CASE OF DE CUBBER v. BELGIUM
Violation of Art. 6-1;Just satisfaction reserved
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. 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. 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. ... ."