CEDH · CASELAW;CLIN;ENG — 22 juin 2000

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Belgium - 32492/96, 32547/96, 32548/96 et al. Judgment 22.6.2000 [Section II] Article 6 Criminal proceedings Article 6-1 Tribunal established by law Special procedure for Ministers before the Court of Cassation applied to others: violation   Article 7 Article 7-1 Retroactivity Application of new law extending longer prescription period for less serious crimes to proceedings started before its entry into force: no violation   Facts : In 1989 criminal proceedings were opened against Mr Javeau, who was suspected of fraud and corruption between 1981 and 1989, when he ran the association “I”, whose activities included carrying out market surveys and opinion polls. During the judicial investigation both Mr Javeau and Mr Stalport were heard. In 1994 the prosecution requested the Chamber of Representatives to lift Mr Coëme’s parliamentary immunity, since he was implicated in certain of that association’s illegal activities while occupying a post as minister. Pursuant to Article 103 of the Constitution on judicial proceedings against ministers, the Chamber of Representatives decided that Mr Coëme should be prosecuted before the Court of Cassation sitting as a full court, which under that article was the only court with jurisdiction to try a minister. The other applicants were dealt with under the same procedure, before the Court of Cassation, by virtue of the connected offences principle provided for in the Code of Criminal Investigation, although none of them was a minister. At the hearing before the Court of Cassation on 5 February 1996, it was announced that the procedure to be followed would be the ordinary criminal procedure. On 12 February 1996 an interlocutory judgment was read out, in which the Court of Cassation declared that the matter had been properly brought before it and that it had jurisdiction to deal with it; in the same judgment the court stated that the rules governing ordinary criminal procedure would be applied only in so far as they were compatible with the provisions governing the procedure before the Court of Cassation sitting as a full court. The Court of Cassation also refused to request the Administrative Jurisdiction and Procedure Court to give a preliminary ruling on two questions submitted by two of the applicants, one concerning the connected offences principle taken from the Code of Criminal Investigation and applied to the instant proceedings and the other referring to the application to those proceedings of a new statute, the Law of 24 December 1993, which extended from three to five years the period after which prosecution for minor offences ( délits ) became time-barred. The Court of Cassation delivered its judgment on 5 April 1996, finding the applicants guilty and imposing various penalties. Law : Article 6: The absence of an implementing law: (a) the situation of Mr Coëme: There was no law implementing Article 103 of the Constitution in force when the applicants were summoned to stand trial before the Court of Cassation for the offences with which they were charged. However, Mr Coëme, who was legally represented, could not fail to be aware that the ordinary criminal procedure would probably followed; that, moreover, was confirmed by the Principal President of the Court of Cassation at the opening of the hearing of 5 February 1996. In its interlocutory judgment of 12 February 1996, however, the Court of Cassation stated that the rules governing ordinary criminal proceedings would be applied only in so far as they were compatible with the provisions governing proceedings before the Court of Cassation sitting as a full court. Thus the parties were unable to ascertain in advance precisely what procedure would be followed or to foresee in what way the Court of Cassation would deem it necessary to amend or modify the provisions that determine the normal course of a criminal trial. The Court of Cassation therefore introduced an element of uncertainty which rendered the defence’s task difficult. The primary reason for having rules of procedure is to protect the person charged against the risks of misuse of power; the defence is therefore more particularly likely to suffer from any lacunae and imprecision in those rules. Thus Mr Coëme was placed in a situation in which he was in a clear disadvantage in comparison with the prosecution, which deprived him of a fair trial. (b) The situation of the other applicants: The applicants recalled that neither the Constitution nor the law conferred jurisdiction on the Court of Cassation in criminal proceedings against persons other than a minister. Although Article 103 of the Constitution provides, exceptionally, that ministers are to be tried by the Court of Cassation, there was no provision under which its jurisdiction might be extended to accused persons other than ministers in respect of offences connected with those with which the ministers were charged. Although the application of the connected offences rules laid down in the code of Criminal investigations was foreseeable in the light of academic opinion and the case-law, those indications could not justify the conclusion in the instant case that the rule on connection was provided for by law, especially since the Court of Cassation, the supreme judicial authority, decided that the summoning of persons who had never held ministerial office was based on Article 103 of the Constitution rather than on the Code of Criminal Investigation or the Judicial code. Since it was established that the connection rule was not provided for by law, the Court of Cassation could not be regarded as a tribunal established by law to try the four applicants. Conclusion : violation (unanimously). The questions referred to the Administration and Jurisdiction Court for a preliminary ruling: The Convention does not guarantee as such that a case must be referred by a national court, as a preliminary issue, before another national or international court or tribunal. The right to have a preliminary issue determined by a court is not absolute, even where the law confers exclusive jurisdiction in a particular legal area on one court and provides that the other courts are to refer to it, without exception, all questions relating thereto. However, it is not excluded that, in certain circumstances, a refusal to do so by a national court sitting at last instance may infringe the principle of a fair procedure, especially if such a refusal appears to be arbitrary. That was not the case here, since the Court of Cassation took into account the applicants’ complaints and their request that the questions be referred to the Administrative Jurisdiction and Procedure Court and then determined the case by giving decisions which were sufficiently reasoned and did not appear to be arbitrary. Conclusion : no violation (four votes to three). The independence and impartiality of the Court of Cassation: There was no justification for the applicants’ concerns as to the lack of independence and impartiality of the Court of Cassation. Conclusion : no violation (4 votes to 3). The hearing of Mr Stalport: Mr Stalport’s complaint referred essentially to the fact that statements taken while he was being examined were used at his trial. In the light of the statements referred to by the Court of Cassation, that court apparently relied on the statements reported in the record of his examination and not on an admission which emerged from the record of the applicant’s examination. It cannot therefore be concluded that the Court of Cassation found Mr Stalport guilty on the basis of evidence obtained against his will, by constraint or by bringing pressure to bear on him. Conclusion : no violation (4 votes to 3). The reasonable length of the proceedings as regards Mr Hermanus: The period to be taken into consideration lasted four years, seven months and eight days. The case was manifestly complex and examination of it in the light of the parties’ observations has not disclosed any period of inactivity attributable to the judicial authorities. In the exercise of their discretion, the judicial authorities decided to examine the facts alleged against the applicant together with those alleged against the other applicants. They took the risk that the applicant’s committal for trial would be delayed, but did so in the interest of the proper administration of justice. The judicial authorities were thus able to strike a fair balance between the requirements of dispatch and those of the proper administration of justice. Conclusion : no violation (unanimously). Article 7: In its judgment of 5 April 1996 the Court of Cassation held that, as regards Mr Coëme and Mr Hermanus, the offences of fraud and uttering forged documents, which it classified not as serious offences ( crimes ), as provided for in the Criminal code, but, owing to what were deemed to be extenuating circumstances, as less serious offences ( délits ). In Belgian law the classification of an offence is determined according to the penalty imposed and not to the penalty applicable. The date of the judgment therefore had to be taken into account for the purpose of determining the point at which a prosecution became time-barred. The Court of Cassation therefore took into consideration the limitation period applicable to less serious offences. In applying the Law of 24 December 1993 immediately, the court held, after noting that the offences found to have been made out were not time-barred on the date on which the law entered into force, that the prescription period was five years from a measure causing time to begin to run anew that was lawfully taken before the first five-year period had expired. The solution adopted by the Court of Cassation was based on its case-law, according to which laws which alter its case-law are regarded as legislation on jurisdiction and procedure; it thus followed the generally recognised principle that, in the absence of express provisions to the contrary, laws on procedure apply immediately to proceedings that are under way. In the present case, the extension of the limitation period introduced by the Law of 24 December 1993 and its immediate application by the Court of Cassation had the effect of extending the period during which prosecutions could be brought in respect of the offences and were detrimental to the applicants. However, Article 7 cannot be interpreted as preventing the extension of limitation periods, by the effect of the immediate application of a law on procedure, when the offences have never been time-barred. The applicants were convicted for acts in respect of which the prosecution never became time-barred. Those acts constituted offences when they were committed and the penalties imposed were no heavier than those applicable at the material time. Nor had the applicants suffered, on account of the Law of 24 December 1993, greater harm than they would have faced at the time when the offences were committed. Conclusion : no violation (unanimously). Article 41: The court awarded 300,000 Belgian francs for non-pecuniary damage to Mr Mazy, Mr Hermanus and Mr Javeau, and to the heirs of Mr Stalport. It also awarded 400,000 Belgian francs to Mr Coëme and 760,000 Belgian francs to Mr Mazy, Mr Hermanus and Mr Javeau, and to the heirs of Mr Stalport, for costs and expenses.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes