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European Court of Human Rights


You are here: BAILII >> Databases >> European Court of Human Rights >> DE CUBBER v. BELGIUM - 9186/80 [1984] ECHR 14 (26 October 1984)
URL: http://www.bailii.org/eu/cases/ECHR/1984/14.html
Cite as: (1985) 7 EHRR 236, [1984] ECHR 14

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In the De Cubber case (*),

_______________

(*) The case is numbered 8/1983/64/99. The second figure indicates

the year in which the case was referred to the Court and the

first figure its place on the list of cases referred in that year;

the last two figures indicate, respectively, the case's order on the

list of cases and of originating applications (to the Commission)

referred to the Court since its creation.

_______________

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

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court (**), as a Chamber composed of the

following judges:

_______________

(**) The revised Rules of Court, which entered into force on

1 January 1983, are applicable to the present case.

_______________

Mr. G. Wiarda, President,

Mr. W. Ganshof van der Meersch,

Mrs. D. Bindschedler-Robert,

Mr. F. Gölcüklü,

Mr. F. Matscher,

Sir Vincent Evans,

Mr. R. Bernhardt,

and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold,

Deputy Registrar

Having deliberated in private on 25 May and 2 October 1984,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

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

Commission of Human Rights ("the Commission") on 12 October 1983,

within the period of three months laid down by Articles 32 para. 1 and

47 (art. 32-1, art. 47) of the Convention. The case originated in an

application (no. 9186/80) against the Kingdom of Belgium lodged with

the Commission on 10 October 1980 under Article 25 (art. 25) by a

Belgian citizen, Mr. Albert De Cubber.

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

purpose of the request was to obtain a decision as to whether or not

the facts of the case disclosed a breach by the respondent State of

its obligations under Article 6 para. 1 (art. 6-1).

2. In response to the inquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings pending before the Court and

designated the lawyer who would represent him (Rule 30).

3. The Chamber of seven judges to be constituted included, as ex

officio members, Mr. W. Ganshof van der Meersch, the elected judge of

Belgian nationality (Article 43 of the Convention) (art. 43), and

Mr. G. Wiarda, the President of the Court (Rule 21 para. 3 (b) of the

Rules of Court). On 27 October 1983, the President drew by lot, in the

presence of the Registrar, the names of the five other members, namely

Mr. M. Zekia, Mrs. D. Bindschedler-Robert, Mr. G. Lagergren,

Mr. F. Gölcüklü and Mr. F. Matscher (Article 43 in fine of the

Convention and Rule 21 para. 4) (art. 43). Subsequently,

Sir Vincent Evans and Mr. R. Bernhardt, substitute judges, replaced

Mr. Zekia and Mr. Lagergren, who were prevented from taking part in

the consideration of the case (Rules 22 para. 1 and 24 para. 1).

4. Having assumed the office of President of the Chamber

(Rule 21 para. 5) and having on each occasion consulted, through the

Registrar, the Agent of the Belgian Government ("the Government"), the

Commission's Delegate and Mr. De Cubber's lawyer, Mr. Wiarda

- decided, on 17 November 1983, that there was no call at that stage

for memorials to be filed (Rule 37 para. 1);

- directed, on 9 February 1984, that the oral proceedings should open

on 23 May (Rule 38).

On 16 April, the Registrar received, from the applicant's lawyer, her

client's claims under Article 50 (art. 50) of the Convention.

5. The hearings were held in public at the Human Rights Building,

Strasbourg, on the appointed day. Immediately before they opened, the

Court had held a preparatory meeting.

There appeared before the Court:

- for the Government

Mr. J. Niset, Legal Adviser at the

Ministry of Justice, Agent,

Mr. André De Bluts, avocat, Counsel;

- for the Commission

Mr. M. Melchior, Delegate;

- for the applicant

Mrs. F. De Croo-Desguin, avocat, Counsel.

The Court heard addresses by Mr. De Bluts for the Government, by

Mr. Melchior for the Commission and by Mrs. De Croo-Desguin for the

applicant, as well as their replies to questions put by it and by

several of its members.

6. On 4 April and on 7, 14, 18 and 23 May, the Commission, the

Government and the applicant, as the case may be, filed various

documents, either on their own initiative or in response to a request

made by the Registrar in accordance with the President's instructions.

AS TO THE FACTS

I. The particular circumstances of the case

7. The applicant is a Belgian citizen born in 1926. He lives in

Brussels and is a sales manager.

8. On 4 April 1977, he was arrested by the police at his home and

taken to Oudenaarde where he was questioned in connection with a car

theft.

Warrants of arrest for forgery and uttering forged documents were

issued against the applicant on the following day, on 6 May and

on 23 September 1977. The first warrant - notice no. 10.971/76 -

was issued by Mr. Pilate, an investigating judge at the Oudenaarde

criminal court (tribunal correctionnel), and the second and third

- notices nos. 3136/77 and 6622/77 - by Mr. Van Kerkhoven, the other

investigating judge at the same court.

9. Prior to that, in the capacity of judge (juge assesseur) of

the same court sitting either on appeal (judgment of 3 May 1968) or at

first instance (judgments of 17 January, 7 March and

28 November 1969), Mr. Pilate had already dealt with criminal

proceedings brought against Mr. De Cubber in connection with a number

of offences; those proceedings had led variously to an unconditional

or conditional discharge (relaxe) (17 January and 7 March 1969,

respectively) or to conviction.

More recently, Mr. Pilate had had to examine, in his capacity of

investigating judge, a criminal complaint filed by Mr. De Cubber

(16 November 1973) and, in his capacity of judge dealing with the

attachment of property (juge des saisies), certain civil cases

concerning him (1974-1976). In regard to each of these cases, the

applicant had applied to the Court of Cassation to have the case

removed, on the ground of bias (suspicion légitime; Article 648 of the

Judicial Code), from Mr. Pilate or from the Oudenaarde court as a

whole; each of these requests had been held inadmissible or unfounded.

10. At the outset Mr. Van Kerkhoven dealt with cases nos.

3136/77 and 6622/77 but he was on several occasions prevented by

illness from attending his chambers. He was replaced, initially on

an occasional and temporary basis and, as from October 1977, on a

permanent basis, by Mr. Pilate, who retained responsibility for case

no. 10.971/76.

11. In case no. 6622/77, a single-judge chamber of the Oudenaarde

court (Mr. De Wynter) sentenced Mr. De Cubber on 11 May 1978 to one

year's imprisonment and a fine of 4,000 BF. He did not appeal against

this decision.

12. After preliminary investigations lasting more than two years,

a chamber of the court (the chambre du conseil) ordered the joinder of

cases nos. 10.971/76 and 3136/77 and on 11 May 1979 committed

Mr. De Cubber for trial. These cases related to several hundred

alleged offences committed by fifteen accused, headed by the

applicant; there were no less than nineteen persons intervening to

claim damages (parties civiles).

For the purpose of the trial, the court, which over the years had nine

or ten titular judges, sat as a chamber composed of a president and

two judges, including Mr. Pilate. Mr. De Cubber stated that he

protested orally against the latter's presence, but he did not have

recourse to any of the legal remedies open to him for this purpose,

such as a formal challenge (procédure de récusation; Article 828 of

the Judicial Code).

After a hearing which lasted two half-days on 8 and 22 June 1979, the

court gave judgment on 29 June 1979. Mr. De Cubber was acquitted on

two counts and convicted on the remainder, note being taken of the

fact that he was a recidivist. He was accordingly sentenced, in

respect of one matter, to five years' imprisonment and a fine of

60,000 BF and, in respect of another, to one year's imprisonment

and a fine of 8,000 BF; his immediate arrest was ordered.

13. Both the applicant and the public prosecutor's department

appealed. On 4 February 1980, the Ghent Court of Appeal reduced the

first sentence to three years' imprisonment and a fine of 20,000 BF

and upheld the second. In addition, it unanimously imposed a third

sentence, namely one month's imprisonment and a fiscal fine (amende

fiscale), for offences which the Oudenaarde court had - wrongly, in

the Court of Appeal's view - treated as being linked with others by

reason of a single criminal intent.

14. Mr. De Cubber appealed to the Court of Cassation, raising

some ten different points of law. One of his grounds, based on

Article 292 of the Judicial Code (see paragraph 19 below) and

Article 6 para. 1 (art. 6-1) of the Convention, was that Mr. Pilate

had been both judge and party in the case since after conducting the

preliminary investigation he had acted as one of the trial judges.

The Court of Cassation gave judgment on 15 April 1980 (Pasicrisie

1980, I, pp. 1006-1011). It held that this combination of functions

violated neither Article 292 of the Judicial Code nor any other legal

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

nor the rights of the defence. On the other hand, the Court of

Cassation upheld a plea concerning the confiscation of certain items

of evidence and, to this extent, referred the case back to the Antwerp

Court of Appeal; the latter court has in the meantime (on

4 November 1981) directed that the items in question be returned.

The Court of Cassation also quashed, of its own motion and without

referring the case back, the decision under appeal in so far as the

appellant had been sentenced to a fiscal fine. The remainder of the

appeal was dismissed.

II. The relevant legislation

A. Status and powers of investigating judges

15. Investigating judges, who are appointed by the Crown "from

among the judges of the court of first instance" (Article 79 of the

Judicial Code), conduct the preparatory judicial investigation

(Articles 61 et seq. of the Code of Criminal Procedure). The object

of this procedure is to assemble the evidence and to establish any

proof against the accused as well as any circumstances that may tell

in his favour, so as to provide the chambre du conseil or the chambre

des mises en accusation, as the case may be, with the material which

it needs to decide whether the accused should be committed for trial.

The procedure is secret; it is not conducted in the presence of both

parties (non contradictoire) nor is there any legal representation.

The investigating judge also has the status of officer of the criminal

investigation police (police judiciaire). In this capacity, he is

empowered to inquire into serious and lesser offences (crimes et

délits), to assemble evidence and to receive complaints from any

person claiming to have been prejudiced by such offences (Articles 8,

9 in fine and 63 of the Code of Criminal Procedure). When so acting,

he is placed under the "supervision of the procureur général (State

prosecutor)" (Article 279 of the Code of Criminal Procedure and

Article 148 of the Judicial Code), although this does not include a

power to give directions. "In all cases where the suspected offender

is deemed to have been caught in the act", the investigating judge may

take "directly" and in person "any action which the procureur du Roi

(public prosecutor) is empowered to take" (Article 59 of the Code of

Criminal Procedure).

16. Save in the latter category of case, the investigating judge

can take action only after the matter has been referred to him either

by means of a formal request from the procureur du Roi for the opening

of an inquiry (Articles 47, 54, 60, 61, 64 and 138 of the Code of

Criminal Procedure) or by means of a criminal complaint coupled with a

claim for damages (constitution de partie civile; Articles 63 and

70).

If a court includes several investigating judges, it is for the

presiding judge to allocate cases amongst them. In principle, cases

are assigned to them in turn, from week to week; however, this is not

an inflexible rule and the presiding judge may depart therefrom, for

example if the matter is urgent or if a new case has some connection

with one that has already been allocated.

17. In order to facilitate the ascertainment of the truth, the

investigating judge is invested with wide powers; according to the

case-law of the Court of Cassation, he may "take any steps which are

not forbidden by law or incompatible with the standing of his office"

(judgment of 2 May 1960, Pasicrisie 1960, I, p. 1020). He can, inter

alia, summon the accused to appear or issue a warrant for his

detention, production before a court or arrest (Articles 91 et seq. of

the Code of Criminal Procedure); question the accused, hear witnesses

(Articles 71 to 86 and 92 of the same Code), confront witnesses with

each other (Article 942 of the Judicial Code), visit the scene of the

crime (Article 62 of the Code of Criminal Procedure), visit and search

premises (Articles 87 and 88 of the same Code), take possession of

evidence (Article 89), and so on. The investigating judge has to

report to the chambre du conseil on the cases with which he is dealing

(Article 127); he takes, by means of an order, decisions on the

expediency of measures requested by the public prosecutor's

department, such orders being subject to an appeal to the chambre des

mises en accusation of the Court of Appeal.

18. When the investigation is completed, the investigating

judge transmits the case-file to the procureur du Roi, who will return

it to him with his submissions (Article 61, first paragraph).

It is then for the chambre du conseil, which is composed of a single

judge belonging to the court of first instance (Acts of

25 October 1919, 26 July 1927 and 18 August 1928), to decide - unless

it considers it should order further inquiries - whether to discharge

the accused (non-lieu; Article 128 of the Code of Criminal Procedure),

to commit him for trial before a district court (tribunal de police;

Article 129) or a criminal court (tribunal correctionnel; Article 130)

or to send the papers to the procureur général attached to the Court

of Appeal (Article 133), depending upon the circumstances.

Unlike his French counterpart, the Belgian investigating judge is thus

never empowered to refer a case to the trial court himself. Before

taking its decision, the chambre du conseil - which sits in camera -

will hear the investigating judge's report. This report will take

the form of an oral account of the state of the investigations; the

investigating judge will express no opinion therein as to the

accused's guilt, it being for the public prosecutor's department to

deliver concluding submissions calling for one decision or another.

B. Investigating judges and incompatibilities

19. Article 292 of the 1967 Judicial Code prohibits "the

concurrent exercise of different judicial functions ... except where

otherwise provided by law"; it lays down that "any decision given by a

judge who has previously dealt with the case in the exercise of some

other judicial function" shall be null and void.

This rule applies to investigating judges, amongst others.

Article 127 specifies that "proceedings before an assize court shall

be null and void if the presiding judge or another judge sitting is a

judicial officer who has acted in the case as investigating judge

...".

Neither can an investigating judge sit as an appeal-court judge, for

otherwise he would have "to review on appeal, and thus as

last-instance trial judge, the legality of investigation measures ...

which [he] had taken or ordered at first instance" (Court of

Cassation, 18 March 1981, Pasicrisie 1981, I, p. 770, and Revue de

droit pénal et de criminologie, 1981, pp. 703-719).

20. On the other hand, under the third paragraph of Article 79 of

the Judicial Code, as amended by an Act of 30 June 1976,

"investigating judges may continue to sit, in accordance with their

seniority, to try cases brought before a court of first instance".

According to the drafting history and decided case-law on this

provision, it is immaterial that the cases are ones previously

investigated by the judges in question: they would in that event be

exercising, not "some other judicial function" within the meaning of

Article 292, but rather the same function of judge on the court of

first instance; it would be only their assignment that had changed

(Parliamentary Documents, House of Representatives, no. 59/49

of 1 June 1967; Court of Cassation, 8 February 1977, Pasicrisie 1977,

I, p. 622-623; Court of Cassation judgment of 15 April 1980 in the

present case, see paragraph 14 above).

In the case of Blaise, the Court of Cassation confirmed this line of

authority in its judgment of 4 April 1984, which followed the

submissions presented by the public prosecutor's department. After

dismissing various arguments grounded on general principles of law,

the Court of Cassation rejected the argument put forward by the

appellant on the basis of Article 6 para. 1 (art. 6-1) of the

Convention:

"However, as regards the application of Article 6 para. 1 (art. 6-1)

..., when a case requires a determination of civil rights and

obligations or of a criminal charge, the authority hearing the case at

first instance and the procedure followed by that authority do not

necessarily have to satisfy the conditions laid down by the

above-mentioned provision, provided that the party concerned or the

accused is able to lodge an appeal against the decision affecting him

taken by that authority with a court which does offer all the

guarantees stipulated by Article 6 para. 1 (art. 6-1) and has

competence to review all questions of fact and of law. In the present

case, the appellant does not maintain that the court of appeal which

convicted him did not offer those guarantees ...

In any event, the principles and the rule relied on in the ground of

appeal do not have the scope therein suggested;

From the sole fact that a trial judge inquired into the case as an

investigating judge it cannot be inferred that the accused's right to

an impartial court has been violated. It cannot legitimately be

feared that the said judge does not offer the guarantees of

impartiality to which every accused is entitled.

The investigating judge is not a party adverse to the accused, but a

judge of the court of first instance with the responsibility of

assembling in an impartial manner evidence in favour of as well as

against the accused.

... ."

PROCEEDINGS BEFORE THE COMMISSION

21. In his application of 10 October 1980 to the Commission

(no. 9186/80), Mr. De Cubber raised again several of the pleas which

he had unsuccessfully made to the Belgian Court of Cassation. He

alleged, inter alia, that the Oudenaarde criminal court had not

constituted an impartial tribunal, within the meaning of Article 6

para. 1 (art. 6-1) of the Convention, since one of the judges,

Mr. Pilate, had previously acted as investigating judge in the same

case.

22. On 9 March 1982, the Commission declared the application

admissible as regards this complaint and inadmissible as regards the

remainder. In its report of 5 July 1983 (Article 31) (art. 31), the

Commission expressed the unanimous opinion that there had been a

violation of Article 6 para. 1 (art. 6-1) on the point in question.

The full text of the Commission's opinion is reproduced as an annex

to the present judgment.

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

23. Under Article 6 para. 1 (art. 6-1),

"In the determination of ... any criminal charge against him,

everyone is entitled to a ... hearing ... by an ... impartial

tribunal ... ."

One of the three judges of the Oudenaarde criminal court who, on

29 June 1979, had given judgment on the charges against the applicant

had previously acted as investigating judge in the two cases in

question: in one case he had done so from the outset and in the other

he had replaced a colleague, at first on a temporary and then on a

permanent basis (see paragraphs 8, 10 and 12 above). On the strength

of this, Mr. De Cubber contended that he had not received a hearing by

an "impartial tribunal"; his argument was, in substance, upheld by the

Commission.

The Government disagreed. They submitted:

- as their principal plea, that Mr. Pilate's inclusion amongst the

members of the trial court had not adversely affected the impartiality

of that court and had therefore not violated Article 6 para. 1

(art. 6-1);

- in the alternative, that only the Ghent Court of Appeal, whose

impartiality had not been disputed, had to satisfy the requirements of

that Article (art. 6-1);

- in the further alternative, that a finding of violation would entail

serious consequences for courts, such as the Oudenaarde criminal

court, with "limited staff".

A. The Government's principal plea

24. In its Piersack judgment of 1 October 1982, the Court

specified that impartiality can "be tested in various ways": a

distinction should be drawn "between a subjective approach, that is

endeavouring to ascertain the personal conviction of a given judge in

a given case, and an objective approach, that is determining whether

he offered guarantees sufficient to exclude any legitimate doubt in

this respect" (Series A no. 53, p. 14, para. 30).

25. As to the subjective approach, the applicant alleged before

the Commission that Mr. Pilate had for years shown himself somewhat

relentless in regard to his (the applicant's) affairs (see

paragraphs 45-47 of the Commission's report), but his lawyer did not

maintain this line of argument before the Court; the Commission, for

its part, rejected the Government's criticism that it had made a

subjective analysis (see paragraphs 63, 68-69 and 72-73 of the report;

verbatim record of the hearings held on 23 May 1984).

However this may be, the personal impartiality of a judge is to be

presumed until there is proof to the contrary (see the same judgment,

loc. cit.), and in the present case no such proof is to be found in

the evidence adduced before the Court. In particular, there is

nothing to indicate that in previous cases Mr. Pilate had displayed

any hostility or ill-will towards Mr. De Cubber (see paragraph 9

above) or that he had "finally arranged", for reasons extraneous to

the normal rules governing the allocation of cases, to have assigned

to him each of the three preliminary investigations opened in respect

of the applicant in 1977 (see paragraphs 8, 10 and 16 above;

paragraph 46 of the Commission's report).

26. However, it is not possible for the Court to confine itself to

a purely subjective test; account must also be taken of

considerations relating to the functions exercised and to internal

organisation (the objective approach). In this regard, even

appearances may be important; in the words of the English maxim quoted

in, for example, the Delcourt judgment of 17 January 1970 (Series A

no. 11, p. 17, para. 31), "justice must not only be done: it must also

be seen to be done". As the Belgian Court of Cassation has observed

(21 February 1979, Pasicrisie 1979, I, p. 750), any judge in respect

of whom there is a legitimate reason to fear a lack of impartiality

must withdraw. What is at stake is the confidence which the courts in

a democratic society must inspire in the public and above all, as far

as criminal proceedings are concerned, in the accused (see the

above-mentioned judgment of 1 October 1982, pp. 14-15, para. 30).

27. Application of these principles led the European Court, in its

Piersack judgment, to find a violation of Article 6 para. 1

(art. 6-1): it considered that where an assize court had been

presided over by a judge who had previously acted as head of the very

section of the Brussels public prosecutor's department which had been

responsible for dealing with the accused's case, the impartiality of

the court "was capable of appearing open to doubt" (ibid., pp. 15-16,

para. 31). Despite some similarities between the two cases, the Court

is faced in the present proceedings with a different legal situation,

namely the successive exercise of the functions of investigating judge

and trial judge by one and the same person in one and the same case.

28. The Government put forward a series of arguments to show that

this combination of functions, which was unquestionably compatible

with the Judicial Code as construed in the light of its drafting

history (see paragraph 20, first sub-paragraph, above), was also

reconcilable with the Convention. They pointed out that in Belgium an

investigating judge is fully independent in the performance of his

duties; that unlike the judicial officers in the public prosecutor's

department, whose submissions are not binding on him, he does not have

the status of a party to criminal proceedings and is not "an

instrument of the prosecution"; that "the object of his activity" is

not, despite Mr. De Cubber's allegations, "to establish the guilt of

the person he believes to be guilty" (see paragraph 44 of the

Commission's report), but to "assemble in an impartial manner evidence

in favour of as well as against the accused", whilst maintaining "a

just balance between prosecution and defence", since he "never ceases

to be a judge"; that he does not take the decision whether to commit

the accused for trial - he merely presents to the chambre du conseil,

of which he is not a member, objective reports describing the progress

and state of the preliminary investigations, without expressing any

opinion of his own, even assuming he has formed one (see

paragraphs 52-54 of the Commission's report and the verbatim record of

the hearings held on 23 May 1984).

29. This reasoning no doubt reflects several aspects of the

reality of the situation (see paragraphs 15, first sub-paragraph,

17 in fine and 18 above) and the Court recognises its cogency.

Nonetheless, it is not in itself decisive and there are various other

factors telling in favour of the opposite conclusion.

To begin with, a close examination of the statutory texts shows the

distinction between judicial officers in the public prosecutor's

department and investigating judges to be less clear-cut than

initially appears. An investigating judge, like "procureurs du Roi

and their deputies", has the status of officer of the criminal

investigation police and, as such, is "placed under the supervision of

the procureur général"; furthermore, "an investigating judge" may, in

cases "where the suspected offender is deemed to have been caught in

the act", "take directly" and in person "any action which the

procureur du Roi is empowered to take" (see paragraph 15, second

sub-paragraph, above).

In addition to this, as an investigating judge he has very

wide-ranging powers: he can "take any steps which are not forbidden by

law or incompatible with the standing of his office" (see paragraph 17

above). Save as regards the warrant of arrest issued against the

applicant on 5 April 1977, the Court has only limited information as

to the measures taken by Mr. Pilate in the circumstances, but, to

judge by the complexity of the case and the duration of the

preparatory investigation, they must have been quite extensive (see

paragraphs 8 and 12 above).

That is not all. Under Belgian law the preparatory investigation,

which is inquisitorial in nature, is secret and is not conducted in

the presence of both parties; in this respect it differs from the

procedure of investigation followed at the hearing before the trial

court, which, in the instant case, took place on 8 and 22 June 1979

before the Oudenaarde court (see paragraphs 12 and 15 above). One

can accordingly understand that an accused might feel some unease

should he see on the bench of the court called upon to determine the

charge against him the judge who had ordered him to be placed in

detention on remand and who had interrogated him on numerous occasions

during the preparatory investigation, albeit with questions dictated

by a concern to ascertain the truth.

Furthermore, through the various means of inquiry which he will have

utilised at the investigation stage, the judge in question, unlike his

colleagues, will already have acquired well before the hearing a

particularly detailed knowledge of the - sometimes voluminous - file

or files which he has assembled. Consequently, it is quite

conceivable that he might, in the eyes of the accused, appear,

firstly, to be in a position enabling him to play a crucial role in

the trial court and, secondly, even to have a pre-formed opinion which

is liable to weigh heavily in the balance at the moment of the

decision. In addition, the criminal court (tribunal correctionnel)

may, like the court of appeal (see paragraph 19 in fine above), have

to review the lawfulness of measures taken or ordered by the

investigating judge. The accused may view with some alarm the

prospect of the investigating judge being actively involved in this

process of review.

Finally, the Court notes that a judicial officer who has "acted in the

case as investigating judge" may not, under the terms of Article 127

of the Judicial Code, preside over or participate as judge in

proceedings before an assize court; nor, as the Court of Cassation

has held, may he sit as an appeal-court judge (see paragraph 19

above). Belgian law-makers and case-law have thereby manifested their

concern to make assize courts and appeal courts free of any legitimate

suspicion of partiality. However, similar considerations apply to

courts of first instance.

30. In conclusion, the impartiality of the Oudenaarde court was

capable of appearing to the applicant to be open to doubt. Although

the Court itself has no reason to doubt the impartiality of the member

of the judiciary who had conducted the preliminary investigation (see

paragraph 25 above), it recognises, having regard to the various

factors discussed above, that his presence on the bench provided

grounds for some legitimate misgivings on the applicant's part.

Without underestimating the force of the Government's arguments and

without adopting a subjective approach (see paragraphs 25

and 28 above), the Court recalls that a restrictive interpretation of

Article 6 para. 1 (art. 6-1) - notably in regard to observance of the

fundamental principle of the impartiality of the courts - would not be

consonant with the object and purpose of the provision, bearing in

mind the prominent place which the right to a fair trial holds in a

democratic society within the meaning of the Convention (see the

above-mentioned Delcourt judgment, Series A no. 11, pp. 14-15,

para. 25 in fine).

B. The Government's first alternative plea

31. In the alternative, the Government submitted, at the hearings

on 23 May 1984, that the Court should not disregard its previous

case-law; they relied essentially on the Le Compte, Van Leuven

and De Meyere judgment of 23 June 1981 and on the Albert and Le Compte

judgment of 10 February 1983.

In both of these judgments, the Court held that proceedings instituted

against the applicants before the disciplinary organs of the Ordre des

médecins (Medical Association) gave rise to a "contestation" (dispute)

over "civil rights and obligations" (Series A no. 43, pp. 20-22,

paras. 44-49, and Series A no. 58, pp. 14-16, paras. 27-28). Since

Article 6 para. 1 (art. 6-1) was therefore applicable, it had to be

determined whether the individuals concerned had received a hearing by

a "tribunal" satisfying the conditions which that Article lays down.

Their cases had been dealt with by three bodies, namely a Provincial

Council, an Appeals Council and the Court of Cassation. The European

Court did not consider it "indispensable to pursue this point" as

regards the Provincial Council, for the reason which, in its judgment

of 23 June 1981, was expressed in the following terms:

"Whilst Article 6 para. 1 (art. 6-1) embodies the 'right to a court'

..., it nevertheless does not oblige the Contracting States to submit

'contestations' (disputes) over 'civil rights and obligations' to a

procedure conducted at each of its stages before 'tribunals' meeting

the Article's various requirements. Demands of flexibility and

efficiency, which are fully compatible with the protection of human

rights, may justify the prior intervention of administrative or

professional bodies and, a fortiori, of judicial bodies which do not

satisfy the said requirements in every respect; the legal tradition

of many member States of the Council of Europe may be invoked in

support of such a system." (Series A no. 43, pp. 22-23, paras. 50-51)

The judgment of 10 February 1983 developed this reasoning further:

"In many member States of the Council of Europe, the duty of

adjudicating on disciplinary offences is conferred on jurisdictional

organs of professional associations. Even in instances where

Article 6 para. 1 (art. 6-1) is applicable, conferring powers in this

manner does not in itself infringe the Convention ... . Nonetheless,

in such circumstances the Convention calls at least for one of the two

following systems: either the jurisdictional organs themselves comply

with the requirements of Article 6 para. 1 (art. 6-1), or they do not

so comply but are subject to subsequent control by a judicial body

that has full jurisdiction" - that is to say, which has the competence

to furnish "a [judicial] determination ... of the matters in dispute,

both for questions of fact and for questions of law" - "and does

provide the guarantees of Article 6 para. 1 (art. 6-1)."

(Series A no. 58, p. 16, para. 29)

In the Government's submission, the principles thus stated apply

equally to "criminal charges" within the meaning of Article 6 para. 1

(art. 6-1). As confirmation of this, the Government cited the Oztürk

judgment of 21 February 1984 (Series A no. 73, pp. 21-22, para. 56) in

addition to the above-mentioned judgments of 23 June 1981 and 10

February 1983 (Series A no. 43, pp. 23-24, para. 53, and Series A

no. 58, pp. 16-17, para. 30).

In the particular circumstances, the Government noted,

Mr. De Cubber's complaint was directed solely against the Oudenaarde

court; he had no objection to make concerning the Ghent Court of

Appeal, which in the present case, so they argued, constituted the

"judicial body that has full jurisdiction", as referred to in the

above-quoted case-law.

On the whole of this issue, the Government cited the Blaise judgment

of 4 April 1984, which the Belgian Court of Cassation had delivered in

a similar case, and the concordant submissions of the public

prosecutor's department in that case (see paragraph 20 above).

32. The Commission's Delegate did not share this view; the Court

agrees in substance with his arguments.

The thrust of the plea summarised above is that the proceedings before

the Oudenaarde court fell outside the ambit of 1Article 6 para. 1

(art. 6-1). At first sight, this plea contains an element of paradox.

Article 6 para. 1 (art. 6-1) concerns primarily courts of first

instance; it does not require the existence of courts of further

instance. It is true that its fundamental guarantees, including

impartiality, must also be provided by any courts of appeal or courts

of cassation which a Contracting State may have chosen to set up (see

the above-mentioned Delcourt judgment, Series A no. 11, p. 14 in fine,

and, as the most recent authority, the Sutter judgment of

22 February 1984, Series A no. 74, p. 13, para. 28). However, even

when this is the case it does not follow that the lower courts do not

have to provide the required guarantees. Such a result would be at

variance with the intention underlying the creation of several levels

of courts, namely to reinforce the protection afforded to litigants.

Furthermore, the case-law relied on by the Government has to be viewed

in its proper context. The judgments of 23 June 1981,

10 February 1983 and 21 February 1984 concerned litigation which was

classified by the domestic law of the respondent State not as civil or

criminal but as disciplinary (Series A no. 43, p. 9, para. 11) or

administrative (Series A no. 73, pp. 10-14, paras. 17-33); these

judgments related to bodies which, within the national system, were

not regarded as courts of the classic kind, for the reason that they

were not integrated within the standard judicial machinery of the

country. The Court would not have held Article 6 para. 1 (art. 6-1)

applicable had it not been for the "autonomy" of the concepts of

"civil rights and obligations" and "criminal charge". In the present

case, on the other hand, what was involved was a trial which not only

the Convention but also Belgian law classified as criminal; the

Oudenaarde criminal court was neither an administrative or

professional authority, nor a jurisdictional organ of a professional

association (see the above-mentioned judgments, Series A no. 43,

p. 23, para. 51, Series A no. 58, p. 16, para. 29, and Series A no. 73,

pp. 21-22, para. 56), but a proper court in both the formal and the

substantive meaning of the term (Decisions and Reports, no. 15, p. 78,

paras. 59-60, and p. 87: opinion of the Commission and decision of the

Committee of Ministers on application no. 7360/76, Zand v. Austria).

The reasoning adopted in the three above-mentioned judgments, to which

should be added the Campbell and Fell judgment of 28 June 1984

(Series A no. 80, pp. 34-39, paras. 67-73 and 76), cannot justify

reducing the requirements of Article 6 para. 1 (art. 6-1) in its

traditional and natural sphere of application. A restrictive

interpretation of this kind would not be consonant with the object and

purpose of Article 6 para. 1 (art. 6-1) (see paragraph 30 in fine

above).

33. At the hearings, the Commission's Delegate and the applicant's

lawyer raised a further question, concerning not the applicability of

Article 6 para. 1 (art. 6-1) but rather its application to the

particular facts: had not "the subsequent intervention" of the Ghent

Court of Appeal "made good the wrong" or "purged" the first-instance

proceedings of the "defect" that vitiated them?

The Court considers it appropriate to answer this point although the

Government themselves did not raise the issue in such terms.

The possibility certainly exists that a higher or the highest court

might, in some circumstances, make reparation for an initial violation

of one of the Convention's provisions: this is precisely the reason

for the existence of the rule of exhaustion of domestic remedies,

contained in Article 26 (art. 26) (see the Guzzardi and the

Van Oosterwijck judgments of 6 November 1980, Series A no. 39, p. 27,

para. 72, and Series A no. 40, p. 17, para. 34). Thus, the Adolf

judgment of 26 March 1982 noted that the Austrian Supreme Court had

"cleared ... of any finding of guilt" an applicant in respect of whom

a District Court had not respected the principle of presumption of

innocence laid down by Article 6 para. 2 (art. 6-2) (Series A no. 49,

pp. 17-19, paras. 38-41).

The circumstances of the present case, however, were different.

The particular defect in question did not bear solely upon the conduct

of the first-instance proceedings: its source being the very

composition of the Oudenaarde criminal court, the defect involved

matters of internal organisation and the Court of Appeal did not cure

that defect since it did not quash on that ground the judgment

of 29 June 1979 in its entirety.

C. The Government's further alternative plea

34. In the further alternative, the Government pleaded that a

finding by the Court of a violation of Article 6 para. 1 (art. 6-1)

would entail serious consequences for Belgian courts with "limited

staff", especially if it were to give a judgment "on the general

question of principle" rather than a judgment "with reasoning limited

to the very special" facts of the case. In this connection, the

Government drew attention to the following matters. From 1970 to

1984, the workload of such courts had more than doubled, whereas there

had been no increase in the number of judges. At Oudenaarde and at

Nivelles, for example, taking account of vacant posts (deaths,

resignations, promotions) and occasional absences (holidays, illness,

etc.), there were only six or seven judges permanently in attendance,

all of whom were "very busy", if not overwhelmed with work.

Accordingly, it was virtually inevitable that one of the judges had to

deal in turn with different aspects of the same case. To avoid this,

it would be necessary either to constitute "special benches" - which

would be liable to occasion delays incompatible with the principle of

trial "within a reasonable time" - or to create additional posts, an

alternative that was scarcely realistic in times of budgetary

stringency.

35. The Court recalls that the Contracting States are under the

obligation to organise their legal systems "so as to ensure compliance

with the requirements of Article 6 para. 1 (art. 6-1)" (see the

Guincho judgment of 10 July 1984, Series A no. 81, p. 16, para. 38);

impartiality is unquestionably one of the foremost of those

requirements. The Court's task is to determine whether the

Contracting States have achieved the result called for by the

Convention, not to indicate the particular means to be utilised.

D. Conclusion

36. To sum up, Mr. De Cubber was the victim of a breach of

Article 6 para. 1 (art. 6-1).

II. THE APPLICATION OF ARTICLE 50 (art. 50)

37. The applicant has filed claims for just satisfaction in

respect of pecuniary and non-pecuniary damage, but the Government have

not yet submitted their observations thereon. Since the question is

thus not ready for decision, it is necessary to reserve it and to fix

the further procedure, taking due account of the possibility of an

agreement between the respondent State and the applicant

(Rule 53 paras. 1 and 4 of the Rules of Court).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a breach of Article 6 para. 1

(art. 6-1);

2. Holds that the question of the application of Article 50

(art. 50) is not ready for decision;

accordingly,

(a) reserves the whole of the said question;

(b) invites the Government to submit to the Court, within the

forthcoming two months, their written observations on the said

question and, in particular, to notify the Court of any agreement

reached between them and the applicant;

(c) reserves the further procedure and delegates to the President of

the Chamber power to fix the same if need be.

Done in English and in French, and delivered at a public hearing at

the Human Rights Building, Strasbourg, on 26 October 1984.

Signed: Gérard WIARDA

President

Signed: Marc-André EISSEN

Registrar



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