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European Court of Human Rights


You are here: BAILII >> Databases >> European Court of Human Rights >> DELCOURT v. BELGIUM - 2689/65 [1970] ECHR 1 (17 January 1970)
URL: http://www.bailii.org/eu/cases/ECHR/1970/1.html
Cite as: (1970) 1 EHRR 355, (1979) 1 EHRR 355, [1970] 1 EHRR 355, 1 EHRR 355, [1970] ECHR 1

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In the Delcourt case,

The European Court of Human Rights, sitting, in accordance with the

provisions of Article 43 (art. 43) of the Convention for the

Protection of Human Rights and Fundamental Freedoms (hereinafter

referred to as "the Convention") and Rules 21 and 22 of the Rules of

Court, as a Chamber composed of the following judges:

Sir Humphrey WALDOCK, President

H. ROLIN

T. WOLD

M. ZEKIA

A. FAVRE

J. CREMONA

G. WIARDA

and also Mr. M.-A. EISSEN, Registrar and Mr. J.F. SMYTH, Deputy

Registrar,

Decides as follows,

PROCEDURE

1. The Delcourt case was referred to the Court by the European

Commission of Human Rights (hereinafter referred to as "the

Commission"). The case has its origin in an Application lodged with

the Commission under Article 25 (art. 25) of the Convention on

20th December 1965 by a Belgian national, Emile Delcourt, against the

Kingdom of Belgium.

The Commission's request, to which was attached the Report provided

for in Article 31 (art. 31) of the Convention, was lodged with the

Registry of the Court on 5th February 1969, within the period of three

months laid down in Articles 32 para. 1 and 47 (art. 32-1, art. 47).

Reference was made in the request to Articles 44 and 48 (art. 44,

art. 48) and to the declaration by the Kingdom of Belgium recognising

the compulsory jurisdiction of the Court (Article 46) (art. 46).

2. On 4th March 1969, the President of the Court drew by lot, in the

presence of the Registrar, the names of six of the seven Judges called

upon to sit as members of the Chamber, Mr. Henri Rolin, the elected

Judge of Belgian nationality, being an ex officio member under

Article 43 (art. 43) of the Convention; the President also drew by lot

the names of three substitute Judges. One of the members of the

Chamber was subsequently unable to take part in the consideration of

the case; he was replaced by the first substitute Judge.

3. On 10th March 1969, the President of the Chamber instructed the

Registrar to invite the Commission to produce a number of documents

which were added to the file on 19th March 1969.

4. On 20th March 1969, the President of the Chamber ascertained the

views of the Agent of the Government of the Kingdom of Belgium

(hereinafter referred to as "the Government") and of the Delegates of

the Commission on the procedure to be followed. By an Order made the

same day he decided that the Commission should file a memorial within

a time-limit expiring on 31st May 1969 and that the Government should

have until 21st July 1969 for its memorial in reply. The respective

memorials of the Commission and the Government reached the Registry

within the time-limits allowed.

5. After having consulted, through the Registrar, the Agent of the

Government and the Delegates of the Commission, the President of the

Chamber decided, by an Order of 31st July 1969, that the oral hearings

should open on 29th September 1969.

6. On 24th September 1969, the Court held a meeting to prepare the

oral proceedings. On this occasion, it decided to invite the Agent of

the Government and the Delegates of the Commission to produce certain

documents and supplementary information which were made available to

it in the course of the public hearings.

7. The public hearings opened at Strasbourg, in the Human Rights

Building, on 29th September 1969 in the afternoon and were resumed on

30th September.

There appeared before the Court:

- for the Commission:

Mr. M. SØRENSEN, Principal Delegate, and

MM. C. T. EUSTATHIADES and T. BALTA, Delegates;

- for the Government:

Mr. J. DE MEYER, Professor at Louvain University,

Assessor to the Council of State, Agent and Counsel, assisted by

Mr. J. FAURÈS, Bâtonnier at the Court of Cassation, Counsel.

The Court heard the addresses and submissions of MM. Sørensen,

De Meyer and Faurès. On 30th September 1969, the Court asked the

representatives of the Government a number of questions to which they

replied on the same day. The hearings were then declared

provisionally closed on 30th September at 5.25 p.m.

8. After having deliberated in private, the Court gives the present

judgment.

AS TO THE FACTS

9. The purpose of the Commission's request is to obtain a decision

from the Court as to whether the facts of the case do or do not

disclose a violation by the Kingdom of Belgium of the obligations

binding on it under Article 6 para. 1 (art. 6-1) of the Convention.

10. The relevant facts of the case as they appear from the

Commission's Report and memorial, the Government's memorial, the

documents produced and the addresses of the representatives appearing

before the Court may be summarised as follows:

11. Emile Delcourt, a Belgian citizen, born on 28th December 1924,

and a company director, has his residence at Waterloo. At the time of

lodging his Application with the Commission (20th December 1965), he

was imprisoned in the central gaol at Louvain.

12. Proceedings having been instituted against him by the Procureur

du Roi at Bruges for obtaining money by menaces, fraud and fraudulent

conversion, the Applicant was arrested on 23rd November 1963 and

subsequently charged with a number of offences of fraud, fraudulent

conversion, forgery and uttering forged documents, issuing uncovered

cheques and fraudulent bills as well as obtaining credit by false

pretences.

On 21st September 1964, he was found guilty by the Bruges Court of

Summary Jurisdiction on thirty-six out of forty-one counts and

sentenced to a year's imprisonment and a fine of two thousand Belgian

francs.

On 17th March 1965, the Court of Appeal in Ghent modified this

judgment against which both Delcourt and the prosecution had appealed

on 25th and 26th September 1964. It found all the charges to be

established including those on which Delcourt had been acquitted at

first instance, stressed the seriousness of the offences and referred

to his previous convictions. It accordingly increased his principal

sentence to five years' imprisonment and further decided that on

serving his sentence he should be "placed at the disposal of the

Government" for ten years thus granting an application by the

prosecution which had been rejected by the Bruges Court.

On 17th and 23rd March 1965, the Applicant appealed to the Court of

Cassation against the judgment of the Court of Appeal and against that

of the Court at Bruges. He lodged a memorial on 20th May 1965. The

Procureur général's department (parquet) at the Court of Appeal did

not avail itself of its right to file a counter-memorial. A public

hearing took place before the second chamber of the Court of Cassation

on 21st June 1965; the Applicant himself was present at that hearing

but not his counsel. The Court of Cassation heard the report of

Judge De Bersaques, its rapporteur, and then the submissions of the

Avocat général, Mr. Dumon, to the effect that the two appeals should

be dismissed. In its judgment delivered the same day, after

deliberations held in private the Court dismissed the two appeals.

13. In the Application which he lodged with the Commission on

20th December 1965 (No. 2689/65), Delcourt complained of the judgment

of 21st September 1964 and the judgments on appeal of 17th March and

21st June 1965. Protesting his innocence and alleging the violation

of Articles 5, 6, 7 and 14 (art. 5, art. 6, art. 7, art. 14) of

the Convention, he presented numerous complaints almost all of which

were declared inadmissible by the Commission on 7th February and

6th April 1967. On this last date, however, the Commission accepted

one complaint which related to the question whether the presence of a

member of the Procureur général's department at the deliberations of

the Court of Cassation was compatible with the principle of "equality

of arms" and hence with Article 6 para. 1 (art. 6-1) of the Convention.

In fact, the Advocat général, Mr. Dumon, was present at the Court's

deliberations in accordance with Article 39 of the Prince Sovereign's

Decree of 15th March 1815 which provides "... in cassation proceedings

the Procureur général has the right to be present, without voting,

when the Court retires to consider its decision". It may be observed

that this Decree has recently been replaced by certain provisions of

the new Judicial Code (Act of 10th October 1967) which was not yet in

force when the Belgian Court of Cassation dismissed Delcourt's

appeals. The above-mentioned provision of the 1815 Decree has been

re-enacted, in substance, in Article 1109 of this Code.

14. Following the decision of 6th April 1967 declaring this complaint

admissible, a Sub-Commission ascertained the facts of the case.

15. Before the Commission and the Sub-Commission, the Applicant

maintained that the presence of a member of the Procureur général's

department at the Court of Cassation at the deliberations of

21st June 1965 had violated Article 6 para. 1 (art. 6-1) of the

Convention. Without disputing that there is a considerable difference

between the respective functions of the Procureur général's department

at the Court of Cassation and the Procureur général's department at

the courts below, he stressed that in accordance with the law the

former does sometimes appear as a party even though this did not

happen in this case. Furthermore, the Procureur général's department

at the Court of Cassation does, in the view of the Applicant, exercise

supervision over the Procureurs généraux at the Court of Appeal

(section 154 of the Act of 18th June 1869); a very strong statutory

tie, therefore, links him with them, his subordinates, even if in

practice the supervision in question is nowadays rather discreet.

Again, the Procureur général's department at the Court of Cassation

was, in the great majority of cases, the opponent - at any rate

potential - of the convicted persons who appealed to the highest court

in Belgium: the Procureur général usually submitted that their

appeals should be dismissed and his opinion was nearly always adopted

- as in this case - by the judges. Then the Applicant stressed that

the Procureur général, after having developed his submissions at the

end of the hearing in open court, also participated in its private

deliberations from which the parties are excluded. This caused a

violation of the rights of the defence and, particularly, of the

principle of "equality of arms", as it was defined in the opinions

given by the Commission in the Ofner, Hopfinger, Pataki and Dunshirn

cases (Applications Nos. 524/59, 617/59, 596/59 and 789/60, Yearbook

of the Convention, Vol. 6, pp. 696 to 706 and 730 to 732). The

Applicant specified that he did not mean, however, to raise the

slightest doubt as to the absolute conscientiousness with which the

Court of Cassation fulfils its function or to suggest that the

Procureur général's department might attempt unduly to influence the

court in any direction other than that of strict justice. In other

words, Delcourt was not criticising persons but rather the institution

which gave an advantage to the Procureur général's department.

Admittedly, the legislation in issue dated back for more than a

century and a half and the Belgian Parliament had decided on two

occasions that it did not need to amend it. The legislation, however,

dated from a time of absolute monarchy and carried that stamp;

furthermore, the incorporation of the Convention into the domestic law

of a Contracting State necessarily "kept bringing to light new

controversial points which had not been noticed by the national

legislature".

In his observations of 8th December 1967, almost two years after the

lodging of the Application, Delcourt further complained that he had

not been able to reply to the submissions of the Procureur général's

department at the Court of Cassation: he had not been informed of this

submission before the hearing of 21st June 1965 nor did he have the

right to the last word at that hearing.

The Applicant applied for the repeal of the legislation under attack

and claimed pecuniary damages.

16. On the failure of the attempt made by the Sub-Commission to

arrange a friendly settlement, the plenary Commission drew up a Report

as required under Article 31 (art. 31) of the Convention. This Report

was adopted on 1st October 1968 and transmitted to the Committee of

Ministers of the Council of Europe on 5th December 1968. The

Commission expressed therein, by seven votes against six, the opinion

that Article 6 para. 1 (art. 6-1) of the Convention was not violated in

the present case. Two members of the majority expressed a joint

concurring opinion and the six members forming the minority expressed

their dissent in a joint opinion.

17. After the case was referred to the Court, the Applicant returned

to and developed some of his earlier arguments in a document which the

Commission appended to its memorial. As regards his main complaint,

the Applicant stated that he associated himself with the opinion of

the minority of the Commission.

Arguments of the Commission and the Government

18. Unlike the Government, the Commission considers unanimously that

Article 6 para. 1 (art. 6-1) of the Convention is applicable in the

present case to the proceedings in cassation.

In the view of the majority of the Commission, however, the presence

of a member of the Procureur général's department attached to the

Court of Cassation at the deliberations of 21st June 1965 was not

incompatible with this text. In actual fact, this highest court in

Belgium does not deal with the merits (fond) of cases (Article 95 of

the Constitution and Section 17 of the Act of 4th August 1832); save

in certain exceptional matters, irrelevant to this case, the Court of

Cassation's sole function is to decide questions of law. The

Procureur général's department is confined to assisting the Court in

the exercise of its functions. That department does not, ordinarily,

conduct prosecutions and it has not the character of a party

(Article 37 of the Prince Sovereign's Decree of 15th March 1815). In

almost all cases it is completely independent of the Minister of

Justice and has no right of direction over the Procureur général's

department which is attached to the courts of first instance and

appeal and which is the prosecuting authority in normal cases. The

participation of the Procureur général's department at the

deliberations of the Court of Cassation does not, therefore, conflict

with the principle of "equality of arms", even when it is examined in

the light of the precedents set by the Commission (Ofner, Hopfinger,

Pataki and Dunshirn cases).

The Delegates of the Commission brought to the attention of the Court

the joint dissenting opinion of six members of the Commission: these

members of the Commission were of the opinion that the participation of

the Procureur général's department at the deliberations of the Court

of Cassation did not comply with the requirements of Article 6 para. 1

(art. 6-1).

The Commission did not deem it necessary to express an opinion on the

"new" complaints which appeared in Delcourt's above-mentioned

observations of 8th December 1967 (paragraph 15 above); in the

Commission's view, the Applicant presented them only as special

aspects of the principle of "equality of arms" which the majority of

the Commission did not consider to be violated.

In its memorial of 22nd May 1969 and at the hearing held on

29th September 1969, the Commission requested the Court:

"to decide whether or not, in the course of the proceedings before the

Belgian Court of Cassation in the Delcourt case on 21st June 1965,

there was a violation of Article 6 para. 1 (art. 6-1) of the Convention,

insofar as this provision requires a fair trial, by reason of the

participation of the representative of the Procureur général's

department in the deliberations of the Court of Cassation".

19. The Government does not dispute that a member of the Procureur

général's department at the Court of Cassation, after submitting in

open court that the Applicant's appeals should be refused, was present

in a consultative capacity at the deliberations of 21st June 1965, but

maintains that this did not involve any violation of the right

guaranteed by Article 6 para. 1 (art. 6-1) of the Convention.

That highest court in Belgium does not deal with the merits of cases

(Article 95 of the Constitution and Section 17 of the Act of

4th August 1832). In spite of its judicial nature, which has been

developed through a long evolution, the Court of Cassation fulfils a

function which has never ceased to have some relation with the work of

the legislature. Established in the interests of the law itself, the

Court of Cassation judges judgments and not persons, save in certain

exceptional matters which are irrelevant to the present case. It is

not therefore the function of that Court to decide disputes concerning

civil rights and obligations or to determine criminal charges

(décider, soit des contestations sur ses droits et obligations de

caractère civil, soit du bien-fondé de toute accusation en matière

pénale) within the meaning of Article 6 para. 1 (art. 6-1), as that

provision has been interpreted in a series of decisions by the bodies

set up to ensure the observance of the Convention.

As regards the Procureur général's department at the Court of

Cassation, it must be distinguished fundamentally from the Procureur

général's department attached to the courts below. As a general rule,

it has not the character of a party (Article 37 of the Decree of

15th March 1815); in the very rare cases where under the relevant law

the department assumes the position of a party and institutes

prosecutions the Procureur général is not present at the deliberations

(Article 39 of the Decree of 15th March 1815). As the Procureur

général is not concerned with the question of the guilt of the

accused, he is neither their adversary nor the tool of the

prosecution. For example, there is nothing to prevent him from

submitting to the Court that an appeal in cassation brought by the

Procureur général's department at the Court of Appeal should be

dismissed or from putting forward on his own initiative grounds for

setting aside a conviction; and there are statistics to show that this

is often the case. The Procureur général's department attached to the

Court of Cassation is not, therefore, in alliance with the Procureur

général's department attached to the courts below; besides, the

Procureur général at the Court of Cassation exercises, in practice,

over that department supervision of a purely doctrinal and scientific

nature without the least power of direction (Section 154 of the Act of

18th June 1869). Furthermore, the Procureur général at the Court of

Cassation is entirely independent in his relations with the Minister

of Justice.

In short, the role of the Procureur général is of the same kind as the

functions of the Court of Cassation itself: it consists, ordinarily,

in no more than giving technical and objective assistance to the Court

in order to ensure the observance of the law, consistency in judicial

precedent and good drafting of the judgments. To sum up, the

Procureur général attached to the Court of Cassation "forms part of,

and is identified with", the Court like the judges. In these

circumstances, the presence of one of the members of the Procureur

général's department at the deliberations did not upset the "equality

of arms" to the detriment of the Applicant. There was some inequality

in this case but it worked to the advantage of Delcourt; unlike him,

the Procureur général's departments attached to the lower courts whose

decisions were challenged in cassation did not have an opportunity to

put forward their arguments in open court on 21st June 1965

(Article 34 of the Decree of 15th March 1815); those departments did

not even avail themselves of their right to reply in writing to the

memorial filed by the appellant on 20th May 1965. In the Government's

view, the Delcourt case cannot be compared with the Pataki and

Dunshirn cases; the present case is closer to the Ofner and Hopfinger

cases in which the Commission and the Committee of Ministers did not

find any violation of Article 6 (art. 6).

For the rest, the legislation in dispute is more than a century and

a half old, in which time it has never been subjected to criticism in

Belgium by writers or the Bar who are, however, most attentive to

everything which relates to the rights of the defence. On two

occasions, Parliament decided explicitly to maintain this legislation,

the first time without any change (at the time of the passing of the

Act of 19th April 1949), the second time in substance and after

examination of the question from the point of view of the Convention

(Article 1109 of the 1967 Judicial Code). These circumstances raise

something like a presumption in favour of the compatibility of the

legislation in question with Article 6 para. 1 (art. 6-1); they also show

that the participation of the Procureur général's department at the

deliberations of the Court of Cassation does not open the door to

abuse.

As to Delcourt's "new" complaints, they are inadmissible because they

were not included in the original Application. The Government

considers that they are in any event unsustainable; in its view, it is

just because the Procureur général's department is not a party that

its submissions are made at the end of the oral proceedings without

being communicated in advance to the parties.

In its memorial of 17th July 1969 and at the oral hearing held on

30th September 1969, the Government asked the Court:

"to hold that, having regard to the role which Belgian law confers on

the Procureur général attached to the Court of Cassation and to his

special position in Belgian judicial procedure, his presence in a

non-voting capacity at the Court's deliberations as expressly provided

for in that legislation is not of such a nature as to violate the

principle of 'equality of arms' where, as in the present case, the

Procureur général is not himself a party to the proceedings as

applicant;

to decide in consequence that, in the proceedings which took place in

the Delcourt case before the Court of Cassation of Belgium on

21st June 1965, there was no violation of Article 6 para. 1 (art. 6-1) of

the Convention by reason of the presence of the representative of the

Procureur général's department, Mr. Dumon, Avocat général, at the

deliberations of the judges".

AS TO THE LAW

20. In its decision of 6th April 1967, the Commission declared the

Application of Delcourt to be admissible on one point only, that is,

whether the participation of a member of the Procureur général's

department at the deliberations of the Court of Cassation in Belgium,

on 21st June 1965, violated the rights and freedoms guaranteed by the

Convention.

In the course of the examination of the merits of the case by the

Commission, the Applicant has further complained that he had not been

made aware, before the hearing, of the submissions of the Procureur

général's department at the Court of Cassation and that he did not

have the right to the last word at the hearing.

The Court will rule first on the Applicant's original complaint. It

will then see if there is occasion to consider the two "new"

complaints made by Delcourt and, if so, whether they should be upheld

or dismissed.

21. Only one provision of the Convention requires examination for the

purpose of deciding the present case. This is Article 6 para. 1

(art. 6-1) which provides that "in the determination of his civil

rights and obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a reasonable time by

an independent and impartial tribunal established by law".

I. As to the applicability of Article 6 para. 1 (art. 6-1) of the

Convention

22. At the oral hearings held on 29th and 30th September 1969, the

representatives of the Belgian Government maintained, in substance,

that, where the Court of Cassation gives judgment, as in the present

case, on an appeal in cassation by one of the parties to the case

challenging a judicial decision it does not make a determination

either of civil rights or obligations or of a criminal charge against

him within the meaning of the text quoted above.

The Commission, on the contrary, was unanimously of the opinion that

Article 6 para. 1 (art. 6-1) is applicable for reasons explained to the

Court by its Principal Delegate.

23. The Court recognises that it may be difficult to define exactly

the field of application of paragraph 1 of Article 6 (art. 6-1). The

Commission has delivered on this point a number of decisions in

various particular cases - decisions which the Government invoked in

its arguments but on which it is not incumbent on the Court to

express an opinion in the present case. The Court, too, has had

occasion to advert to certain aspects of the problem. It has ruled

that Article 6 para. 1 (art. 6-1) does not apply to the procedure which

regulates in Austria the examination of applications for provisional

release (Neumeister judgment of 27th June 1968, "As to the Law"

paragraphs 22 and 23; Matznetter judgment of 10th November 1969, "As

to the Law" paragraph 13). In another case the Court considered, but

did not find it necessary to decide, the question whether cassation

proceedings ought to be taken into account in appreciating the

duration of a hearing for the purpose of applying the provision in

Article 6 para. 1 (art. 6-1) requiring a hearing within a "reasonable time"

(Wemhoff judgment of 27th June 1968, "As to the Law" paragraphs 18

and 20; see also Neumeister judgment, "As to the Law" paragraph 19).

Now, however, the Court is called on to rule on the applicability of

Article 6 (art. 6) to proceedings in cassation, though in a different

context.

24. The Government's arguments are based, essentially on the words

"bien-fondé de toute accusation" ("in the determination of any

criminal charge against him") which delimit the scope of the

application of Article 6 para. 1 (art. 6-1) in criminal cases. Article 95

of the Belgian Constitution provides that the Court of Cassation "does

not deal with the merits of the cases submitted to it". Accordingly,

in the Government's view there is not, strictly speaking, a

prosecution or a defence before that Court: prosecution and defence

cease to exist the moment that the judges dealing with the merits give

judgment in final instance, subject to the possibility of their being

reborn in the event of the Court of Cassation referring a case back to

a lower court after quashing the decision attacked. For the rest, the

Court of Cassation does not go into the substance of the offences

alleged against accused persons and judges not persons but judgments

in regard to which it confines itself to supervising their validity.

That Court does not therefore determine criminal charges ("bien-fondé

de toute accusation"). This is always the position save only in

certain exceptional matters which are irrelevant to the present case.

25. The Court cannot accept this view. Judicial decisions always

affect persons. In criminal matters, especially, accused persons do

not disappear from the scene when the decision of the judges at first

instance or appeal gives rise to an appeal in cassation. Although the

judgment of the Court of Cassation can only confirm or quash such

decision - and not reverse it or replace it - that judgment may

rebound in different degrees on the position of the person concerned.

He loses his status of a convicted person or, as the case may be, the

benefit of his acquittal, at any rate provisionally, when a decision

is set aside and the case is referred back to a trial court. A

judgment in cassation sometimes has even more direct repercussions on

the fate of an accused. If the highest court dismisses the appeal in

cassation, the acquittal or conviction becomes final. If the Court of

Cassation allows the appeal without ordering the case to be sent back,

because, for example, the facts which led to the conviction do not

constitute an offence known to the law (see Article 429 of the Code of

Criminal Procedure and the judicial decisions given thereon), then by

its own sole decision it puts an end to the prosecution.

Furthermore, the term "bien-fondé", which is found in the French

text of Article 6 para. 1 (art. 6-1), refers not only to the accusation

being well-founded in fact but also to its being well-founded in law.

Thus, the supervision of validity which the Court of Cassation

undertakes may lead it to hold that the lower courts, when examining

the facts on which the charge was grounded, have acted in breach

either of criminal law or of forms of procedure which are of an

essential nature of are laid down on pain of nullity of the decision

(see, for example, Section 17 of the Act of 4th August 1832); at least

in the first of these cases the prosecution proves to be undoubtedly

unfounded. Even the literal interpretation put forward by the

Government cannot, therefore, produce the result that proceedings in

cassation lie completely outside the scope of Article 6 para. 1

(art. 6-1).

Besides, the Court notes that, in fact, the English text of Article 6

(art. 6) does not contain any term equivalent to "bien-fondé"; it

uses the much wider expression "determination of ... any criminal

charge" (décision sur toute accusation en matière pénale). Thus, a

criminal charge is not really "determined" as long as the verdict of

acquittal or conviction has not become final. Criminal proceedings

form an entity and must, in the ordinary way terminate in an

enforceable decision. Proceedings in cassation are one special stage

of the criminal proceedings and their consequences may prove decisive

for the accused. It would therefore be hard to imagine that

proceedings in cassation fall outside the scope of Article 6 para. 1

(art. 6-1).

Article 6 para. 1 (art. 6-1) of the Convention does not, it is true,

compel the Contracting States to set up courts of appeal or of

cassation. Nevertheless, a State which does institute such courts is

required to ensure that persons amenable to the law shall enjoy before

these courts the fundamental guarantees contained in Article 6

(art. 6) (see, mutatis mutandis, the judgment of 23rd July 1968 on the

merits of the case "relating to certain aspects of the laws on the

use of languages in education in Belgium", page 33, in fine). There

would be a danger that serious consequences might ensue if the

opposite view were adopted; the Principal Delegate of the Commission

rightly pointed to those consequences and the Court cannot overlook

them. In a democratic society within the meaning of the Convention,

the right to a fair administration of justice holds such a prominent

place that a restrictive interpretation of Article 6 para. 1 (art. 6-1)

would not correspond to the aim and the purpose of that provision

(see, mutatis mutandis, the Wemhoff judgment of 27th June 1968,

"As to the Law" paragraph 8).

26. Therefore, Article 6 para. 1 (art. 6-1) is indeed applicable to

proceedings in cassation. The way in which it applies must, however,

clearly depend on the special features of such proceedings. Thus, in

order to determine whether Delcourt has been a victim of a violation

of Article 6 (art. 6), it is necessary to examine what are, both in

law and in practice, the functions exercised in a case of this kind by

the Belgian Court of Cassation and by the Procureur général's

department attached to that Court.

II. As to the principal complaint of the Applicant

27. The Applicant complains in the first place of the fact that a

member of the Procureur général's department attached to the Court of

Cassation, having made his submissions in open court, took part in its

deliberations on 21st June 1965. It is beyond doubt that this

participation was in conformity with the legislation in force in

Belgium at that time; for under Article 39 of the Prince Sovereign's

Decree of 15th March 1815 "in proceedings in cassation, the Procureur

général (had) the right to be present, but without voting, when the

Court (retired) to consider its decision". The Court is therefore

called upon to judge, in the first place, the compatibility of

Article 39 of the Decree of 15th March 1815 with Article 6 para. 1

(art. 6-1) of the Convention.

28. In the course of their respective submissions, the Commission and

the Government referred mainly to the principle known as "equality of

arms". The Court, however, will examine the problem by reference to

the whole of paragraph 1 of Article 6 (art. 6-1). The principle of

equality of arms does not exhaust the contents of this paragraph; it

is only one feature of the wider concept of fair trial by an

independent and impartial tribunal (see Neumeister judgment of

27th June 1968, "As to the Law" paragraph 22).

29. In the present case, the two appeals to the Court of Cassation

were both instituted by Delcourt; under Belgian law, the respondent

party was not the Procureur général's department at the Court of

Cassation but the Procureur général's departments at whose behest the

lower courts had pronounced the decisions under appeal, that is, the

Procureur du Roi at Bruges and the Procureur général attached to the

Court of Appeal at Ghent. The Applicant could thus claim, under

Article 6 para. 1 (art. 6-1) of the Convention, full equality of treatment

as against the Procureur général's departments at those courts. In

fact the undisputed information given to this Court shows that the

Applicant did not suffer from any discrimination in this respect.

Indeed, the Procureur général's departments at the Court of First

Instance and the Court of Appeal did not even avail themselves of

their right to reply in writing to Delcourt's memorial - and the

relevant legislation did not even permit them to appear at the hearing

before the Court of Cassation - still less be present at the

deliberations.

In contrast to the Procureur général's department at the courts below,

the Procureur général's department at the Belgian Court of Cassation

does not ordinarily conduct public prosecutions, nor does it bring

cases before that court, nor does it either have the character of

respondent and it "cannot", therefore, "be considered as a party"

(Article 37 of the Decree of 15th March 1815). This situation only

changes in certain exceptional matters which are irrelevant to the

present case, and in those instances the Procureur général's

department at the Court of Cassation is not present at the

deliberations of the judges of the court.

Yet it does not, however, necessarily follow from what precedes that

Delcourt's complaints are unfounded. The Court must therefore make a

careful examination of the real position and functions of the

Procureur général's department attached to the Court of Cassation.

30. A series of elements allows one to understand the point of view of

the Applicant and the opinion of the minority of the Commission.

First, the clear distinction which must be drawn, according to the

Belgian Government, between the Procureur général's department at the

Court of Cassation and the Procureur général's department at the lower

courts, does not always appear very evident from the legislative

texts. The same names, such as Procureur général's department

(ministère public), are used to designate different institutions -

which easily causes confusion. Moreover, the departments attached to

the courts of first instance, of appeal and of cassation seem to

constitute, in certain aspects, one single corps. Thus, Section 154

of the Act of 18th June 1869 (replaced recently by Article 400 of the

1967 Judicial Code) provides that the Procureur général at the Court

of Cassation "shall exercise supervision over the Procureurs généraux

attached to the courts of appeal", and it is only an examination of the

practice which reveals that this supervision does not involve any

power to intervene in the conduct of given cases but merely to give

general opinions on matters of doctrine.

On a superficial glance at the situation, one might go so far as to

wonder if the above-mentioned distinction really reflects the true

position. The Procureur général's department at the Court of

Cassation sometimes acts as the moving party: the task, for example,

falls to it sometimes to institute a prosecution or disciplinary

proceedings against judges (see also Article 90 of the Constitution

concerning the indictment of ministers on impeachment). Furthermore,

its members are sometimes recruited from among the members of the

Procureur général's department at the courts below. Therefore, some

litigants may quite naturally be inclined to view as an adversary a

Procureur général or an Avocat général who submits that their appeals

in cassation should be dismissed. They may be all the more inclined

to do so when they find themselves deprived of any real debate before

the highest court because the Procureur général's department at the

Court of Appeal only very rarely makes use of the right of reply - in

any event restricted - which the law confers on it in proceedings in

cassation. And one may imagine that such litigants can have a feeling

of inequality if, after hearing a member of the Procureur général's

department at the Court of Cassation make, in open court, final

submissions unfavourable to their pleas, they see him withdraw with

the judges to attend the deliberations held in the privacy of

chambers.

On this last point, Belgian legislation may well appear at first sight

to be "unusual" - to recall a term used by one of the

representatives of the respondent Government - and it does not seem to

have any equivalent to-day in the other member States of the Council

of Europe, at least in criminal cases. It may be noted, moreover,

that the Avocat général at the Court of Justice of the European

Communities, even though there are analogies between his functions and

those of the Procureur général at the Belgian Court of Cassation, does

not take part in the deliberations.

31. The preceding considerations are of a certain importance which

must not be underestimated. If one refers to the dictum "justice

must not only be done; it must also be seen to be done" these

considerations may allow doubts to arise about the satisfactory nature

of the system in dispute. They do not, however, amount to proof of a

violation of the right to a fair hearing. Looking behind appearances,

the Court does not find the realities of the situation to be in any

way in conflict with this right.

32. First, it is established that the Procureur général's department

at the Court of Cassation functions wholly independently of the

Minister of Justice, save in the exceptional matters which are

irrelevant to this case. Thus, the Minister has no power to compel

the Procureur général to make his submissions one way or the other,

while he has the power to direct the institution of prosecutions by

the Procureur général's departments attached to the courts of first

instance and appeal.

Furthermore, as has already been observed, the Procureur général at

the Court of Cassation exercises supervision over the officers of the

Procureur général's departments at the courts of first instance and

appeal only in regard to matters of doctrine and does not give them

injunctions or instructions. Thus, he is not entitled to instigate,

or prevent the institution of, a prosecution before the lower courts

or to intervene at any stage in the conduct of a case already brought

before them, or to order the Procureur général's department at a court

of appeal to lodge or withdraw an appeal in cassation.

33. Nor is the Procureur général at the Court of Cassation the

virtual adversary of the accused whose conviction or acquittal may

lead to an appeal in cassation; nor does he become their actual

adversary when he submits in open court that their arguments should

not be accepted. No doubt it is equally true that the officers of the

Procureur général's department at the courts of first instance and

appeal do not have the character of public accusers; indeed, Article 4

of Section VIII of the Decree of 16th-24th August 1790 so states

expressis verbis. They also are bound to serve the public interest in

all objectivity and, in particular, to ensure the observance of the

laws concerned with public order; and they are to be considered

parties only within the formal procedural meaning of the term. Their

task, however, is in no way to be confused in criminal matters with

that of the Procureur général's department at the Court of Cassation.

Their task, in effect, is, before all else, to investigate and

prosecute criminal offences in order to protect the safety of society

(see, for example, Articles 22 and 271 of the Code of Criminal

Procedure). The Procureur général's department at the Court of

Cassation, on the other hand, upholds a different interest, that which

is concerned with the observance by the judges of the law and not with

the establishment of the guilt or innocence of the accused.

Incidentally, the Procureur général attached to the Court of Cassation

exercises in civil matters functions close to those which he exercises

in criminal matters. Yet no one could ever seriously suggest that he

becomes the opponent of a litigant with whose case his submissions do

not agree.

34. Admittedly, even in the absence of a prosecuting party, a trial

would not be fair if it took place in such conditions as to put the

accused unfairly at a disadvantage. A close examination of the

legislation in issue as it is applied in practice does not, however,

disclose any such result. The Procureur général's department at the

Court of Cassation is, in a word, an adjunct and an adviser of the

Court; it discharges a function of a quasi-judicial nature. By the

opinions which it gives according to its legal conscience, it assists

the Court to supervise the lawfulness of the decisions attacked and to

ensure the uniformity of judicial precedent.

Examination of the facts shows that these considerations are not

abstract or theoretical but are indeed real and actual. The

statistics cited at the hearing on 30th September 1969 are very

striking on this point; they show that the Procureur général's

department at the Court of Cassation frequently either submits that

appeals in cassation against a decision of acquittal brought by the

Procureur général's department at the courts of first instance or

appeal should be dismissed or an appeal by a convicted person should

be allowed, or even raises, ex officio, grounds which a convicted

person has not relied on, has put forward out of time or has not

formulated with sufficient clarity.

35. Nor could the independence and impartiality of the Court of

Cassation itself be adversely affected by the presence of a member of

the Procureur général's department at its deliberations once it has

been shown that the Procureur général himself is independent and

impartial.

36. One last point is that the system now challenged dates back for

more than a century and a half. While it is true that the long

standing of a national legal rule cannot justify a failure to comply

with the present requirements of international law, it may under

certain conditions provide supporting evidence that there has been no

such failure. The Court is of the opinion that this is the case here.

In this connection, the Court notes that on two occasions a parliament

chosen in free elections has deliberately decided to maintain the

system, the first time unchanged (preparatory work to the Act of

19th April 1949), the second time in substance and after studying the

question in the context of the Convention (preparation of the new

Judicial Code). Furthermore, the propriety and fairness of the rule

laid down in Article 39 of the Decree of 15th March 1815 and then in

Article 1109 of the 1967 Judicial Code - as it operates in practice -

appears never to have been put in question by the legal profession or

public opinion in Belgium. This wide measure of agreement would be

impossible to explain if the independence and impartiality of the men

on whose shoulders fell the administration of this institution at the

Court of Cassation were doubted in Belgium, if the worth of their

contribution to the body of decisions of the highest court were

disputed or if their participation at the deliberations of the judges

had been thought in any single case to open the door to unfairness or

abuse.

37. The Court therefore arrives at the conclusion that the system

provided for in Article 39 of the Decree of 15th March 1815 as applied

in practice was not incompatible with Article 6 para. 1 (art. 6-1) of the

Convention.

38. So far as concerns the application of that system in the present

case, the Court finds that there are no grounds for holding that the

Procureur général's department at the Court of Cassation failed to

observe, to the detriment of Delcourt, at the hearing or at the

deliberations, the duty to be impartial and independent which is

inherent in its functions.

III. As to the "new complaints" of the Applicant

39. The Applicant does not confine himself to attacking the

participation of an avocat général at the deliberations of the Court

of Cassation; he further complains that he had no opportunity to reply

to the final submissions of the Procureur général's representative

because they were not communicated to him before the hearing of

21st June 1965 at which, moreover, he did not have the right to say

the last word.

40. The Belgian Government contests the admissibility of these "new

complaints" stressing that Delcourt failed to raise them before the

examination of the merits of the case by the Commission.

This objection must be set aside. While these grounds were doubtless

not mentioned explicitly in the Application or the first memorials of

the Applicant, they had an evident connection with those contained

therein. From the very beginning, Delcourt claimed that the presence

of a member of the Procureur général's department at the deliberations

of 21st June 1965 had violated Article 6 para. 1 (art. 6-1) of the

Convention. His "new complaints", which were formulated later,

concerned the submissions of that same member immediately prior to his

participation in the deliberations. These complaints thus also

related to the role of the Procureur général's department attached to

the Court of Cassation and are intimately linked with the matters

which formed the subject of Delcourt's original complaint accepted by

the Commission in its decision of 6th April 1967; indeed, they were

adduced by him essentially in support of that complaint. Moreover, the

Commission itself so interpreted the "new complaints" in its Report.

Accordingly, the Court considers that it would be unduly formalistic

and therefore unjustified not to take account of these elements in the

case.

41. The Applicant's "new complaints" must, on the other hand, be

rejected as ill-founded. The fact that the Procureur général's

department at the Court of Cassation expresses its opinion at the end

of the hearing, without having communicated it in advance to the

parties, is explained by the very nature of its task as already

described by the Court in pronouncing upon Delcourt's principal

complaint. Article 6 (art. 6) of the Convention does not require,

even by implication, that an accused should have the possibility of

replying to the purely legal submissions of an independent official

attached to the highest court in Belgium as its assistant and adviser.

* *

*

42. Having regard, therefore, to the nature of the proceedings before

the Belgian Court of Cassation, it has not been established that the

Applicant did not receive a fair hearing before that court.

FOR THESE REASONS, THE COURT

Holds, unanimously, that in the present case there has been no breach

of Article 6 para. 1 (art. 6-1) of the Convention.

Done in English and in French, the French text being authentic, at the

Human Rights Building, Strasbourg, this seventeenth day of January,

one thousand nine hundred and seventy.

Sir Humphrey WALDOCK

President

M.-A. EISSEN

Registrar



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