DISSENTING OPINION OF JUDGE STORME

(Translation)

1. Although I believe whole-heartedly that the rights of the defence and the principle of " Waffengleichheit " (equality of arms) should be scrupulously respected, I have found it impossible to agree with the majority decision of the Court for a number of reasons.

I would even venture to add, in so far as this personal style - which has come from the English judges - is accepted in the European Court of Human Rights, that a professional career of more than fourty years at the bar has taught me that it is the public prosecutor ’ s department ( ministère public) which is the lawyer ’ s principal adversary.

The problem nevertheless resides in the fact, and this is the "heart of the matter", that the public prosecutor ’ s department, on the one hand, and the procureur général ’ s department at the Court of Cassation, on the other, are two completely different bodies. The Belgian legislature ought, as indeed it tried unsuccessfully to do, to have used terminology which was formally distinct and at the same time adapted to the essentially different functions of the public prosecutor ’ s departments in the lower courts and of the procureur général ’ s department at the Court of Cassation.

The principal reason for my dissenting opinion lies in the fact that the detailed and comprehensive analysis which I have conducted of the case has not enabled me to understand why the Borgers case should be decided differently from the Delcourt case: the complaints are identical; the legislation and judicial practice in Belgium are the same; the facts of the case are the same. The two cases are however completely different in one respect, and I shall return to this in considering the case from the point of view of appearances, namely as regards the identity of the applicants: on the one hand, Mr Delcourt, a Belgian national, appearing before the Court of Cassation without a lawyer; on the other, Mr Borgers, a lawyer, a substitute judge, assisted before the Court of Cassation by Mr L. De Gryse , the current President of the Bar Council of the Court of Cassation, who lodged two appeals in the Court of Cassation, and who relied on Article 6 para. 1 (art. 6-1) of the Convention only after the second proceedings, in which his appeal was dismissed!

I. Note on the general principles concerning the role and the task of the " procureur général" ‘ s department at the Belgian Court of Cassation

2. These general principles were excellently and extremely thoroughly explained at the hearing in the Delcourt case ( Eur . Court H. R., Series B no. 9, 1969-1970, pp. 156-247). It is not in dispute that these fundamental principles have undergone no substantive alteration since the introduction in Belgium of the new Judicial Code (1967-1970) (Delcourt judgment, pp. 10-12, para. 19; see the present judgment, in particular paragraph 24).

It is accordingly sufficient to set out certain essential features by way of summary.

3. The Court of Cassation does not "judge", in other words does not decide on the parties ’ claims; it only "reviews" the decision of the lower court, which has ruled on the merits of the case. It is that decision which is submitted to the Court of Cassation, whose task is to consider whether the court in question applied or interpreted correctly the substantive law, the procedural law or the formal general principles of law.

Neither the Court of Cassation, nor a fortiori its procureur général ’ s department, inquire into the parties ’ rights; they confine themselves to analysing the appealed decision. This is equally true in criminal proceedings, as the procureur général at the Court of Cassation does not act as prosecuting authority (Article 141 of the Judicial Code). Even a public prosecutor of the lower courts who has lodged an appeal, or against whom an appeal has been lodged, never submits an additional memorial or a memorial in reply in the Court of Cassation (paragraph 12 of the present judgment).

4. In any event, the procureur général ’ s department at the Court of Cassation cannot be regarded as a party (Delcourt judgment, para. 29), but rather as onpartijdig adviseur (= impartial adviser: Mr Faurès , pleadings in the Delcourt case, Eur . Court H. R., Series B no. 9, 1969-1970, p. 223) - the term "adviser to the Court" employed in this judgment (paragraph 16 of the present judgment; cf. Delcourt judgment, para. 34: "an adjunct and an adviser of the court") may give rise to confusion. For my part I prefer the designation "amicus curiae".

The procureur général at the Court of Cassation is in fact rather the guarantor of the consistency of the court ’ s case-law. The procureur général ’ s department forms a single and permanent unit, which meets regularly and is thus in a position to draw the court ’ s attention to the possibilities of divergencies between the different chambers and sections (Dutch-speaking - francophone), and to the risks involved in adopting different reasoning for the same solution. The procureur général fulfills perfectly the role of maintaining the coherence of the Belgian case-law, in particular in a country in which cultural, political, socio-economic, ideological or linguistic differences could affect the national and uniform nature of the legislation.

5. On the question of procedure, whether civil or criminal, it is necessary to recall the principles laid down in the Belgian Judicial Code.

The Belgian Judicial Code of 1967 provides in Article 2 thereof as follows: "The rules set out in this Code shall apply to all proceedings, except such as are governed by statutory provisions which have not been expressly repealed or by principles of law whose application is not compatible with that of the provisions of this Code."

This means that the Articles of this Judicial Code are in principal applicable to all proceedings (civil, criminal, administrative ...).

Article 772 of the Judicial Code is worded as follows: "If, during the deliberations, a document or a new and important fact is discovered by one of the parties in the proceedings, the party in question may, for so long as the judgment has not been delivered, request that the hearing be reopened."

This Article applies to cassation proceedings, not only pursuant to the above-mentioned Article 2, but also by virtue of Article 1042 of the Judicial Code, according to which: "In so far as no derogation is laid down in the provisions of this Book, the rules concerning first-instance procedure are applicable to appeal proceedings." The "rules concerning first-instance procedure" are Articles 700-1041, in other words Book II of the Judicial Code, entitled First-instance procedure, and include Article 772.

The second paragraph of Article 1107 of the Judicial Code lays down a rule of a practical nature ("... no further documents shall be accepted ...") which in no way excludes the application of the aforementioned Article 772.

It is therefore indisputable that any new fact makes it possible for any party to request the reopening of the hearing, even in cassation proceedings, in accordance with the above-mentioned Articles 2 and 772 of the Judicial Code.

It is clear at this point that the applicant ’ s complaint that he had been unable to reply to the avocat général ’ s opinion (see paragraph 27 of the present judgment) is totally unfounded. Pursuant to Article 772 of the Judicial Code, Mr Borgers could have sought the court ’ s leave to submit a reply to the opinion.

6. I do not consider it necessary to examine the Belgian rules governing disciplinary proceedings for judges, since the present case does not involve disciplinary proceedings, but proceedings of a purely criminal law nature.

However, I would draw attention to the fact that institutional and disciplinary unity of the ministère public, to which this judgment alludes (paragraphs 22-26 of the present judgment), does not exist. It is only for disciplinary purposes that it forms a single unit. Accordingly, to hold that the official of the procureur général ’ s department (see paragraph 26 of the present judgment) could become objectively speaking the opponent of the accused (paragraph 26), seems to me to disregard the general principles of criminal procedure in the Court of Cassation.

II. Violation of Article 6 para. 1 (art. 6-1)

A. Requirements of the rights of the defence and the principle of the equality of arms

7. The majority of the Court refers to the principles of the rights of the defence and of the equality of arms, features of the wider concept of a fair trial. In this connection it cites among other authorities the Ekbatani judgment, but seems to forget that the Delcourt judgment had already mentioned this wider concept of a fair trial (see paragraph 28 of the Delcourt judgment).

In the present case too the Court ’ s approach is no different from that adopted in the Delcourt case.

8. The starting-point of the Court ’ s reasoning concerns the opinion of the procureur général ’ s department.

This opinion cannot be neutral from the point of view of the parties (paragraph 26 of the present judgment) and yet it is, since this opinion of the procureur général ’ s department concerns only the application and/or interpretation of the (substantive or procedural) law by the court whose decision has been submitted for review by the Court of Cassation.

The procureur général ’ s department at the Court of Cassation - which is in fact not a prosecuting authority in the true sense - can in no way become the ally or the opponent of the accused (see, however, paragraph 26 of the present judgment).

Ultimately the procureur général is only the amicus curiae, the objective adviser of the Court of Cassation. Let us not forget moreover that the European Court ’ s Rules of Court recognise by implication the institution of amicus curiae (Rule 37 para. 2).

By giving an opinion, the procureur général at the Belgian Court of Cassation cannot become an opponent. What is important is that this opinion should be ojective and impartial, as has always been the case; this was stressed by the European Court of Human Rights in the Delcourt judgment ( paras . 32-38) and also at various places in the present judgment (paragraphs 24, 26 and 28).

The European Court ’ s decision is, in my view, based on an erroneous interpretation of the notion of an opinion. Does an expert who expresses an opinion unfavourable to one party become the latter ’ s objective opponent? What is to be thought of judicial systems - like the Belgian one - in which the courts are composed of lay judges who are appointed after proposal by trade unions and management organisations on the basis of their qualifications and who decide, rather than merely expressing an opinion.

Finally I consider that it is contradictory to say, on the one hand, that no one calls in question the impartiality and independence of the procureur général ’ s department (paragraph 24 of the present judgment) and, on the other, to decide that he is objectively speaking the opponent of the accused (paragraph 26 of the present judgment).

9. The requirements of the rights of the defence and of the principle of the equality of arms are said not to have been complied with in the examination of the Borgers case in the Court of Cassation. This violation of Article 6 para. 1 (art. 6-1) is said to stem from two features of the cassation proceedings: the submissions (conclusions) of the procureur général ’ s department and the latter ’ s participation in the deliberations.

1. The submissions

I would recall that in accordance with the general principle laid down in Article 772 of the Judicial Code (no. 5 above), the accused was entitled to request a right of reply through the reopening of the hearing.

In addition, if the procureur général ’ s department were to communicate his opinion in advance, this would ultimately lead to a debate between its representative and the accused. Paradoxically the procureur général would then really become the accused ’ s opponent.

Finally, it is not a case in this instance of a restriction on the rights of the defence. The procureur général ’ s submissions (conclusions) are genuinely a conclusion: they sum up and conclude the judicial hearing.

2. Participation in the deliberations

It should be noted that the presence of a member of the procureur général ’ s department in the deliberations is a tradition going back nearly two centuries, which cannot harm the accused, because the procureur général ’ s department does not make prosecution submissions, as the prosecuting authority, but expresses his views or gives a legal opinion.

In the exceptional cases in which he does make prosecution submissions, he does not attend the deliberations (Article 1109 of the Judicial Code).

It therefore appears incoherent, and even contradictory, to find, as the judgment does, that the procureur général gives his assistance with total objectivity (paragraph 28), but that the appearance ("it could reasonably be thought that") is sufficient to find a violation of Article 6 para. 1 (art. 6-1).

The justification for attending the deliberations, given by Mr procureur général Hayoit de Termicourt in the course of the debate on the draft Judicial Code in the Belgian Senate, confirmed moreover in the Delcourt judgment, remains valid: "The role of the [ procureur général ] at the deliberations is not to provoke a decision rejecting an appeal, where the Court intends to allow it, or conversely. His presence is primarily concerned with the motivation of the decision. The terms of the Court ’ s decisions must be carefully chosen. Most decisions contain statements of a rule, the field of application of which extends beyond the particular case under consideration. The function of the [ procureur général ] during the deliberations is, therefore, to draw the Court ’ s attention to the possible consequences, in other fields, of the way in which the rule is worded in the text of the proposed decision, or to the interpretational difficulties to which it might give rise, or again, to any discrepancy between this wording and the wording of other decisions stating the same rule.

On the other hand, the [ procureur général ’ s department] is particularly well-qualified to lend assistance in this regard, during the deliberations, to the members of the Chamber examining an appeal, since all members of the Department appear before both Chambers of the Court. These considerations seem all the more worthy of attention because the draft Judicial Code provides for the creation, within the Court, of a third Chamber, which will increase the difficulty of maintaining uniformity in the Court ’ s judicial practice." ( Eur . Court H. R., Series B no. 9, Delcourt case, p. 123.)

As in the Delcourt judgment, I venture to suggest that it is necessary to look beyond appearances (paragraphs 30 and 31 in fine of the Delcourt judgment).

Thus we come to the question of appearances, which in all probability played, if not a decisive role, at least a predominant one in the evolution of the decision of the European Court of Human Rights in the Borgers case.

B. Appearances

10. It is clear that the majority of the Court reached its decision under the influence of the growing importance of the theory of appearances (see paragraphs 24 and 29 of the present judgment). However, careful study of the judgments cited (see paragraph 24 of the present judgment) leads to the inescapable conclusion that reliance upon appearances must be objectively justified and that the appearance is a contextual notion, in other words it varies according to the circumstances of the case (see the Hauschildt judgment of 24 May 1989, paras . 48 in fine and 49 in fine).

In the present case recourse to appearances is not justified, since the Court stresses repeatedly the impartiality, independence and objectivity of the procureur général ’ s department (paragraphs 24, 26 and 28 of the judgment). One may thus repeat what was stressed in the Hauschildt judgment cited above: "what is decisive is whether this fear can be held objectively justified" (see the Hauschildt judgment, para. 48 in fine).

The circumstances of the case and more specifically the identity of the applicant, already referred to above (see no. 1 of this opinion), cannot justify a finding that the applicant could rely on appearances.

11. However, I believe it is much more important to go further into the notion of appearances in (judicial) law. G. Cornu ’ s Vocabulaire juridique (Paris, 1987) states as follows: "Theory of appearance: judicial theory according to which mere appearance is sufficient to produce effects in respect of a third party who, on the basis of a legitimate mistake, was unaware of the true situation (for example contracts concluded by an apparent agent bind the person whom he appeared to be representing). Apparent act: ostensible and deceitful act, also referred to as sham act, which its perpetrators carry out solely (for example fictitious sale) to conceal the true act which they have carried out (gift), known as the secret, concealed or unseen act" (pp. 55-56).

The theory of appearances in substantive law serves to sanction a party which attributes qualities to certain things when he knows or should know that they do not have them. Accordingly, in judicial law, appearance means that a judge is portrayed as impartial, whereas in fact he is not at all so.

In the present case the European Court seeks to apply the theory of appearances the other way round. It attributes apparent defects to a judicial system when it knows very well, and expressly states, that such defects do not really exist. A more thorough analysis of the true situation leads on the contrary to the conclusion that the legal situation in which the observer believed does not exist.

The erroneous application of the theory of appearances brings to mind the extreme application of the "adversarial system" in the majority of the common law countries. According to this theory to allow the judge to direct the argument, to order an enquiry, an expert opinion or the communication of documents would mean that he would have "to drop the mantle of judge and assume the robe of an advocate" (Lord Denning in James v. National Coal Board [1957], 2 QB 55, 63-64).

Taking such an approach to procedure as a starting point it could indeed be maintained that all the judges of continental Europe are partial and dependent because they play an increasingly activist role in the conduct of the trial.

Under such an approach, what is to be thought of the Lord Chancellor, who belongs at the same time to the judicial, legislative and executive authority? Who would dare claim that when he sits as the presiding judge of a Court, appearances cast doubt on his impartiality and his independence?

Provided that the fundamental principles of a fair trial are protected, the historical and sometimes unusual traditions of each judicial system fall outside the scope of the review of the European Court of Human Rights.

The Delcourt judgment (para. 31) looked beyond the appearances. The present judgment, on the other hand, goes no further than appearance. I conclude that in this case there has been no infringement of a right to a fair trial.

III. Overruling of the case-law

12. Should the majority decision of the Court be accepted, it would be inconceivable to find by this judgment that the Belgian State is retrospectively in violation of the Convention, in other words ex tunc . The Belgian State could legitimately have believed that the way in which the function of procureur général at the Court of Cassation has been discharged not only since 1815 (the Prince Sovereign ’ s Decree), but also and in particular since the adoption of the Convention for the Protection of Human Rights and Fundamental Freedoms, was in conformity with that Convention, and above all since the Delcourt judgment.

This judgment of 17 January 1970 stated expressly as follows:

"So far as concerns the application of that system in the present case (i.e. the presence of a member of the procureur général ’ s department at the deliberations) the Court finds that there are no grounds for holding that the procureur général ’ s department at the Court of Cassation failed to observe ..., at the hearing or at the deliberations, the duty to be impartial and independent which is inherent in its functions" (paragraphs 35 and 38 of the Delcourt judgment).

And later in the same judgment:

"Article 6 (art. 6) of the Convention does not require, even by implication, that an accused should have the possibility of replying to the purely legal submissions of an independent official attached to the highest court in Belgium as its assistant and adviser" (paragraph 41 of the Delcourt judgment).

Just as each citizen can, in a State governed by the rule of law, legitimately expect that the existing legal system will not be modified rectroactively , States are for their part entitled to rely on the same legitimate expectations.

Often a radical modification of the case-law interpreting a legal rule has been accompanied by a "prospective overruling", which was excellently explained in a judgment of the Illinois Supreme Court: "We feel justice will be served by holding that ... the rule herein established shall apply only to cases arising out of future occurrences" ( Molitor case, cited by R. Joliet, Le droit institutionnnel des communautés européennes , Liège , 1981, p. 214; see also similarly: the judgments of Defrenne II (8 April 1976), Gravier (13 February 1985) and Blairot (2 April 1988) of the Court of Justice of the European Communities; see also and in particular the Marckx judgment of the European Court of Human Rights).

This necessity for a "prospective overruling" is all the more evident as the Belgian State has for some time applied Article 6 (art. 6) of the Convention in the light of the case-law of the European Court of Human Rights. The fundamental right of a State to the respect for legitimate expectations generated by the Court itself would be seriously infringed by a finding of a violation ex tunc .

13. The instant overruling of the European Court ’ s case-law is all the more disturbing because it is based not only on the importance attached to appearances but also in response to "[an] increased sensitivity of the public to the fair administration of justice" (see paragraph 24 in fine of the present judgment). This new notion introduced by the Borgers judgment has no link with the previous case-law and contains a reference to "the increased sensitivity of the public" which is in my view extremely dangerous.

In a case like this one, where the procedural rules criticised by the Court were approved by the Belgian Parliament on three different occasions (see paragraph 26 of the present judgment), it is not for this Court to seek to replace a national legislature by invoking the sensitivity of the public.

IV. Even if restricted to criminal proceedings the finding of a violation affects the organisation of the courts

14. In view of the exceptional role which the procureur général ’ s department at the Court of Cassation fulfills regarding the consistency and the development of Belgian case-law, the violation found by the Court can concern only criminal proceedings and not civil proceedings. The opinion of the procureur général ’ s department in civil proceedings (and clearly also social security, commercial, tax proceedings, etc.) can in no way violate the right of the defence or the principle of the equality of arms in the context of adversarial proceedings in which two - or indeed more - parties are opposed.

I remain convinced that the Court ’ s ruling that there has been a violation is not only unfounded, but also misguided because it goes to the very essence of the organisation of the courts in Belgium, particularly in the Belgian Court of Cassation, and this has never been the objective of the European Convention on Human Rights.

[*]  The case is numbered 39/1990/230/296.  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.

[*]   The amendments to the Rules of Court which came into force on 1 April 1989 are applicable to this case.

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 214-A of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.