CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 22 juin 2000

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .sBFC49883 { margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; text-align:justify } .s21B97EC1 { width:25.99pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s76CF415B { page-break-before:always; clear:both } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     454   22.6.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF COËME AND OTHERS v. BELGIUM   In a judgment delivered at Strasbourg on 22 June 2000 in the case of Coëme v. Belgium, the European Court of Human Rights held:   unanimously that there had been a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights in respect of Mr Coëme, in that the lack of implementing legislation governing the procedure for the trial of ministers under Article 103 of the Constitution had deprived him of a fair trial;   unanimously that it was not necessary to examine the complaints raised on that account under paragraphs 2 and 3 of Article 6 of the Convention;   unanimously that there had been a violation of Article 6 § 1 in that the Court of Cassation had not been a tribunal “established by law” within the meaning of Article 6 of the Convention to try Mr Mazy, Mr Stalport, Mr Hermanus and Mr Javeau;   unanimously that it was not necessary to examine the complaint raised on that account under Article 14 (prohibition of discrimination) of the Convention;   unanimously that it was not necessary to examine the complaint of Mr Mazy, Mr   Stalport, Mr Hermanus and Mr Javeau that no law on procedure had been enacted pursuant to Article 103 of the Constitution;   by four votes to three that there had been no violation of Article 6 § 1 of the Convention on account of the Court of Cassation’s refusal to submit the preliminary questions concerning the connection rule and extension of the limitation period to the Administrative Jurisdiction and Procedure Court;   unanimously that it was not necessary to examine the complaint under Article 13 (right to an effective remedy) concerning the refusal to submit the preliminary questions to the Administrative Jurisdiction and Procedure Court;   by four votes to three that there had been no violation of Article 6 § 1 of the Convention as regards the allegation that the Court of Cassation was not an independent and impartial tribunal;   by four votes to three that there had been no violation of Article 6 § 1 of the Convention as regards the interview with Mr Stalport;   unanimously that there had been no violation of Article 6 § 1 of the Convention as regards the length of the criminal proceedings against Mr Hermanus;   unanimously that there had been no violation of Article 7 (no punishment without law) of the Convention;   Under Article 41 (just satisfaction) of the Convention, the Court awarded 400,000 Belgian francs to Mr Coëme and 1,060,000 Belgian francs to Mr Mazy, to Mr Hermanus, to Mr   Javeau and to the heirs of Mr Stalport, for non-pecuniary damage and for costs and expenses.   1.   Principal facts   The case concerns five applications originally lodged by five Belgian nationals. Guy Coëme, who was born in 1948 and lives at Waremme, was formerly a member of the House of Representatives and a minister. Jean-Louis Mazy, who was born in 1955 and lives at Waterloo, is an economist. Jean-Louis Stalport, who was born in 1950, was formerly the Director-General of Belgian Radio and Television. He died on 7 May 1997 and his heirs – namely his wife, born in 1951, and his two daughters, born in 1976 and 1979, all Belgian nationals – expressed their intention of pursuing the application. Auguste Merry Hermanus was born in 1944 and lives in Brussels; a civil servant, he was deputy mayor of the municipality of Jette from 1983 to 1986 and Chairman of the Brussels-Capital Regional Development Board from 1989 to 1996. Camille Javeau, who was born in 1943 and lives in Brussels, is a psychologist.   The applications are directed against criminal proceedings which ended with the applicants’ conviction by the Court of Cassation, sitting as a court of trial and ruling at first and final instance. The Court of Cassation had jurisdiction to try the case on account of the fact that one of the applicants, Mr Coëme, was a Government minister at the time when the alleged offences were committed. Article 103 (formerly Article 90) of the Constitution provides: “The House of Representatives is empowered to indict ministers and commit them for trial in the Court of Cassation, which shall have sole jurisdiction to try them.” On the basis of that provision the House of Representatives had decided to commit Mr Coëme for trial at the Court of Cassation on 14 July 1994. The other applicants were summoned to stand trial before the Court of Cassation by the Principal Public Prosecutor’s Office at that court on account of the connection between the offences.   2.   Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 23 July, 1   August, 5 August, 8 August and 31 July 1996 respectively.   On 1 November 1998 the cases were transmitted to the Court, which decided to join them on 8 December 1998.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , András Baka (Hungarian), Benedetto Conforti (Italian), Françoise Tulkens (Belgian), Peer Lorenzen (Danish), Margarita Tsatsa-Nikolovska (FYROMacedonia), Egils Levits (Latvian), judges ,   and also Erik Fribergh, Section Registrar .   3.   Summary of the judgment [1]   Complaints   The applicants complained of breaches of their right to a fair trial before an independent and impartial tribunal established by law to determine criminal charges against them within a reasonable time, their right to have their guilt established according to law and their right to have adequate time and facilities for the preparation of their defence, all of which rights are set forth in Article 6 of the European Convention on Human Rights. They also submitted that the retrospective application of certain provisions of domestic law had infringed their right under Article 7 of the Convention. Mr Mazy, Mr Stalport, Mr Hermanus and Mr Javeau further complained that they had been directly summoned to stand trial in the Court of Cassation and that they had been victims of discrimination contrary to Article 14 of the Convention, both vis-à-vis Mr   Coëme and in relation to any other defendant.   Decision of the Court   Article 6 of the Convention   As regards the complaint that there was no legislation implementing Article 103 of the Constitution, the Court considered that it had to distinguish Mr Coëme’s position from that of the other applicants.   The Court noted that no legislation implementing Article 103 of the Constitution was in force when the applicants stood trial in the Court of Cassation. Yet Article 103 § 2 required Parliament to lay down the procedure before the Court of Cassation, and Article 139 of the Constitution of 7 February 1831 insisted on the need to do so as soon as possible. However, assisted by the advice of his lawyers, Mr Coëme had not been in total ignorance of the procedural rule which would be applied during the trial. He could not have been unaware that the procedure of the ordinary criminal courts would probably be followed. That procedure, however, had not been followed as such by the Court of Cassation, which in its interlocutory judgment of 12 February 1996 had announced that the rules governing the procedure in the ordinary criminal courts would be applied only in so far as they were compatible “with the provisions governing the procedure in the Court of Cassation sitting as a full court”. As a result, the parties had not been able to ascertain in advance all the details of the procedure which would be followed. They could not foresee in what way the Court of Cassation would amend or modify the provisions governing the normal conduct of a criminal trial, as established by the Belgian parliament. Even if the Court of Cassation had not made use of the possibility it had reserved for itself of making certain changes to the rules governing procedure in the ordinary criminal courts, the task of the defence had been made particularly difficult because it had not been known in advance whether a given rule would be applied in the course of the trial. That uncertainty had put Mr Coëme at a considerable disadvantage vis-à-vis the prosecution, so that he had been deprived of a fair trial for the purposes of Article 6 § 1 of the Convention.   As regards the other applicants, the Court noted that there was no provision extending the Court of Cassation’s jurisdiction to defendants other than ministers for offences connected with those for which ministers were standing trial. That the rules on connection would be applied had been foreseeable in the light of academic opinion and the case-law, but those indications could not justify the conclusion that the rule on connection was “established by law”, especially as the Court of Cassation had itself decided that summoning persons who had never held ministerial office to stand trial before it was the result of applying Article 103 of the Constitution rather than the provisions of the Code of Criminal Investigation or the Judicial Code. Since the connection rule had not been established by law, the Court considered that the Court of Cassation had not been a tribunal “established by law” within the meaning of Article 6 to try the other four applicants.   Having regard to those findings, the Court held that it was not necessary to consider the applicants’ allegations of breaches of other provisions of the Convention.   The Court did not find any violation of Article 6 as regards the other complaints raised by the applicants under that Article, namely that the Court of Cassation had not been wholly impartial and independent, that it had refused to refer preliminary questions to the Administrative Jurisdiction and Procedure Court, that it had had regard to certain statements made by Mr Stalport before any proceedings had been brought against him, and (in Mr   Hermanus’s case) that he had not been tried within “a reasonable time”.   Article 7 of the Convention   The Court noted that in its judgment of 5 April 1996 the Court of Cassation had found Mr   Coëme and Mr Hermanus guilty of, among other matters, forgery and uttering forgeries, classified as crimes ( crimes ) by the Criminal Code. However, by accepting that there were extenuating circumstances it had treated those acts, like the other offences it had found to have been made out, as less serious indictable offences ( délits ). In Belgian law the classification of an offence was determined not according to the penalty applicable but according to the penalty actually applied. The date of the judgment therefore had to be the standpoint for determining whether or not prosecution was time-barred. That being so, the Court of Cassation had had regard to the limitation period for less serious indictable offences. Subsequently, applying the provisions of the Act of 24 December 1993 immediately, and after noting that the offences found to have been made out were not time-barred at the date of its entry into force, it had held that the correct limitation period was five years from the time of the offences, which period could be extended, where the case arose, by a new five-year period beginning on the date of a measure causing time to begin to run again that was lawfully taken before expiry of the first five-year period. The solution adopted by the Court of Cassation had been based on its case-law to the effect that laws modifying the rules on limitation were to be regarded in Belgium as legislation on matters of jurisdiction and procedure. It had accordingly followed the generally recognised principle that, save where expressly provided to the contrary, procedural rules apply immediately to proceedings that are under way.   The extension of the limitation period brought about by the Act of 24 December 1993 and the immediate application of that statute by the Court of Cassation had, admittedly, prolonged the period of time during which prosecutions could be brought in respect of the offences concerned, and they had therefore detrimentally affected the applicants’ situation, in particular by frustrating their expectations. However, this did not entail an infringement of the rights guaranteed by Article 7 since that provision could not be interpreted as prohibiting an extension of limitation periods through the immediate application of a procedural law where the relevant offences have never become subject to limitation. The question whether Article 7 would be breached if a legal provision were to restore the possibility of punishing offenders for acts which were no longer punishable because they had already become subject to limitation was not pertinent to the present case and the Court was accordingly not required to examine it, even though, as Mr Hermanus had maintained, the Court of Cassation, in the proceedings against him, had held that time had been caused to run again by a measure which had not had that effect on the date when it was taken.   The Court notes that the applicants, who could not have been unaware that the conduct they had been accused of might make them liable to prosecution, had been convicted of offences in respect of which prosecution never became subject to limitation. The acts concerned had constituted criminal offences at the time when they were committed and the penalties imposed had not been heavier than those applicable at the material time. Nor had the applicants suffered, on account of the Act of 24 December 1993, greater detriment than they would have faced at the time when the offences had been committed.   Article 41 of the Convention   Given that the Court could not speculate as to what the outcome of the trial would have been if it had been compatible with Article 6, it dismissed the applicants’ claims in respect of pecuniary damage. However, they must have suffered some non-pecuniary damage on account of the violation of their right under Article 6 § 1 of the Convention. Consequently, the Court held that the respondent State was to pay, within three months from the date on which its judgment became final in accordance with Article 44 § 2 of the Convention, the sum of 300,000 Belgian francs (BEF) to Mr Mazy, to Mr Hermanus, to Mr Javeau and to the heirs of Mr Stalport; Mr Coëme had not sought any compensation for non-pecuniary damage.   The Court awarded, for costs and expenses, BEF 400,000 to Mr Coëme and BEF 760,000 to Mr Mazy, to Mr Hermanus, to Mr Javeau and to the heirs of Mr Stalport.   Judge Conforti expressed a concurring opinion, and this is annexed to the judgment. Judges   Rozakis, Baka and Lorenzen expressed partly dissenting opinions, and these are likewise annexed to the judgment.   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     This summary by the Registry does not bind the Court.