Information Note on the Court’s case-law
June 1994
De Moor v. Belgium - 16997/90
Judgment 23.6.1994
Article 6
Administrative proceedings
Article 6-1
Civil rights and obligations
Fair hearing
Public hearing
Proceedings conducted by the Hasselt Bar Council to examine an application for enrolment on the list of pupil advocates: Article 6 § 1 applicable; violation
Reasonable time
Length of proceedings in the Conseil d'Etat: violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.ARTICLE 6 § 1 OF THE CONVENTION
A.Applicability
Question raised before Bar Council concerned determination of a right because where legislation lays down conditions for admission to a profession and a candidate satisfies those conditions, he has a right to be admitted to that profession - refusal in issue not based on failure to take oath, and applicant could therefore claim, on arguable grounds, a right under Belgian law to enrolment on the list of pupil advocates - right already held by the Court to be a "civil right" within the meaning of Article 6 § 1.
Conclusion: applicable (unanimously).
B.Compliance
1.Before the Hasselt Bar Council (lack of impartiality, proceedings neither fair nor public)
(a) Government's preliminary objection (failure to exhaust domestic remedies)
Appeal on points of law to the Court of Cassation: not raised before the Commission; Government accordingly estopped from invoking this remedy.
Application to take the oath: not a remedy so that possibility of filing appeal on points of law against Court of Appeal's rejection immaterial.
Introduction of application to Commission without waiting for judgment of Conseil d'Etat: did not mean that decision on admissibility was premature or that any legitimate interest of respondent State was harmed.
Appeal on points of law against refusal to enrol and application to the Court of Cassation for transfer of jurisdiction from Bar Council: directed essentially to same end as proceedings in the Conseil d'Etat and in any case would not have offered better chances of success.
Conclusion: objection dismissed (unanimously).
(b) Merits of the complaints
Bar Council enjoyed very wide discretion in dealing with application for enrolment - decision rejecting such an application had nevertheless to be based either on failure to comply with conditions concerning nationality, diploma or taking of the oath or on the fact that candidate falls within one of the categories of incompatibility or again is unfit or incompetent - no legally valid reason given for disputed decision so that applicant's case did not have fair hearing, in particular as no remedy was available to him.
No public hearing held to examine application and decision not delivered in public, although there was no reason to justify proceedings being held in private.
Unnecessary to rule on complaint based on Bar Council's impartiality.
Conclusion: violation (unanimously).
2.Before the Conseil d'Etat ("reasonable time")
(a) Government's preliminary objection
Fresh criminal complaint filed with principal public prosecutor's office at the Court of Appeal, together with application to join proceedings as civil party: would have been directed to same end as remedies of which applicant had already availed himself.
Conclusion: objection dismissed (unanimously).
(b) Merits of the complaint
(i) Period to be taken into consideration
Starting-point: date on which application to have Bar Council's decision set aside was filed in Conseil d'Etat.
End: delivery of judgment by Conseil d'Etat.
Total: seven years and eleven months.
(ii) Applicable criteria
Reasonableness of length of proceedings: to be assessed with reference to criteria laid down in Court's case-law and in the light of circumstances of case.
Two periods could be distinguished:
- first period: no investigative measure taken for over two years - possibly explained by desire to wait for outcome of H. v. Belgium case;
- second period: total inactivity for just over four years (judgment reserved) - applicant's conduct not open to criticism - delay not explained by complexity of case and sensitive nature of question put to Conseil d'Etat, or by intervention of National Bar Association, death of judge-rapporteur, departure of another judge and retirement of President.
Conclusion: violation (unanimously).
II.ARTICLE 50 OF THE CONVENTION
A.Damage
Pecuniary damage: no evidence - claim dismissed.
Non-pecuniary damage: not sufficiently compensated for by finding of violation - award of sum assessed on equitable basis.
B.Costs and expenses
Applicant not represented, reimbursement of expenses only, on equitable basis.
Conclusion: respondent State to pay applicant specified sums (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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