Resolution ResDH (2001)110 Human Rights Application No. 18613/91 E.v.H . against Belgium

(Adopted by the Committee of Ministers on 15 October 2001 at the 764th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the report drawn up on 11 May 1994 by the European Commission of Human Rights in accordance with former Article 31 of the Convention relating to the application lodged on 11 June 1991 by a Belgian national, Mr E.v.H . against Belgium;

Whereas on 23 June 1994 the Commission transmitted the said report to the Committee of Ministers and whereas the period of three months provided for in former Article 32, paragraph 1, of the Convention has elapsed without the case having been brought before the European Court of Human Rights in pursuance of former Article 48 of the Convention;

Whereas in his application, as declared admissible by the Commission on 7 December 1993, the applicant complained of the participation of a representative of the prosecutor’s office in the deliberation of the Cour de cassation , ruling in criminal matters;

Whereas in its report the Commission expressed, unanimously, the opinion that there had been a violation of Article 6, paragraph 1, of the Convention;

Whereas at the 519th meeting of the Ministers’ Deputies, the Committee of Ministers, having voted in accordance with the provisions of former Article 32, paragraph 1, of the Convention, and agreed with the opinion expressed by the Commission, held, by a decision adopted on 19 October 1994, that there had been in this case a violation of Article 6, paragraph 1, of the Convention;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 8 March 1996;

Whereas at the 564th meeting of the Deputies, the Committee of Ministers, agreeing with the Commission’s proposals, held by a decision adopted on 15 May 1996, in accordance with former Article 32, paragraph 2, of the Convention, that the government of the respondent state was to pay the applicant as just satisfaction, within three months, a total sum of 30 000 Belgian francs, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay (in accordance with the decision adopted by the Committee of Ministers at its 599th meeting, on 17 September 1997, on the general principles regarding the payment of default interest) at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicant;

Whereas the Committee of Ministers invited the government of the respondent state to inform it of the measures taken following its decisions of 19 October 1994 and 15 May 1996, having regard to Belgium’s obligation under former Article 32, paragraph 4, of the Convention to abide by them;

Having regard to Interim Resolution DH (98) 133, regarding the fairness of hearings in proceedings before the Cour de Cassation, adopted by the Committee of Ministers on 22 April 1998 at its 626th meeting during which the Committee of Ministers indicated, in the light of information given by the government of the respondent state, that it has provisionally exercised its functions under former Articles 54 and 32 of the Convention;

Whereas, after the adoption of this Interim Resolution, the government of the respondent state gave the Committee information about the measures taken in consequence of the Committee’s decisions (this information appears in the Appendix to this resolution);

Whereas the Committee of Ministers satisfied itself that on 17 July 1996, within the time-limit set, the government of the respondent state paid the applicant the total sum of 30 000 Belgian francs as just satisfaction,

Declares, after having taken note of the measures taken by the Government of Belgium, that it has exercised its functions under former Article 32 of the Convention in this case;

Authorises the publication of the report adopted by the Commission in this case.

Appendix to Resolution ResDH (2001)110

Information provided by the Government of Belgium during the examination of the E.v.H . case by the Committee of Ministers

The Government of Belgium points out that, immediately after the European Court of Human Rights had given judgment in the Borgers case, the Cour de Cassation provisionally introduced a new practice whereby applicants may reply to the opinion of the representative of the prosecutor’s office, and the latter no longer takes part in the deliberations. This measure was also applied, in civil proceedings, immediately after the issue of the European Court’s judgment in the Vermeulen case, and, in disciplinary proceedings, immediately after the issue of the judgment in the Van Orshoven case.

This practice has now been enshrined in the Judicial Code, to bring Belgian law fully into line with the requirements of the Convention: the Act of 14 November 2000, amending the Judicial Code in respect of the intervention of the Representative of the prosecutor’s office in proceedings before the Cour de Cassation and, in civil cases, the courts deciding on the merits, and amending Articles 420bis and 420ter of the Code of Criminal Procedure was published in the Official Gazette on 19 December 2000, and so came into force on that day.

First, Article 1107 of the Judicial Code has been amended and now provides that:

“After the report, the representative of the prosecutor’s office shall give his conclusions. The parties shall then be heard. (…)

When the conclusions of the representative of the prosecutor’s office are in writing, the parties may, not later than the hearing and solely in reply to the conclusions of the representative of the prosecutor’s office, submit a memorandum, in which they may not adduce new arguments.

Any party may request at the hearing that the case be held over, so that he can reply orally, or in a memorandum, to the written or oral conclusions of the representative of the prosecutor’s office. The court shall specify the time by which a memorandum must be submitted.”

It should be emphasised that the Act provides that the opinion of the representative of the prosecutor’s office is to be communicated to the parties’ legal representatives or to the parties themselves if they are not represented.

Secondly, the provision contained in Article 1109 of the Judicial Code allowing the representative of the prosecutor’s office to attend the deliberations, except in cases where he himself had appealed to the Cour de Cassation , has been revoked. It has been replaced as follows: “judgments shall be given at a public hearing by the President, in the presence of the representative of the prosecutor’s office, and with the registrar in attendance”.

The Government of Belgium believes that there is no further risk of violations of the kind found in this case, and that it has accordingly complied with its obligations under the former Article 32 of the Convention.