Information Note on the Court’s case-law 254

August-September 2021

Willems and Gorjon v. Belgium - 74209/16, 75662/16, 19431/19 et al.

Judgment 21.9.2021 [Section III]

Article 37

Article 37-2

Restore to list

Rejection by the Court of Cassation of a request for reopening of the proceedings, rendering meaningless the Government’s undertakings in their unilateral declaration: case restored to the list

Article 6

Criminal proceedings

Article 6-1

Access to court

Excessive formalism by the Court of Cassation in ruling appeals on points of law inadmissible on account of the lawyer’s failure to refer to his requisite certification: violation

Facts – The applicants each lodged an application before the Court, alleging that the dismissal of their appeals on points of law against the judgments convicting them in criminal proceedings had been excessively formalistic and had deprived them of their right of access to the Court of Cassation.

In its declaration of 5 September 2017, the Government had acknowledged that “the Court of Cassation’s decision to reject the applicants’ appeals on points of law as inadmissible, on the grounds that the lawyer signing the appeals had not referred to the fact that he held the necessary training certificate, did not comply with respect for their right of access to a court, as guaranteed by Article 6 of the Convention”. They also undertook to pay each of the applicants the sum of 8,000 euros, to cover non-pecuniary damage and costs and expenses.

By its decision of 13 March 2018, the Court took note of the Government’s declaration, indicating that it could restore the applications to the list of cases should the Government fail to comply with the terms of its unilateral declaration.

On 7 November 2018 the Court of Cassation found that the requests for reopening of the proceedings, lodged by the applicants following the Court’s decision of 13 March 2018 to strike their cases out of its list, were without substance and that it was not necessary to order the reopening of the proceedings. The Court of Cassation also held that the fact of requiring that a lawyer prove that he or she was certified to appear before it did not raise a problem in terms of the right of access to a court. Its judgment of 1 June 2016 declaring the appeals on points of law inadmissible had therefore been compatible with the requirements of the Convention.

On 28 May 2019 the Court granted the applicants’ request and restored their case to the list.

At the same time, the applicants lodged new applications before the Court, complaining that the Court of Cassation’s judgment of 7 November 2018 had made it impossible for them to have the criminal proceedings against them reopened and had thus deprived them of their right of access to a court within the meaning of Article 6 § 1 of the Convention.

Law

Article 37 § 1: This case raises the issue of the effects of a declaration made by a Government and of the Court’s decision taking note of that declaration. The impugned declaration was particular in that it had been made by the Government, but its implementation was in part dependent on a decision to be taken by an organ of judicial power, in this instance the Court of Cassation. That court had decided that it was bound neither by the Government’s unilateral declaration nor by the Court’s decision taking formal note of it.

With regard to the Government’s unilateral declaration, the Court of Cassation had held that “the principle of the separation of powers implies that the judiciary is bound neither by the interpretation given to the Convention by the authorities nor by their assertion that a court has been in breach of that text”. Although the notion of separation of powers between the executive and the judiciary had assumed growing importance in the Court’s case-law, in the present case the Court of Cassation had been referring to a general principle of Belgian domestic law. Determination of the exact content of this principle fell within the margin of appreciation afforded to Contracting States. It was not for the Court to interfere in this question of domestic law. It could only take note of the position adopted by the Court of Cassation and draw the requisite conclusions under the Convention.

With regard to the Court’s decision acknowledging the unilateral declaration, the Court of Cassation had held that “the decision of 13 March 2018 to strike the case out of the [Court’s] list does not have the binding effect of interpretation. The European Court has not decided that the second sub-paragraph of Article 425 § 1 of the Code of Criminal Procedure breaches the right of access to a court. It does not prohibit a requirement that evidence of the certification laid down in that Article be provided, by referring to them in the procedural documents mentioned in Articles 423 and 429 of the Code of Criminal Procedure and submitting them in the form prescribed by those Articles”.

It is true that the Court did not examine in its decision the applicants’ complaints in order to ascertain whether they were admissible and well-founded, and it took no decision in that regard. In this respect, its decision did not therefore have the quality of res judicata or the binding effect of interpretation. However, the Court did examine “the nature of the concessions contained in the unilateral declaration, the adequacy of the compensation and whether respect for human rights require[d] it to continue its examination of the case according to the criteria mentioned above”.

Admittedly, as the decision of 13 March 2018 was not a judgment finding a violation of the Convention, it did not come within the scope of Article 46 of the Convention. Nonetheless, in the spirit of shared responsibility between the States and the Court for securing respect for the rights enshrined in the Convention, the applicants were entitled to expect that the domestic authorities, including the national courts, would give effect in good faith to any undertaking by the Government contained in unilateral declarations and, a fortiori , in friendly settlements. This expectation would be all the stronger where the legal issues involved were part of the Court’s established case-law concerning the respondent State or other generally applicable principles. Furthermore, in the present case there were parallels between the above-mentioned decision and a judgment finding a violation.

Where it found a violation of the Convention, the Court did not have jurisdiction to order the reopening of domestic proceedings. However, where an individual had been convicted following proceedings that entailed breaches of the requirements of Article 6 of the Convention, the Court could indicate that a retrial or the reopening of the case, if requested, represented in principle an appropriate way of redressing the violation. Nonetheless, the specific remedial measures, if any, required of a respondent State in order for it to discharge its obligations under Article 46 necessarily depended on the particular circumstances of the individual case. In particular, it was not for the Court to indicate how any new trial was to proceed and what form it was to take. The respondent State remained free to choose the means by which it would discharge its obligation to put the applicant, as far as possible, in the position he or she would have been in had the requirements of the Convention not been disregarded, provided that such means were compatible with the conclusions set out in the Court’s judgment and with the rights of the defence.

In the present case, in its decision of 13 March 2018, the Court had referred to its case-law on Article 46, according to which “re-opening the proceedings in the domestic courts is the most appropriate, if not the only, means of ensuring restitutio in integrum and redressing the violations of the right to a fair trial”. It had also noted that the domestic law did not in principle preclude the reopening of proceedings where the Court struck a case out of its list of cases on the basis of a unilateral declaration by the Government.

As the applicants had requested the reopening of the criminal proceedings against them, the competent bodies, in this case the Court of Cassation, were under an obligation to draw the consequences for the domestic legal order of the Government’s unilateral declaration and the Court’s decision taking note of it. This task formed part of the sharing of responsibilities between the national authorities and the Court with regard to securing the rights and freedoms defined in the Convention or its protocols, and more specifically of the national authorities’ primary responsibility in this area.

In the present case, the Court of Cassation had conducted an examination of the applicants’ complaint against its judgment of 1 June 2016. It had concluded that it did not appear from this examination that its judgment had, on the merits, been contrary to the Convention, or that it gave rise to a violation resulting from an error or a serious shortcoming.

The effect of the Court of Cassation’s refusal to grant the request for reopening of the proceedings was that the Government’s undertakings as contained in their unilateral declaration had remained ineffective in the domestic legal order. This amounted to “exceptional circumstances”, which had led the Court to restore the initial applications to its list of cases on 28 May 2019, at the applicants’ request. The Court was thus required to examine the admissibility and merits of the applicants’ initial complaints against the Court of Cassation’s judgment of 1 June 2016. It would examine these complaints in the light, specifically, of the reasoning developed by the Court of Cassation in its judgment of 7 November 2018, pursuing in this manner the “judicial dialogue” that the Belgian court had begun through this latter judgment.

Article 6 § 1: The applicants’ lawyer had held the requisite certification to be able to lodge appeals on points of law at the time when he lodged the applicants’ appeals. The applicants had been accused of committing a procedural error by failing to prove that their representative was a suitably certified lawyer, by referring to the fact that he held this certification in the written documents that might be considered by the Court of Cassation.

The terms of Article 425 § 1 (2) of the Code of Criminal Procedure did not stipulate that the procedural documents should include evidence that the lawyer held the requisite training certificate. Neither the Court of Cassation’s website nor the training regulations contained information on such a requirement. In addition, when their lawyer had lodged the appeals on points of law – that is, ten days after the entry into force of the amendments to Article 425 § 1 (2) of the Code of Criminal Procedure – and during the subsequent two months, no other decision had been issued which would have enabled them to foresee the need to indicate that their lawyer was in possession of this certificate.

That being stated, an element which had considerable weight in assessing the proportionality of the sanction was that the Court of Cassation’s website explained that the list of lawyers holding the relevant certificate could be consulted on the respective internet sites of the bar associations, and contained a direct link to those websites. In other words, the Court of Cassation had itself provided for the possibility of establishing, through a simple search via its own internet site, whether the newly introduced rule for pleading before it had been complied with in the present case.

In these circumstances, having regard to the consequences for the applicants of the decision to find their appeals on points of law inadmissible – namely, that they were prevented in the context of criminal proceedings from having their grounds of appeal heard by the Court of Cassation –, that court, in penalising them in this way for their procedural error, had upset the requisite fair balance between, on the one hand, the legitimate concern to ensure compliance with the formal procedure for lodging an appeal on points of law and, on the other, the right of access to a court, and had thus been excessively formalistic with regard to the procedural requirements for the admissibility of such appeals.

In so far as the applicants complained about the actual refusal to reopen the proceedings, these were new complaints, separate from those raised in their initial applications. However, having regard to its decision concerning the initial proceedings before the Court of Cassation, the Court considered that it was not necessary to examine the admissibility or merits of these complaints.

Conclusion : violation (unanimously).

Article 46: Where an individual had been convicted following proceedings that entailed breaches of the requirements of Article 6, a retrial or the reopening of the case, if requested, represented in principle an appropriate way of redressing the violation. For so long as was still necessary, Article 442 bis of the Code of Criminal Procedure allowed for the possibility of reopening the proceedings against a convicted person, in respect of criminal matters alone, if a final judgment of the Court had found that a breach of the Convention had occurred. The use of this possibility in the present case would be a matter for assessment, if appropriate, by the Court of Cassation, having regard to domestic law and to the particular circumstances of the case.

Article 41: claim in respect of pecuniary damage dismissed.

(See also Jeronovičs v. Latvia [GC], 44898/10, 5 July 2016, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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