JOINT DISSENTING OPINION OF JUDGES GÖLCÜKLÜ, MATSCHER AND PETTITI

(Translation)

It is an old tradition in the legal systems of continental Europe for Crown or State Counsel ’ s department to be represented in the higher courts (of appeal or cassation), both civil and criminal, and to be able to intervene either orally or in writing; the institution goes back to the time when the codes were compiled and is closely bound up with the idea underlying them.  The role of the department when discharging this function was to see to it that the law was correctly interpreted and to ensure the uniformity and consistency of the case-law.  Whereas in the systems of Germanic origin the role of Crown or State Counsel ’ s department in civil proceedings has been gradually limited to certain aspects of the law of persons and of the family (in the relevant countries the department in practice now acts only as prosecuting authority in criminal proceedings), in the legal systems of Roman origin the department has retained its original role, even in civil proceedings in the Court of Cassation and to some extent also in the courts of appeal.  The institution of Advocate-General at the Court of Justice of the European Communities and of the Delegate of the Commission at our Court is based on similar ideas.

Belgian law is of the Roman type and makes provision for the procureur général at the Court of Cassation to be present and to be able to intervene, for the purpose explained above.

In our view, to see the procureur général , when he acts in civil proceedings, as an adversary of either of the parties is to misunderstand the nature of the institution, since his role - of what one might call an amicus curiae - is solely that of a neutral and objective guardian of the lawfulness of the proceedings and of the uniformity and consistency of the case-law.  To that extent, his participation in the hearing and - in an advisory capacity - in the deliberations in no way offends against the principle of equality of arms as he is placed above the parties.

As regards systems of civil procedure which reflect traditions that have proved themselves in national law and are well received by legal practitioners, we consider that when interpreting Article 6 (art. 6) in respect of matters such as the role of the procureur général at the Court of Cassation, the European Court must make sure that it does not, through excessive formalism, overturn such traditions.

While saying that, we should also like to point out that, in our view, the relevant legal arrangements in Belgium and in other countries, such as France and Italy, may seem rather strange, and a legal system could well do without them - witness the fact that the custom of having Crown or State Counsel ’ s department represented and able to intervene in civil proceedings has been almost entirely abandoned in a large number of European countries, without any adverse effect on the case-law.

Nevertheless, we see no reason to criticise legal systems which wish to maintain this practice, as doing so will not lead to better, real protection of parties ’ interests, especially since, as the Court pointed out in its judgment in the Dombo Beheer B.V. v. the Netherland s case (27 October 1993, Series A no. 274, p. 19, para . 32), the national authorities have a wider margin of appreciation under Article 6 (art. 6) in civil proceedings.

Furthermore, in the Borgers v. Belgium judgment (30 October 1991, Series A no. 214-B) the Court based its finding of a breach of Article 6 para . 1 (art. 6-1) mainly on the combination of two things: the fact that it was impossible for the accused to reply to the submissions of the procureur général ’ s depart ment before the end of the hearing and the presence of that department ’ s representative at the Court of Cassation ’ s deliberations.  In the instant case - a civil one, it should be emphasised - the Court finds a breach in each of those features, even taken separately, and thus goes even further than in the Borgers case concerning a criminal matter.

Of course, the situation is different in criminal proceedings, and here we wholly endorse the Court ’ s conclusions in the Borgers v. Belgium judgment.

DISSENTING OPINION OF JUDGE VAN COMPERNOLLE  

(Translation)

I regret that I cannot concur in the present judgment.

For its scope to be appreciated, it must be remembered that it was essentially with regard to the principle of equality of arms and the role of appearances that the Court in its judgment in the Borgers case - a criminal one - held that there had been a breach of Article 6 para . 1 (art. 6-1) of the Convention.  The central argument underpinning the reasoning in that judgment lay in the consideration that "by recommending that an accused ’ s appeal be allowed or dismissed, the official of the procureur général ’ s department becomes objectively speaking his ally or his opponent" ( Borgers judgment of 30 October 1991, Series A no. 214-B, pp. 31-32, para . 26).

In the present judgment - which, it should be emphasised, relates to civil proceedings - this reasoning is not reiterated. The procureur général ’ s department at the Court of Cassation is not regarded as "objectively speaking" an "opponent" in respect of whom the principle of equality of arms would require both that the parties should have a right of reply and that the department should be excluded from any participation in the deliberations. In a statement of principle, it is the right to adversarial proceedings which becomes the keystone of the judgment in its finding of a double breach of Article 6 (art. 6).

Personally, I cannot agree with this analysis.

1.  It seems to me to be wrong to apply the adversarial principle to the intervention of an independent member of the national legal service who, after the parties have addressed the court, does no more than give, as an amicus curiae, an opinion on the case whose objectivity and impartiality are indisputable. The fact that the parties cannot reply to that opinion in no way puts in doubt their right to a fair hearing, which was fully exercised in the adversarial proceedings in which they took part as opponents.

It must also be pointed out that in this matter the cassation proceedings governed by the Belgian Judicial Code broadly correspond to the procedure applicable in several international courts, whose rules of procedure likewise provide for submissions to be made, after the parties have addressed the court, by an independent legal officer who is not a member of the bench (see, for instance, Rule 44 of the Rules of Procedure of the Benelux Court of Justice and Article 59 of the Rules of Procedure of the Court of Justice of the European Communities).

2.  It seems to me to be equally wrong to link the finding of a breach of Article 6 (art. 6) of the Convention on account of the participation of the procureur général ’ s department in the Court of Cassation ’ s deliberations to the adversarial principle in a civil case.

Seeing that the procureur général ’ s department at the Court of Cassation cannot be perceived as a party to the dispute any more than as objectively speaking the ally or the opponent of any party, the - purely advisory - intervention of an independent and impartial member of the national legal service, in the sole interest of contributing to the uniformity and consistency of the case-law, in no way affects the right to a fair hearing.

3.  As Judges Gölcüklü , Matscher and Pettiti judiciously remark in their dissenting opinion, it should also be pointed out - but as a subsidiary observation, as far as I am concerned - that in the aforementioned Borgers judgment the Court based its finding of a breach of Article 6 (art. 6) on the combination of two things: the fact that it was impossible for the accused to reply to the submissions of the procureur général ’ s department before the end of the hearing and the presence of that department ’ s representative at the Court of Cassation ’ s deliberations.  In the present judgment - which relates to a civil case - the Court finds a breach in each of those features taken separately.  There is nothing, in my opinion, to justify this greater degree of severity when, as the Court held in its judgment in the Dombo Beheer B.V. v. the Netherlands case (27 Oct ober 1993, Series A no. 274, p. 19, para . 32), the national authorities have a wider margin of appreciation under Article 6 (art. 6) in civil proceedings.

[1] The case is numbered 58/1994/505/587.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar  1.  For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions - 1996), but a copy of the Commission's report is obtainable from the registry.