CASE OF WYNEN AND CENTRE HOSPITALIER INTERRÉGIONAL EDITH-CAVELL v. BELGIUM
Violation of Art. 6-1 as regards the inadmissibility of statement of grounds of appeal;No violation of Art. 6-1 as regards notification to the applicants of the hearing in the Court of Cassation;No violation of Art. 6-1 as regards the possibility of replying to the advocate-general's submissions;No violation of Art. 6-1 as regards refusal of the request for a reference for a preliminary ruling;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
9. The first applicant was born in 1923 and lives in Braine-l’Alleud. The second applicant has its registered office in Brussels. 10. In October 1990 a magnetic-resonance imaging (MRI or NMR) unit with a built-in electronic calculator – a high-technology medical device – was installed at the IMEC. In accordance with a royal decree of 27 October 1989, a department in which an MRI unit was installed was regarded as a “high-cost medico-technical service” within the meaning of section 44 of the Hospitals Act, consolidated on 7 August 1987. Pursuant to that statutory provision, such services had to be approved. The criteria for approval were laid down in the royal decree. The relevant department at the IMEC had not, however, obtained the necessary approval. 11. On 15 March 1991 the Ministers of Public Health for the Brussels-Capital bilingual region lodged a complaint with the public prosecutor against the first applicant for installing high-cost medical equipment without the prior approval of the minister responsible for public health. In January 1993 the first applicant and the IMEC, his employer, which was civilly liable for his acts, were summoned to appear in the Brussels Criminal Court. The Belgian State subsequently applied to join the proceedings as a civil party. 12. On 22 March 1994 the Brussels Criminal Court acquitted the first applicant and cleared the IMEC. 13. On 31 March 1994 that judgment prompted the following speech by a member of Parliament during the passage of a bill amending the Hospitals Act: “I was shocked by the court ruling last week in the Wynen case. Everyone knows Dr Wynen’s habit of not caring about legislation. He illegally installs high-cost scanners at his hospital, the Edith-Cavell, and justifies his actions with arguments about medical ethics.” (summary record, House of Representatives, 1993/94 ordinary session, sitting of 31 March 1994) 14. State Counsel’s Office and the civil party appealed against the judgment of 22 March 1994. In their appeal submissions the applicants argued, among other things, that the royal decree of 27 October 1989, which had formed the basis for the prosecution, was unlawful, particularly as it concerned a matter dealt with by legislation at community rather than federal level. They pointed out in that connection: “Section 44 of the Hospitals Act empowers the King to lay down approval and planning criteria for the installation of magnetic-resonance imaging (MRI) units with built-in electronic calculators, with a view to controlling public expenditure. The decree lays down a number of conditions relating to: (1) the department in which the equipment is installed; (2) the number of employees and their qualifications; (3) the safety of the equipment and of the surrounding area; (4) quality control of the work carried out by users; (5) the geographical location of the equipment (the requirements vary according to the power of the equipment); and (6) the number of beds. At best, only the fifth criterion can possibly come under the responsibility of the Federal Ministry of Social Affairs. The other conditions pursue a quite different aim, namely that of regulating the provision of health care, responsibility for which currently falls to the Communities by virtue of section 5(1)(I)(1) of the Special Law of 8 August 1980 on institutional reform. Seeing that four of the five conditions it lays down do not come under the responsibility of the national authorities, the royal decree of 27 October 1989 should be declared unlawful in its entirety since it cannot be applied only in part.” The applicants also submitted that the complaint, civil-party application and appeal by the Belgian State were unlawful, inadmissible and void; that the complaint by the Belgian State infringed the principle of equality enshrined in Articles 10 and 11 of the Constitution in that the public authorities, without applying any objective or reasonable criteria proportionate to the aim pursued, had refrained from reporting other similar offences to the public prosecutor; that the royal decree of 27 October 1989 and, at the very least, the penalty for which it provided, had been tacitly repealed; and, lastly, that the decree infringed several fundamental rights, including the right to life and health, freedom of choice with regard to medical treatment and the prohibition of inhuman and degrading treatment. 15. On 12 January 1995 the Brussels Court of Appeal reversed the judgment, imposed a suspended fine of 2,340 Belgian francs on the first applicant and ordered him to pay costs, applying, inter alia, sections 37 to 42 and 44 of the Hospitals Act. The IMEC was held to be jointly and severally liable for payment of the fine and the costs. In particular, the Court of Appeal dismissed the applicants’ arguments that the royal decree of 27 October 1989 had been tacitly repealed or was unlawful. 16. The applicants appealed to the Court of Cassation against that judgment. In their pleadings they relied on, inter alia, Articles 6 and 7 of the Convention, their main arguments being that the Court of Appeal had based its judgment on contradictory and inconsistent reasoning and had, in particular, applied section 116(8) of the Hospitals Act (which concerned high-cost medical “equipment”), whereas, pursuant to the royal decree of 27 October 1989, an MRI unit constituted a high-cost medico-technical “service”, the setting up or operation of which came under section 16(10) of that Act; that the Court of Appeal had omitted to examine whether the royal decree of 27 October 1989 was compatible with the Special Law of 8 August 1980 on institutional reform, which had apportioned powers among the State, the Communities and the Regions, or with the principle of equality enshrined in Articles 10 and 11 of the Constitution, and that it had failed to refer the matter to the Administrative Jurisdiction and Procedure Court; that it had infringed the general principle of the burden of proof and the presumption of innocence; that the lawfulness of the royal decree of 27 October 1989, which the Court of Appeal had applied, had not been established; and that, in any event, the penalty for which it provided had been tacitly abolished by a subsequent provision, namely section 120(1) of the Law of 22 December 1989. Under the second limb of their second ground of appeal, the applicants asserted that the Court of Appeal had breached section 26(1) of the Special Law on the Administrative Jurisdiction and Procedure Court (see paragraph 28 below) by refusing to refer a preliminary question to that court as to whether section 44 of the Hospitals Act contravened the rules laid down by or pursuant to the Constitution to determine the respective powers of the (federal) State, the Communities and the Regions. They submitted in that connection: “The appellant argued in his appeal submissions that the royal decree of 27 October 1989 did not comply with the Special Law of 8 August 1980 on institutional reform in that it laid down approval criteria relating to health-care policy, a matter which is the responsibility of the Communities. The judgment appealed against should not merely have assessed whether the royal decree of 27 October 1989 was compatible with the consolidated Hospitals Act which it implemented, since the King is not entitled to stay or dispense with the enforcement of the laws on institutional reform; moreover, the consolidated Hospitals Act does not confer, and could not possibly have conferred, on him the authority to derogate from the laws on the distribution of powers. ... Furthermore, seeing that [the Court of Appeal] held that the royal decree complied with the consolidated Hospitals Act, it was required by section 26(1) of the Special Law of 6 January 1989 to submit a preliminary question to the Administrative Jurisdiction and Procedure Court as to whether the Act contravened the rules on the distribution of powers between the State, the Communities and the Regions.” The applicants accordingly asked the Court of Cassation to submit the following question to the Administrative Jurisdiction and Procedure Court: “In so far as section 44 of the consolidated Hospitals Act of 7 August 1987 is to be construed as empowering the King to lay down the rules set out in the royal decree of 27 October 1989 ‘establishing standards which a service that has installed a magnetic-resonance imaging unit with a built-in electronic calculator must satisfy in order to be approved as a high-cost medical service within the meaning of section 44 of the Hospitals Act, consolidated on 7 August 1987’, does that provision contravene: (1) the rules on the distribution of powers, seeing that by virtue of, inter alia, section 5(1)(I)(1), policy on the provision of health care within and outside health institutions is the responsibility of the Communities; ...” Under the third limb of the second ground of appeal, based on Article 149 of the Constitution, which lays down the obligation to give reasons for judgments and decisions, the applicants asked the Court of Cassation to submit a further preliminary question to the Administrative Jurisdiction and Procedure Court as to whether section 44 of the Hospitals Act breached Articles 10 and 11 of the Constitution, which safeguarded the principle of equality and non-discrimination. 17. The civil party, which was the respondent before the Court of Cassation, filed pleadings in reply on 8 September 1995. 18. On 19 October 1995 the applicants filed supplementary pleadings in which, among other things, they set out four fresh grounds of appeal – based, in their submission, on public policy – alleging violations of various provisions of the Constitution and the Convention, in particular Articles 2 and 3. In their new grounds they submitted that the royal decree of 27 October 1989 was unlawful; that the principle of equality had been infringed in that, among the many hospitals that possessed the equipment in issue, only the applicants had been prosecuted; that the penalty set forth in the Hospitals Act had been abolished; and, lastly, that a number of fundamental rights, including the right to life, had been infringed. The applicants also reiterated their request to have the preliminary question cited above submitted to the Administrative Jurisdiction and Procedure Court. 19. On 8 January 1996 the date set for the hearing was entered on the list displayed at the registry and in the courtroom of the Court of Cassation. 20. The Court of Cassation held a public hearing on 24 January 1996. The applicants assert that they were not notified of the date of the hearing, such an omission being in accordance with Article 420 ter, second paragraph, of the Code of Criminal Procedure (CCP), which provided that dates set for hearings in the Court of Cassation were entered on the list of pending cases at least fifteen days in advance, without any further notification. As is apparent from the record of the hearing, the court heard evidence from the reporting judge, the representative of Principal State Counsel’s Office and counsel for the civil party. State Counsel did not attend the deliberations that took place after the hearing. On the same day, after the deliberations, the Court of Cassation dismissed the applicants’ appeal, having declared their supplementary pleadings inadmissible as being out of time, pursuant to Article 420 bis, second paragraph, of the CCP, which provided that persons appealing to the Court of Cassation could not file any pleadings once two months had elapsed from the date on which the case was entered on the general list. 21. In its judgment, delivered on the same day, the Court of Cassation held, in particular, that the reasoning given in the judgment appealed against had not been contradictory and that the contention that the Court of Appeal had applied section 116(8) instead of section 116(10) of the Hospitals Act amounted to complaining of an incorrect reference to the applicable legal provision, an error that had no bearing on the penalty imposed since the two provisions in question provided for the same penalty. It further held that the complaint that the royal decree was incompatible with the Special Law of 8 August 1980 amounted to challenging the Law’s constitutionality, a question outside the Court of Appeal’s jurisdiction. Furthermore, the Court of Appeal was under no obligation to submit a preliminary question to the Administrative Jurisdiction and Procedure Court if it considered that the reply to the question was not essential for it to be able to give judgment. The Court of Cassation further noted that the Court of Appeal had not infringed the rules on the burden of proof as, in dismissing the complaints that the royal decree of 27 October 1989 was unlawful, it had based its decision not on the appellants’ arguments but on the consideration that it was not for the courts to take the place of the executive in assessing the appropriateness of a measure falling within the executive’s sphere of competence. The Court of Cassation also dismissed the argument that the royal decree in question was unlawful or had been repealed, holding that section 120 of the Law of 22 December 1989 was in no way incompatible with the Hospitals Act of 7 August 1987 as it merely provided for an additional sanction in the form of a limit on fees and, consequently, had not tacitly abolished the criminal penalties provided for in that Act. Lastly, the Court of Cassation refused the request to submit a preliminary question to the Administrative Jurisdiction and Procedure Court. In so far as the question concerned the compatibility of section 44 of the Hospitals Act with the rules on the distribution of powers, the Court of Cassation held: “Furthermore, in so far as the appellant asked the Court to submit a preliminary question to the Administrative Jurisdiction and Procedure Court as to whether section 44 of the Hospitals Act, consolidated on 7 August 1987, contravenes the ‘rules on the distribution of powers, seeing that by virtue of section 5(1)(I)(1), policy on the provision of health care within and outside health institutions is the responsibility of the Communities’, he did not state the precise nature of the alleged contravention. Under the aforementioned section 5(1)(I)(1) of the Special Law of 8 August 1980 on institutional reform, policy on the provision of health care is a ‘person-related matter’ falling within the responsibility of the Communities [matière personnalisable], but only subject to certain exceptions, such as legislation laying down organisational principles, or funding arrangements, where these are governed by such legislation. Since the consolidated Act of 7 August 1987 lays down organisational principles governing hospitals and, in particular, their funding, the appellant should have explained in the preliminary question he intended to have submitted to the Administrative Jurisdiction and Procedure Court precisely why he considered that section 44 of the Act was not covered by the exceptions whereby legislation laying down organisational principles, and the funding arrangements made in such legislation, are not ‘person-related matters’ for which responsibility is assigned to the Communities by Article 128 § 1 (former Article 59 bis § 2 bis) of the Constitution, but are matters which under the Constitution remain the preserve of federal legislation. Accordingly, the request for the submission of a preliminary question in relation to this limb of the ground of appeal is inadmissible as being insufficiently precise. ...” The Court of Cassation also declared the preliminary question inadmissible in so far as it concerned the compatibility of section 44 of the Act with Articles 10 and 11 of the Constitution, on the ground that the question was “extraneous both to Article 149 of the Constitution, the only provision alleged to have been infringed in this limb of the ground of appeal, and to the failure to reply to the appellant’s submissions, the only complaint raised in the limb in question”. 22. At the material time Article 420 bis of the CCP provided: “Appellants wishing to make oral submissions in the Court of Cassation shall set out their grounds of appeal in pleadings which must be communicated in advance to Principal State Counsel’s Office at least eight days before the hearing. However, they may not produce any pleadings or documents – other than those concerning the discontinuance or resumption of the proceedings or indicating that the appeal has become devoid of purpose – once two months have elapsed from the date on which the case was entered on the general list. ...” 23. At the material time Article 420 ter of the CCP provided: “Proceedings shall be governed by the provisions of Articles 1105 to 1109 of the Judicial Code. Nevertheless, by way of derogation to the second paragraph of Article 1106 of the Code, the date set for a hearing shall, without any further notification, be entered on the list of cases pending before the court at least fifteen days prior to the hearing. The list shall be displayed at the registry and in the courtroom and shall contain the names of the parties, the lawyers and the representative of Principal State Counsel’s Office instructed to make submissions in the case.” In practice, however, the parties and their lawyers were entitled to ascertain the date of the hearing by telephoning the registry of the Court of Cassation or requesting it by ordinary mail to inform them of the date in writing. That practice was long established and its existence was reiterated in the Court of Cassation’s annual report for 1997/98. However, the Law of 14 November 2000 (see paragraph 26 below) repealed the second and third paragraphs of Article 420 ter of the CCP, bringing the arrangements for notifying the parties of hearings in criminal cases into line with those laid down in the second paragraph of Article 1106 of the Judicial Code. 24. At the material time Article 1107 of the Judicial Code provided: “After the report has been read out, submissions shall be heard from the lawyers present at the hearing. Their addresses shall relate exclusively to the issues of law raised in the grounds of appeal or to objections to the admissibility of the appeal. Principal State Counsel’s Office shall then make its submissions, after which no further documents shall be accepted.” However, since Borgers v. Belgium (judgment of 30 October 1991, Series A no. 214-B), the Court of Cassation had allowed the parties or their lawyers to address the court a second time after State Counsel had made his submissions. The parties could also seek an adjournment in order to give themselves additional time to prepare their submissions in reply, which could, moreover, take the form of a memorandum for the deliberations (note en délibéré). Such requests were systematically allowed by the Court of Cassation. In the rare cases in which State Counsel’s submissions had been prepared in writing and communicated to the court before the hearing, a copy was also sent to the parties before the hearing. The Committee of Ministers of the Council of Europe took note of those judicially initiated procedural amendments in its Interim Resolution DH (98) 133 of 22 April 1998. 25. In a letter of 22 November 2001 to the Minister of Justice, Principal State Counsel at the Court of Cassation made the following observations in relation to the present case: “In the instant case the submissions were made orally and the parties did not reply to them, either orally or by submitting a memorandum for the deliberations, as they were entitled to do, if necessary after an adjournment which they would have been granted in accordance with standard practice if they had requested it. By establishing this practice in a statutory instrument, the Law of 14 November 2000 confirmed that the practice complied with the requirements of European case-law.” 26. A law of 14 November 2000, which came into force on 29 December 2000, amended Article 1107 of the Judicial Code as follows: “After the report has been read out, Principal State Counsel’s Office shall make its submissions. Submissions shall then be heard from the parties. Their addresses shall relate exclusively to the issues of law raised in the grounds of appeal or to objections to the admissibility of the appeal or of particular grounds. Where the submissions of Principal State Counsel’s Office are in writing, the parties may, at the very latest during the hearing and solely in reply to those submissions, submit a memorandum in which they may not raise any new grounds of appeal. At the hearing each party may seek an adjournment in order to reply orally or by means of a memorandum to the written or oral submissions of Principal State Counsel’s Office. The Court shall fix the time-limit for submitting the memorandum.” 27. Other relevant provisions of the Judicial Code read as follows: “The rules set out in this Code shall apply to all proceedings, except such as are governed by statutory provisions which have not been expressly repealed or by principles of law whose application is not compatible with that of the provisions of this Code.” “The file shall include the following: ... 6. State Counsel’s opinion; ... A list of documents, kept up to date by the registrar and indicating the date on which the documents were submitted, shall be appended to the file.” “In so far as no derogation is laid down in the provisions of this Book, the rules concerning first-instance procedure shall be applicable to appeal proceedings.” 28. Section 26 of the Special Law of 6 January 1989 on the Administrative Jurisdiction and Procedure Court, as worded at the material time, provided: “(1) The Administrative Jurisdiction and Procedure Court shall give a preliminary ruling, in the form of a judgment, on questions concerning (i) contravention by one of the statutes, decrees or rules contemplated by Article 134 of the Constitution of the rules laid down by or pursuant to the Constitution to determine the respective powers of the State, the Communities and the Regions; (ii) without prejudice to (i) above, any conflict between decrees or rules as contemplated by Article 134 of the Constitution promulgated by different legislative authorities, provided that the conflict stems from the scope of the decrees or rules in question; and (iii) contravention of Articles 10, 11 and 24 of the Constitution by one of the statutes, decrees or rules contemplated by Article 134 of the Constitution. (2) A court before which a preliminary question has been raised must seek a ruling on the matter from the Administrative Jurisdiction and Procedure Court. However, the court shall be exempted from this obligation where the action is inadmissible for procedural reasons based on rules which are not themselves the subject of an application for a preliminary ruling. A court whose decisions are open to challenge in the form of an ordinary appeal, a petition to reopen proceedings, an appeal on points of law or an application for judicial review in the Conseil d’Etat shall also be exempted from this obligation (i) where the Administrative Jurisdiction and Procedure Court has already given a ruling on a question or appeal having the same object; (ii) where it considers that the reply to the preliminary question is not essential for it to be able to give judgment; or (iii) where it is manifestly apparent that the law, decree or rule contemplated in Article 134 of the Constitution does not contravene any rule or Article of the Constitution contemplated in section 26(1).”