INTERIM RESOLUTION DH (98)133

HUMAN RIGHTS

REGARDING THE FAIRNESS OF HEARINGS IN PROCEEDINGS

BEFORE THE COUR DE CASSATION IN BELGIUM

(Adopted by the Committee of Ministers on 22 April 1998

at the 626th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Articles 32 and 54 of the Conven ­ tion for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Stressing the necessity for all Contracting States to take rapidly all the measures required in order to comply with the judgments of the European Court of Human Rights and to the decisions of the Committee of Ministers notably to prevent new violations of the Convention similar to those found;

Having regard to the judgments of the European Court of Human Rights in the case of Borgers delivered on 30 October 1991, in the case of Vermeulen delivered on 20 February 1996 and in the case of Van Orshoven delivered on 25 June 1997, and to the decisions of the Committee of Ministers in the cases of Van Wijck (Application No. 17123/90), E.v.H. (Application No. 18613/91), Escobar Londono and others (Application No. 19171/92, Interim Resolution DH (95) 261), Vereecken (Application No. 20216/92), De Brabandere and others (Application No. 21010/92, Interim Resolution DH (97) 357, Ulens (Application No. 22113/96, Interim Resolution (97) 356), Rosenberg (Application No. 24906/94, Interim Resolution DH (98) 13) and S.P.R.L. Anca and others (Application No. 26363/95, Interim Resolution DH (97) 509;

Recalling that in all these cases the applicants complained that they had no right to reply, at the hearing, to the opinions delivered by the Advocate General, and moreover that the latter had taken part in deliberations before the Cour de cassation in criminal (Borgers, Escobar Londono and others, Van Wijck, E. v. H. and Vereecken), civil (Vermeulen, De Brabrandere, S.P.R.L. Anca and others and Ulmens) and disciplinary (Van Orshoven and Rosenberg) cases;

Whereas in all these cases the Court or the Committee of Ministers, agreeing with the opinions expressed by the European Commission of Human Rights in its reports, held that there had been a violation of Article 6 of the Convention;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 and 32 of the Convention ;

Having invited the Government of the respondent State to inform it of the measures which had been taken in consequence of the finding of the above-mentioned violations having regard to Belgium’s obligation under Article 53 and 32 paragraph 4 of the Convention to abide by them ;             

Whereas, during the examination of the case by the Committee of Ministers, the Government of the respondent State gave the Committee information about the measures already taken and measures envisaged to prevent new violations of the same kind as those found; this information appears in the appendix to this resolution,

Declares, after having taken note of the information supplied by the Government of Belgium, that it has fulfilled its functions under Articles 54 and 32 of the Convention, for the time being;

Decides to resume consideration of the question of general measures not later than six months hence.

Appendix to Resolution DH (98) 133

Information provided by the Government of Belgium

during the examination by the Committee of Ministers

of the general measures to be adopted in cases

             regarding the fairness of hearings in proceedings before the Cour de cassation

The Government of Belgium recalls that interim measures have already been taken in order to prevent the repetition of the violation found in the cases in question, while awaiting the outcome of the reform of the Code of Judicial Procedure which is under way.

According to the Cour de cassation new practice, applicants may respond to submissions or opinions of the Advocate General who no longer participates in the deliberations. This new practice applies to all kind of proceedings. In criminal proceedings this measure was taken immediately after the European Court of Human Rights rendered its judgment in the case of Borgers. This measure was taken, in civil proceedings, immediately after the European Court rendered its judgment in the case of Vermeulen and, in disciplinary proceedings, immediately after the European Court rendered its judgment in the case of Van Orshoven.

The reformed Code of Judicial Procedure will provide that the Advocate General will no longer take part in the deliberations of the Cour de Cassation and that the applicant will have the right to reply to his submissions or opinions.

The Government of Belgium consider that it has fullfilled its obligations under Articles 54 and 32, paragraph 4, of the Convention for the time being and invites the Committee of Ministers to resume consideration of these general measures not later than six months hence.