CONCURRING OPINION OF JUDGE RYSSDAL

(Translation)

I concur in the judgment to the extent that it concerns the applicability of Article 6 § 1 (art. 6-1) of the Convention. On the other hand, I regret that I cannot fully endorse it as regards compliance with that provision, as I consider that several points in the reasoning call for a slightly different emphasis.

In the first place, greater attention should have been paid in the judgment to two circumstances which illustrate the large measure of discretion enjoyed by the Council of the Ordre des avocats when considering applications for restoration to the roll. Firstly, the Judicial Code itself, whilst making provision for a readmission procedure quite distinct from the disciplinary procedure, gives no more than a bare outline of what the readmission procedure is to consist of. Secondly, the Antwerp Bar did not have any internal rules of procedure at the material time. The procedure to be followed in a given case was accordingly left almost entirely to the Council.

As to the reasoning in the impugned decisions, the judgment goes no further than noting that it was inadequate. The judgment ought to have drawn attention to the fact that the Antwerp Bar Council was under no legal obligation to set out the grounds which prompted it to reject H ’ s applications for readmission.

Lastly, it may be queried whether it was appropriate to mention the issue of waiving publicity, albeit only to conclude that the applicant had not apparently contemplated exercising that option. The practice of the Belgian Bar in fact totally precluded the possibility of the hearings being held in public or the decision being delivered in public.

These brief observations in no way alter my conclusion that the Council of the Ordre did not in the instant case satisfy the requirements of Article 6 § 1 (art. 6-1).

I would add that I consider it unfortunate that the Council of the Ordre , which has the power of decision as authority of first and last instance, is composed exclusively of practising lawyers.

CONCURRING OPINION OF JUDGE THÓR VILHJÁLMSSON

My reasons for voting for the applicability of Article 6 § 1 (art. 6-1) are those set out in the judgment.

On the other hand, when I voted to the effect that there had been a violation of this provision, I did so for reasons that are not completely the same as those stated in the judgment. On this point I want to make the following remarks.

The applicant requested the Council of the Antwerp Ordre to restore his name to the roll of the Bar of that city. This request was rejected by the Council. No appeal lay against this decision. The Council was, according to the information before the Court, composed of the bâtonnier , or leader of the Bar, and sixteen other avocats selected each year by an assembly of the Ordre .

In my opinion, the membership of the Council, the method used to select the members, and their brief tenure of office result in a lack of what might be called structural impartiality. I find here a situation comparable to the lack of independence dealt with in paragraph 42 of the judgment of our Court in the Sramek case, where it is stated that "appearances may also be of importance". As was found in that case with regard to the independence of the institution in question, I find in this case that the Council of the Ordre may give litigants reasons to "entertain a legitimate doubt" about its impartiality. And, to quote further from the Sramek judgment, "such a situation seriously affects the confidence which the courts must inspire in a democratic society".

As regards the fairness of the proceedings (paragraph 53 of the judgment), I am of the opinion that the most relevant point is the fact that the applicant had an opportunity to present his case to the Council. It is true, as stated in the judgment, that the procedure was in other respects open to criticism and this is of some relevance in the case. It should, nevertheless, be taken into account that the general rule in Belgian law was that a lawyer who had been struck off the roll could only be readmitted if there were exceptional circumstances. It was for the applicant to show that there were such exceptional circumstances in his case. The arguments that he or his representatives put forward may or may not have been substantial, but I find that they did not by their nature necessitate lengthy discussion in the decision of the Council.

Finally, I agree with what is stated in the judgment on the lack of publicity (paragraph 54).