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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: [1996] ECHR 7, (2001) 32 EHRR 15, 32 EHRR 15

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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.