CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 juin 2000

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margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s76CF415B { page-break-before:always; clear:both } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }     SECOND SECTION     CASE OF COËME AND OTHERS v. BELGIUM     (Applications nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96)     JUDGMENT     STRASBOURG     22 June 2000       FINAL     18/10/2000         In the case of Coëme and Others v. Belgium, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Mr   C.L. Rozakis , President,   Mr   A.B. Baka ,   Mr   B. Conforti ,   Mrs   F. Tulkens ,   Mr   P. Lorenzen ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   E. Levits , judges, and Mr E. F ribergh , Section Registrar , Having deliberated in private on 30 March, 6 April and 30 May 2000, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in five applications (nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96) against the Kingdom of Belgium lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Belgian nationals. The first of these applications was lodged by Mr Guy Coëme on 23 July 1996 and registered on 2 August 1996 under file no. 32492/96. Before the Court the applicant was represented by Mr P. Lambert, of the Brussels Bar. The second application was lodged by Mr Jean-Louis Mazy on 1 August 1996 and registered on 7 August 1996 under file no. 32547/96. Before the Court the applicant was represented by Mr O. Klees, of the Brussels Bar. The third application was originally lodged by Mr Jean-Louis Stalport on 5 August 1996 and registered on 7 August 1996 under file no. 32548/96. Mr   Stalport died on 7 May 1997. By a letter of 4 July 1997 his wife, born in 1951, and his daughters, born in 1976 and 1979, who are all three Belgian nationals and are his sole heirs, announced their intention of pursuing the application and designated as the lawyers who would represent them the counsel chosen by their late husband and father – Mr J. Cruyplants, Mr   R.   De   Baerdemaeker and Mr O. Louppe, of the Brussels Bar. The fourth application was lodged by Mr Auguste Merry Hermanus on 8   August 1996 and registered on 27 September 1996 under file no.   33209/96. Before the Court the applicant was represented by Ms   N.   Cahen, Ms F. Maussion and Mr R. de Béco, of the Brussels Bar. The fifth application was lodged by Mr Camille Javeau on 31 July 1996 and registered on 27 September 1996 under file no. 33210/96. Before the Court the applicant was represented by Mr T. Delahaye, Mr P. Mayence, Ms   M.-F. Dubuffet and Mr P. Erkes, of the Brussels Bar. The Belgian Government (“the Government”) were represented by their Agent, Mr C. Debrulle, Director of Administration at the Ministry of Justice. Relying on Articles 6, 7 13 and 14 of the Convention, the applicants complained of criminal proceedings brought against them in Belgium. Mr   Coëme, who was a government minister at the time when the offences with which he was charged were committed, was committed for trial in the Court of Cassation pursuant to Article 103 of the Constitution, as worded before the constitutional revision of 12 June 1998, which provided that only the Court of Cassation, sitting as a full court, was empowered to try ministers. The other applicants were committed for trial in the same court on account of the connection between the offences they had been charged with and those of which Mr Coëme stood accused. On 5 April 1996 the Court of Cassation convicted all five applicants. 2.     On 7 April 1997 the Commission decided to give notice of the applications to the Government. With regard to the first application, the Commission invited the Government to submit their observations on the complaint concerning the lack of implementing legislation governing trial procedure in the Court of Cassation and those based on the fact that the Court of Cassation, applying Article   21 of the Law of 17 April 1978, as amended by Article 25 of the Law of 24 December 1993, had retrospectively applied Article 103 of the Constitution, as amended on 5 May 1993, and had extended the scope of the trial to include offences and charges not covered by the committal decision of the House of Representatives. The Government submitted their observations on 25 September 1997 and the applicant replied on 12   November 1997. In connection with its examination of the second application, the Commission invited the Government to submit their observations on the complaints concerning the decision to commit the applicant for trial in the Court of Cassation even though he had never held office as a minister and the fact that there was no implementing legislation governing trial procedure in the Court of Cassation, the complaint that the applicant had not had adequate time and facilities for the preparation of his defence and the complaint based on the refusal to submit a preliminary question to the Administrative Jurisdiction and Procedure Court. The Government submitted their observations on 25 September 1997 and the applicant replied on 5 November 1997. With regard to the third application, the Commission invited the Government to submit their observations on the complaints concerning the decision to commit the applicant for trial in the Court of Cassation even though he had never held office as a minister and the fact that there was no implementing legislation governing trial procedure in the Court of Cassation, and the complaint that the applicant had not had adequate time and facilities for the preparation of his defence. The Government were also invited to submit observations on the complaints that the Court of Cassation had refused to submit a preliminary question to the Administrative Jurisdiction and Procedure Court and had taken certain statements made by the applicant when he was interviewed on 16 March 1994 to constitute a confession. The Government submitted their observations on 25 September 1997 and the applicant's heirs replied on 19 December 1997. With regard to the fourth application, the Commission invited the Government to submit their observations on the complaints concerning the decision to commit the applicant for trial in the Court of Cassation even though he had never held office as a minister and the fact that there was no implementing legislation governing trial procedure in the Court of Cassation, and the complaints that the Court of Cassation had applied Article 21 of the Law of 17 April 1978, as amended by Article 25 of the Law of 24 December 1993, had refused to submit a preliminary question to the Administrative Jurisdiction and Procedure Court and had not heard the case within a reasonable time. The Government submitted their observations on 25 September 1997 and the applicant replied on 19 December 1997. With regard to the fifth application, the Commission invited the Government to submit their observations on the complaints concerning the decision to commit the applicant for trial in the Court of Cassation even though he had never held office as a minister and the fact that there was no implementing legislation governing trial procedure in the Court of Cassation, the complaint that the applicant had not had adequate time and facilities for the preparation of his defence and the complaint based on the refusal to submit a preliminary question to the Administrative Jurisdiction and Procedure Court. The Government submitted their observations on 25   September 1997 and the applicant replied on 19 December 1997. 3.     Following the entry into force of Protocol No. 11 to the Convention on 1   November 1998, and in accordance with Article 5 § 2 thereof, the case was examined by the Court. 4.     In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court, Mr L. Wildhaber, assigned the case to the Second Section. The Chamber constituted within that Section included ex officio Mrs F. Tulkens, the judge elected in respect of Begium (Article 27 § 2 of the Convention and Rule 26 § 1 (a)), and Mr C.L. Rozakis, President of the Section (Rule 26 §   1   (a)). The other members designated by the latter to complete the Chamber were Mr B. Conforti, Mr P. Lorenzen, Mrs M. Tsatsa-Nikolovska, Mr A.B. Baka and Mr E. Levits (Rule 26 § 1 (b)). 5.     On 8 December 1998 the Chamber decided to join the applications (Rule 43 § 1). It then decided to invite the parties to attend a hearing to make oral submissions on the admissibility and merits of certain complaints raised in the applications. 6.     In accordance with the decision of the President of the Chamber, the hearing took place in public in the Human Rights Building, Strasbourg, on 2   March 1999.   There appeared before the Court: (a)   for the Government Mr   J. Lathouwers , Deputy Legal Adviser,     Head of Department, Ministry of Justice,   Agent , Mr   F. Herbert , of the Brussels Bar, Mr   F. de Visscher , of the Brussels Bar,   Counsel ; (b)   for the applicants (for Mr Coëme) Mr   P. Lambert , of the Brussels Bar,   Counsel , Mr   M. Verdussen , Lecturer     at the Catholic University of Louvain,   Adviser , (for Mr Mazy) Mr   O. Klees , of the Brussels Bar,   Counsel , (for the heirs of Mr Stalport) Mr   J. Cruyplants , of the Brussels Bar, Mr   R. De Baerdemaeker , of the Brussels Bar, Mr   O. Louppe , of the Brussels Bar,   Counsel , (for Mr Hermanus) Ms   N. Cahen , of the Brussels Bar, Mr   R. de Beco , of the Brussels Bar,   Counsel , (for Mr Javeau) Ms   M.-F. Dubuffet , of the Brussels Bar, Mr   P. Erkes , of the Brussels Bar,   Counsel .   The Court heard addresses by Mr de Visscher, Mr Klees, Mr Verdussen, Mr Lambert, Ms Cahen, Mr Erkes, Ms Dubuffet and Mr Cruyplants. 7.     At the close of the deliberations held after the hearing on 2 March 1999 the Chamber declared the applications admissible as regards the complaints concerning: –     the lack of implementing legislation governing procedure for the trial of ministers pursuant to Article 103 of the Constitution and the resulting difficulties for the organisation of the applicants' defence; –     application of Article 21 of the Law of 17 April 1978, as amended by Article 25 of the Law of 24 December 1993; –     the decision to commit for trial in the Court of Cassation the four applicants who had never held office as ministers; –     the Court of Cassation's refusal to submit to the Administrative Jurisdiction and Procedure Court preliminary questions concerning the connection between the offences and the extension of the limitation period; –     the allegation that the Court of Cassation had taken certain statements made by Mr Stalport when he was interviewed as a witness on 16 March 1994 to constitute a confession; –     the allegedly excessive length of the proceedings against Mr   Hermanus; and –     the allegation that the Court of Cassation was structurally and traditionally under the influence of the Principal Public Prosecutor's Office there. 8.     On 24 March 1999 the text of the decision on admissibility [1] was communicated to the parties. The parties were also invited to submit observations on the complaint that the Court of Cassation was structurally and traditionally under the influence of the Principal Public Prosecutor's Office there, raised in applications nos. 32547/96 and 32548/96. They were further informed of the possibility of submitting additional observations on the merits of the case. The applicants were in addition invited to provide details of their claims for just satisfaction (Rule 60 § 2). 9.     The applicants submitted their observations on the merits of the case on 4 May 1999, and the Government submitted theirs on 21 May 1999. The applicants submitted additional observations on 9 July 1999. Memoranda on the subject of just satisfaction were filed on 11 May 1999 (application no.   32492/96), 21 May 1999 (applications nos. 32547/96, 32548/96 and 33209/96) and 25 May 1999 (application no. 33210/96). The Government replied on 29 July 1999. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     Mr Coëme, a Belgian national born in 1948, is a former member of the House of Representatives and a former minister. Mr Mazy, a Belgian national born in 1955, is an economist. Application no. 32548/96 was originally lodged by Mr Stalport, a Belgian national born in 1950, who was then the director-general of Belgian Radio and Television. Following Mr Stalport's death on 7 May 1997 his wife and his daughters announced their intention of pursuing the application in a letter of 4   July 1997. Mr Hermanus is a Belgian national, born in 1944. A civil servant, he was deputy mayor of the municipality of Jette from 1983 to 1986 and the chairman of the Brussels-Capital Regional Development Board (“the SDRB ”) from 1989 to 1996. Mr Javeau, a Belgian national born in 1943, is a psychologist. 11.     In 1984 Mr Javeau, an employee of the “I” association, was appointed as its manager. The object of the association was to carry out market research and opinion polls, and to create and develop computer software. The market research included surveys requested and paid for by third parties in both the private and public sectors (such as the State, public establishments, political parties, etc.). The association also carried out market research and opinion polls on its own initiative. On 22 August 1989, while Mr Javeau was in the United States, he was dismissed for serious misconduct. 12.     On 25 August 1989 an investigating judge at the Brussels Court of First Instance was instructed to conduct an investigation into some of “I”'s activities. 13.     On 26 August 1989 Mr Javeau was placed in pre-trial detention on his return from the United States. He was suspected of using forged invoices to overcharge “I”'s clients for surveys the association had undertaken to carry out on the basis of contracts with the Belgian State, the Walloon Region and the French-speaking Community, among others. It was alleged that he personally had obtained a financial gain from the higher fees paid to the association in consequence and had allowed others to do so. Those alleged to have benefited from these transactions included prominent politicians. 14.     In October 1989 one V., “I”'s deputy manager, was also placed in pre-trial detention. He was released in November 1989, as was Mr Javeau. 15.     On 28 August 1989 Mr Hermanus lodged a complaint against a person or persons unknown in connection with “slanderous rumours [being spread] about [him] in relation to the dismissal of Mr C. Javeau”. In this complaint he gave detailed explanations about two surveys he had requested “I” to carry out, in his capacity as secretary-general of the Ministry of the French-speaking Community of Belgium. These surveys, one of which had allegedly not been carried out, had been requested from “I” in two contracts dated 16 and 27 November 1987, the bills for which had been paid by the French-speaking Community on 20 January and 29 February 1988 respectively. 16.     In the context of the proceedings brought against Mr Javeau, among others, the investigating judge appointed a court expert to ascertain how the fraud had been perpetrated, who was responsible for it and who had benefited from it. The expert was instructed in particular to report on the association's bookkeeping, to study its annual accounts, to determine to what extent, if at all, it was engaged in activity of a commercial nature, to identify the documents whose authenticity was in doubt and to note any evidence of fraud within the limits of the prosecution submissions and any further submissions which might be made. 17.     The expert filed a preliminary report in December 1989. 18.     At the prosecution's request, the investigating judge commissioned further expert reports. One of these was filed in 1990. 19.     On 28 August 1991 searches were carried out at the home of Mr   Hermanus and the offices he occupied as deputy mayor of Jette. 20.     On 10 June 1992 the Audit Commission (an independent body responsible for detecting frauds or offences committed in connection with the operation of public services, supervising public works or supply contracts and verifying how public subsidies have been used) interviewed Mr Hermanus. A report on the proceedings was drawn up (no. 2337). Mr   Hermanus was questioned by the Audit Commission on a number of further occasions in 1992 and 1993. 21.     On 8 June 1993 an Audit Commission investigator questioned Mr   Javeau about certain contracts entered into by “I”, particularly three contracts for 1,200,000 Belgian francs (BEF) each signed by Minister M. which concerned businesses in the Brussels area which were geared for exports, operating as sub-contractors or receiving subsidies from the Brussels Region (files nos. IN B/40, B/50 and B/60). He was asked in particular whether the intention had not been “in effect to scrape together all available funds” before Minister M. left the Brussels Region and whether a preliminary study had not been split into three contracts in order to evade the scrutiny of the Treasury inspector. According to the interview record, Mr Javeau replied: “Yes, in effect, we signed those contracts at the end of Minister M.'s term of office in the Brussels Region as I have just explained, but I think that splitting the work between three contracts was done simply to save time. The new minister-president had to be installed and a new procedure would have led to further delays. If we had not severed the contract we would indeed have had to submit it to the Treasury inspector for approval, and in the event of an unfavourable opinion we would have had to go up as far as the Cabinet, all for a contract that M. was determined to get through whatever level of the procedure it had to go to.” 22.     The final report containing the expert opinions ran to six volumes which were filed between December 1993 and March 1994. 23.     Reports concerning the additional expert opinions requested were filed in January and February 1995. 24.     On 2 February 1994 the investigating judge charged Mr Hermanus with misappropriation, fraud, forgery, uttering forged documents and accepting bribes as a civil servant. 25.     On 7 February 1994, as the investigation appeared to have uncovered evidence of offences committed by prominent politicians who, because of ministerial or parliamentary immunity, could not be prosecuted or investigated except under the conditions laid down in Articles 59, 103 or 120 of the Constitution (concerning members of the House of Representatives or Senate, ministers and members of Community or Regional Councils respectively), the investigating judge sent a copy of the file in the meantime to the Principal Public Prosecutor's Office at the Brussels Court of Appeal. 26.     The Principal Public Prosecutor ( procureur général ) at the Brussels Court of Appeal decided that there did indeed appear to be evidence that offences had been committed by eleven prominent politicians protected by ministerial or parliamentary immunity, including Mr Coëme and Minister   M. 27.     On 16 March 1994 Mr Stalport was interviewed, as former head of the private office of Minister M., by two civil servants belonging to the investigation branch of the Audit Commission, acting pursuant to instructions given by the investigating judge handling the proceedings against Mr Javeau. This interview mainly concerned the relations between Mr Javeau and the private office of Minister M., and the working practices of the private office. It concentrated on three contracts dated 15 June 1989 between the Brussels Region and “I”. The verbatim record of the interview records this part of the proceedings as follows: “ Q [ Question ]     On 17 May 1989 Mr Javeau sent the private office a draft contract for a preliminary study to be carried out among small and medium-sized businesses in the Brussels area for a total fee of BEF 4,800,000 net of VAT. The study was intended to produce a list of businesses – geared for exports; – operating as sub-contractors; – receiving subsidies from the Brussels Region. A few days later you informed Javeau that his draft contract had been transmitted to the administration for scrutiny (appendices 116 to 122 of the same report). Did you have instructions to do that? Did you inform yourself about the possibility of a call for tenders for the creation of such a data bank? A [ Answer ]     I had no instruction to do that. As for finding out about calls for tenders, I left that to the administration, for the reasons I have already mentioned. ... Q     What is the procedure to be followed where the Treasury inspector's opinion on a draft contract is unfavourable? A     I now know that it was possible to apply to the regional government for arbitration. At the time, I was unaware of that procedure and nobody told me about it. I was determined to get things moving and the opinion of the Treasury inspector, L. in this case, concentrated very much on the regulations and was little concerned with financial viability. In substance, I was irked by the inflexibility and resistance to change of the Treasury inspectorate. In my private office I was advised to do things differently, namely to split the contract into three parts so that the fees would be lower than the BEF 1,250,000 threshold triggering compulsory scrutiny by the Treasury inspector. I must emphasise that, despite doing things that way, I once again submitted the subdivided project to the Treasury inspector, but the second time he gave a favourable opinion. Q     Here you see three contracts signed on 15 June 1989 between the Brussels Region, represented by Minister M., and the “I” association, represented by Mr Javeau (see appendices 100 to 111 of the expert report). Each of these contracts concerns a preliminary study to be carried out among small and medium-sized businesses in the Brussels area to determine which of them would be interested in appearing in a data bank as described in the initial project. Each of these contracts concerns one of the three above-mentioned criteria. They represent a total cost for the preliminary study of BEF 3,600,000 net of VAT, as compared with the initial project, which would have cost BEF 4,800,000 net of VAT. Did not that reduction result from the need to split the initial project into three, since there were three criteria, while at the same time making sure that none of the three contracts exceeded BEF 1,250,000 net of VAT, the threshold for intervention by the Treasury inspector? A     I wish to make it clear that I once again requested the opinion of the Treasury inspectorate even though in each case the fee was below the BEF 1,250,000 threshold. I would also point out that splitting the project into three led to a significant reduction in cost amounting to 25% of the overall fees. Q     Does the fact that Mr Javeau agreed to do the same work for BEF 3,600,000 not show that the initial contract accepted by the private office and the administration was overpriced? A     Your point about the initial price is not wrong, but the agreement on BEF   3,600,000 was probably the result of a tripartite or quadripartite agreement between the private office, the administration, the Treasury inspectorate and “I”. That is a guess, because I can't remember the precise details of that transaction now. ... Q     Here is the commitment slip for one of the contracts signed with “I” on 15 June 1989. This document bears the signature of Treasury inspector L., dated 30 June 1989, authorising the expenditure. Could Mr L. have opposed implementation of the contract, his opinion not having been sought, it would appear, before it was signed? A     I would observe on this point that I was not obliged to submit the file to Mr L. in view of the size of the fee. But as I was working more with the administration than with the private office, the administration automatically sent the ad hoc expenditure commitment slip to the Treasury inspector for authorisation. In my opinion, Mr L. must have received the contract before it was signed. Q     When these three contracts were received the administration gave them only one commitment number, which was the number of one of them (see appendices 130 and 131 of the same report). Here is another series of documents which indicate that the administrative authorities wrongly thought they were dealing with a single contract, so much so that when “I” sent them three invoices for part-payment of each of the three contracts Mr P. informed Mr Javeau that he thought “I” must have made a mistake. In fact, he requested three original copies of what he believed to be a single invoice and these copies could not bear three different numbers (see appendices 130 to 136 of the same report). So Mr L. could only have authorised expenditure in respect of one commitment slip relating to a single contract? A     Yes, that's true. But it's not my fault. The paperwork was entirely a matter for the administration. ... Q     As regards approval of expenditure by the Treasury inspectorate in respect of contracts where the fee was lower than its intervention threshold, was it still possible for the inspector to give his views on the advisability of proceeding? A     It is true that from the administrative-law point of view his approval does not seem to be required for the commitment of such sums. However, as far as I am concerned, and in view of my lack of technical experience of budgetary matters, I preferred on all occasions to seek the approval of the Treasury inspector, seeing that for me this represented a guarantee of lawfulness from the Minister's budgetary adviser. Therefore, if Mr L. had formally refused to sign the commitment slip, I would not have gone ahead. You tell me that there is a contradiction between what I am telling you and the splitting of the original project refused by Mr L. My reply is that I was advised to do things that way and that I made sure that Mr L. approved the three new contracts. Having read through the above record, [Mr Stalport] stands by his statements and adds his signature to ours.” 28.     By a 75-page letter of 30 June 1994 the Principal Public Prosecutor at the Brussels Court of Appeal transmitted to the President of the House of Representatives “a file disclosing, in [his] opinion, evidence of offences committed by Mr ... Guy Coëme ..., a former minister”. The letter went on to say: “These offences include forgery, uttering forged documents, fraud, misappropriation and corruption, committed as co-principal, as defined in Articles 66, 193, 196, 197, 213, 214, 246, 248, 491 and 496 of the Criminal Code. The acts concerned, which could be classified differently but would still constitute offences, ... were apparently committed at times when [he held] ministerial office ... Consequently, the provisions of Article 103 of the Constitution are applicable.” After a summary of the case, the file set out the facts and the evidence against Mr Coëme regarding offences said to have been committed between 30 March 1981 and 8 December 1989. The letter implicated another minister, a former minister and eight other members of parliament, although the Principal Public Prosecutor considered that in respect of six of these prosecution was probably time-barred. The Principal Public Prosecutor also mentioned a general problem concerning limitation of prosecution arising from the fact that under Article 25 of the Law of 24 December 1993, which had come into force on 31   December 1993, the limitation period had been extended from three to five years and the change applied to “all prosecutions brought before the Law's entry into force which have not yet become time-barred by that date”. The Principal Public Prosecutor accordingly submitted the following opinion: “In the present case all the offences committed before 1 January 1988, at least, are subject to limitation. In respect of the offences committed after that date the first three-year time-limit, expiring on 1 January 1991, began to run. The first procedural step causing time to begin to run again occurred in August 1989, more specifically on 25 August 1989, when the information in writing was laid before the investigating judge.” The Principal Public Prosecutor sent this report to the President of the House of Representatives to enable the House to “exercise the prerogatives conferred on it by Article 103 of the Constitution”. He further requested, in any event, the lifting of the parliamentary immunity of the three ministers implicated, including Mr Coëme and Minister M. 29.     The House of Representatives, sitting on 1 July 1994 in plenary session, set up a special committee composed in accordance with the proportional representation rule. The special committee took evidence at separate hearings from the investigating judge, the court expert and Mr   Coëme, assisted by his lawyers. After deliberating on 8 July 1994, the special committee made a recommendation urging the House of Representatives to commit Mr Coëme for trial in the Court of Cassation, but not the other two ministers. With regard to Minister M., it expressed the following opinion: “The special committee, rejecting all other legal argument put forward, decides to recommend that the House of Representatives should find – that [Minister M.] should not be committed for trial in the Court of Cassation in connection with contracts nos. IN B040, 050 and 060, and – that in connection with the other offences the House of Representatives is not required to give a ruling under Article 103 of the Constitution.” 30.     On 14 July 1994 this recommendation was adopted in exactly the same terms by the House of Representatives by 140 votes to 39, with 2 abstentions. 31.     After the House of Representatives had reached this decision, the Principal Public Prosecutor at the Court of Cassation asked the President of the Court of Cassation, in the interests of the proper administration of justice, to appoint a judge of the Court, as a matter of urgency, as investigating judge, with the task of extending and continuing the investigation of the facts in close collaboration with the investigating judge dealing with the case. 32.     By a decision of 21 July 1994 the President, allowing this application, appointed Judge F. to investigate the case. 33.     On 9 May 1995 Judge F. sent the case file to the Principal Public Prosecutor at the Court of Cassation, so that the latter could make his submissions. 34.     As a result of elections held in April 1995 Mr Hermanus sat as a member of the Council of the Brussels-Capital Region from 6 June 1995 onwards. On 26 June 1995 the Principal Public Prosecutor at the Brussels Court of Appeal sent a letter to the Council of the Brussels-Capital Region asking it to inform him, “regard being had to the provisions of Articles 59 § 3 and 120 of the   Constitution”, whether it considered it necessary “to call for a stay of the proceedings brought when Mr Hermanus had not yet been invested with the functions [of a regional councillor]”. On 10 July 1995 the Council decided to “authorise” proceedings against Mr     Hermanus involving investigation of the case before a criminal division of the Brussels Court of First Instance and to “reserve its decision regarding all other forms of proceedings until it [had] received fuller information, so as to be able to assess whether these [were] compatible with the continuance in office of the member concerned”. On 25 September 1995 the Principal Public Prosecutor at the Court of Cassation asked the President of the Council of the Brussels-Capital Region “to be so good as to request the Council of the Brussels-Capital Region to give a ruling as early as possible on the present application for the authorisation of proceedings against Mr Hermanus in the Court of Cassation”. On the advice of its Criminal Proceedings Committee, the Council decided at its sitting on 18 October 1995 to give the authorisation requested, considering that “connection between the offences [had been] established by the decision of 22 September 1995 of the Committals Division of the Brussels Court of First Instance, reached after the Council's decision of 10 July 1995 [and that] the questions of connection between the offences, the proportionality between the offences and the consequences of committal for trial in the Court of Cassation, and the reasonableness of the time taken to investigate the case [were] matters for the trial court on which the Criminal Proceedings Committee [did] not have to rule”. 35.     In the meantime the Committals Division of the Brussels Court of First Instance had decided, by an order of 22 September 1995, in respect of which the parties were not permitted to make submissions, to take the case out of the hands of the investigating judge it had been assigned to. 36.     In addition to Mr Coëme, the prosecuting authorities at the Court of Cassation decided to prosecute before that court seven other defendants, including the other four applicants. They considered that the investigation had revealed a system for the illegal financing of the activities of certain politicians. This involved public authorities entering into contracts for the provision of over-priced services so that the provider of the services could transfer a portion of the sums paid to third parties in order to cover the costs of the activities in question. The practices concerned consisted in negotiating and signing contracts for various opinion polls or surveys to be conducted mainly by “I” for the “benefit” of government ministries. The prices stipulated in these contracts were too high in relation to the real cost of the surveys carried out and their likely benefits. In addition, care had been taken to avoid the competitive procedure laid down for contracts entered into by the administrative authorities, which might have prevented “I” from winning some of these contracts, and internal checks carried out by the administrative authorities, mainly by Treasury inspectors, which might have revealed the fact that some of them were over-priced. In order to do so, care had been taken to ensure that the thresholds which triggered application of the regulations and circulars relevant to public works and supply contracts and of the administrative authorities' internal control procedures were not exceeded. The prosecuting authorities also accused some defendants (including Mr   Javeau) of obtaining the payment of certain fees by false pretences. Lastly, they considered that although two of the applicants, Mr Stalport and Mr Mazy, had obtained no financial gain from these contracts, they had taken part in drawing them up. 37.     At 11 a.m. on 3 November 1995 the Principal Public Prosecutor at the Court of Cassation held a meeting with the lawyers of five of the persons under investigation, including Mr Coëme and Mr Javeau, to inform them of the measures taken for organisation of the trial. He handed them copies of the summons he intended to serve on their clients and allegedly suggested that the case should come on in early January 1996. When the lawyers protested, he apparently put off the trial until 5 February 1996, despite the reservations they expressed about the shortness of the time they had been given to prepare their clients' defence. He also allegedly told them that the trial in the Court of Cassation would follow the procedure of the ordinary criminal courts. Mr Stalport was not invited to this meeting. He explained that at that time he had not consulted a lawyer, not considering himself to be implicated. 38.     By summonses served between 8 and 15 November 1995 the eight persons under investigation by the prosecuting authorities at the Court of Cassation were summoned to appear in that court on 5 February 1996, to answer various charges relating to offences allegedly committed in connection with public supply contracts awarded to “I”, at a time when Mr   Coëme was a member of the government. Mr Coëme was the only defendant to whom Article 103 of the Constitution applied; the others were summoned, pursuant to Articles 226 and 227 of the Code of Criminal Investigation, on account of the connection between the offences they stood accused of and the charges Mr Coëme had to answer. 39.     By a summons served on 10 November 1995 Mr Stalport was summoned to appear in the Court of Cassation to answer the charges of forgery, accepting a bribe as a civil servant and fraud committed in connection with the allocation of public contracts with which he had been associated as head of the private office of Minister M., whom the House of Representatives had not committed for trial in the Court of Cassation. According to the summons, he stood accused of the following offences: “A.     the first (Mr Coëme), second (Mr Javeau), third (Mr V.), fourth (Mr   Hermanus), fifth (Mr Stalport), sixth (Mr H.), and seventh (Mr Mazy) being a civil servant or public officer or the accomplice of a civil servant or public officer, with fraudulent intent or the intention of causing harm, when making out official documents of his ministry, falsified their substance or circumstances, either by drafting contracts other than those allegedly drawn up by the parties, or by representing falsehoods as true facts, with a view to: ... 3.     the second (Mr Javeau) and the fifth (Mr Stalport) the fifth, being head of the private office of the Minister for the Brussels Region, with the fraudulent intent of making it possible for a contract to be awarded by circumventing the rules and procedures for public contracts and more especially with the intention of evading the scrutiny of the Treasury inspectors, substituted or caused to be substituted for a contract which had been turned down by the Treasury inspectors three contracts dated 15 June 1989, each for a sum lower than the threshold triggering intervention of the inspectorate, but which together had the same purpose as the one which had been turned down, namely research on small and medium-sized businesses; (contracts IN B 040, B 050 and B 060 – see in particular: RE, vol. IV, pp. 13 to 19 and annexes 100 to 111; C 5, f 2, p. 179; C 12, f 5, pp. 2 and 4).” 40.     On 18 January 1996 the lawyers of each of the defendants requested the Court of Cassation to put back the trial on the ground that it was impossible for them, in spite of all their efforts, to prepare their clients' defence satisfactorily. 41.     As soon as the trial began, on 5 February 1996, the President of the Court of Cassation announced that the case would be investigated in accordance with the provisions of Article 190 of the Code of Criminal Investigation. The hearing was given over to consideration of an application for an adjournment lodged by several defendants to give them the time they needed to be able to conduct their defence in accordance with their rights. The defendants concerned lodged pleadings to that end. By an interlocutory judgment of 6 February 1996 the Court of Cassation ruled that these defendants had had sufficient time to prepare their arguments regarding both the criminal and the civil aspects of the case. 42.     At the hearing on 6 February 1996 Mr Coëme filed a first pleading concerning the fact that no legislation had been enacted to implement Article   103 of the Constitution, despite the expressly stated intention of the National Congress. This legislative deficiency had caused the provision originally intended to be transitional, adopted by the National Congress to fill the legal vacuum – namely Article 134 § 1 of the Constitution, which had later become the transitional provision of Article 103 – to remain in force indefinitely. He submitted in the first place that although the constitutional revision of 5   May 1993 had replaced the words “and in so doing classify the offence and determine the appropriate sentence” in the transitional provision of Article 103 of the Constitution with “in the cases contemplated by the criminal law and applying the penalties laid down therein”, this constitutional revision could not apply retrospec