In the Ben Yaacoub case*,
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* Note by the registry: The case is numbered 8/1985/94/142. 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.
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The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr. R. Ryssdal, President,
Mr. F. Matscher,
Mr. J. Pinheiro Farinha,
Sir Vincent Evans,
Mr. B. Walsh,
Mr. R. Bernhardt,
Mr. J. De Meyer,
and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar,
Having deliberated in private on 21 September and 23 November 1987,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 11 July 1985, within the
three-month period laid down by Article 32 § 1 and Article 47
(art. 32-1, art. 47) of the Convention. The case originated in an
application (no. 9976/82) against the Kingdom of Belgium, lodged with
the Commission on 30 June 1982 by Mr. Borhane Ben Yaacoub, a Tunisian
citizen, under Article 25 (art. 25).
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Belgium recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). Its
object was to obtain a decision as to whether the facts of the case
disclosed a breach by the respondent State of its obligations under
Article 6 § 1 (art. 6-1).
2. In response to the inquiry made in accordance with Rule 33 § 3
(d) of the Rules of Court, the applicant stated that he wished to take
part in the proceedings pending before the Court and designated the
lawyer who would represent him (Rule 30).
3. The Chamber of seven judges to be constituted included ex
officio Mr. W. Ganshof van der Meersch, the elected judge of Belgian
nationality (Article 43 of the Convention) (art. 43), and
Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)).
On 2 October 1985, the President drew by lot, in the presence of the
Registrar, the names of the other five members, namely Mr. G. Wiarda,
Mrs. D. Bindschedler-Robert, Mr. F. Matscher, Sir Vincent Evans and
Mr. B. Walsh (Article 43 in fine of the Convention and Rule 21 § 4)
(art. 43).
Subsequently, Mr. J. De Meyer, the newly-elected judge of Belgian
nationality, who took up his functions on 21 February 1986, succeeded
Mr. Ganshof van der Meersch whose term of office as a member of the
Court had expired on 20 January 1986 (Article 43 of the Convention and
Rule 2 § 3) (art. 43). Mr. J. Pinheiro Farinha and Mr. R. Bernhardt,
substitute judges, replaced Mr. Wiarda, whose term of office had also
expired, and Mrs. Bindschedler-Robert, who was prevented from taking
part in the consideration of the case (Rules 2 § 3, 22 § 1 and
24 § 1).
4. Having assumed the office of President of the Chamber
(Rule 21 § 5), Mr. Ryssdal consulted, through the Registrar, the Agent
of the Belgian Government ("the Government"), the Commission's
Delegate and Mr. Ben Yaacoub's lawyer regarding the need for a written
procedure (Rule 37 § 1). On 8 October 1985, he directed that the
Agent and the lawyer should each have until 8 January 1986 to file a
memorial and the Delegate two months in which to reply.
The President, however, suspended the written procedure on
16 December 1985 at the Government's request: they had stated that
they wished to examine with Mr. Ben Yaacoub the possibility of
reaching a friendly settlement.
5. The search for such a solution gave rise, between
16 December 1985 and 14 September 1987, to a series of letters and
conversations between the Government, the applicant's lawyer and the
Registrar.
To facilitate the conduct of the negotiations, the President granted
legal aid to the applicant on 17 June 1986 (Rule 4 of the Addendum to
the Rules of Court).
6. On 14 September 1987, the Government's Agent communicated to
the Registrar the terms of an agreement reached with Mr. Ben Yaacoub's
lawyer. The Commission's Delegate, having been consulted, stated, on
24 September, that they called for no observations on his part.
Mr. Ben Yaacoub himself subsequently approved the agreement; his
lawyer so advised the Registrar on 10 November.
7. On 23 November, the Court decided to dispense with a hearing
in this case, having established that the conditions for this
derogation from its usual procedure were met (Rules 26 and 38).
AS TO THE FACTS
8. The applicant, a Tunisian citizen born in 1955, was living in
Brussels at the time when he applied to the Commission.
9. On 5 February 1981, the investigating judge at Termonde issued
a warrant for the applicant's arrest after charging him with several
offences of aggravated theft.
A Chamber (chambre du conseil) of the Termonde Criminal Court
(tribunal correctionnel), consisting of a single judge, Mr. De Neve,
confirmed the warrant on 7 April 1981. On 28 April, 26 May and
12 June, it extended the period of Mr. Ben Yaacoub's detention on
remand; on the last occasion, it took its decision in accordance with
the submissions to that effect of the public prosecutor's office
(parquet) but against the opinion of the investigating judge.
On 23 June, it committed the applicant, together with three
co-accused, for trial before the Criminal Court (Article 130 of the
Code of Criminal Procedure). Although the offences with which
Mr. Ben Yaacoub was charged fell in principle within the competence of
an assize court (Article 471 of the Criminal Code), the chambre du
conseil decided to refer them to a court dealing with lesser offences
("correctionnaliser") on account of the presence of an extenuating
circumstance, namely that he had no previous criminal convictions
(section 2 of the Act of 4 October 1867 on extenuating circumstances).
10. On 20 July 1981, the Termonde Criminal Court, presided over by
Mr. De Neve, sentenced the accused to three years' imprisonment for
robbery with violence or threats.
The applicant lodged an appeal against this judgment but it was
dismissed by the Ghent Court of Appeal on 12 November. In particular,
the Court of Appeal considered that the successive exercise by
Mr. De Neve of the functions of President of the chambre du conseil
and President of the Criminal Court ran counter neither to Belgian law
nor to Article 6 § 1 (art. 6-1) of the Convention.
Mr. Ben Yaacoub then appealed on points of law to the Court of
Cassation (2nd Chamber). This appeal was dismissed on
19 January 1982. As regards the plea founded on Article 6 § 1
(art. 6-1), and also on "the general legal principle of the
independence and impartiality of the court", the Court of Cassation
gave the following reasons for its decision:
"... no legal provision prohibits a judge who, in the chambre du
conseil, has given a decision on an accused's detention on remand
and on his committal to the Criminal Court for trial from
subsequently taking part, as President or member of that Court, in
the trial of that accused;
... it does not appear from the file that, before the hearing
opened or during the examination of the case before the Criminal
Court, the accused challenged the above-mentioned judge on any
ground; ... it cannot be inferred solely from the facts mentioned
in this plea that the appellants' right to a fair examination of
their case by an independent and impartial court has not been
respected ..." (Pasicrisie belge, 1982, I, pp. 613-614)
11. The applicant was expelled from Belgium as a result of these
judicial entanglements and now lives in Geneva.
PROCEEDINGS BEFORE THE COMMISSION
12. Before the Commission, to which he applied on 30 June 1982,
Mr. Ben Yaacoub complained of an infringement of his right to have his
case heard by an "impartial tribunal", within the meaning of
Article 6 § 1 (art. 6-1) of the Convention. The infringement arose,
according to him, from the fact that one and the same judge,
Mr. De Neve, first took a decision, in the chambre du conseil,
concerning his detention on remand and directed that he be committed
for trial, and then presided over the court which convicted him at
first instance.
13. The Commission declared the application (no. 9976/82)
admissible on 4 May 1983. In its report of 7 May 1985 (Article 31)
(art. 31), it concluded, by six votes to four, that there had been a
breach of Article 6 § 1 (art. 6-1). The full text of the Commission's
opinion and of the dissenting opinion contained in the report is
reproduced as an annex to this judgment.
AS TO THE LAW
14. The Government and the applicant have reached the following
friendly settlement (see paragraph 6 above):
"...
1. The Belgian Government undertake to lift, with effect from
30 August 1992, the effects of the expulsion order against
Mr. Ben Yaacoub.
2. Prior to that date, any request for safe-conduct enabling him
to enter Belgium will be examined, provided that it is based on
valid reasons and is supported by appropriate evidence.
3. The Government will pay to the applicant 100,000 [Belgian
francs, BFR] by way of agreed damages.
4. The costs and fees occasioned by both the appeal on points of law
and the proceedings before the Convention institutions shall be
refunded in the amount of 200,000 [BFR].
..."
The Government invited the Court, with Mr. Ben Yaacoub's agreement
(see paragraph 6 above), to approve this settlement in accordance with
Rule 48 § 2 of the Rules of Court, which provides:
"When the Chamber is informed of a friendly settlement ..., it may,
after consulting, if necessary, ... the Delegates of the Commission
..., strike the case out of the list."
The Commission's Delegate has been consulted and has raised no
objection (see paragraph 6 above).
15. The Court takes formal note of the friendly settlement reached
by the Government and the applicant, a settlement which the latter
regards as being in accordance with his interests. The Court could
nevertheless, having regard to its responsibilities under Article 19
(art. 19) of the Convention, decide that the proceedings should
continue if a reason of public policy (ordre public) appeared to
necessitate such a course (Rule 48 § 4).
In this connection, it should be noted that the Belgian Court of
Cassation has recently reversed its case-law in relation to its
decision of 19 January 1982 in Mr. Ben Yaacoub's case (see
paragraph 10 above). In accordance with the submissions of the
Advocate General (ministère public) - who had cited two judgments of
the European Court of Human Rights (Piersack, 1 October 1982,
and De Cubber, 26 October 1984, Series A nos. 53 and 86) -,
the Court of Cassation held on 29 May 1985 as follows:
"... the Criminal Court, whose decision is affirmed in part by the
judgment [of the Court of Appeal of Liège], included presiding
judge Michaëlis, who had previously dealt with the case as
President of the chambre du conseil which committed the
defendant for trial;
... this fact might arouse in the accused's mind a legitimate
doubt as to the fitness of the Criminal Court, so composed, to
judge his case impartially; ... it follows that the judgment is
tainted by nullity;
... by dismissing the plea put forward by the applicant" - the
procureur général (Principal Crown Prosecutor) attached to the
Court of Appeal - "and based on the incompatibility of the
functions of President of the chambre du conseil which has
decided on the further procedure and those of a member of the
Criminal Court in the same case, the Court of Appeal has allowed
its judgment to be tainted by the same nullity;
... the claim [based on a breach of Article 6 § 1 (art. 6-1)
of the Convention] is [therefore] well-founded ..."
(Claude and Kirschenbilder, Pasicrisie belge, 1986, I, p. 1228;
see also, at pages 1221 to 1224, the submissions of Advocate
General Piret in the Vidal case)
Several subsequent cases have been similarly decided
(11 September 1985, Paquet, Pasicrisie belge, 1985, I, p. 23;
2 October 1985, Delhausse, ibid., 1986, I, p. 93; 27 May 1986, Weckx
and Others, ibid., 1986, I, p. 1163).
Accordingly, the problem to which Mr. Ben Yaacoub's case gave rise
appears henceforth no longer to subsist in Belgium.
16. The Court considers, therefore, that it is appropriate to
strike the case out of the list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English and in French, and notified in writing under
Rule 54 § 2, second sub-paragraph, of the Rules of Court,
on 27 November 1987.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar