readmission made by the applicant (who had been struck off in 1963), was performing a judicial function further to its disciplinary responsibilities. It took action in the case on occasions that were separated by a considerable lapse of time (in 1963 and then in 1979-81) and in different contexts (disbarment and application for readmission).
51. There can be no question about the independence of the members of the Council of the Ordre des avocats. They are elected by their peers (see paragraph 25 above) and are not subject to any authority, being answerable only to their own consciences.
52. Similarly, the Court sees nothing in the evidence before it to give it any reason to doubt their personal impartiality. Having regard to what follows, it does not consider it necessary to express a view on the structural impartiality of the Council of the Ordre.
53. As regards the fairness of the proceedings, H was able to have the assistance of a lawyer to represent him and was able to appear in person when his two applications for readmission were considered; he also filed pleadings in support of his second application (see paragraphs 17-18 and 20 above).
Nonetheless, the relevant procedure of the Council of the Ordre des avocats of Antwerp is open to criticism in two respects.
In the first place, it was very difficult for the applicant to adduce appropriate evidence of the "exceptional circumstances" which might, in law, have brought about his restoration to the roll and, more generally, to argue his case with the requisite effectiveness; in particular, neither the applicable provisions nor the previous decisions of the councils of the Ordre gave any indication of what could amount to "exceptional circumstances" (see paragraph 30 above).
At the same time, he had cause to fear that there was some risk of being dealt with arbitrarily, especially as there was no provision allowing him a right of challenge (cf. the Le Compte, Van Leuven and De Meyere judgment previously cited, Series A no. 43, pp. 16 and 25, §§ 31 and 58) and as the Antwerp Bar did not have any internal rules of procedure (see paragraph 31 above).
The procedural safeguards thus appear unduly limited. Their inadequacy is of especial importance in view of the seriousness of what is at stake when a disbarred avocat seeks restoration to the roll (see, mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 42-43, § 79) and the imprecise nature of the statutory concept of "exceptional circumstances".
Furthermore, this very lack of precision made it all the more necessary to give sufficient reasons for the two impugned decisions on the issue in question. Yet in the event the decisions merely noted that there were no such circumstances, without explaining why the circumstances relied on by the applicant were not to be regarded as exceptional.
54. As to whether the proceedings were public, the Judicial Code provides that in some circumstances decisions of the Council of the Ordre in disciplinary matters may be given in public (Article 460 § 3) and that proceedings before disciplinary appeals boards may be held in public (Article 476); but it is silent in respect of restoration to the roll. In the instant case, H ’ s applications were not heard in public, nor were the decisions of the Council of the Ordre "pronounced" in public.
Unless cured at a later stage of the procedure, such a defect may deprive the person concerned of one of the safeguards set forth in the first sentence of Article 6 § 1 (art. 6-1) of the Convention (see, mutatis mutandis, the Albert and Le Compte judgment of 10 February 1983, Series A no. 58, p. 18, § 34).
The grounds for H ’ s applications related directly to the practice of the profession of avocat, which might conceivably raise questions coming within the exceptions allowed for in Article 6 § 1 (art. 6-1). However, the material before the Court does not suffice to show that the circumstances were such as to warrant the hearings ’ not being held in public (ibid.).
The rule requiring a public hearing, as embodied in Article 6 § 1 (art. 6-1), may also yield in certain circumstances to the will of the person concerned. Admittedly, the nature of some of the rights safeguarded by the Convention is such as to exclude a waiver of the entitlement to exercise them, but the same cannot be said of certain other rights. Thus neither the letter nor the spirit of Article 6 § 1 (art. 6-1) prevents an avocat from waiving, of his own free will and in an unequivocal manner, the entitlement to have his case heard in public; conducting disciplinary proceedings of this kind in private does not contravene the Convention (loc. cit., p. 19, § 35).
The evidence adduced does not establish that H intended to waive his right to a public hearing (ibid.). He cannot be blamed for not having demanded to exercise a right which was not afforded him by the practice of the Belgian Bars and that he had little prospect of securing. As to the fact that H wished to remain anonymous in the proceedings before the Convention institutions, it is not decisive in this context, as those proceedings are quite different both in their purpose and in their nature and scope.
55. In short, the Council of the Ordre did not in the instant case satisfy the requirements of Article 6 § 1 (art. 6-1), and there was therefore a breach of that provision.
II. APPLICATION OF ARTICLE 50 (art. 50)
56. The applicant claimed just satisfaction in respect of prejudice sustained and of costs and expenses. He relied on Article 50 (art. 50), which reads:
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
57. At the hearing on 24 November 1986, counsel for H emphasised the extent of the damage his client had allegedly suffered as a result of having been struck off the roll.
Non-pecuniary damage was evaluated at 50 million Belgian francs (BF); this was said to have arisen from the ordeal the applicant and his family had gone through. Pecuniary damage was assessed at 52 million BF; this corresponded to the income which the applicant would have earned over a period of twenty-six years (beginning ten years after he was struck off and ending on his seventieth birthday) if he had been able to resume practising his profession.
The Government disputed that there had been any pecuniary damage, which at all events could only be assessed as from the refusal of readmission. In their submission, H had carried on another occupation after he had been struck off and nothing showed that he would have secured readmission to the Bar if he had had a remedy before a tribunal satisfying the conditions of Article 6 § 1 (art. 6-1). As to non-pecuniary damage, a finding that the Convention had been violated would constitute sufficient satisfaction.
For his part, the Delegate of the Commission recommended compensation for considerable prejudice.
58. The Court would point out, firstly, that in the instant case an award of just satisfaction can only be based on the fact that the applicant was not afforded some of the safeguards provided for in Article 6 § 1 (art. 6-1) when his applications for readmission were considered by the Council of the Ordre des avocats of Antwerp (see, mutatis mutandis, the Le Compte, Van Leuven and De Meyere judgment of 18 October 1982, Series A no. 54, pp. 7-8, § 15, and the Bönisch judgment of 2 June 1968, Series A no. 103, p. 8, § 11). There are accordingly no grounds for taking the disbarment and its consequences into consideration.
59. As regards pecuniary damage, the evidence does not establish a causal link between the breach of the Convention and any deterioration in H ’ s financial position.
60. On the other hand, the applicant did suffer non-pecuniary damage, in respect of which the Court, making its assessment on an equitable basis as required by Article 50 (art. 50), awards him compensation in the sum of 250,000 BF.
61. Counsel for the applicant sought on behalf of his client reimbursement of costs and lawyer ’ s fees; he assessed costs at 200,000 BF and the fees at 5 per cent of the amount the Court might award in respect of damages. Despite a written question by the Court, he did not provide further particulars or any supporting documents.
The Government confined themselves to expressing doubts as to the method of calculation proposed for the fees. The Delegate of the Commission submitted that the applicant should be paid the costs and expenses incurred during the successive proceedings.
62. In the instant case, only the costs and fees relating to the proceedings before the Commission and the Court fall to be taken into account (see, mutatis mutandis, the Le Compte, Van Leuven and De Meyere judgment previously cited, Series A no. 54, p. 9, § 19).
Taking its decision on an equitable basis and applying the criteria laid down in its case-law, the Court considers that legal costs and travel and subsistence expenses may be assessed at 100,000 BF.
1. Holds by twelve votes to six that Article 6 § 1 (art. 6-1) applied in the instant case;