Information Note on the Court’s case-law 251
May 2021
Manzano Diaz v. Belgium - 26402/17
Judgment 18.5.2021 [Section III]
Article 5
Article 5-4
Review of lawfulness of detention
Reporting judge’s draft decision sent to the advocate-general but not to the applicant ahead of the Court of Cassation hearing: no violation
Advocate-general’s submissions presented for the first time orally at the hearing, without being sent to the applicant in advance: no violation
Facts – The applicant brought proceedings in the Court of Cassation challenging the order for his continued compulsory confinement adopted by the Higher Social Protection Board. The present application concerned the sending of the reporting judge’s draft decision to the advocate-general and alleged exchanges between the latter and the Court of Cassation, or at least the reporting judge. The applicant relied on Article 6 § 1 of the Convention.
Law – Article 5 § 4:
Even assuming Article 6 § 1 to be applicable under its civil head, Article 5 § 4 constituted a lex specialis in relation to that provision.
1. The applicant complained that the sending of the reporting judge’s draft decision to the advocate-general and not to the applicant himself, and the exchanges between the reporting judge and the advocate-general ahead of the public hearing, had breached the principle of equality of arms and the adversarial principle.
Under Belgian law the advocate-general at the Court of Cassation did not have the status of a party to the proceedings. He or she was a member of State Counsel’s office at the Court of Cassation, which – unlike the public prosecutors’ offices attached to the lower courts – did not conduct public prosecutions save in exceptional circumstances not applicable in the present case, did not bring cases before that court and did not have the character of respondent. The advocate-general’s main task was to assist the Court of Cassation and ensure consistency in the case-law, acting with the strictest objectivity.
Accordingly, the principle of equality of arms could not be invoked in a case like this one in which there had been no prosecuting party or other opposing party in the proceedings before the Court of Cassation. The fact, referred to by the applicant, that the advocate-general at the Court of Cassation was not a member of the bench of that court did not suffice to demonstrate why he should then be regarded as the applicant’s opponent in the proceedings, which was a prerequisite for alleging a breach of the equality-of-arms principle. On the other hand, since the opinion of the advocate-general was designed to advise the court and hence influence its decision, the adversarial principle had to be observed.
The draft decision of the reporting judge, who was a member of the bench examining the case, was not an item of evidence adduced by a party and liable to influence the court’s decision, but a document produced within the court as part of the preparation of the final decision. Accordingly, an internal working document of this kind, which was confidential, was not subject to the adversarial principle.
In preparing his submissions and adopting the position which he submitted publicly to the court, the advocate-general, whether or not he followed the line taken by the reporting judge, referred, inter alia, to the latter’s draft decision. These submissions, in so far as they incorporated the views of the reporting judge, therefore potentially afforded the parties an insight into the decisive evidence in the case and the court’s interpretation of it. This particular feature thus gave them an opportunity to respond before the judges took their decision. Consequently, it could not be said in itself to undermine the fairness of proceedings in the Court of Cassation.
Furthermore, there had been no discussion in the present case between the reporting judge and the advocate-general after the draft decision had been sent.
2. The applicant also alleged a breach of the equality-of-arms principle and of the adversarial principle on account of the fact that the advocate-general’s submissions had not been communicated before the public hearing, at which they had simply been presented orally, while the Court of Cassation had allegedly been acquainted with those submissions ahead of the hearing.
Besides the fact that it had not been shown why the advocate-general should be regarded as the applicant’s opponent in the proceedings before the Court of Cassation, the applicant had failed to provide concrete evidence in support of his claim that the Court of Cassation had been acquainted with the advocate-general’s submissions ahead of the hearing, or that it had taken its decision before those submissions had been presented in public at the hearing. Accordingly, the applicant, the Court of Cassation and the public had all learned of the content and the thrust of the advocate-general’s submissions when he had presented them orally at the hearing on the basis of a memorandum prepared by him.
Hence, the applicant could not validly argue that he had been placed at a substantial disadvantage vis-à-vis anyone because he had not been acquainted with the submissions of the advocate-general ahead of the public hearing. Moreover, a party to proceedings could not derive from the right to equality of arms a right to have disclosed to him or her, before the hearing, submissions which had not been disclosed to the other party or to the reporting judge or the judges of the trial bench.
Lastly, under the Judicial Code the applicant had had the possibility of replying to the advocate-general’s oral submissions by making his observations orally at the hearing, seeking an adjournment or requesting leave to file a memorandum for the deliberations within a specified period. The applicant had not demonstrated that he had been prevented from making use of that possibility in the circumstances of the case.
In view of the foregoing, the applicant could not claim to have been placed in a situation contrary to the requirements of Article 5 § 4.
Conclusion: no violation (unanimously).
(See also K.A. and A.D. v. Belgium, 42758/98 and 45558/99, 17 February 2005, Legal summary; Marc-Antoine v. France (dec.), 54984/09, 4 June 2013, Legal summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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