CASE OF VAN ORSHOVEN v. BELGIUM



        In the case of Van Orshoven v. Belgium (1),

        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 Rules of Court A (2), as a Chamber composed of

the following judges:

        Mr  R. Bernhardt, President,

        Mr  L.-E. Pettiti,

        Mr  R. Macdonald,

        Mr  J.M. Morenilla,

        Sir John Freeland,

        Mr  A.B. Baka,

        Mr  G. Mifsud Bonnici,

        Mr  E. Levits,

        Mr  M. Storme, ad hoc judge,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

        Having deliberated in private on 25 January and 30 May 1997,

        Delivers the following judgment, which was adopted on the

last-mentioned date:

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Notes by the Registrar

1.  The case is numbered 95/1995/601/689.  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.

2.  Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9).  They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

1.      The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 25 October 1995, within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47).  It originated in an application

(no. 20122/92) against the Kingdom of Belgium lodged with the

Commission under Article 25 (art. 25) by a Belgian national,

Mr Yvo Van Orshoven, on 13 March 1992.

        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 of the Convention (art. 6-1).

2.      In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he

wished to take part in the proceedings and designated the lawyers who

would represent him (Rule 30).  Initially referred to as I.V.O., he

subsequently consented to the disclosure of his identity.

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. Bernhardt, the Vice-President

of the Court (Rule 21 para. 4 (b)).  On 3 November 1995, in the

presence of the Registrar, the President of the Court, Mr R. Ryssdal,

drew by lot the names of the other seven members, namely

Mr L.-E. Pettiti, Mr R. Macdonald, Mr J.M. Morenilla,

Sir John Freeland, Mr A.B. Baka, Mr G. Mifsud Bonnici and Mr E. Levits

(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).

        On 20 November 1995 Mr De Meyer stated that he wished to

withdraw from the case pursuant to Rule 24 para. 2, because it raised

issues similar to those which had arisen in the cases of

Delcourt v. Belgium - in which he had acted as Agent and Counsel for

the Government (judgment of 17 January 1970, Series A no. 11, p. 5,

para. 7) - and Borgers v. Belgium and Vermeulen v. Belgium, from which

he had withdrawn (judgments of 30 October 1991, Series A no. 214-B,

p. 25, para. 3, and 20 February 1996, Reports of Judgments and

Decisions 1996-I, p. 227, para. 3).  On 22 December 1995 the Agent of

the Belgian Government ("the Government") informed the Registrar that

Mr M. Storme, Professor of Law at Ghent University, had been appointed

to sit as ad hoc judge (Article 43 of the Convention and Rule 23)

(art. 43).

4.      As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,

acting through the Registrar, consulted the Agent of the Government,

the applicant's lawyers and the Delegate of the Commission on the

organisation of the proceedings (Rules 37 para. 1 and 38).  Pursuant

to the order made in consequence, the Registrar received the

Government's and the applicant's memorials on 31 May 1996.  On

2 July 1996 the Secretary to the Commission indicated that the Delegate

did not wish to reply in writing. On 23 August he supplied various

documents, as requested by the Registrar on the instructions of the

President.

5.      In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

23 January 1997.  The Court had held a preparatory meeting beforehand.

        There appeared before the Court:

(a) for the Government

    Mr J. Lathouwers, Deputy Legal Adviser,

       Head of Division, Ministry of Justice,                  Agent,

    Mr E. Jakhian, of the Brussels Bar,                      Counsel;

(b) for the Commission

    Mr L. Loucaides,                                        Delegate;

(c) for the applicant

    Mr J. Coch, of the Hasselt Bar,

    Mr P. Thiery, of the Hasselt Bar,                        Counsel.

        The Court heard addresses by Mr Loucaides, Mr Coch, Mr Thiery

and Mr Jakhian.

AS TO THE FACTS

I.      Particular circumstances of the case

6.      Mr Yvo Van Orshoven, a Belgian citizen born in 1940, lives at

Neerglabbeek (province of Limburg), where he has a private practice as

a doctor.

7.      At the beginning of 1987 he was the subject of an

administrative inquiry by the National Institute for Sickness and

Disability Insurance (Institut national d'assurance maladie-invalidité

("INAMI")) following a complaint by a mutual insurance company, which

accused him of supplying treatment without a prescription and claiming

payment for treatment that had not been given or in respect of which

the conditions laid down by law had not been satisfied.

8.      On 19 August 1987 the INAMI sent the file to the

Limburg Provincial Council of the Ordre des médecins

(Medical Association), annexing complaints by three of the applicant's

patients who accused him of professional misconduct towards them.

9.      After interviewing the applicant on 2 February 1988, the

Executive Committee of the Provincial Council decided to look into the

matter.

        On 24 March 1988 the Provincial Council held a hearing, which

Mr Van Orshoven did not attend despite being summoned to do so.  The

council joined the INAMI case and the patients' complaints and on

28 April 1988, in the applicant's absence, ordered that he should be

struck off the register of the Ordre.

10.     On 11 May 1989, on an application by the applicant to have that

decision set aside, the Provincial Council substituted a penalty of

suspension from practising medicine for 18 days in respect of the

administrative matter and 129 days in respect of the complaints.

11.     The applicant appealed against that decision to the

Dutch-language Appeals Board of the Ordre, which on 25 June 1990

ordered that he be struck off the register.

12.     Mr Van Orshoven then lodged an appeal on points of law with the

Court of Cassation.  On 13 September 1991 a hearing was held at which

the court heard in turn the reporting judge (Mr Verougstraete), counsel

for the applicant, counsel for the other side (the Ordre des médecins)

and the avocat général (Mr du Jardin), who after making his submissions

- the content of which has not been communicated to the Court - took

part in the court of Cassation's deliberations. On the same day the

court dismissed the appeal.

II.     Relevant domestic law

    A.  Disciplinary rules

13.     The Ordre des médecins and its councils are governed by

Royal Decree no. 79 of 10 November 1967 on the Ordre des médecins and

the Royal Decree of 6 February 1970 on the organisation and functioning

of the councils of the Ordre.

14.     At first instance disciplinary action is taken by the

provincial councils of the Ordre, which are required to "ensure that

the rules of professional conduct are complied with and that the

reputation, discretion, probity and dignity of ... medical

practitioners ... are upheld.  To this end, they shall be responsible

for imposing disciplinary penalties for misconduct by ... medical

practitioners in the performance of their professional duties, as well

as serious misconduct unconnected with their professional duties where

such misconduct is likely to damage the reputation or dignity of the

profession" (Article 6, second sub-paragraph, of Royal Decree no. 79).

15.     The members of the provincial councils are elected by the

medical practitioners registered with the Ordre who are not suspended

from practising.  They are assisted in their task by an assessor who

sits in an advisory capacity only.  Assessors are appointed by the

Crown from among the judges of the tribunaux de première instance

(regional courts of first instance), excluding the investigating judges

and members of the prosecution (Article 7).

16.     The provincial councils may institute proceedings either of

their own motion or at the request of the National Council, the

Minister responsible for public health, the procureurs du Roi or the

provincial medical boards, or on a complaint from a doctor or other

person.  The executive committee of the provincial council starts an

investigation into the matter and appoints a reporting member.  At the

end of the investigative stage, either the committee or the reporting

member reports to the council (Article 20 para. 1), which may decide

to discontinue the proceedings, to order further inquiries into the

facts or to summon the doctor under investigation to appear in person

at an adversarial hearing (Articles 24 and 26 of the Royal Decree of

6 February 1970).

17.     The council may impose the following penalties: a warning, a

censure, a reprimand, suspension of the right to practise medicine for

up to two years and striking off the register (Article 16,

first paragraph, of Royal Decree no. 79).

18.     Appeals against such decisions of provincial councils lie to

appeals boards and may be brought by the doctor on whom the

disciplinary penalty has been imposed or the

provincial council assessor or by the Chairman of the National Council

of the Ordre des médecins acting jointly with one of the vice-chairmen

(Article 21 of Royal Decree no. 79).  The appeals boards are composed

of equal numbers of doctors elected by the provincial councils and

judges of the courts of appeal appointed by the King (Article 12).  The

procedure is adversarial and the doctor, who is entitled to be assisted

by his counsel, has the right to address the board.  Appeals boards can

only impose a penalty where none has been imposed by the

provincial council, or impose a heavier penalty than that imposed by

the council, by a two-thirds majority (Article 25 para. 4,

second sub-paragraph).

19.     An appeal lies from the appeals boards to the

Court of Cassation and may be brought by the doctor on whom the

disciplinary penalty has been imposed or the Minister responsible for

public health or by the Chairman of the National Council of the Ordre

acting jointly with one of the vice-chairmen (Article 23,

first paragraph).  Proceedings in the Court of Cassation are governed

by the rules of civil procedure, save in three respects relating to the

time-limit for appeals, the form in which they must be lodged and

service of the Court of Cassation's judgment (Article 26).

    B.  The Judicial Code

20.     Article 138 of the Judicial Code provides:

        "Subject to the provisions of Article 141, the department of

        the procureur du Roi shall act as prosecuting authority in the

        manner laid down by law.

        In civil matters it shall intervene by way of legal

        proceedings, applications or opinions.  It shall act of its own

        motion in the instances prescribed by law and also on each

        occasion that public policy requires its intervention."

21.     By Article 141 of the Judicial Code,

        "The procureur général at the Court of Cassation shall not act

        as prosecuting authority except where he has instituted

        proceedings in which the decision on the merits falls to the

        Court of Cassation."

        Examples of the - relatively rare - cases in which the

Court of Cassation acts as a tribunal of fact include: trials of

Ministers (Article 90 of the Constitution), actions against judges for

misuse of authority (Articles 613 (2) and 1140 to 1147 of the

Judicial Code) and disciplinary proceedings against certain

judicial officers.

        In all other cases, the procureur général's department acts,

with complete independence, as an adviser to the court.

22.     As to the disciplinary hierarchy of the ministère public, the

following provisions of the Judicial Code should be mentioned:

                              Article 400

        "The Minister of Justice shall exercise supervisory authority

        over all the officials of the ministère public; the

        procureur général at the Court of Cassation likewise over his

        counterparts at the courts of appeal; and the latter over the

        members of their own departments and of those of the

        auditeurs généraux at the Industrial Appeals Tribunals and over

        the procureurs du Roi attached to the lower courts, the

        auditeurs attached to the industrial tribunals and their

        deputies."

                              Article 414

        "The procureur général at the Court of Appeal may impose on the

        officials of the ministère public subordinate to him the

        penalties of a warning, a reprimand or a reprimand with

        suspension of salary.

        The procureur général at the Court of Cassation shall have the

        same powers in regard to the avocats généraux at that court and

        the procureurs généraux at the courts of appeal.

        The Minister of Justice may likewise warn and reprimand any

        official of the ministère public or recommend to the King his

        suspension or dismissal."

23.     With regard to the procedure before the Court of Cassation in

both civil and criminal matters the Judicial Code provides:

                             Article 1107

        "After the report has been read out, submissions are heard from

        counsel present at the hearing.  Their addresses shall relate

        exclusively to the issues of law raised in the grounds for

        appeal or to objections to the admissibility of the appeal.

        The procureur général's department shall then make its

        submissions, after which no further documents shall be

        accepted."

                             Article 1109

        "The procureur général or a member of his department shall be

        entitled to attend the deliberations unless the appeal on

        points of law has been lodged by the procureur général's

        department itself; he shall not be entitled to vote in the

        deliberations."

        The procureur général's department may itself lodge appeals on

points of law either "in the interests of the law" (Articles 1089

and 1090 of the Judicial Code and Article 442 of the

Code of Criminal Procedure) or following a complaint by the

Minister of Justice (Article 1088 of the Judicial Code and Article 441

of the Code of Criminal Procedure).

24.     Since the aforementioned Borgers and Vermeulen judgments

(see paragraph 3 above), appellants in the Court of Cassation have been

entitled, in both criminal and civil proceedings, to address the court

after the representative of the procureur général's department, who

does not then attend the court's deliberations.

PROCEEDINGS BEFORE THE COMMISSION

25.     In his application of 13 March 1992 to the Commission

(no. 20122/92) Mr Van Orshoven complained of various breaches of his

right to a fair hearing as guaranteed by Article 6 para. 1 of the

Convention (art. 6-1).

26.     On 7 April 1994 and 27 February 1995 the Commission declared

admissible the complaint relating to the fact that it was impossible

for the applicant to reply to the procureur général's submissions at

the hearing in the Court of Cassation and declared the remainder of the

application inadmissible.  In its report of 15 September 1995

(Article 31) (art. 31), it expressed the opinion by twenty votes to

seven that there had been a violation of Article 6 para. 1 (art. 6-1),

after indicating that it would not examine the complaint that a member

of the procureur général's department had taken part in the

Court of Cassation's deliberations, which had been made late.  The full

text of the Commission's opinion and of the seven separate opinions

contained in the report is reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1.  For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1997-III), but a copy of the Commission's report is

obtainable from the registry.

_______________

27.     In its request of 25 October 1995 bringing the case before the

Court, which was signed by its President, the Commission said, in

particular:

        "The subject matter of the request is the presence of a member

        of the procureur général's department at the Court of Cassation

        at that court's deliberations in disciplinary proceedings

        against a doctor and the question whether that situation

        complies with the requirements of Article 6 para. 1 of the

        Convention (art. 6-1)."

FINAL SUBMISSIONS TO THE COURT

28.     In their memorial the Government submitted:

        "May it please the Court,

        As our primary submission, with respect to the Court's

        jurisdiction,

        To hold that it has no jurisdiction to hear the present case,

        as the issue referred to it by the Commission was declared

        inadmissible by implication and the Court cannot extend its

        jurisdiction beyond the scope of the application or request

        whereby the case was referred to it;

        In the alternative, on the merits,

        To hold that generally in civil matters the fact that it is

        impossible to reply to the submissions of the

        procureur général's department at the Court of Cassation (and

        its representative's presence at the court's deliberations) do

        not amount to a breach of the principle of equality of arms

        where due process has been complied with before the courts

        below;

        In the further alternative, to hold that in the present case

        the fact that it was impossible to reply to the submissions of

        the procureur général's department at the Court of Cassation

        (and its representative's presence at its deliberations) did

        not amount to a violation of Article 6 para. 1 of the

        Convention (art. 6-1) as the applicant's appeal on points of

        law in the present case could not have affected his legal

        position and the applicant could not reasonably have mistaken

        the role of the procureur général's department at the

        Court of Cassation."

29.     At the hearing before the Court, Mr Van Orshoven's counsel

invited the Court to declare the application admissible and to "find

against" the Belgian State.

AS TO THE LAW

I.      ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION

        (art. 6-1)

30.     Mr Van Orshoven submitted that there had been a breach of

Article 6 para. 1 of the Convention (art. 6-1), which provides:

        "In the determination of his civil rights and obligations or

        of any criminal charge against him, everyone is entitled to a

        fair ... hearing ... by [a] ... tribunal ..."

        Referring to the Borgers v. Belgium judgment of 30 October 1991

(Series A no. 214-B), he complained, firstly, that he had not been able

to reply, through his lawyer, to the avocat général's submissions or

to address the court last at the hearing on 13 September 1991 before

the Court of Cassation; and, secondly, that the representative of the

procureur général's department had taken part in the deliberations that

had followed immediately afterwards (see paragraph 12 above).

    A.  The Government's preliminary objection

31.     The Government noted that the only complaint in the

Commission's request bringing the case before the Court was based on

the fact that a member of the procureur général's department had taken

part in the Court of Cassation's deliberations.  Yet in its report of

15 September 1995 the Commission had implicitly declared that complaint

inadmissible because it had been made out of time (see paragraphs 26

and 27 above).  That being so, the Court had no jurisdiction to hear

it.  As to the complaint based on the fact that it had been impossible

to reply to the avocat général's submissions, the Court had no

jurisdiction to hear that either as it had not been included in the

Commission's request.

32.     At the hearing the Delegate of the Commission indicated that

the complaint concerning the Court of Cassation's deliberations, which

the Commission had rejected as being out of time, had been mentioned

in the request by mistake.  The only issue before the Court was the

avocat général's being the last to address the

Belgian Court of Cassation at the hearing.

33.     The Court reiterates that in accordance with its settled

case-law the scope of the case before it is determined by the

Commission's decision on admissibility (see, as a recent authority, the

Mauer v. Austria judgment of 18 February 1997, Reports of Judgments and

Decisions 1997-I, pp. 82-83, para. 28).

        In the instant case the only complaint declared admissible by

the Commission was that it had been impossible for Mr Van Orshoven to

reply to the submissions of the procureur général's department

(see paragraph 26 above).  That complaint therefore constitutes the

sole subject matter of the case.

        Consequently, the Government's preliminary objection must be

dismissed.

    B.  Merits of the complaint

34.     Mr Van Orshoven said that at no stage in the proceedings before

the Court of Cassation had he been able to reply to the

avocat général's submissions, which furthermore had not been

communicated to him.  Yet the avocat général's opinion could not be

considered impartial as he had advocated dismissing the appeal.  The

applicant had therefore had a definite interest in being able to reply

before the hearing came to an end, particularly as much was at stake

in the appeal, namely the right to practise as a doctor.

        Admittedly, the procureur général's department had not in the

instant case taken part in the disciplinary proceedings on the merits

before the authorities of the Ordre des médecins.  Nevertheless, the

procureur du Roi could at any time ask a provincial council of the

Ordre to commence proceedings against any member of the Ordre.  The

procureur général's department was therefore to be regarded as every

doctor's potential opponent.

        In conclusion, Mr Van Orshoven's defence rights had been

infringed.

35.     The Delegate of the Commission considered that the instant case

raised an issue similar to that in the cases of Lobo Machado

v. Portugal and Vermeulen v. Belgium (judgments of 20 February 1996,

Reports 1996-I, pp. 195 et seq., and 224 et seq.) and that the same

solution accordingly had to apply.  He consequently submitted that

there had been a violation of Article 6 para. 1 (art. 6-1).

36.     In the Government's view, the fact that the applicant had not

been able to reply to the avocat général's submissions did not mean

that the rights of the defence or the principle of equality of arms had

been infringed, because the avocat général had not been the applicant's

opponent or even a party to the proceedings.  In disciplinary matters

the department of the procureur du Roi did not take part at any stage

or in any capacity in the proceedings before the provincial council or

the appeals board of the Ordre des médecins, even when it had

originated the proceedings.

        Furthermore, the proceedings in the tribunals of fact had

satisfied the requirements of Article 6 of the Convention (art. 6), as

the Commission had found in its decision of 7 April 1994 on the

admissibility of the application (see paragraph 26 above). Relying on

the Ekbatani v. Sweden judgment of 26 May 1988 (Series A no. 134) in

particular, the Government argued that before the Court of Cassation,

whose jurisdiction was limited to questions of law, compliance with the

requirements could accordingly be less strict without that necessarily

incurring the criticism that there had been a breach of the Convention.

        An additional factor was that there had not really been

anything at stake for Mr Van Orshoven in the proceedings before the

Court of Cassation as the grounds in support of his appeal on points

of law were clearly unsustainable, either because they were

inadmissible or because they raised legal arguments that were contrary

to well-established case-law.

        Lastly, the applicant could not reasonably have been under any

misapprehension either as to the role of the procureur général's

department or as to the identity of his opponent, the

Ordre des médecins, since the Ordre was represented at the hearing

before the Court of Cassation.  Thus, even if the applicant had

perceived the position differently, he could not be considered to have

been objectively justified in so doing.

37.     The Court notes, firstly, that independently of whether the

case is a civil, criminal or disciplinary one, the main duty of the

procureur général's department at the Court of Cassation at the hearing

- as at the deliberations - is always to assist the Court of Cassation

and to help ensure that its case-law is consistent.

38.     It should be noted, secondly, that the procureur général's

department acts with the strictest objectivity.  On this point, the

findings in the Delcourt v. Belgium judgment of 17 January 1970

(Series A no. 11, pp. 17-19, paras. 32-38) and the Borgers (p. 31,

para. 24) and Vermeulen (p. 233, para. 30) judgments cited above

regarding the independence and impartiality of the Court of Cassation

and its procureur général's department remain wholly valid.

39.     As in its judgments in the Borgers case (see p. 32, para. 26)

and the Vermeulen case (see p. 233, para. 31), the Court considers,

however, that great importance must be attached to the part actually

played in the proceedings by the member of the procureur général's

department, and more particularly to the content and effects of his

submissions.  These contain an opinion which derives its authority from

that of the procureur général's department itself.  Although it is

objective and reasoned in law, the opinion is nevertheless intended to

advise and accordingly influence the Court of Cassation.  In this

connection, the Government emphasised the importance of the

department's contribution to ensuring the consistency of the

Court of Cassation's case-law.

40.     In its judgment in the Delcourt case the Court noted in its

reasons for holding that Article 6 para. 1 (art. 6-1) was applicable

that "the judgment of the Court of Cassation ... may rebound in

different degrees on the position of the persons concerned" (pp. 13-14,

para. 25).  It has reached a similar conclusion in several other cases

concerning different countries (see, mutatis mutandis, the following

judgments: Pakelli v. Germany, 25 April 1983, Series A no. 64, p. 17,

para. 36; Pham Hoang v. France, 25 September 1992, Series A no. 243,

p. 23, para. 40; Ruiz-Mateos v. Spain, 23 June 1993, Series A no. 262,

p. 25, para. 63; Lobo Machado v. Portugal cited above, p. 206,

para. 30; and Vermeulen v. Belgium cited above, p. 233, para. 32).  The

same applies in the instant case, since the appeal on points of law

concerned the lawfulness of the applicant's removal from the register

and the consequential ban on his practising medicine.

41.     Regard being had, therefore, to what was at stake and to the

nature of the submissions made by the avocat général, the fact that it

was impossible for the applicant to reply to them before the end of the

hearing infringed his right to adversarial proceedings.  That right

means in principle the opportunity for the parties to a trial to have

knowledge of and comment on all evidence adduced or observations filed

(see, among other authorities and mutatis mutandis, the

Vermeulen judgment cited above, p. 234, para. 33; and the

Nideröst-Huber v. Switzerland judgment of 18 February 1997,

Reports 1997-I, p. 108, para. 24).

42.     Accordingly, there has been a violation of Article 6 para. 1

(art. 6-1).

II.     APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

43.     Article 50 of the Convention (art. 50) provides:

        "If the Court finds that a decision or a measure taken by a

        legal authority or any other authority of a High Contracting

        Party is completely or partially in conflict with the

        obligations arising from the ... Convention, and if the

        internal law of the said Party allows only partial reparation

        to be made for the consequences of this decision or measure,

        the decision of the Court shall, if necessary, afford just

        satisfaction to the injured party."

    A.  Damage

44.     The applicant claimed 7,258,855 Belgian Francs (BEF) for

pecuniary damage, to which he added BEF 120,980 per month "from

delivery of the judgment until the date on which Mr Van Orshoven's name

is restored to the list of medical practitioners in the province of

Limburg".  Those amounts represented the fees he would have received

had he not been permanently suspended.

        He also sought BEF 1,000,000 for non-pecuniary damage.

45.     The Delegate of the Commission did not express a view.

46.     The Government rightly submitted that there was no causal link

between the violation complained of and the alleged pecuniary damage;

it is indeed not possible to speculate as to the outcome of the

proceedings if they had satisfied the requirements of Article 6

para. 1 (art. 6-1).

        As to non-pecuniary damage, the Court considers it sufficiently

compensated by the finding of a violation (art. 6-1).

    B.  Costs and expenses

47.     The applicant also sought BEF 250,000 for costs and expenses

occasioned by the proceedings in the Court of Cassation and his

representation before the Convention institutions.

48.     The Delegate of the Commission made no observations.

49.     Relying on the Welch v. the United Kingdom judgment of

26 February 1996 (Reports 1996-II, p. 386), the Government agreed to

pay, if a violation was found, a maximum of one-third of the costs

claimed by the applicant.

50.     The Court notes that the Welch judgment concerned only claims

made under Article 50 (art. 50), which had been rejected.  In the

instant case, on the other hand, the Court has found a breach of

Article 6 para. 1 (art. 6-1).

        Making its assessment on an equitable basis, it awards the

amount claimed, that is to say BEF 250,000.

    C.  Default interest

51.     According to the information available to the Court, the

statutory rate of interest applicable in Belgium at the date of

adoption of the present judgment is 7% per annum.

FOR THESE REASONS, THE COURT

1.      Dismisses unanimously the Government's preliminary objection;

2.      Holds by seven votes to two that there has been a violation of

        Article 6 para. 1 of the Convention (art. 6-1);

3.      Dismisses unanimously the claim for just satisfaction for the

        alleged pecuniary damage;

4.      Holds unanimously that this judgment in itself constitutes

        sufficient just satisfaction for the alleged non-pecuniary

        damage;

5.      Holds by eight votes to one that the respondent State is to pay

        the applicant, within three months,

        250,000 (two hundred and fifty thousand) Belgian francs for

        costs and expenses, on which sum simple interest at an

        annual rate of 7% shall be payable from the expiry of the

        above-mentioned three months until settlement.

        Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg on 25 June 1997.

Signed: Rudolf BERNHARDT

        President

Signed: Herbert PETZOLD

        Registrar

        In accordance with Article 51 para. 2 of the Convention

(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the following

separate opinions are annexed to this judgment:

        (a) concurring opinion of Mr Mifsud Bonnici;

        (b) dissenting opinion of Mr Pettiti;

        (c) dissenting opinion of Mr Storme.

Initialled: R. B.

Initialled: H. P.

              CONCURRING OPINION OF JUDGE MIFSUD BONNICI

        I form part of the majority.  However for the sake of

precision, I feel bound to note that I do not think it proper for the

judgment to contain in its obiter dicta the statements contained in

paragraph 38, that is to say, in the first place:

          "... the procureur général's department acts with the

        strictest objectivity."

        The Court, in reality did not have the opportunity of examining

whether the procureur général acted objectively or otherwise.  Indeed

it did not have to as that question was not before it.  What was before

it was that, since the procureur général had to intervene in the case,

then the applicant had the right of reply.  To state that that

intervention is carried out "with the strictest objectivity" not only

hands out an unwarranted blanket certificate on the permanent quality

and nature of the modus operandi of the procureur général, but it also

weakens the considerations on which the judgment is based because this

"strictest objectivity" once it exists would not justify the finding

of a violation which is anything else but formal.

        The question is further loaded in this objectionable sense

when, in the same paragraph, the Court approves what it had said in

previous judgments:

         "... regarding the independence and impartiality of the

        Court of Cassation and its procureur général's department

        remain wholly valid."

        From my point of view, therefore, paragraph 38 should not form

part of the judgment.

                  DISSENTING OPINION OF JUDGE PETTITI

                             (Translation)

        I voted with the minority in favour of finding that there had

been no violation for the following reasons.

        The Court's reasoning, in particular in paragraph 39, seems to

me to be couched in terms that are too general with the risk that it

may be applied in other cases that are more or less similar, with no

account being taken of the individual nature of each

national legal order so far as proceedings in the Court of Cassation

and the role of that court's procureur général and avocats généraux are

concerned.

        Criminal and civil proceedings cannot be treated identically

where the domestic order makes special arrangements; similarly, it is

not possible to treat proceedings where one party (such as a

professional body) is opposed to an applicant who is a member of the

profession in the same way as other proceedings.

        In addition, in the context of disciplinary proceedings

following a decision of a professional body, there must be taken into

account, in each individual case, the special features of the

domestic procedural order at the level of the appellate court below the

Court of Cassation, namely the composition of the court and the role

of the parties and avocats généraux.

        Further, there is in my view a contradiction in the reasoning

in paragraph 39, which provides that the opinion of the

procureur général's department is intended to advise and influence the

Court of Cassation.  Yet, in the instant case, the judgment of the

Court of Cassation merely contains a reference to the fact that it was

delivered after the avocat général had made submissions, there being

nothing to suggest that he had argued in favour of dismissing the

applicant's appeals on points of law or, consequently, that he had

exerted any influence on the Court of Cassation that could be

considered an infringement of the applicant's right to an adversarial

hearing.

        With regard to the special nature of the procureur général's

department at the Court of Cassation in Belgium, I subscribe to the

observations of Judge Storme with reference to the separate opinions

in the Borgers and Vermeulen judgments.  I also note that the Court has

not reiterated the reasoning based on outward appearances or, in

paragraph 38, the formulas previously used in the Borgers and

Vermeulen judgments.

        It is true that in the present case the sole issue concerned

the fact that the applicant was unable to reply to the submissions of

the procureur général's department.

        The Court will no doubt have an opportunity to refine its

case-law when dealing with similar proceedings whilst remaining alert

to its international impact (particularly with respect to the role of

Advocates General at the Court of Justice of the European Communities)

and its effect on Court of Cassation proceedings in national systems.

                  DISSENTING OPINION OF JUDGE STORME

                             (Translation)

        I regret that I am unable to agree with the present judgment

as I consider that the fact that it was not possible to reply to the

avocat général's submissions did not in the present case infringe the

applicant's rights to adversarial proceedings.

        I do not intend to reiterate in detail the role of the

procureur général's department at the Court of Cassation, which I

analysed in my dissenting opinion in the case of Borgers v. Belgium

(judgment of 30 October 1991, Series A no. 214-B, pp. 53 et seq.).

        It is sufficient to note - as indeed is rightly stated in the

judgment - that the function of the procureur général's department is

to advise the Court of Cassation on the main principles of law, on

compliance with the law and rules governing the form of the procedure

and to ensure that the case-law remains consistent.

        In the present case, I do not find convincing the argument that

the fact that it was not possible to reply to the avocat général's

submissions, the content of which is an unknown, meant that the

applicant was prejudiced.

        It must be emphasised that the words "after submissions" in the

Court of Cassation's judgment in the Van Orshoven case have no special

meaning, as they do not indicate whether the submissions were in favour

of allowing or of dismissing the appeal.

        That formula may be used both for submissions in favour of

allowing an appeal and submissions in favour of its dismissal.

Accordingly, the applicant has not shown any special ground for

complaint.

        In the present case, it seems to me to be important to

highlight certain particular features.

        There was no procureur général's department either at

first instance or on appeal so that it was unable to take part at any

time or in any capacity in the proceedings on the merits.

        In the Court of Cassation the applicant had an opponent, namely

the Ordre des médecins, which marks an essential difference from the

cases of Borgers (cited above) and Vermeulen v. Belgium (judgment of

20 February 1996, Reports of Judgments and Decisions 1996-I).  The

procureur général could not in the circumstances be the applicant's

opponent, that being the role of the Ordre des médecins.  Nonetheless,

the issue in the judgment is whether the right to adversarial

proceedings was infringed (see paragraph 41 of the judgment).

        In the present case, the disciplinary proceedings at first

instance and on appeal were properly conducted, as was pointed out by

the European Commission of Human Rights.

        Although the Court appears to have abandoned in its recent

case-law the principle of outward appearances, the finding of a

violation in the present judgment is in my opinion based on an

assessment of the right to adversarial proceedings that is purely

formal.  Indeed, the Court did not consider whether, in the instant

case, the lack of adversarial proceedings could have adversely affected

the applicant's interests (compare the Padovani v. Italy judgment of

26 February 1993, Series A no. 257-B; the Nortier v. the Netherlands

judgment of 24 August 1993, Series A no. 267; and the Remli v. France

judgment of 23 April 1996, Reports 1996-II: the applicant's fears must

be such that they may be held to be objectively justified).

        Lastly, it has to be said that the purely formal approach taken

in the present judgment will have repercussions not only in Belgium,

but also in international proceedings.  It seems to me that neither the

procureur général's department nor Crown Counsel attached to the

industrial tribunals (auditorat du travail) will be entitled to address

courts or tribunals - whether civil, commercial or industrial - last,

as is provided for by the Belgian Judicial Code.

        Similarly, the parties will have to have the right to make

observations on the opinion of the representative of the

Belgian Conseil d'Etat and on the submissions of the Advocates General

at the Court of Justice in Luxembourg.

        That of course would be a major change entailing, in my

opinion, unduly protracted proceedings as the inevitable general

consequence of the formal principle stated in the present judgment.

 

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