Objective and subjective criteria
II. THE RELEVANT LEGISLATION AND PRACTICE A. The public prosecutor ’ s department ( ministère public) 18. In criminal matters, the public prosecutor ’ s department "conducts prosecutions in the manner specified by law" (Article 138, first paragraph, of the Judicial Code). In that capacity, it investigates, and institutes proceedings in respect of, offences and then, if appropriate, appears at the trial in order to argue the case for the prosecution. All the judicial officers in the public prosecutor ’ s department form a hierarchical body which is generally recognised as being characterised by unity, indivisibility and independence. In addition to the departments of the procureur général at the Court of Cassation and of the procureurs généraux at the Courts of Appeal, there is a procureur du Roi for each district; subject to the supervision and directions of the procureur général attached to the Court of Appeal, a procureur du Roi acts as public prosecutor before the District Courts, the Courts of First Instance, the Commercial Courts and the District Police Courts (Article 150 of the Judicial Code). He is aided by one or more deputies who are subject to his personal supervision and directions, including one or more senior deputies appointed by Royal Decree who assist him in the management of the public prosecutor ’ s department (Article 151 of the Judicial Code). 19. In the Brussels public prosecutor ’ s department, there are several dozen judicial officers all of whom are answerable to the procureur du Roi. The department is divided into sections, with a senior deputy at the head of each section. As a strict matter of law, the individual deputies come under the sole authority of the procureur du Roi who himself comes under the authority of the procureur général attached to the Court of Appeal, but in practice a senior deputy exercises certain administrative powers over the deputies. In particular, he revises their written submissions to the courts, discusses with them the approach to be adopted in a specific case and, if the occasion arises, gives them advice on points of law. One of the above-mentioned sections - section B - deals with indictable and non-indictable offences (crimes et délits ) against the person. Mr. P. Van de Walle was the head of this section during the period in question, until his appointment to the Brussels Court of Appeal (see paragraph 12 above). According to the Government, the procureur du Roi regarded himself at that time as personally responsible for cases - like Mr. Piersack ’ s - involving an indictable offence, the number whereof was actually fairly small; he worked on those cases directly with the deputy in charge of the file - on this occasion, Mrs. del Carril and then Mr. De Nauw -, rather than through the intermediary of the senior deputy whose principal role was to countersign documents, if not to act as a "letter-box". The applicant contested this version of the facts, maintaining that the Government were giving an exaggerated view of the "autonomy" enjoyed by the deputies vis-à-vis the senior deputies. B. Assize courts 20. Under Article 98 of the Belgian Constitution, a jury has to be constituted in all cases involving an indictable offence. Assizes are held, as a rule at the chief town in each province, in order to try accused persons remitted for trial there by the Court of Appeal (Articles 114 to 116 of the Judicial Code and Article 231 of the Code of Criminal Procedure). Each assize court is composed of a President and two other judges ( assesseurs ); for criminal matters, it sits with a jury of twelve members (Articles 119 to 124 of the Judicial Code). The President ’ s duties include directing the jurors in the exercise of their functions, summing-up the case on which they have to deliberate, presiding over the whole of the procedure and determining the order in which those wishing to do so shall address the court; he also keeps order in court (Article 267 of the Code of Criminal Procedure). He is entitled by law to take, at his discretion and on his own initiative, any steps which he may consider expedient for the purpose of establishing the truth, and he is bound in honour and conscience to make every effort to that end, for example by ordering of his own motion the attendance of witnesses or the production of documents (Articles 268 and 269). 21. After closing the hearings (Article 335, last paragraph, of the Code of Criminal Procedure), the President puts to the jury the questions arising from the indictment and hands the text of those questions to the foreman of the jury (Articles 337 to 342). The jurors then retire to their room to deliberate together, in the absence of the President and the other judges; they may return only when they have arrived at their verdict (Articles 342 and 343). To be valid, the jury ’ s verdict must be adopted by a majority for or against the accused; if the voting is equal, he is acquitted (Article 347). However, if he is found guilty on the principal count by no more than the simple majority of seven votes to five - as was the case for Mr. Piersack (see paragraph 14 above) -, the President and the two other judges deliberate together on the same question; if a majority of them does not agree with the majority of the jury, the accused is acquitted (Article 351). If there is a finding of guilt, the judges retire with the jurors to the jury-room and they deliberate as a single body, under the chairmanship of the President of the Court, on the sentence to be imposed in accordance with the criminal law; the decision is taken by an absolute majority (Article 364). C. Incompatibilities 22. Article 292 of the 1967 Judicial Code prohibits the concurrent exercise of different judicial functions, except where otherwise provided by law; it lays down that "any decision given by a judge who has previously dealt with the case in the exercise of some other judicial function" shall be null and void. Article 127 specifies that "proceedings before an assize court shall be null and void if they have been presided over by a judicial officer who has acted in the case as ... public prosecutor ( ministère public) or has delivered rulings on the conduct of the investigations". PROCEEDINGS BEFORE THE COMMISSION 23. In his application of 15 March 1979 to the Commission (no. 8692/79), Mr. Piersack claimed to have been the victim of a violation of Article 6 § 1 (art. 6-1) of the Convention; he contended that he had not received a hearing by "an independent and impartial tribunal established by law", since Mr. Van de Walle, the President of the Assize Court which convicted him, had allegedly dealt with the case at an earlier stage in the capacity of a senior deputy to the procureur du Roi. 24. The Commission declared the application admissible on 15 July 198O. In its report of 13 May 1981 (Article 31 of the Convention) (art. 31), the Commission expressed the unanimous opinion that there had been a breach of one of the requirements of Article 6 § 1 (art. 6-1), namely that the tribunal be impartial. The report contains one separate, concurring opinion. FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT 25. At the hearings, the Government requested the Court "to hold that there has been no violation of Article 6 § 1 (art. 6-1) of the Convention in the present case". AS TO THE LAW I. THE ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1) 26. Under Article 6 § 1 (art. 6-1) of the Convention, "In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal established by law. ..." 1. "Independent tribunal" 27. According to the applicant, the court by which he was convicted on 10 November 1978 was not an "independent tribunal". This assertion, for which he adduced no supporting evidence, does not stand up to examination. Under the Constitution (Articles 99-100) and by statute, the three judges of whom Belgian assize courts are composed enjoy extensive guarantees designed to shield them from outside pressures, and the same purpose underlies certain of the strict rules governing the nomination of members of juries (Articles 217-253 of the Judicial Code). 2. "Impartial tribunal" 28. Mr. Van de Walle, the judge who presided over the Brabant Assize Court in the instant case, had previously served as a senior deputy to the Brussels procureur du Roi; until his appointment to the Court of Appeal, he was the head of section B of the Brussels public prosecutor ’ s department, this being the section dealing with indictable and non-indictable offences against the person and, therefore, the very section to which Mr. Piersack ’ s case was referred (see paragraphs 9-12, 14 and 19 above). 29. On the strength of this fact the applicant argued that his case had not been heard by an "impartial tribunal": in his view, "if one has dealt with a matter as public prosecutor for a year and a half, one cannot but be prejudiced". According to the Government, at the relevant time it was the procureur du Roi himself, and not the senior deputy, Mr. Van de Walle, who handled cases involving an indictable offence; they maintained that each of the deputies - on this occasion, Mrs. del Carril and then Mr. De Nauw - reported to the procureur on such cases directly and not through Mr. Van de Walle, the latter ’ s role being principally an administrative one that was unconnected with the conduct of the prosecution and consisted, inter alia, of initialling numerous documents, such as the covering notes of 13 January and 20 June 1977 (see paragraphs 9, 11 and 19 above). As regards the covering note of 4 February 1977 (see paragraph 10 above), the investigating judge, Mr. Preuveneers, was said to have written thereon the words "for the attention of Mr. P. Van de Walle" solely because he knew that Mrs. del Carril was frequently on sick-leave. In addition, so the Government stated, there was no evidence to show that Mr. Van de Walle had received that note and, in any event, it was not he but Mrs. del Carril who had replied to Mr. Preuveneers. 30. Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6 § 1 (art. 6-1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect. (a) As regards the first approach, the Court notes that the applicant is pleased to pay tribute to Mr. Van de Walle ’ s personal impartiality; it does not itself have any cause for doubt on this score and indeed personal impartiality is to be presumed until there is proof to the contrary (see the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25, § 58). However, it is not possible to confine oneself to a purely subjective test. In this area, even appearances may be of a certain importance (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17, § 31). As the Belgian Court of Cassation observed in its judgment of 21 February 1979 (see paragraph 17 above), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts must inspire in the public in a democratic society. (b) It would be going too far to the opposite extreme to maintain that former judicial officers in the public prosecutor ’ s department were unable to sit on the bench in every case that had been examined initially by that department, even though they had never had to deal with the case themselves. So radical a solution, based on an inflexible and formalistic conception of the unity and indivisibility of the public prosecutor ’ s department, would erect a virtually impenetrable barrier between that department and the bench. It would lead to an upheaval in the judicial system of several Contracting States where transfers from one of those offices to the other are a frequent occurrence. Above all, the mere fact that a judge was once a member of the public prosecutor ’ s department is not a reason for fearing that he lacks impartiality; the Court concurs with the Government on this point. (c) The Belgian Court of Cassation, which took Article 6 § 1 (art. 6-1) into consideration of its own motion, adopted in this case a criterion based on the functions exercised, namely whether the judge had previously intervened "in the case in or on the occasion of the exercise of ... functions as a judicial officer in the public prosecutor ’ s department". It dismissed Mr. Piersack ’ s appeal on points of law because the documents before it did not, in its view, show that there had been any such intervention on the part of Mr. Van de Walle in the capacity of senior deputy to the Brussels procureur du Roi, even in some form other than the adoption of a personal standpoint or the taking of a specific step in the process of prosecution or investigation (see paragraph 17 above). (d) Even when clarified in the manner just mentioned, a criterion of this kind does not fully meet the requirements of Article 6 § 1 (art. 6-1). In order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation. If an individual, after holding in the public prosecutor ’ s department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality. 31. This was what occurred in the present case. In November 1978, Mr. Van de Walle presided over the Brabant Assize Court before which the Indictments Chamber of the Brussels Court of Appeal had remitted the applicant for trial. In that capacity, he enjoyed during the hearings and the deliberations extensive powers to which, moreover, he was led to have recourse, for example the discretionary power conferred by Article 268 of the Judicial Code and the power of deciding, with the other judges, on the guilt of the accused should the jury arrive at a verdict of guilty by no more than a simple majority (see paragraphs 13-14 and 20-21 above). Yet previously and until November 1977, Mr. Van de Walle had been the head of section B of the Brussels public prosecutor ’ s department, which was responsible for the prosecution instituted against Mr. Piersack. As the hierarchical superior of the deputies in charge of the file, Mrs. del Carril and then Mr. De Nauw, he had been entitled to revise any written submissions by them to the courts, to discuss with them the approach to be adopted in the case and to give them advice on points of law (see paragraph 19 above). Besides, the information obtained by the Commission and the Court (see paragraphs 9-11 above) tends to confirm that Mr. Van de Walle did in fact play a certain part in the proceedings. Whether or not Mr. Piersack was, as the Government believe, unaware of all these facts at the relevant time is of little moment. Neither is it necessary to endeavour to gauge the precise extent of the role played by Mr. Van de Walle, by undertaking further enquiries in order to ascertain, for example, whether or not he received the covering note of 4 February 1977 himself and whether or not he discussed this particular case with Mrs. del Carril and Mr. De Nauw. It is sufficient to find that the impartiality of the "tribunal" which had to determine the merits (in the French text:" bien-fondé" ) of the charge was capable of appearing open to doubt. 32. In this respect, the Court therefore concludes that there was a violation of Article 6 § 1 (art. 6-1). 3. "Tribunal established by law" 33. Initially, the applicant also claimed that the Brabant Assize Court was not a "tribunal established by law", arguing that Mr. Van de Walle ’ s presence on the bench contravened, inter alia, Article 127 of the Judicial Code. In order to resolve this issue, it would have to be determined whether the phrase "established by law" covers not only the legal basis for the very existence of the "tribunal" - as to which there can be no dispute on this occasion (Article 98 of the Belgian Constitution) - but also the composition of the bench in each case; if so, whether the European Court can review the manner in which national courts - such as the Belgian Court of Cassation in its judgment of 21 February 1979 (see paragraph 17 above) - interpret and apply on this point their domestic law; and, finally, whether that law should not itself be in conformity with the Convention and notably the requirement of impartiality that appears in Article 6 § 1 (art. 6-1) (cf., in the context of Article 5 (art. 5), the Winterwerp judgment of 24 October 1979, Series A no. 33, pp. 19-20, §§ 45-46, and the X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, pp. 18-19, § 41). In the particular circumstances, it does not prove to be necessary to examine this issue, for in the present case the complaint, although made in a different legal context, coincides in substance with the complaint which has been held in the preceding paragraph to be well-founded; besides, the applicant did not revert to the former complaint either in his written observations of April 1980 on admissibility or during the hearings of 10 December 1980 before the Commission and of 25 March 1982 before the Court. II. THE APPLICATION OF ARTICLE 50 (art. 50) 34. At the hearings, Mr. Piersack ’ s lawyer stated that his client was seeking under Article 50 (art. 50) of the Convention his immediate release, in accordance with "arrangements to be discussed", and also financial compensation to be used to meet the fees of his lawyers before the Belgian Court of Cassation (50,000 BF) and in Strasbourg (150,0000BF), subject to deduction of the amount paid by the Council of Europe by way of legal aid (3,500 FF). Counsel for the Government replied that, were the Court to find a violation, publication of the judgment would itself constitute adequate just satisfaction. She added that she was unaware of the authorities ’ present view on early release of the applicant. 35. Accordingly, although it was raised under Rule 47 bis of the Rules of Court, this question is not ready for decision. The Court must therefore reserve it and fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicant.
The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the impartiality of the tribunal which had to determine the merits of the charge in the applicant’s case was capable of appearing open to doubt. The Court noted in particular that, whilst impartiality normally denoted absence of prejudice or bias, its existence or otherwise could, notably under Article 6 § 1, be tested in various ways. A distinction could be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect. The Court further stressed that, in order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation. If an individual, after holding in the public prosecutor’s department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality. This was what had occurred in the present case.