In the case of Muyldermans v. Belgium*,
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 J. Cremona, President,
Mrs D. Bindschedler-Robert,
Mr B. Walsh,
Mr C. Russo,
Mr R. Bernhardt,
Mr J. De Meyer,
Mr N. Valticos,
Mr J.M. Morenilla,
Mr F. Bigi,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold,
Deputy Registrar,
Having deliberated in private on 26 September and
22 October 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 59/1990/250/321. The first number is
the case's position on the list of cases referred to the Court
in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to
the Court since its creation and on the list of the
corresponding originating applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which
came into force on 1 January 1990.
*** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 8 December 1990,
within the three-month period laid down by Article 32 para. 1
and Article 47 (art. 32-1, art. 47) of the Convention.
It originated in an application (no. 12217/86) against the
Kingdom of Belgium lodged with the Commission under Article 25
(art. 25) by a Belgian national, Mrs Marie-Louise Muyldermans,
on 22 December 1983.
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). The object of the request 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 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant
stated that she wished to take part in the proceedings and
designated the lawyer who would represent her (Rule 30).
3. The Chamber to be constituted included ex officio
Mr J. De Meyer, the elected judge of Belgian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal,
the President of the Court (Rule 21 para. 3 (b)). On 21 February 1991,
in the presence of the Registrar, the President drew by lot
the names of the other seven members, namely Mrs D. Bindschedler-Robert,
Mr F. Matscher, Mr J. Pinheiro Farinha, Sir Vincent Evans, Mr C. Russo,
Mr N. Valticos and Mr J.M. Morenilla (Article 43 in fine of the Convention
and Rule 21 para. 4) (art. 43). Subsequently, Mr B. Walsh, and
Mr R. Bernhardt, substitute judges, replaced Sir Vincent Evans
and Mr Pinheiro Farinha, who had resigned and whose successors
at the Court had taken up their duties before the
deliberations (Rules 2 para. 3, 22 para. 1 and 24 para. 1).
4. Mr Ryssdal assumed the office of President of the
Chamber (Rule 21 para. 5) and, after consulting, through the
Registrar, the Agent of the Belgian Government ("the
Government"), the Delegate of the Commission and the
applicant's lawyer, gave instructions concerning the written
procedure on 11 March 1991.
5. On 21 May and 11 June 1991 the Registrar received from
the Deputy Agent and then Mrs Muyldermans's lawyer the text of
an agreement concluded on 11 May between the Government and
the applicant.
On the instructions of the President, the Registrar, on
22 May, invited the Delegate of the Commission to submit his
observations within one month and, on 5 June, asked the
Government to keep the Court informed of the progress of the
draft Law referred to in the agreement. Their replies reached
the registry on 10 June and 15 July respectively (see
paragraphs 16 and 17 below).
6. Mr Ryssdal being unable to participate in the
deliberations on 26 September 1991 and Mr Matscher in those on
22 October, the former was replaced by the Vice-President,
Mr J. Cremona, and the latter by Mr F. Bigi, substitute Judge,
from those dates (Rules 21 para. 5, 22 para. 1 and 24 para. 1).
7. On 22 October 1991 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. Mrs Marie-Louise Muyldermans worked as an accountant in
the post office of Courcelles (Hainaut).
9. In the night of 5 to 6 September 1979, a sum of
4,976,200 Belgian francs disappeared from the cashier's desk.
The investigation opened by the Charleroi police terminated on
22 May 1980 with an order closing the case.
10. In a written statement intended to justify her position
to her superiors, the applicant cited her inexperience and her
lack of training. The postmaster also attributed to these
factors the faults imputed to her, but the regional director
noted that she had failed to comply with certain elementary
instructions regarding security.
As the guilty party could not be identified, the Chief
Inspector of the Post Office decided that the officials
directly responsible should be held liable for any negligence
which had made possible or facilitated the theft.
11. Mrs Muyldermans' accounts in which the deficit appeared
were automatically submitted to the Audit Court, which ruled
on the question on 5 May 1982 in private and on the basis
solely of the administrative file (Law of 29 October 1846).
It found that the applicant had failed to perform properly
several of her duties and ordered her to reimburse the Post
Office the sum of 2,000,000 Belgian francs. By two judgments
of the same day, it found two other officials, L. and C.,
liable to pay the balance of the deficit.
12. The three officials appealed to the Court of Cassation.
Mrs Muyldermans alleged a violation of Article 6 (art. 6) of
the Convention on the ground that the Audit Court had examined
her case without holding an adversarial and public hearing.
13. On 30 June 1983 the Court of Cassation dismissed her
appeal finding that Article 6 para. 1 (art. 6-1) was not
applicable to the case before it.
On the other hand, on the same day, it quashed the judgments
concerning L. and C. (see paragraph 11 above). It considered
that the latter were subordinate officials who did not have
the status of accountants in relation to the Treasury and the
Audit Court therefore lacked jurisdiction to rule in their
regard.
PROCEEDINGS BEFORE THE COMMISSION
14. In her application of 22 December 1983 to the
Commission (no. 12217/86), Mrs Muyldermans relied on Article 6
para. 1 (art. 6-1) of the Convention inasmuch as she had not
received a public hearing and there had been no adversarial
argument or oral submissions; she claimed in addition that the
judgment of the Audit Court had the effect of depriving her of
all or part of her assets, thus infringing Article 1 of
Protocol No. 1 (P1-1).
15. On 17 January 1989 the Commission declared the second
complaint inadmissible; however, it found the first one
admissible. In its report of 2 October 1990 (Article 31)
(art. 31), it expressed the opinion, by nine votes to two,
that there had been a breach of Article 6 para. 1 (art. 6-1)
of the Convention. The full text of its opinion and of the
dissenting opinion contained in the report is reproduced as an
annex to the present judgment*.
_______________
* Note by the Registrar: For practical reasons this annex will
appear only with the printed version of the judgment (volume
214-B of Series A of the Publications of the Court), but a
copy of the Commission's report is obtainable from the
registry.
_______________
AS TO THE LAW
16. The Registrar of the Court received on 21 May 1991 from
the Deputy Agent of the Government, then on 11 June from the
applicant's lawyer, communication of an identical text signed
on 13 May by Mrs Muyldermans and Mr De Bluts, the Belgian
State's lawyer, and worded as follows:
"1° The Belgian Government have agreed in principle not to
enforce the judgment of the Audit Court of 5 May 1982 in which
the applicant was ordered to pay BEF 2,000,000. This decision
will be enshrined in a legislative provision without delay.
2° The Belgian Government have agreed in principle to amend
the Act of 29.10.1846 on the organisation of the Audit Court
and the Law of 28.6.1963 on public accounts.
An extremely detailed draft Law will shortly be put before
Parliament; the draft Law meets the objections raised in the
European Commission's report in the present case.
3° In addition to points 1 and 2 above, which meet the
criticisms levelled by the applicant in her application and
which, once put into effect, will in themselves constitute
'just satisfaction', the applicant has requested:
(a) the reimbursement by the Belgian Government of the costs
and fees incurred in the proceedings brought by her in
Strasbourg, which she assesses at ... BEF 50,000
(b) payment as compensation for the pecuniary damage resulting
from the various steps taken, travel, etc., which she assesses
at ... BEF 20,000
that is to say a total of BEF 70,000, which the Belgian
Government agree to pay as part of this overall settlement.
The applicant states that she accepts the friendly settlement
proposed above.
She acknowledges that the payment of the above-mentioned sum
will constitute full and final reparation for the pecuniary
and non-pecuniary damage alleged by her and will cover all the
costs incurred by her in this case.
She agrees not to proceed with the case pending at Strasbourg
and not to institute any subsequent proceedings against the
Belgian Government."
The Delegate of the Commission was consulted (Rule 49 para. 2)
and, on 10 June 1991, expressed the view that the friendly
settlement proposed was a fair one and that the Court could
therefore strike the case out of its list (see paragraph 5
above).
17. In a letter of 9 July 1991, the Deputy Agent of the
Government provided the following details, which the Registrar
on the instructions of the President had requested from him on
5 June:
"... I have the honour to inform you that the Cabinet has
already approved the draft Law which includes the legislative
provision by which the Government waive enforcement of the
Audit Court's judgment of 5 May 1982 in which the applicant
was ordered to pay BEF 2,000,000.
This Law will be put before Parliament forthwith, but the
Parliamentary debate is not expected to take place until
October.
The draft Law amending the Law of 29 October 1846 on the
organisation of the Audit Court and the Law of 28 June 1963
amending and supplementing the laws on public accounting will
be laid before the Cabinet at its next meeting for approval.
Once the draft has been approved it will be submitted to the
Conseil d'Etat for its opinion.
It will be possible in principle for this draft Law likewise
to be introduced when Parliament reconvenes in early October."
18. The text of the draft Law was annexed to this letter.
It contains inter alia the following provisions:
Article 3
(amending Article 8 of the Law of 1846)
"...
Where the final account discloses a debit, the Minister or the
official specifically delegated by him to this end, or the
permanent delegation of the regional council, shall decide
whether it is necessary to institute proceedings against the
accountant in the Court for reimbursement of the sum in
question.
..."
Article 5
(amending Article 10 of the Law of 1846)
"The accountant and the authorising officer shall be summoned
by bailiff's writ ...
...
The public authority instituting the proceedings shall lodge
the file with the Court registry, where it may be consulted by
the parties and their lawyers from the day of the summons
until the day before the hearing."
Article 6
(amending Article 11 of the Law of 1846)
"The majority of the members of the chamber, not including the
registrar, shall be present in order to be able to examine and
rule on a case. Only the members who have participated in
every step of the investigation proceedings may take part in
the deliberations. Where proceedings are conducted against an
accountant, the member of the Court who closed the account of
this accountant may not sit.
The party issuing the summons shall be represented by a lawyer
or by an official whom he has appointed specifically to this
end.
The accountant and the authorising officer shall appear in
person. They may be assisted by a lawyer. The Court may give
leave to the party summoned to be represented by a lawyer if
he establishes that he is unable to appear in person.
The parties may lodge a memorial.
The hearing shall be held in public. The Court may, however,
decide, by a reasoned judgment, that it shall take place in
private because a public hearing would constitute a risk to
public order or to morals or on any other grounds set out for
in Article 6 para. 1 (art. 6-1) of the Convention for the
Protection of Human Rights and Fundamental Freedoms of 4 November 1950,
approved by the Law of 13 May 1955.
..."
19. The following extracts from the explanatory memorandum
may be cited:
"...
... the rules governing the procedure [in force] are, for the
sake of efficiency, extremely simple: the accountant whose
accounts disclose a debit is not summoned before the Court
(only an accountant who has failed to submit his accounts in
due time is so summoned and solely to render his account, not
to explain any debit which may arise); the Court takes its
decision on the basis of documents without adversarial
argument or a public hearing; nor is the delegated authorising
officer heard; neither the delegated authorising officer nor
the financial comptroller may appeal to the Court of Cassation
against the judgments of the Court ordering them to pay
damages or a fine.
It is necessary to amend this old system in order to provide
greater protection for the rights of the officials subject to
the jurisdiction of the Court, regardless of the requirements
of efficiency in the field of the inspection of public
accounts. The adoption of a new procedure became even more
desirable in view of the fact that, examining an application
lodged by an accountant convicted by the Audit Court, the
European Commission of Human Rights expressed the opinion
on 2 October 1990 that the procedure in force before the Audit
Court was in breach of Article 6 para. 1 (art. 6-1) of the
Convention for the Protection of Human Rights and Fundamental
Freedoms, inasmuch as the procedure was neither adversarial
nor public. Since then, the Commission has brought the case
before the European Court of Human Rights which has not yet
ruled thereon.
Before the Commission the Government had maintained,
primarily, that the procedure before the Audit Court did not
concern civil rights and obligations and did not constitute
criminal proceedings so that it fell outside the scope of
Article 6 para. 1 (art. 6-1) of the Convention. This approach
was moreover that taken by the Court of Cassation ... The
Commission did not follow the Government's view on this point.
It considered that the accountant's obligation was 'mixed [,]
with the private aspects predominating'. This point of view
is debatable. However, it must be taken into account in view
of the possibility of other applications being lodged by
convicted accountants. In any event, a reform is justified
by the outdated - and deficient - nature of the existing
procedure, which, while it protects the interests of the
public authorities, does not make sufficient allowance for
those of the accountants. The present draft is therefore
intended to ensure that this procedure is hereafter in
conformity with Article 6 (art. 6) of the Convention and,
generally, more symmetrical in regard to the relationships
between the public authorities and the accountants. The
Government have, in addition, taken this opportunity to put
forward amendments on various other points.
...
The draft is intended to introduce before the Audit Court a
genuine adversarial and public oral procedure. Under the
current system there is no oral argument, nor are there even
any parties ...: the Court receives the file from the relevant
authority (including a justificatory memorial drawn up by the
accountant) and rules on the basis of the documents, without
hearing either the accountant or a representative of the
authority.
If reform were to be limited to prescribing that the Court
must hear the accountant and must do so in a public hearing,
it would undoubtedly meet the criticisms of the European
Commission of Human Rights, but this would not be entirely
satisfactory. In the absence of an adversary, the accountant
would to some extent have to plead against his judges and
would have, from the outset, the impression of already having
been judged, as the Court summons him on the basis of the file
drawn up by the competent authority.
That is why the Government have opted for a solution which
radically changes the procedure. It is proposed that it
should be the authority which, in the event of a deficit,
summons the accountant before the Court, like a plaintiff in
civil proceedings. The matter will no longer come before the
Court automatically: the authority will always have to refer
it to the Court. In addition, there will be a genuine
adversarial oral procedure before it in a public hearing,
between the authority concerned and the accountant ...
..."
20. The Court takes formal note of the agreement concluded
between the Government and Mrs Muyldermans. It observes that
this agreement will give satisfaction to the latter. It notes
in addition that Article 6 (art. 6) of the draft Law amending
the Laws of 29 October 1846 and 28 June 1963 provides that the
Audit Court shall hold adversarial and public hearings, a
solution intended - as appears from the explanatory
memorandum - to meet the criticisms of the Commission (see
paragraphs 60-68 of the report). Its adoption by the relevant
Belgian authorities would remove any reason of public policy
(ordre public) such as would necessitate a decision by the
European Court on the merits of the case (Rule 49 para. 4).
Accordingly, the Court concludes that it is appropriate to
strike the case out of its 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 55 para. 2 of the Rules of Court on 23 October 1991.
Signed: John CREMONA
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy