CASE OF BORGERS v. BELGIUM
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
C. Russo;N. Valticos;R. Pekkanen
9. Mr André Borgers, a Belgian national residing at Lummen (Belgium), is a lawyer who currently practises at the Hasselt Bar. 10. On 8 November 1981 he was elected provincial counsellor and thereupon tendered his resignation from the post of substitute district judge (juge de paix suppléant) which he had held since 12 April 1976, but which under the Judicial Code was incompatible with his new elected office. 11. On 16 June 1981 he had appeared before the Antwerp Court of Appeal charged with forgery and using forged documents, the latter court having jurisdiction by virtue of the privileges which he enjoyed in this respect as a judicial officer. On 19 May 1982 it imposed on him a suspended sentence of six months’ imprisonment and fined him 40,000 Belgian francs. 12. The applicant appealed to the Court of Cassation on points of law. He argued that in its judgment convicting him the Court of Appeal had failed to give an adequate statement of its reasons and to attach sufficient weight to the records of the investigating judge’s examinations; he contended further that the judgment had been delivered following a violation of the rights of the defence. In accordance with usual practice, the procureur général’s department of the Antwerp Court of Appeal did not submit a memorial in reply. 13. On 20 March 1984 the Court of Cassation allowed the appeal and quashed the contested decision on the ground that an adequate statement of the reasons on which it was based had not been given. Previously, at the hearing, it had heard the report of the judge rapporteur, Mr d’Haenens, and the concurring submissions (conclusions) of Mr Tillekaerts, the avocat général (a member of the procureur général’s department). The latter had also attended the deliberations in accordance with Article 1109 of the Judicial Code (see paragraph 17 below). 14. The Ghent Court of Appeal, to which the case had been remitted, convicted the applicant on 14 November 1984 and imposed on him identical sanctions to those resulting from the earlier decision (see paragraph 11 above). Mr Borgers again appealed to the Court of Cassation; he complained inter alia that the judgment in question had failed to state sufficient reasons and had misinterpreted the provisions of criminal law concerning forged documents and statutory limitation. 15. His appeal was dismissed on 18 June 1985, following a hearing at which the Court heard the report of the judge rapporteur, Mr d’Haenens, and the concurring submissions of Mr Tillekaerts, the avocat général, who had again participated in the deliberations (see paragraph 17 below). 16. According to 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." This provision replaced Article 37 of the Prince Sovereign’s Decree of 15 March 1815, which was in issue in the Delcourt case (already cited, see paragraph 3 above) and which was worded as follows: "Even in criminal proceedings, the procureur général at the court cannot be regarded as a party; his role is only to make submissions (conclusions), except where he has himself appealed. In the latter event, he shall put the prosecution case (réquisitoire) in pleadings which, filed with the registry, shall be forwarded without further formalities to the rapporteur appointed by the First President and then distributed with the report to the members of the procureur général’s department." It is true that where the Court of Cassation hears a case on its merits, the procureur général’s department assumes the role of a party, but these instances are quite rare. They include the trial of ministers (Article 90 of the Constitution), civil proceedings brought against a judge in his official capacity (la prise à partie) (Article 613, 2o, and Articles 1140 to 1147 of the Judicial Code) and disciplinary proceedings against certain judicial officers (Articles 409, 410 and 615 of the same Code). Apart from these exceptional circumstances, the procureur général’s department at the Court of Cassation carries out, with full independence, the duties of adviser to the Court. In this capacity, it is by no means unusual for it to express the opinion that the court should dismiss an appeal lodged by the prosecuting authorities of the lower court or should allow an appeal by an accused; indeed it may even raise an argument against the conviction or sentence of its own motion. 17. On the procedure to be followed in the Court of Cassation, whether for civil or criminal proceedings, the Judicial Code provides as follows: "After the report has been read out, submissions are taken from the lawyers present at the hearing. Their pleadings shall relate exclusively to the issues of law raised in the grounds for appeal or to the pleas in bar put forward against the appeal. The procureur général’s department shall then make its submissions, whereafter 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 a point 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 file an appeal on a point 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). The rule which, in such cases, requires the exclusion from the Court’s deliberations of the procureur général or his representative already applied under the Prince Sovereign’s Decree of 15 March 1815 (see paragraph 16 above), but it was not expressly laid down therein (see the transcript of the hearing of 30 September 1969 in the Delcourt case, Series B, no. 9, p. 215). It merely provided, in Article 39: "In cassation proceedings the procureur général or a member of his department shall have the right to be present, without voting, when the court retires to consider its decision." 18. Under Article 400 of the Judicial Code the disciplinary hierarchy applying to the officials of the ministère public is as follows: "The Minister of Justice shall exercise supervisory authority over all the officials of the ministère public, the procureur général at the Court of Cassation over his counterparts at the Courts of Appeal and the latter over public prosecutors and their departments in their courts and the lower courts as well as over State counsel in the Industrial Appeals Tribunals, the crown prosecutors and the State counsel in the industrial tribunals and their substitutes." The above provision replaced section 154 of the Judiciary (Organisation) Act of 1869, referred to in the Delcourt judgment (cited above, Series A no. 11, p. 16, para. 30). Article 414 of the Judicial Code states as follows: "The procureur général at the Court of Appeal may impose on the subordinate officials of the ministère public the sanctions 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 persons holding the office of avocat général at that court and those holding the office of procureur général at the Courts of Appeal. The Minister of Justice may likewise warn and reprimand all the officials of the ministère public or recommend to the King their suspension or their revocation." 19. On the question of disciplinary proceedings against judges and the role in this matter of the procureur général at the Court of Cassation, the following provisions of the Judicial Code may be cited: "Only the Court of Cassation may hear disciplinary proceedings to remove a judge from office." "Substitute judges" - such as Mr Borgers from 1976 to 1981 (see paragraph 10 above) - "are, in that capacity, subject to the same disciplinary authorities as full judges." "[...] disciplinary proceedings [...] against judges [...] shall be instituted by the competent authority of its own motion; if their object is the issue of a warning, they shall be instituted by the authority empowered to order such a measure; in other cases, they shall be instituted by the first president of the competent court. Disciplinary proceedings may always be instituted at the instance of officers of the ministère public."