CASE OF PIERSACK v. BELGIUM (ARTICLE 50)
Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
1. The present case was referred to the Court by the European Commission of Human Rights ("the Commission") on 14 October 1981. The case originated in an application (no. 8692/79) against the Kingdom of Belgium lodged with the Commission on 15 March 1979 by a Belgian national, Mr. Christian Piersack. 2. By judgment of 1 October 1982, the Court held that there had been a violation of Article 6 § 1 (art. 6-1) of the Convention, in that the impartiality of the "tribunal" which, on 10 November 1978, had determined the "merits" (in the French text: "bien-fondé") of a "criminal charge" against Mr. Piersack - namely, the Brabant Assize Court - "was capable of appearing open to doubt" (Series A no. 53, paragraphs 28-32 of the reasons and point 1 of the operative provisions, pp. 13-17). The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 7 to 17 of the above-mentioned judgment (ibid., pp. 6-10). 3. At the hearing of 25 March 1982, Mr. Piersack’s lawyer had stated that his client was seeking under Article 50 (art. 50) his immediate release, in accordance with "arrangements to be discussed", and also financial compensation to be used to meet the fees of his lawyers before the Belgian Court of Cassation (50,000 BF) and in Strasbourg (150,000 BF), subject to deduction of certain amounts paid by the Council of Europe by way of legal aid (3,500 FF). Counsel for the Government had replied that, were the Court to find a violation, publication of the judgment would itself constitute adequate just satisfaction. In its judgment of 1 October 1982, the Court reserved the question and invited the Commission to submit, within the coming two months, its written observations and, in particular, to notify the Court of any friendly settlement at which the Government and the applicant might have arrived (paragraphs 34-35 of the reasons and point 2 of the operative provisions, ibid., p. 17). 4. After an extension of the above-mentioned time-limit by the President of the Court, and in accordance with his Orders and directions, the Registrar received: - on 1 February 1983, from the Secretary to the Commission, brief observations by its Delegate and copies of the correspondence it had exchanged with the Government and the applicant between October 1982 and January 1983; - on 14 February and 4 May, from the Agent of the Government, certain supplementary remarks; - on 7 and 24 March, two letters from Mr. Piersack’s lawyer. These documents revealed that no friendly settlement had been arrived at. 5. Acting on the President’s instructions, the Registrar wrote to the Agent of the Government on 23 March. The letter, which made reference to the wording of and the case-law on Article 50 (art. 50), enquired - "without prejudice to the decision which the Court might take on the point in question" - whether the Belgian authorities considered that Belgian law provided "any means whereby full reparation can be made for the consequences of the breach found ... by the judgment of 1 October 1982". In his reply dated 29 April and received at the registry on 4 May, the Agent indicated that two days previously the Belgian Minister of Justice had requested the procureur général (State prosecutor) attached to the Court of Cassation to challenge before the latter Court the judgment of 10 November 1978 whereby the Brabant Assize Court had sentenced the applicant to eighteen years’ hard labour for murder (see paragraph 2 above). The Minister had taken this step pursuant to Article 441 of the Code of Criminal Procedure, which provides as follows: "Where, on production of formal instructions which he has received from the Minister of Justice, the procureur général attached to the Court of Cassation impugns, before the Chamber hearing appeals on points of law in criminal cases involving serious, lesser and petty offences (en matière criminelle, correctionnelle et de police), judicial acts or judgments as being contrary to the law, such acts or judgments may be annulled. ..." 6. The subsequent developments in the case appear from letters which the Registrar received from the Agent of the Government on 3 June, 10 October and 7 November 1983 and 16 January 1984. (a) The procureur général referred the matter to the Court of Cassation on 29 April. In his submissions, he urged that the Court of Cassation had "to recognise that the European Court’s judgment had the force of res judicata" and "consequently to conclude that ... the procedural acts before the [Brabant] Assize Court and the latter’s judgment" had violated Article 6 § 1 (art. 6-1) of the Convention and "were therefore contrary to the law, within the meaning of Article 441 of the Code of Criminal Procedure". He also expressed the view that the fact that Mr. Piersack’s appeal on points of law against the judgment in question had been dismissed on 21 February 1979 (Series A no. 53, p. 10, § 17) did not prevent the Court of Cassation from applying Article 441, notably because at the relevant time it had been unaware of "two facts" on which "the European Court had based ... its decision": "firstly, Mr. Van de Walle, the President of the Assize Court, had until 1 November 1977 been the head of the section in the Brussels public prosecutor’s department that was responsible for Piersack’s prosecution"; "secondly, in that capacity, [he] had in fact played a certain part in the proceedings" (ibid., pp. 15-16, § 31). On 18 May 1983, the Court of Cassation, adopting these submissions, annulled the procedural acts subsequent to the committal for trial before the Assize Court (16 June 1978; ibid., p. 7, § 13) and the judgment of 10 November 1978 to the extent that it had convicted the applicant of, and sentenced him for, the manslaughter (meurtre sans préméditation) of one Michel Dulon (ibid., pp. 6-7, §§ 8 and 14); with these limitations, the case was referred back to the Hainaut Assize Court. (b) On 7 and 8 June, Mr. Piersack instituted, before the President of the Mons Court of First Instance, sitting as judge hearing urgent applications (siégeant en référé), proceedings against the Belgian State, the procureur général attached to the Mons Court of Appeal, the procureur du Roi (public prosecutor) attached to the Mons Court of First Instance and the Governor of Mons Prison. He claimed that he had been "arbitrarily detained since 18 May 1983"; accordingly, he requested the President to "order [his] immediate release" and to direct the Belgian State to pay to him 3,000 BF "per day since 18 May 1983, by way of damages for unlawful imprisonment". The President of the Mons Court of First Instance held on 7 September 1983 that he had no jurisdiction in the matter, since "the defendants ha[d] not committed any manifest illegality (voie de fait)": he found that following the judgment of 18 May 1983 the plaintiff had re-acquired "the status of a detainee on remand"; the legal basis for that detention lay in the judgment of 16 June 1978 by the chambre des mises en accusation (Indictments Chamber) (see Series A no. 53, p. 7, § 13), which judgment had not been annulled by the Court of Cassation. (c) The Hainaut Assize Court, by seven votes to five, convicted Mr. Piersack on 17 October 1983 and sentenced him to eighteen years’ hard labour, a sentence identical to that which had been imposed on 10 November 1978. The applicant did not appeal on points of law against this judgment since he considered that "this time" he had received a "fair trial". 7. On 7 February, 16 March, 22 June and 25 September 1984, the applicant, the Commission’s Delegate and the Government lodged with the registry, in accordance with the Orders and directions of the President of the Court, further observations on the application of Article 50 (art. 50) in the present case in the light of the events described above. On 17 September, the Registrar also received from the Secretary to the Commission the reply to a request for information which the Registrar had made on 28 June on the instructions of the Court. 8. After consulting, through the Registrar, the Agent of the Government and the Delegate of the Commission, the Court decided on 26 September 1984 that there was no call to hold hearings. 9. Mr. Thór Vilhjálmsson and Mr. F. Matscher, substitute judges, replaced Mr. L. Liesch and Mr. J. Pinheiro Farinha, who were prevented from taking further part in the consideration of the case (Rules 22 § 1 and 24 § 1 of the Rules of Court).