DECISION

ON THE ADMISSIBILITY OF

Application No. 18613/91

by E.V.H.

against Belgium

The European Commission of Human Rights (Second Chamber) sitting in private on 7 December 1993, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

Mr. K. ROGGE, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 June 1991 by E.V.H. against Belgium and registered on 29 July 1991 under file No. 18613/91

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Belgian citizen, born in 1940 and resident in Antwerp, Belgium. He is a public notary by profession. Before the Commission he is represented by Mr. H. Vandenberghe , a lawyer practising in Brussels.

The facts of the case, as submitted by the parties, may be summarised as follows.

As suspicions had arisen that the applicant and eight other persons had been involved in fraud and related offences in a certain set of international financial operations, the public prosecutor's department ( Openbaar Ministerie ) decided to open an investigation. Since one of the suspects was a judge, the special proceedings referred to in Sections 479ff of the Code of Criminal Procedure ( Wetboek van Strafvordering ) were applied.  Section 479 of the Code of Criminal Procedure gives the Court of Appeal ( Hof van Beroep ) jurisdiction in proceedings against judges, on a summons issued by the public prosecutor attached to the Court of Appeal.

By summons of 5 October 1989 the applicant and the five other co-accused, including the judge, were charged with fraud, forgery and the use of forged documents. They were summoned to appear before the Court of Appeal of Antwerp.

The Court of Appeal joined the proceedings against the six accused, since they concerned a set of interrelated facts. By judgment of 11 June 1990 the Court of Appeal convicted the six accused. Taking into consideration that the applicant had not acted in his capacity as a public notary, the Court convicted the applicant of fraud, forgery and the use of forged documents and sentenced him to three years' imprisonment and a fine of 180,000 Belgian Francs.

The applicant subsequently filed an appeal in cassation to the Court of Cassation ( Hof van Cassatie ). The Advocate General at the Court of Cassation , having expressed the opinion that the appeal should be rejected, participated in the deliberations of the Court of Cassation . The Court of Cassation rejected the applicant's appeal in its judgment of 11 December 1990.

COMPLAINT

The applicant, referring to the judgment of the European Court of Human Rights on 30 October 1991 in the case of Borgers v. Belgium, complains under Article 6 para . 1 of the Convention that a member of the Advocate General participated in the latter's deliberation on his appeal in cassation . (The applicant also originally complained about other aspects of the criminal proceedings against him, invoking Article 5 para . 4, Article 6 paras . 1 and 3 and Article 14 of the Convention. However, these complaints were declared inadmissible by the Commission in a partial decision dated 30 June 1993.)

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 June 1991 and registered on 29 July 1991.

In a partial decision of 30 June 1993, the Commission (Second Chamber) decided to bring the complaint concerning the participation of the Advocate General in the Court of Cassation's deliberation on the applicant's appeal in cassation to the notice of the respondent Government, to invite them to submit written observations on the admissibility and merits of this complaint and to declare the remainder of the application inadmissible.

By letter of 29 September 1993 the Government submitted their observations consisting of a proposal for a friendly settlement of the application.

By letter of 25 November 1993 the applicant, noting that the respondent Government do not dispute the admissibility of his complaint, rejected the Government's proposals for a friendly settlement.

THE LAW

The applicant complains under Article 6 para . 1 of the Convention that he did not receive a fair hearing in that the Advocate General participated in the Court of Cassation's deliberations.

Article 6 para . 1 of the Convention, insofar as relevant, reads:

"In the determination of...any criminal charge against him, everyone is entitled to a fair and public hearing...by an independent and impartial tribunal established by law..."

The respondent Government does not dispute the fact that the Advocate General, who considered that the applicant's appeal in cassation should be rejected, participated in the Court of Cassation's deliberations on the applicant's appeal.

Having regard to the judgment of the European Court of Human Rights in the Borgers case (Eur. Court H.R., judgment of 30 October 1991, Series A no. 214-B), the Commission considers that the application raises an issue of fact and law under the Convention, which can only be resolved by an examination on the merits. The application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

Secretary to the Second Chamber       President of the Second Chamber

  (K. ROGGE) (S. TRECHSEL)