CASE OF VAN DER MUSSELE v. BELGIUM
No violation of Art. 4;No violation of Art. 14+4;No violation of P1-1
C. Russo
9. The applicant is a Belgian national born in 1952. He resides in Antwerp where he exercises the profession of avocat (lawyer). After being enrolled as a pupil avocat on 27 September 1976, he at once opened his own chambers without ever working in the chambers of another avocat; his pupil-master, however, entrusted him with a number of cases and gave him some payment for the work done in regard to them. Mr. Van der Mussele terminated his pupillage on 1 October 1979 and has since then been entered on the register of the Ordre des avocats (Bar Association). 10. On 31 July 1979, the Legal Advice and Defence Office of the Antwerp Bar appointed Mr. Van der Mussele, pursuant to Article 455 of the Judicial Code, to defend one Njie Ebrima, a Gambian national. The latter, who had been arrested two days earlier on suspicion of theft and of dealing in, and possession of, narcotics, had applied under Article 184 bis of the Code of Criminal Procedure for the assistance of an officially appointed avocat. 11. On 3 and 28 August 1979, Mr. Ebrima appeared before a Chamber (chambre du conseil) of the Antwerp Court of First Instance (tribunal de première instance), which was supervising the investigation, for the purpose of a decision as to whether the warrant of arrest issued against him by the investigating judge should remain in force. The Chamber confirmed the warrant on both occasions. It also added to the initial charges a further count of publicly using a false name. Mr. Ebrima appealed against these two orders, but the Indictments Chamber of the Antwerp Court of Appeal upheld them on 14 August and 11 September respectively. On 3 October 1979, the Court of First Instance sentenced him to six months’ and eight days’ imprisonment for theft, public use of a false name and illegal residence; he was acquitted on the remaining charges. On his appeal, the Court of Appeal on 12 November reduced the length of the sentence to that of the period he had spent in detention on remand. The applicant had acted for Mr. Ebrima throughout these proceedings and estimated that he devoted from seventeen to eighteen hours to the matter. Mr. Ebrima was released on 17 December 1979 following representations made by the applicant to the Minister of Justice; he had in the meantime been placed at the disposal of the immigration police with a view to deportation. 12. The following day, the Legal Advice and Defence Office notified Mr. Van der Mussele - whose pupillage had finished more than two and a half months earlier (see paragraph 9 above) - that it was releasing him from the case and that because of Mr. Ebrima’s lack of resources no assessment of fees and disbursements could be made against him. The latter amounted on this occasion to 3,400 BF, made up of 250 BF for preparation of the case-file, 1,800 BF for correspondence, 1,300 BF for travel to and from the prison, the Court of First Instance and the Court of Appeal, and 50 BF in respect of court costs for the copy of a document. 13. The applicant stated that during his pupillage he had dealt with approximately 250 cases, including about 50 cases - representing some 750 hours of work - on which he had acted as officially appointed avocat. He also said that his net monthly income before tax was only 15,800 BF in his first and second years, increasing to 20,800 BF in the third. 14. Although it is in various respects regulated by legislation, the profession of avocat in Belgium is a liberal profession; under Article 444 of the Judicial Code, "avocats exercise their profession freely in the interests of justice and truth". 15. In each of the country’s twenty-seven judicial districts, there is an Ordre des avocats; it is independent of the executive and endowed with legal personality in public law and its Council takes decisions "without appeal" with regard to entry on the register of avocats and admission to pupillage (Articles 430 and 432 of the Judicial Code). A pupillage normally lasting three years is a pre-requisite to entry on the register of avocats (Article 434 and the second paragraph of Articles 435 and 436). Subject to the powers of the General Council of the National Ordre, the Council of the district Ordre determines the obligations of pupils (Articles 435 and 494). In the main these consist of attending at a pupil-master’s chambers, attending hearings, following courses on the rules of professional conduct and the art of advocacy (Article 456, third paragraph) and acting as defence counsel in cases assigned by the Legal Advice and Defence Office (Article 455). The Council of the Ordre ensures that these obligations are complied with and may, if need be, prolong the pupillage "without prejudice to the right to refuse entry on the register"; any pupil who is unable, after five years at the latest, to show that he or she has satisfied the said obligations "may be omitted from the roll" of pupils (Article 456, second and fourth paragraphs). Pupils in principle enjoy the same rights as their colleagues who are already entered on the register of avocats. However, they may not plead before the Court of Cassation or the Conseil d’État (Article 439), vote in elections of the chairman or other members of the Council of the Ordre (Article 450) or deputise for judges and members of the public prosecutor’s department. 16. In the oath that he takes at the end of his pupillage, the avocat undertakes, amongst other things, not to advise or appear in any case which he does not consider to the best of his knowledge and belief to be just (Article 429). Subject to the exceptions provided for by law, for example in Article 728 of the Judicial Code and Article 295 of the Code of Criminal Procedure, avocats - including pupil avocats - enjoy an exclusive right of audience before the courts (Article 440 of the Judicial Code). They pay a subscription to the Ordre (Article 443) and social security contributions. 17. The Council of the Ordre sanctions or punishes as a disciplinary matter offences and misconduct, without prejudice, where appropriate, to proceedings before the courts (Article 456, first paragraph). It will hear disciplinary cases on application made by its chairman, either of his own motion or following a complaint or after a written notification from the procureur général (public prosecutor) (Article 457). The Council may, depending on the circumstances, warn, censure, reprimand, suspend for a maximum of one year or strike a name off the register of avocats or the roll of pupils (Article 460). Both the avocat concerned and the procureur général may challenge such a decision - finding the avocat guilty or not guilty - by applying to the competent disciplinary appeal board (Articles 468 and 472). The disciplinary appeal board is composed of a chairman (who is the first president of the Court of Appeal or a president of a chamber delegated by him), four assessors (who are avocats) and a secretary (who is a member or former member of the Council of the Ordre des avocats); the procureur général or a judicial officer from his department delegated by him fulfils the functions of prosecuting authority (Articles 473 and 475). The avocat concerned or the procureur général may refer the decision of the disciplinary appeal board to the Court of Cassation (Article 477). 18. In Belgium, as in many other Contracting States, there exists a long tradition that the Bar should provide legal representation, if need be on a free basis, for indigent persons. At the time of the relevant facts, the Council of the Ordre des avocats was under a duty to make provision for "the assistance of persons of insufficient means" by setting up a "Legal Advice and Defence Office" in such manner as it should determine (Article 455, first paragraph, of the Judicial Code). "Obviously ill-founded cases [were not to] be allocated" (second paragraph of the same Article), but in criminal matters the Legal Advice and Defence Office had to make an officially appointed - or "pro Deo" - avocat available to any indigent accused who so requested at least three days before the hearing (Article 184 bis of the Code of Criminal Procedure). Officially appointed avocats were thus designated by the Office by virtue of a statutory competence conferred by the State. In Antwerp and Liège a system of rotation was used whereas in Brussels the matter was dealt with on a more flexible basis. The Office almost always selected pupil avocats who, if need be, had to continue acting in the case even after the end of their pupillage, as occurred in the present circumstances (see paragraph 12 above). It nonetheless happened - in less than one per cent of the cases - that a difficult case was entrusted to a more experienced avocat. 19. Under the third paragraph of Article 455 of the Judicial Code, pupil avocats were required to "report to the [Legal Advice and Defence] Office on the steps they [had] taken in the cases entrusted to them"; such cases accounted on average for approximately one quarter of their working time, especially during their third year. The Ordres des avocats would decline to enter a pupil avocat on the register unless he had acted as officially appointed avocat on a sufficient number of occasions; the Antwerp Ordre enjoyed considerable discretion in the matter since no minimum or maximum was laid down in its pupillage regulations. Pupil avocats could invoke the so-called "conscience clause" laid down in Article 429 of the Judicial Code (see paragraph 16 above) or objective grounds of incompatibility. In the event of an unjustified refusal to deal with cases that the Office wished to allocate to him, the Council of the Ordre could extend the pupillage of a pupil avocat to a maximum period of five years, strike his name off the roll of pupils or refuse his application for entry on the register of avocats for failure to perform fully his obligations (Article 456, second and fourth paragraphs). 20. Officially appointed avocats were entitled neither to remuneration nor to reimbursement of their expenses. Nevertheless, the Legal Advice and Defence Office could, "depending upon the circumstances, .... fix the amount which the [assisted] party [was] required to pay either by way of advance provision or as fees" (Article 455, final paragraph, of the Judicial Code). In practice such awards tended to be somewhat exceptional - in approximately one case out of four at Antwerp - and, what is more, pupil avocats only succeeded in actually recovering a fraction - roughly one quarter - of the amounts so fixed. 21. The position described in the preceding paragraph has changed in one respect subsequent to the end of the applicant’s pupillage: an Act of 9 April 1980 "intended to furnish a partial solution to the problem of legal aid and regulating the remuneration of pupil avocats appointed to provide legal aid" has amended Article 455 by, inter alia, inserting the following provisions: "The State shall grant to the pupil avocat appointed by the Legal Advice and Defence Office compensation in respect of the services which he was appointed to render. After obtaining the opinion of the General Council of the National Ordre des avocats, the King shall prescribe, by Decree laid before the Council of Ministers, the conditions governing the granting, scale and manner of payment of such compensation." In certain circumstances, the State will be able to take action against the assisted person to recover the compensation awarded. The Act is not retroactive. Furthermore, for the moment it remains inoperative since budgetary reasons have up till now prevented the bringing into force of the Royal Decree provided for under Article 455. 22. The official appointment of an avocat should not be confused with two other possibilities which are likewise often included in the notion of legal aid, namely - "official assignment", which is provided for under the law in various circumstances where the intervention of an avocat is obligatory, independently of the means of the person concerned (Articles 446, second paragraph, and 480 of the Judicial Code, Article 290 of the Code of Criminal Procedure, etc.); - "legal aid" in the narrow sense, which "consists of exempting, in whole or in part, persons whose income is insufficient to meet the costs of proceedings, including extrajudicial proceedings, from paying stamp duty, registration duty, registry and copying fees and any other expenditure involved", and of providing "the services of public and publicly appointed officers free" for such persons (Articles 664 and 699 of the Judicial Code). 23. Indigent persons requiring the services of notaries, bailiffs or avocats of the Court of Cassation may apply for the appointment by the Legal Aid Bureau (see paragraph 22 above) of the persons who are under a duty to give their services free of charge (Articles 664, 665, 685 and 686 of the Judicial Code). The State reimburses the latter persons for their out-of-pocket expenditure (Article 692) but grants no remuneration, the one exception being bailiffs who receive the equivalent of one quarter of their usual fees (Article 693).