SEPARATE OPINION OF JUDGE DE MEYER

(Translation)

Like the majority of my colleagues, but for reasons different from those given in the judgment, I consider that Article 6 § 1 (art. 6-1) of the Convention was applicable in the instant case and that the applicant ’ s right under that provision was violated.

I am further of the view, as regards the application of Article 50 (art. 50) of the Convention, that the applicant should only have been awarded reimbursement of his costs and expenses.

I.   As to the applicability of Article 6 § 1 (art. 6-1) of the Convention

1.   Like several earlier judgments, the Court ’ s judgment in the instant case gives undue prominence to the concept of "contestation" (dispute).

I refer to the observations I made on this subject in my separate opinion in the Pudas case and to those I made jointly with Mr. Pettiti in my sep arate opinion in the Bodén case [1] .

I feel bound to reiterate them, the more so as the instant case is concerned precisely with non-contentious proceedings [2] .

Nothing in these proceedings disclosed the existence of a contestation. They concerned merely, as the Court notes, "a matter relating to t he determination of a right" [3] . That sufficed for the applicant to be entitled to the protection of Article 6 § 1 (art. 6-1) of the Convention.

2.   The judgment repeats once again the assertion in the James judgment [4] that Article 6 § 1 (art. 61) of the Convention applies "only" in respect of " ‘ rights and obligations ’ which can be said, at least on arguable grounds, to be re cognised under domestic law" [5] .

I regret this. For myself, I can only confirm what I said, with five of my colleagues, about that assertion when it was repeated in the cases of W, B, R and 0 v. the United Kingdo m [6] ; what I said subsequently when it was again repeated in the Pudas case; and what I said with Mr. Pettiti when it was yet again repeated in the Bodén case [7] .

It was unnecessary to repeat the assertion again on this occasion, since it is stated in the judgment that this excessive requirement was s atisfied in the instant case [8] .

It was, in my view, inappropriate to repeat pointlessly an assertion on which there is not a sufficient consensus within the Court and which is likely to seriously lessen the scope of the protection afforded by the Convention.

3.   In those circumstances, it matters little to me that what the applicant "could maintain" was, in the words of the judgment, " ar guabl [e] ... in Belgian law" [9] .

In my opinion, the applicant was entitled purely and simply to have his case heard by a tribunal affording him the safeguards laid down in Article 6 § 1 (art. 6-1) of the Convention; it was for a tribunal of this kind to determine whether the applicant ’ s case could be "arguably" maintained and whether it could so be maintained, not narrowly "in Belgian law", but "in law" tout court.

4.   I have no difficulty in holding, with the majority of my colleagues, that the right to be determined in the instant case was a "civil" one.

I am increasingly inclined to think that a "civil" character, within the meaning of Article 6 § 1 (art. 6-1) of the Convention, is to be ascribed to all rights and obligations which do not relate, more specifically, to the "determination ... of [a] criminal charge".

In my opinion, it is therefore of little importance that the right at issue disp layed "features of public law" [10] ; even if it had not had any other features, it ought nonetheless to have been covered by the judicial protection guaranteed in the provision in question.

5.   Such protection had, therefore, to be provided in the instant case, as the applicant had raised "a matter relating to the determination of a right" [11] .

II. As to the violation of Article 6 § 1 (art. 6-1) of the Convention

1.   The Council of the Ordre , which had to decide on H ’ s application for restoration to the roll, was, as the Court notes, an independent [12] tribunal [13] .

It was also, in my view, an impartial tribunal.

As the Court sees nothing in the evidence before it to give it any reason to doubt the "personal impartiality" of the members of the Council of the Ordre , it leaves open the question of the Council ’ s "structural impartiality" [14] .

There is nothing in the evidence, either, to give any reason to doubt the latt er any more than the former [15] .

The "structural" impartiality of a body such as a council of the Ordre des avocats has to be presumed, just like the "personal" impartiality of its members, until the contrary is proved. In particular, the fact that it contained only members elected by their peers "cannot suffice to bear out a charge of bias" [16] .

2.   I consider the reasoning given in the judgment as regards the fairness of the proceedings [17] to be unconvincing.

This is particularly so in that it is stated in the judgment that there was no provision allowing the applicant a right of challenge [18] , that the Antwerp Bar did not have any internal rules of procedure [19] and that the reasons given for the two impugned de cisions were not sufficient [20] .

3.   Whether or not there was a "provision" allowing the applicant a right of challenge, and whether or not there were any "internal rules of procedu re" [21] , seem to me to be of very little importance in the instant case.

It may be asked what such "provision" or such "rules" should or could have contained. It may be asked whether it was possible and desirable to regulate everything in advance. It may also be asked in what way the fact that general principles or traditional customary rules were not formulated in writing in laws or in regulations could hinder the applicability ( Geltung ) or application ( Wirkung ) of those principles and rules [22] .

What mattered was to ascertain whether, with or without any "provision", with or without "internal rules of procedure", everything was properly conducted.

In the instant case nothing warrants the assertion that the lack of such provisions or rules could have prejudiced the applicant.

In particular, as regards the right of challenge, there is nothing to show either that the applicant would have wanted to challenge one or more of the memb ers of the Council of the Ordre [23] or that, if he had done so, he would have met with a refusal based on the lack of any "provision" allowing him a right of challenge.

4.   The judgment appears to recognise that giving "sufficient reasons" was, in the instant case, one of the requirements that had to be satisfied for t he proceedings to be "fair" [24] .

Like Mr. Lagergren , Mr. Pettiti and Mr. Macdonald, I welcome this and consider that all judicial decisions should give an adequate indication of the reas ons on which they are based [25] .

But I take the view that the Court had "scarcely ... any information" [26] enabling it to say or suggest that, as regards the lack of any "exceptional circumstances" within the meaning of Article 471 of the Judicial Code, the reasons given in the two impugned decisions were insufficient [27] ; in this respect, the judgment itself seems to me to be ill-supported by reasoning and, above all, to be ill-founded.

To be convinced of this, it is suf ficient to look at the evidence [*] .

The circumstances which might have justified restoration to the roll were not mentioned in the letters in which the applicant applied for readmission [28] : both of those letters are terse in the extreme. In the one of 3 December 1979 the applicant applies, in fifteen words, for rehabilitation (" eerherstel ") and restoration to the roll (" herinschrijving "). In the one of 9 February 1981 he does no more than apply, in twelve words, for restoration to the roll.

The letter of 3 December 1979 was not accompanied by any supporting documents. It was enlarged on orally at the sitting of the Council of the Ordre on 18 February 1980 by Mr. De Clercq , who, according to the minutes of the sitting, relied on the following:

(a) the major professional and family difficulties the applicant had experienced over the previous fifteen years;

(b) the care the applicant had taken to avoid any misunderstanding or confusion as to the capacity in which he managed his clients ’ legal and tax affairs;

(c) the fact that the 1963 decision had not been followed up with any criminal proceedings and that the prosecutions brought against the applicant later had ended in acquittals;

(d) the courage and idealism the applicant had shown in continuing, so far as was still open to him, to make use of his legal skills and to keep t hem up through study [29] .

In its decision given the same day, the Council of the Ordre briefly noted that these explanations did not disclose the existence of any exceptional circumstances such as would persuade the Council that it was appropriate to order restoration to the roll and thus cancel the effects of the disbarment ordered in 1963 [30] .

Was there much more to be said in reply to the arguments put forward by Mr. De Clercq [31] ? Was it necessary to invent pointless sentences merely in order to say (according as the reply was affirmative or negative) that the arguments had or had not persuaded the Council that there were "exceptional circumstances"? How, in the instant case should it have been "explain[ed] why the circumstances relied on by the applicant were not to be regarded as exceptional" [32] ?

The letter of 9 February 1981 was accompanied by a memorandum of 3 February 1981 written at the applicant ’ s request by a retired procureur général , B. This memorandum consisted mainly of a criticism of the procedure followed in 1963; it also contained a few reflections on the consequences the disbarment had had for the applicant and on the difficulties he had encountered since he had been struck off [33] .

At the sitting of the Council of the Ordre on 21 April 1981 , Mr. De Clercq concentrated on setting out the arguments relating to the 1963 proceedings, and he stated in particular that B ’ s memorandum disclosed "wholly exceptional circumstances which were not known at the time of the first application for restoration to the roll". As for the rest, he pointed out that from 1963 to 1980 the applicant had run his legal and tax consultancy in a manner beyond reproach; reminded the Council of the "major family worries" that the applicant had had to face during the same period; and affirmed the need to put an end to a "disastrous situation", which was, he said, out of all proportion to the offences which had led to disbarment [34] .

At the same sitting the applicant filed a memorandum which did not contain any fresh evidence but merely explained why it was B who had been consulted and why it wa s legitimate to consult him [35] .

The decision of the Council of the Ordre on 11 May 1981 replied at some length to the criticisms concerning the propriety of the disbarment procedure. The Council noted that, as to the rest, the memorandum by B merely repeated the arguments already put forward on 18 February 1980 and that it had not been shown any more convincingly than on that occasion that there were "exceptional circumstances" which might justify restoring the applicant to the roll. It pointed out that disbarment was ordered only where an avocat was deemed unworthy of ever practising his profession again, and that this explained why only "exceptional" circumstances could justify restoration to the roll. The Council added that the seriousness of disbarment and its consequences could not in itself be used as an argument justifying restoration to the roll after some time had elapsed [36] .

Once again, it has to be asked whether it was necessary to say much more on this score [37] .

In my view, it must not be forgotten that it is for the disbarred avocat to show that there are exceptional circumstances which, in his submission, justify restoring him to the roll.

5.   The fact remains, therefore, as regards the fairness of the proceedings, that, as is recorded in the judgment, "it was very difficult for the applicant to adduce appropriate evidence of the ‘ exceptional circumstances ’ which might, in law, have brought about his restoration to the roll" and "to argue his case with the requisite effectiveness" and that he was hampered in particular by the fact that "neither the applicable provisions nor the previous decisions of the councils of the Ordre gave any indication of what could amount to ‘ exceptional circumstances ’ " [38] .

All this may entail "some risk of be ing dealt with arbitrarily" [39] . But that is not enough to warrant saying that the procedure followed in the instant case was unfair.

Statutes and regulations often refer to concepts as vague or almost as vague as, or even vaguer than, the concept of the "exceptional circumstances" mentioned in Article 471 of the Belgian Judicial Code.

The European Convention on Human Rights itself contains quite a large number of references of this kind. This is especially true of Article 6 § 1 (art. 6-1), the very provision at issue in the instant case, in that it requires that cases should be given a "fair" - yes, "fair" - hearing within a "reasonable" time, and also refers to "the interest of morals, public order or national security in a democratic society", to "the interests of juveniles", to "the private life of the parties", to "the interests of justice", to "special circumstances" and to what is "strictly necessary"; these are moreover not the only terms in this provision which may cause problems, as we know.

Such words do not necessarily have the effect of invalidating the proceedings of courts which have to interpret and apply the concepts to which the words refer.

Nor does such an effect follow from the fact that there is not - or not yet - any, or enough, case-law on concepts of this kind.

6.   I consider nonetheless that the applicant did not receive a fair hearing.

In my opinion, he did not receive one, not because the proceedings before the Council of the Ordre were defective in themselves, but quite simply because he did not have any remedy against the refusal of his applications for readmission.

"In view of the seriousness of what is at stake when a disbarred avocat seeks restoration to the roll ... and the imprecise nature of the statutory concept of ‘ exceptional circumstances ’ " [40] , the proceedings were, in the absence of such a remedy, too summary to satisfy the requirements of a fair hearing.

The exercise of such a discretion by the Council of the Ordre in such a matter should have been reviewable by a higher tribunal.

Some avenue of appeal enabling such a review to be made should accordingly have been open to the applicant.

But whereas such an appeal l ies in disciplinary matters [41] , Belgian legislation makes no provision for one in respect of a refusal to restore to the roll.

It is that, and only that, which leads me to the conclusion that the applicant did not receive a fair hearing and that there was therefore, in this respect, a violation of his fundamental rights.

7.   It remains the case that H ’ s applications were not dealt with in public pro ceedings [42] .

But the applicant does not appear to have wanted, and did not seek, public proceedings [43] . Only before the Commission and the Court did he raise this issue, without making any detailed submission on the subject, while indicating a wish that his identity should not be divulged [44] .

Having regard to the applicant ’ s desire for anonymity, to the fact that he did not raise the issue before the Council of the Ordre and to the very nature of the decision that the Council was being asked to take, it seems to me that it should be accepted that the applicant tacitly waived his entitlement to public proceedings and that it was with his agreement that the procee dings took place in private [45] .

In this respect the applicant ’ s fundamental rights do not therefore seem to me to have been violated.

III. As to the application of Article 50 (art. 50) of the Convention

1.   I approve what the Court has said about pecuniary damage [46] and about reimburs ement of costs and expenses [47] .

2.   As r egards non-pecuniary damage [48] , I consider that the judgment in itself constituted sufficient just satisfaction.

In this respect there was no cause to take a different decision in the instant case from the decisions taken in fairly similar circumstances in the Le Compte , Va n Leuven and De Meyere case [49] and the Albert and Le Compte case [50] .

I therefore think that the award of compensation for non-pecuniary damage was not justified in the instant case.

[*]  Note by the Registrar.  The case is numbered 1/1986/99/147.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[*]  Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports, p. 166.

[*]  My underlining.

[1] Judgments of 27 October 1987 , Series A no. 125, pp. 21 and 45.

[2] See on this point the observations of Mr. Matscher in his separate opinion in the Albert and Le Compte case, judgment of 10 February 1983, Series A no. 58, pp. 26-27, § 2, and in his contribution to the Festschrift für Kurt Wagner, Vienna 1987, pp. 271-281.

[3] Paragraph 38 of the judgment.

[4] Judgment of 21 February 1986 , Series A no. 98, p. 46, § 81. (5)  Paragraph 40, second sub-paragraph, of the judgment.

[5] Paragraph 40, second sub-paragraph, of the judgment.

[6] Judgments of 8 July 1987, Series A no. 120, p. 32, and no. 121, pp. 39, 83 and 128.

[7] Pudas and Bodén judgments previously cited, loc. cit.

[8] Paragraph 43, first sub-paragraph, of the judgment.

[9] Ibid.

[10] Paragraph 46 of the judgment.

[11] Paragraph 38 of the judgment.

[12] Paragraph 51 of the judgment.

[13] Paragraph 50 of the judgment.

[14] Paragraph 52 of the judgment.

[15] See, mutatis mutandis, the Albert and Le Compte judgment previously cited, pp. 17-18, § 32.

[16] Le Compte , Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25, § 58.  See also the Albert and Le Compte judgment previously cited, loc. cit.

[17] Paragraph 53 of the judgment.

[18] Paragraph 53, fourth sub-paragraph, of the judgment.

[19] Ibid.

[20] Paragraph 53, sixth sub-paragraph, of the judgment.

[21] Paragraph 53, fourth sub-paragraph, of the judgment.

[22] See on this point the Sunday Times case of 26 April 1979 , Series A no. 30, pp. 30-33, §§ 46-53.

[23] See, mutatis mutandis, the Le Compte , Van Leuven and De Meyere judgment previously cited, p. 25, § 58.

[24] Paragraph 53, sixth sub-paragraph, of the judgment.

[25] See their concurring opinion above.

[26] Paragraph 42, second sub-paragraph, of the judgment.

[27] Paragraph 53, sixth sub-paragraph, of the judgment.

[*]  Note by the Registrar.  Appendices 3-12 to the Government's memorial are not available to the public and will not be published (order made by the President of the Court on 26 October 1987 pursuant to Rule 55 of the Rules of Court).

[28] Cour (86) 100, addendum, documents 3 and 8.

[29] Cour (86) 100, addendum, document 7.

[30] Ibid.

[31] In the minutes of the sitting on 18 February 1980 these arguments are reproduced immediately before the text of the Council's decision.

[32] Paragraph 53, sixth sub-paragraph, of the judgment.

[33] Cour (86) 100, addendum, document 9.  The memorandum begins by reproducing a letter the applicant sent to B on 9 December 1980, in which he refers among other things to the "pitiful suffering" (" erbarmelijke lijdensweg ") and the worrying situation ("de toestand   is angstwekkend ") which he claims the disbarment has entailed for him.

[34] Cour (86) 100, addendum, document 10.

[35] Ibid., document 11.

[36] Ibid., document 12.

[37] "While a statement of reasons is thus necessary to the validity of a judgment of the Tribunal, the question remains as to what form and degree of reasoning will satisfy this requirement.  The applicant appears to assume that, for a judgment to be adequately reasoned, every particular plea has to be discussed and reasons given for upholding or rejecting each one.  But neither practice nor principle warrants so rigorous an interpretation of the rule, which appears generally to be understood as simply requiring that a judgment shall be supported by a stated process of reasoning.  This statement must indicate in a general way the reasoning upon which the judgment is based; but it need not enter meticulously into every claim and       contention on either side.  While a judicial organ is obliged to pass upon all the formal submissions made by a party, it is not obliged, in framing its judgment, to develop its reasoning in the form of a detailed examination of each of the various heads of claim submitted. Nor are there any obligatory forms or techniques for drawing up judgments: a tribunal may employ direct or indirect reasoning, and state specific or merely implied conclusions, provided that the reasons on which the judgment is based are apparent.  The question whether a judgment is so deficient in reasoning as to amount to a       denial of the right to a fair hearing and a failure of justice, is therefore one which necessarily has to be appreciated in the light both of the particular case and of the judgment as a whole." (Advisory Opinion of the International Court of Justice of 12 July 1973 on the Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, § 95, I.C.J. Reports, 1973, pp. 210-211)

[38] Paragraph 53, third sub-paragraph, of the judgment.

[39] Paragraph 53, fourth sub-paragraph, of the judgment.

[40] Paragraph 53, fifth sub-paragraph, of the judgment.

[41] See paragraph 29 of the judgment.

[42] Paragraph 54 of the judgment

[43] See, mutatis mutandis, the Le Compte , Van Leuven and De Meyere judgment previously cited, pp. 25-26, § 59.

[44] Paragraph 1 of the judgment.

[45] See the Le Compte , Van Leuven and De Meyere judgment previously cited, loc. cit., and the Albert and Le Compte judgment previously cited, p. 19, § 35.

[46] Paragraph 59 of the judgment.

[47] Paragraph 62 of the judgment.

[48] Paragraph 61 of the judgment.

[49] Judgment of 18 October 1982 , Series A no. 54, p. 8, § 16.

[50] Judgment of 24 October 1983 , Series A no. 68, p. 6, § 8.