CASE OF VERMEULEN v. BELGIUM
Violation of art. 6-1 (adversarial trial);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
C. Russo;John Freeland;R. Pekkanen
9. Mr Vermeulen is a Belgian citizen who lives at Diksmuide (West Flanders). 10. On 6 May 1987, on an application by the department of the procureur du Roi and without any adversarial hearing, the Furnes Commercial Court adjudicated the applicant bankrupt and declared his company - Vermeulen & Verstraete Business Consultancy, Ltd (Zakenkantoor Vermeulen & Verstraete p.v.b.a.) - insolvent. It had heard the opinion of the deputy procureur du Roi but had not heard the applicant himself, who was in custody in Ghent prison on account of criminal proceedings against him for forgery, uttering, fraud and misappropriation. The applicant applied to the court to set aside that judgment and rehear the case. 11. On 4 May 1988 the court declared the application admissible, ordered that the proceedings should be reopened and put the case on the special list pending the outcome of the criminal investigation that was under way in respect of Mr Vermeulen. In a written opinion that was read out at the hearing of the case on 6 April 1988, the deputy procureur du Roi had submitted that the application to set aside was admissible but unfounded. 12. On 29 June 1989, on an appeal by the applicant against the judgment of 4 May 1988, in which the Commercial Court had not rescinded the bankruptcy order, the Ghent Court of Appeal, exercising its power to determine also the merits of the case, upheld the judgment of 6 May 1987 (see paragraph 10 above), having heard the submissions to that effect of the deputy procureur du Roi that had been read out at the hearing of the case on 27 April 1989. 13. The applicant lodged an appeal on points of law against the Court of Appeal’s judgment, but the Court of Cassation dismissed it on 10 May 1991. At the hearing on the same day it had heard in turn Mr Caenepeel, the judge rapporteur, Mr Vermeulen’s lawyer and Mr du Jardin, the avocat général (a member of the procureur général’s department). The avocat général made oral submissions and subsequently took part in the court’s deliberations. 14. On 17 March 1995 the Antwerp Court of Appeal acquitted the applicant of all the criminal offences with which he had been charged (see paragraph 10 above). 15. The relevant Articles of the Commercial Code provide: "Any trader who ceases payments and whose credit has been impaired shall be considered insolvent. ..." "Insolvency shall be declared in a judgment of the Commercial Court delivered either on the bankrupt’s own admission or on a petition by one or more creditors or of the court’s own motion. ..." 16. Proceedings for a declaration of insolvency by the court of its own motion are opened at the instance of the Commercial Court. The procureur du Roi or a member of his department delivers an opinion, in accordance with Article 764, 9o, of the Judicial Code (see paragraph 18 below). 17. Article 138 of the Judicial Code provides: "Subject to the provisions of Article 141, the department of the procureur du Roi shall act as prosecuting authority in the manner laid down by law. In civil matters it shall intervene by way of legal proceedings, applications or opinions. It shall act of its own motion in the instances prescribed by law and also on each occasion that public policy requires its intervention." 18. Article 764 of the Judicial Code lists the cases which, unless they are being tried by a magistrate, are to be referred to the procureur du Roi, failing which the proceedings will be null and void. They include, at 9o, those relating to insolvency, compositions with creditors and extensions of time for payments. 19. By Article 141 of the Judicial Code, "The procureur général at the Court of Cassation shall not act as prosecuting authority except where he has instituted proceedings in which the decision on the merits falls to the Court of Cassation." The fairly rare instances in which the Court of Cassation hears a case on its merits include trials of ministers (Article 90 of the Constitution), actions against judges for misuse of their authority (Articles 613, 2o, and 1140 to 1147 of the Judicial Code) and disciplinary proceedings against certain judges or other members of the national legal service (Articles 409, 410 and 615 of the same Code). Other than in these circumstances, the procureur général’s department at the Court of Cassation carries out, with complete independence, the duties of adviser to the court. 20. As to the disciplinary hierarchy of the ministère public, the following provisions of the Judicial Code should be mentioned: "The Minister of Justice shall exercise supervisory authority over all the officials of the ministère public; the procureur général at the Court of Cassation likewise over his counterparts at the courts of appeal; and the latter over the members of their own departments and of those of the auditeurs généraux at the Industrial Appeals Tribunals and over the procureurs du Roi attached to the lower courts, the auditeurs attached to the industrial tribunals and their deputies." "The procureur général at the Court of Appeal may impose on the officials of the ministère public subordinate to him the penalties of a warning, a reprimand or a reprimand with suspension of salary. The procureur général at the Court of Cassation shall have the same powers in regard to the avocats généraux at that court and the procureurs généraux at the courts of appeal. The Minister of Justice may likewise warn and reprimand any official of the ministère public or recommend to the King his suspension or dismissal." 21. In respect of the procedure to be followed in the Court of Cassation, in both civil and criminal proceedings, the Judicial Code provides: "After the report has been read out, submissions are heard from counsel present at the hearing. Their addresses shall relate exclusively to the issues of law raised in the grounds for appeal or to objections to the admissibility of the appeal. The procureur général’s department shall then make its submissions, after which no further documents shall be accepted." "The procureur général or a member of his department shall be entitled to attend the deliberations unless the appeal on points of law has been lodged by the procureur général’s department itself; he shall not be entitled to vote in the deliberations." The procureur général’s department may lodge an appeal on points of law either "in the interests of the law" (Articles 1089 and 1090 of the Judicial Code and Article 442 of the Code of Criminal Procedure) or following a complaint by the Minister of Justice (Article 1088 of the Judicial Code and Article 441 of the Code of Criminal Procedure). 22. Since 30 October 1991, when the European Court of Human Rights gave judgment in the Borgers case previously cited, an appellant in the Court of Cassation has been able, at least in criminal cases, to address the court after the representative of the procureur général’s department, who does not subsequently attend the court’s deliberations.