Resolution ResDH(2001)108
concerning the judgment of the European Court of Human Rights
of 30 October 1991
in the case of Borgers against Belgium
(Adopted by the Committee of Ministers on 15 October 2001
at the 764th meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),
Having regard to the judgment of the European Court of Human Rights in the Borgers case delivered on 30 October 1991 and transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application (No. 12005/86) against Belgium, lodged with the European Commission of Human Rights on 5 December 1985 under former Article 25 of the Convention by Mr André Borgers, a Belgian national, and that the Commission declared admissible the complaint that regarding of the lack of opportunity to respond to the conclusions of the representative of the prosecutor’s office during the hearing before the Cour de cassation, ruling in criminal matters, and the participation of the representative of the prosecutor’s office in the deliberation;
Recalling that the case was brought before the Court by the Commission on 11 July 1990 and by the Belgian Government on 26 September 1990;
Whereas in its judgment of 30 October 1991 the Court:
- held by eighteen votes to four, that there had been a violation of Article 6, paragraph 1, of the Convention;
- held by twenty-two votes to two, that the government of the respondent state was to pay the applicant, within three months, 113 250 Belgian francs in respect of costs and expenses;
- dismissed unanimously, the remainder of the claim for just satisfaction;
Having regard to Interim Resolution DH (98) 133, regarding the fairness of hearings in proceedings before the Cour de Cassation, adopted by the Committee of Ministers on 22 April 1998 at its 626th meeting during which the Committee indicated, in the light of information given by the government of the respondent state, that it has provisionally exercised its functions under former Articles 54 and 32 of the Convention;
Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention as amended by Protocol No. 11;
Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 30 October 1991, having regard to Belgium’s obligation under former Article 53 of the Convention to abide by it;
Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment (this information appears in the Appendix to this resolution);
Having satisfied itself that on 12 March 1999, the government of the respondent state paid the applicant the sum provided for in the judgment of 30 October 1991,
Declares, after having taken note of the information supplied by the Government of Belgium, that it has exercised its functions under former Article 54 of the Convention in this case.
Appendix to Resolution ResDH(2001)108
Information provided by the Government of Belgium
during the examination of the Borgers case
by the Committee of Ministers
The Government of Belgium points out that, immediately after the European Court of Human Rights had given judgment in the Borgers case, the Cour de Cassation provisionally introduced a new practice whereby applicants may reply to the opinion of the representative of the prosecutor’s office, and the latter no longer takes part in the deliberations. This measure was also applied, in civil proceedings, immediately after the issue of the European Court’s judgment in the Vermeulen case, and, in disciplinary proceedings, immediately after the issue of the judgment in the Van Orshoven case.
This practice has now been enshrined in the Judicial Code, to bring Belgian law fully into line with the requirements of the Convention: the Act of 14 November 2000, amending the Judicial Code in respect of the intervention of the Representative of the prosecutor’s office in proceedings before the Cour de Cassation and, in civil cases, the courts deciding on the merits, and amending Articles 420bis and 420ter of the Code of Criminal Procedure was published in the Official Gazette on 19 December 2000, and so came into force on that day.
First, Article 1107 of the Judicial Code has been amended and now provides that:
“After the report, the representative of the prosecutor’s office shall give his conclusions. The parties shall then be heard. (…)
When the conclusions of the representative of the prosecutor’s office are in writing, the parties may, not later than the hearing and solely in reply to the conclusions of the representative of the prosecutor’s office, submit a memorandum, in which they may not adduce new arguments.
Any party may request at the hearing that the case be held over, so that he can reply orally, or in a memorandum, to the written or oral conclusions of the representative of the prosecutor’s office. The court shall specify the time by which a memorandum must be submitted.”
It should be emphasised that the Act provides that the opinion of the representative of the prosecutor’s office is to be communicated to the parties’ legal representatives or to the parties themselves if they are not represented.
Secondly, the provision contained in Article 1109 of the Judicial Code allowing the representative of the prosecutor’s office to attend the deliberations, except in cases where he himself had appealed to the Cour de Cassation, has been revoked. It has been replaced as follows: “judgments shall be given at a public hearing by the President, in the presence of the representative of the prosecutor’s office, and with the registrar in attendance”.
The Government of Belgium believes that there is no further risk of violations of the kind found in this case, and that it has accordingly complied with its obligations under the former Article 53 of the Convention.
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