Violation of Art. 6-1 in respect of Mr Coeme (fair hearing);Not necessary to examine Art. 6-2 and 6-3;Violation of Art. 6-1 (tribunal "established by law");Not necessary to examine Art. 14;Not necessary to examine the complaint of Mr Mazy, Mr Stalport, Mr Hermanus and Mr Javeau (fair hearing);No violation of Art. 6-1 (access to court);Not necessary to examine Art. 13;No violation of Art. 6-1 as regards the allegation that the Court of Cassation is not an independent and impartial tribunal;No violation of Art. 6-1 as regards the interview with Mr Stalport;No violation of Art. 6-1 (reasonable time);No violation of Art. 7;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr Coëme, a Belgian national born in 1948, is a former member of the House of Representatives and a former minister.

Mr Mazy, a Belgian national born in 1955, is an economist.

Application no. 32548/96 was originally lodged by Mr Stalport, a Belgian national born in 1950, who was then the director-general of Belgian Radio and Television. Following Mr Stalport's death on 7 May 1997 his wife and his daughters announced their intention of pursuing the application in a letter of 4 July 1997.

Mr Hermanus is a Belgian national, born in 1944. A civil servant, he was deputy mayor of the municipality of Jette from 1983 to 1986 and the chairman of the Brussels-Capital Regional Development Board (“the SDRB”) from 1989 to 1996.

Mr Javeau, a Belgian national born in 1943, is a psychologist.

In 1984 Mr Javeau, an employee of the “I” association, was appointed as its manager. The object of the association was to carry out market research and opinion polls, and to create and develop computer software. The market research included surveys requested and paid for by third parties in both the private and public sectors (such as the State, public establishments, political parties, etc.). The association also carried out market research and opinion polls on its own initiative. On 22 August 1989, while Mr Javeau was in the United States, he was dismissed for serious misconduct.

On 25 August 1989 an investigating judge at the Brussels Court of First Instance was instructed to conduct an investigation into some of “I”'s activities.

On 26 August 1989 Mr Javeau was placed in pre-trial detention on his return from the United States. He was suspected of using forged invoices to overcharge “I”'s clients for surveys the association had undertaken to carry out on the basis of contracts with the Belgian State, the Walloon Region and the French-speaking Community, among others. It was alleged that he personally had obtained a financial gain from the higher fees paid to the association in consequence and had allowed others to do so. Those alleged to have benefited from these transactions included prominent politicians.

In October 1989 one V., “I”'s deputy manager, was also placed in pre-trial detention. He was released in November 1989, as was Mr Javeau.

On 28 August 1989 Mr Hermanus lodged a complaint against a person or persons unknown in connection with “slanderous rumours [being spread] about [him] in relation to the dismissal of Mr C. Javeau”. In this complaint he gave detailed explanations about two surveys he had requested “I” to carry out, in his capacity as secretary-general of the Ministry of the French-speaking Community of Belgium. These surveys, one of which had allegedly not been carried out, had been requested from “I” in two contracts dated 16 and 27 November 1987, the bills for which had been paid by the French-speaking Community on 20 January and 29 February 1988 respectively.

In the context of the proceedings brought against Mr Javeau, among others, the investigating judge appointed a court expert to ascertain how the fraud had been perpetrated, who was responsible for it and who had benefited from it. The expert was instructed in particular to report on the association's bookkeeping, to study its annual accounts, to determine to what extent, if at all, it was engaged in activity of a commercial nature, to identify the documents whose authenticity was in doubt and to note any evidence of fraud within the limits of the prosecution submissions and any further submissions which might be made.

The expert filed a preliminary report in December 1989.

At the prosecution's request, the investigating judge commissioned further expert reports. One of these was filed in 1990.

On 28 August 1991 searches were carried out at the home of Mr Hermanus and the offices he occupied as deputy mayor of Jette.

On 10 June 1992 the Audit Commission (an independent body responsible for detecting frauds or offences committed in connection with the operation of public services, supervising public works or supply contracts and verifying how public subsidies have been used) interviewed Mr Hermanus. A report on the proceedings was drawn up (no. 2337). Mr Hermanus was questioned by the Audit Commission on a number of further occasions in 1992 and 1993.

On 8 June 1993 an Audit Commission investigator questioned Mr Javeau about certain contracts entered into by “I”, particularly three contracts for 1,200,000 Belgian francs (BEF) each signed by Minister M. which concerned businesses in the Brussels area which were geared for exports, operating as sub-contractors or receiving subsidies from the Brussels Region (files nos. IN B/40, B/50 and B/60).

He was asked in particular whether the intention had not been “in effect to scrape together all available funds” before Minister M. left the Brussels Region and whether a preliminary study had not been split into three contracts in order to evade the scrutiny of the Treasury inspector.

According to the interview record, Mr Javeau replied:

“Yes, in effect, we signed those contracts at the end of Minister M.'s term of office in the Brussels Region as I have just explained, but I think that splitting the work between three contracts was done simply to save time. The new minister-president had to be installed and a new procedure would have led to further delays. If we had not severed the contract we would indeed have had to submit it to the Treasury inspector for approval, and in the event of an unfavourable opinion we would have had to go up as far as the Cabinet, all for a contract that M. was determined to get through whatever level of the procedure it had to go to.”

The final report containing the expert opinions ran to six volumes which were filed between December 1993 and March 1994.

Reports concerning the additional expert opinions requested were filed in January and February 1995.

On 2 February 1994 the investigating judge charged Mr Hermanus with misappropriation, fraud, forgery, uttering forged documents and accepting bribes as a civil servant.

On 7 February 1994, as the investigation appeared to have uncovered evidence of offences committed by prominent politicians who, because of ministerial or parliamentary immunity, could not be prosecuted or investigated except under the conditions laid down in Articles 59, 103 or 120 of the Constitution (concerning members of the House of Representatives or Senate, ministers and members of Community or Regional Councils respectively), the investigating judge sent a copy of the file in the meantime to the Principal Public Prosecutor's Office at the Brussels Court of Appeal.

The Principal Public Prosecutor (procureur général) at the Brussels Court of Appeal decided that there did indeed appear to be evidence that offences had been committed by eleven prominent politicians protected by ministerial or parliamentary immunity, including Mr Coëme and Minister M.

On 16 March 1994 Mr Stalport was interviewed, as former head of the private office of Minister M., by two civil servants belonging to the investigation branch of the Audit Commission, acting pursuant to instructions given by the investigating judge handling the proceedings against Mr Javeau. This interview mainly concerned the relations between Mr Javeau and the private office of Minister M., and the working practices of the private office. It concentrated on three contracts dated 15 June 1989 between the Brussels Region and “I”. The verbatim record of the interview records this part of the proceedings as follows:

“Q [Question] On 17 May 1989 Mr Javeau sent the private office a draft contract for a preliminary study to be carried out among small and medium-sized businesses in the Brussels area for a total fee of BEF 4,800,000 net of VAT. The study was intended to produce a list of businesses

– geared for exports;

– operating as sub-contractors;

– receiving subsidies from the Brussels Region.

A few days later you informed Javeau that his draft contract had been transmitted to the administration for scrutiny (appendices 116 to 122 of the same report). Did you have instructions to do that? Did you inform yourself about the possibility of a call for tenders for the creation of such a data bank?

A [Answer] I had no instruction to do that. As for finding out about calls for tenders, I left that to the administration, for the reasons I have already mentioned.

Q What is the procedure to be followed where the Treasury inspector's opinion on a draft contract is unfavourable?

A I now know that it was possible to apply to the regional government for arbitration. At the time, I was unaware of that procedure and nobody told me about it. I was determined to get things moving and the opinion of the Treasury inspector, L. in this case, concentrated very much on the regulations and was little concerned with financial viability. In substance, I was irked by the inflexibility and resistance to change of the Treasury inspectorate. In my private office I was advised to do things differently, namely to split the contract into three parts so that the fees would be lower than the BEF 1,250,000 threshold triggering compulsory scrutiny by the Treasury inspector. I must emphasise that, despite doing things that way, I once again submitted the subdivided project to the Treasury inspector, but the second time he gave a favourable opinion.

Q Here you see three contracts signed on 15 June 1989 between the Brussels Region, represented by Minister M., and the “I” association, represented by Mr Javeau (see appendices 100 to 111 of the expert report). Each of these contracts concerns a preliminary study to be carried out among small and medium-sized businesses in the Brussels area to determine which of them would be interested in appearing in a data bank as described in the initial project. Each of these contracts concerns one of the three above-mentioned criteria. They represent a total cost for the preliminary study of BEF 3,600,000 net of VAT, as compared with the initial project, which would have cost BEF 4,800,000 net of VAT. Did not that reduction result from the need to split the initial project into three, since there were three criteria, while at the same time making sure that none of the three contracts exceeded BEF 1,250,000 net of VAT, the threshold for intervention by the Treasury inspector?

A I wish to make it clear that I once again requested the opinion of the Treasury inspectorate even though in each case the fee was below the BEF 1,250,000 threshold. I would also point out that splitting the project into three led to a significant reduction in cost amounting to 25% of the overall fees.

Q Does the fact that Mr Javeau agreed to do the same work for BEF 3,600,000 not show that the initial contract accepted by the private office and the administration was overpriced?

A Your point about the initial price is not wrong, but the agreement on BEF 3,600,000 was probably the result of a tripartite or quadripartite agreement between the private office, the administration, the Treasury inspectorate and “I”. That is a guess, because I can't remember the precise details of that transaction now.

Q Here is the commitment slip for one of the contracts signed with “I” on 15 June 1989. This document bears the signature of Treasury inspector L., dated 30 June 1989, authorising the expenditure. Could Mr L. have opposed implementation of the contract, his opinion not having been sought, it would appear, before it was signed?

A I would observe on this point that I was not obliged to submit the file to Mr L. in view of the size of the fee. But as I was working more with the administration than with the private office, the administration automatically sent the ad hoc expenditure commitment slip to the Treasury inspector for authorisation. In my opinion, Mr L. must have received the contract before it was signed.

Q When these three contracts were received the administration gave them only one commitment number, which was the number of one of them (see appendices 130 and 131 of the same report). Here is another series of documents which indicate that the administrative authorities wrongly thought they were dealing with a single contract, so much so that when “I” sent them three invoices for part-payment of each of the three contracts Mr P. informed Mr Javeau that he thought “I” must have made a mistake. In fact, he requested three original copies of what he believed to be a single invoice and these copies could not bear three different numbers (see appendices 130 to 136 of the same report). So Mr L. could only have authorised expenditure in respect of one commitment slip relating to a single contract?

A Yes, that's true. But it's not my fault. The paperwork was entirely a matter for the administration.

Q As regards approval of expenditure by the Treasury inspectorate in respect of contracts where the fee was lower than its intervention threshold, was it still possible for the inspector to give his views on the advisability of proceeding?

A It is true that from the administrative-law point of view his approval does not seem to be required for the commitment of such sums. However, as far as I am concerned, and in view of my lack of technical experience of budgetary matters, I preferred on all occasions to seek the approval of the Treasury inspector, seeing that for me this represented a guarantee of lawfulness from the Minister's budgetary adviser. Therefore, if Mr L. had formally refused to sign the commitment slip, I would not have gone ahead. You tell me that there is a contradiction between what I am telling you and the splitting of the original project refused by Mr L. My reply is that I was advised to do things that way and that I made sure that Mr L. approved the three new contracts.

Having read through the above record, [Mr Stalport] stands by his statements and adds his signature to ours.”

By a 75-page letter of 30 June 1994 the Principal Public Prosecutor at the Brussels Court of Appeal transmitted to the President of the House of Representatives “a file disclosing, in [his] opinion, evidence of offences committed by Mr ... Guy Coëme ..., a former minister”. The letter went on to say: “These offences include forgery, uttering forged documents, fraud, misappropriation and corruption, committed as co-principal, as defined in Articles 66, 193, 196, 197, 213, 214, 246, 248, 491 and 496 of the Criminal Code. The acts concerned, which could be classified differently but would still constitute offences, ... were apparently committed at times when [he held] ministerial office ... Consequently, the provisions of Article 103 of the Constitution are applicable.”

After a summary of the case, the file set out the facts and the evidence against Mr Coëme regarding offences said to have been committed between 30 March 1981 and 8 December 1989. The letter implicated another minister, a former minister and eight other members of parliament, although the Principal Public Prosecutor considered that in respect of six of these prosecution was probably time-barred.

The Principal Public Prosecutor also mentioned a general problem concerning limitation of prosecution arising from the fact that under Article 25 of the Law of 24 December 1993, which had come into force on 31 December 1993, the limitation period had been extended from three to five years and the change applied to “all prosecutions brought before the Law's entry into force which have not yet become time-barred by that date”. The Principal Public Prosecutor accordingly submitted the following opinion: “In the present case all the offences committed before 1 January 1988, at least, are subject to limitation. In respect of the offences committed after that date the first three-year time-limit, expiring on 1 January 1991, began to run. The first procedural step causing time to begin to run again occurred in August 1989, more specifically on 25 August 1989, when the information in writing was laid before the investigating judge.”

The Principal Public Prosecutor sent this report to the President of the House of Representatives to enable the House to “exercise the prerogatives conferred on it by Article 103 of the Constitution”. He further requested, in any event, the lifting of the parliamentary immunity of the three ministers implicated, including Mr Coëme and Minister M.

The House of Representatives, sitting on 1 July 1994 in plenary session, set up a special committee composed in accordance with the proportional representation rule. The special committee took evidence at separate hearings from the investigating judge, the court expert and Mr Coëme, assisted by his lawyers.

After deliberating on 8 July 1994, the special committee made a recommendation urging the House of Representatives to commit Mr Coëme for trial in the Court of Cassation, but not the other two ministers. With regard to Minister M., it expressed the following opinion:

“The special committee, rejecting all other legal argument put forward, decides to recommend that the House of Representatives should find

– that [Minister M.] should not be committed for trial in the Court of Cassation in connection with contracts nos. IN B040, 050 and 060, and

– that in connection with the other offences the House of Representatives is not required to give a ruling under Article 103 of the Constitution.”

On 14 July 1994 this recommendation was adopted in exactly the same terms by the House of Representatives by 140 votes to 39, with 2 abstentions.

After the House of Representatives had reached this decision, the Principal Public Prosecutor at the Court of Cassation asked the President of the Court of Cassation, in the interests of the proper administration of justice, to appoint a judge of the Court, as a matter of urgency, as investigating judge, with the task of extending and continuing the investigation of the facts in close collaboration with the investigating judge dealing with the case.

By a decision of 21 July 1994 the President, allowing this application, appointed Judge F. to investigate the case.

On 9 May 1995 Judge F. sent the case file to the Principal Public Prosecutor at the Court of Cassation, so that the latter could make his submissions.

As a result of elections held in April 1995 Mr Hermanus sat as a member of the Council of the Brussels-Capital Region from 6 June 1995 onwards.

On 26 June 1995 the Principal Public Prosecutor at the Brussels Court of Appeal sent a letter to the Council of the Brussels-Capital Region asking it to inform him, “regard being had to the provisions of Articles 59 § 3 and 120 of the Constitution”, whether it considered it necessary “to call for a stay of the proceedings brought when Mr Hermanus had not yet been invested with the functions [of a regional councillor]”.

On 10 July 1995 the Council decided to “authorise” proceedings against Mr Hermanus involving investigation of the case before a criminal division of the Brussels Court of First Instance and to “reserve its decision regarding all other forms of proceedings until it [had] received fuller information, so as to be able to assess whether these [were] compatible with the continuance in office of the member concerned”.

On 25 September 1995 the Principal Public Prosecutor at the Court of Cassation asked the President of the Council of the Brussels-Capital Region “to be so good as to request the Council of the Brussels-Capital Region to give a ruling as early as possible on the present application for the authorisation of proceedings against Mr Hermanus in the Court of Cassation”.

On the advice of its Criminal Proceedings Committee, the Council decided at its sitting on 18 October 1995 to give the authorisation requested, considering that “connection between the offences [had been] established by the decision of 22 September 1995 of the Committals Division of the Brussels Court of First Instance, reached after the Council's decision of 10 July 1995 [and that] the questions of connection between the offences, the proportionality between the offences and the consequences of committal for trial in the Court of Cassation, and the reasonableness of the time taken to investigate the case [were] matters for the trial court on which the Criminal Proceedings Committee [did] not have to rule”.

In the meantime the Committals Division of the Brussels Court of First Instance had decided, by an order of 22 September 1995, in respect of which the parties were not permitted to make submissions, to take the case out of the hands of the investigating judge it had been assigned to.

In addition to Mr Coëme, the prosecuting authorities at the Court of Cassation decided to prosecute before that court seven other defendants, including the other four applicants. They considered that the investigation had revealed a system for the illegal financing of the activities of certain politicians. This involved public authorities entering into contracts for the provision of over-priced services so that the provider of the services could transfer a portion of the sums paid to third parties in order to cover the costs of the activities in question. The practices concerned consisted in negotiating and signing contracts for various opinion polls or surveys to be conducted mainly by “I” for the “benefit” of government ministries. The prices stipulated in these contracts were too high in relation to the real cost of the surveys carried out and their likely benefits. In addition, care had been taken to avoid the competitive procedure laid down for contracts entered into by the administrative authorities, which might have prevented “I” from winning some of these contracts, and internal checks carried out by the administrative authorities, mainly by Treasury inspectors, which might have revealed the fact that some of them were over-priced. In order to do so, care had been taken to ensure that the thresholds which triggered application of the regulations and circulars relevant to public works and supply contracts and of the administrative authorities' internal control procedures were not exceeded. The prosecuting authorities also accused some defendants (including Mr Javeau) of obtaining the payment of certain fees by false pretences. Lastly, they considered that although two of the applicants, Mr Stalport and Mr Mazy, had obtained no financial gain from these contracts, they had taken part in drawing them up.

At 11 a.m. on 3 November 1995 the Principal Public Prosecutor at the Court of Cassation held a meeting with the lawyers of five of the persons under investigation, including Mr Coëme and Mr Javeau, to inform them of the measures taken for organisation of the trial. He handed them copies of the summons he intended to serve on their clients and allegedly suggested that the case should come on in early January 1996. When the lawyers protested, he apparently put off the trial until 5 February 1996, despite the reservations they expressed about the shortness of the time they had been given to prepare their clients' defence. He also allegedly told them that the trial in the Court of Cassation would follow the procedure of the ordinary criminal courts.

Mr Stalport was not invited to this meeting. He explained that at that time he had not consulted a lawyer, not considering himself to be implicated.

By summonses served between 8 and 15 November 1995 the eight persons under investigation by the prosecuting authorities at the Court of Cassation were summoned to appear in that court on 5 February 1996, to answer various charges relating to offences allegedly committed in connection with public supply contracts awarded to “I”, at a time when Mr Coëme was a member of the government.

Mr Coëme was the only defendant to whom Article 103 of the Constitution applied; the others were summoned, pursuant to Articles 226 and 227 of the Code of Criminal Investigation, on account of the connection between the offences they stood accused of and the charges Mr Coëme had to answer.

By a summons served on 10 November 1995 Mr Stalport was summoned to appear in the Court of Cassation to answer the charges of forgery, accepting a bribe as a civil servant and fraud committed in connection with the allocation of public contracts with which he had been associated as head of the private office of Minister M., whom the House of Representatives had not committed for trial in the Court of Cassation. According to the summons, he stood accused of the following offences:

“A. the first (Mr Coëme), second (Mr Javeau), third (Mr V.), fourth (Mr Hermanus), fifth (Mr Stalport), sixth (Mr H.), and seventh (Mr Mazy)

being a civil servant or public officer or the accomplice of a civil servant or public officer,

with fraudulent intent or the intention of causing harm, when making out official documents of his ministry, falsified their substance or circumstances, either by drafting contracts other than those allegedly drawn up by the parties, or by representing falsehoods as true facts, with a view to:

the second (Mr Javeau) and the fifth (Mr Stalport)

the fifth, being head of the private office of the Minister for the Brussels Region, with the fraudulent intent of making it possible for a contract to be awarded by circumventing the rules and procedures for public contracts and more especially with the intention of evading the scrutiny of the Treasury inspectors, substituted or caused to be substituted for a contract which had been turned down by the Treasury inspectors three contracts dated 15 June 1989, each for a sum lower than the threshold triggering intervention of the inspectorate, but which together had the same purpose as the one which had been turned down, namely research on small and medium-sized businesses;

(contracts IN B 040, B 050 and B 060 – see in particular: RE, vol. IV, pp. 13 to 19 and annexes 100 to 111; C 5, f 2, p. 179; C 12, f 5, pp. 2 and 4).”

On 18 January 1996 the lawyers of each of the defendants requested the Court of Cassation to put back the trial on the ground that it was impossible for them, in spite of all their efforts, to prepare their clients' defence satisfactorily.

As soon as the trial began, on 5 February 1996, the President of the Court of Cassation announced that the case would be investigated in accordance with the provisions of Article 190 of the Code of Criminal Investigation.

The hearing was given over to consideration of an application for an adjournment lodged by several defendants to give them the time they needed to be able to conduct their defence in accordance with their rights. The defendants concerned lodged pleadings to that end. By an interlocutory judgment of 6 February 1996 the Court of Cassation ruled that these defendants had had sufficient time to prepare their arguments regarding both the criminal and the civil aspects of the case.

At the hearing on 6 February 1996 Mr Coëme filed a first pleading concerning the fact that no legislation had been enacted to implement Article 103 of the Constitution, despite the expressly stated intention of the National Congress. This legislative deficiency had caused the provision originally intended to be transitional, adopted by the National Congress to fill the legal vacuum – namely Article 134 § 1 of the Constitution, which had later become the transitional provision of Article 103 – to remain in force indefinitely.

He submitted in the first place that although the constitutional revision of 5 May 1993 had replaced the words “and in so doing classify the offence and determine the appropriate sentence” in the transitional provision of Article 103 of the Constitution with “in the cases contemplated by the criminal law and applying the penalties laid down therein”, this constitutional revision could not apply retrospectively to the charges against him concerning offences committed between 29 March 1981 and 30 November 1990 without breaching Article 7 § 1 of the Convention.

He further submitted that, although the transitional provision gave the Court of Cassation discretion to try ministers indicted by the House of Representatives as regards the question of their guilt and the penalties to be imposed, it did not confer on either the Court of Cassation or the House of Representatives an analogous power concerning the procedure to be followed in such proceedings. The Court of Cassation had therefore imposed the applicable procedural rules on its own authority, contrary to the principle that a tribunal's procedure must be established by law.

At the hearing on 6 February 1996 Mr Coëme filed a second pleading concerning the procedure followed by the special committee of the House of Representatives and reference of the case to the Court of Cassation.

At the hearing on 7 February 1996 Mr Stalport filed a pleading arguing that no provision of Belgian law permitted his committal for trial in the Court of Cassation as court of first instance. In a separate pleading he further submitted that there was no connection between the offence he stood accused of and the offence allegedly committed by Mr Coëme. If the Court of Cassation thought otherwise, it should refer a preliminary question to the Administrative Jurisdiction and Procedure Court as to whether legal provisions which permitted a defendant who was not a minister to be committed for trial in the Court of Cassation infringed the principles of equality and non-discrimination. He therefore asked the Court of Cassation to rule that it did not have jurisdiction to try him in the absence of any connection or, in the alternative, to submit to the Administrative Jurisdiction and Procedure Court the following preliminary question:

“In so far as Articles 226 and 227 of the Code of Criminal Investigation have the effect of referring to the Court of Cassation, sitting as a court of trial, criminal proceedings against a defendant who is not a minister, do they breach Articles 10 and 11 of the Constitution taken together with Articles 12, 13 and 147 of the Constitution?”

At the hearing on 8 February 1996 Mr Coëme filed a third pleading in which he asked the Court of Cassation to stay its decision on the prosecution's submissions until the Administrative Jurisdiction and Procedure Court had answered the following preliminary question:

“Does the extension of the limitation period for criminal proceedings resulting from Article 21 of the Law of 17 April 1978 containing the preliminary part of the Code of Criminal Procedure, as amended by Article 25 of the Law of 24 December 1993, in so far as that provision applies to all prosecutions brought before its entry into force which were not yet time-barred on that date and introduces longer limitation periods, create discrimination contrary to Articles 10 and 11 of the Constitution in relation to the situation of persons who are subject, on account of the date on which their offences were committed, to the limitation period laid down in the former version of the above-mentioned Article 21?”

At the beginning of the hearing on 12 February 1996 the President read out an interlocutory judgment in which the Court of Cassation ruled that the case had been lawfully referred to it, that it had jurisdiction to hear it and that it was not necessary to refer to the Administrative Jurisdiction and Procedure Court the preliminary questions proposed by the defendants on the principle of connection. In the reasons for its judgment the Court of Cassation held: “The transitional provision in Article 103 of the Constitution ... applies both to the offences committed after the constitutional revision of 5 May 1993 and to those committed before it”. It went on to say that its discretion was limited by the obligation to follow certain procedural rules and added:

“Where the Court of Cassation is sitting as a court of trial it must comply, in procedural matters, with the provisions – directly applicable in Belgian law – of the Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights, with the Constitution, with the rules of the Judicial Code, with the common provisions applicable to all criminal proceedings and with the general principles of law.

In giving the Court of Cassation the power to try ministers 'in those cases where the criminal law so provides', the framers of the Constitution were necessarily referring, as regards the form of procedure, to the one laid down by Parliament for such cases, namely the Code of Criminal Investigation, in so far as that is compatible with the provisions governing procedure before the Court of Cassation when it sits as a full court.

To that extent, this Court will apply the procedural rules laid down in Book II, Part One, Chapter II of the Code of Criminal Investigation, entitled 'The criminal courts'.

These rules, which are prescribed by law, accessible and foreseeable as to their effects, guarantee full exercise of the right to due process and to a fair trial.

In applying existing rules, the Court is not usurping the function of the legislature.”

The Court of Cassation ruled as follows on the connection between the offences charged and on the preliminary questions on that subject:

“As regards connection between the offences

The provisions of Articles 226 and 227 of the Code of Criminal Investigation are not the expression of a general principle of law, but form a rule which is common to and applicable to all criminal proceedings.

It is not necessary for a connection to have been previously found by a court of investigation.

It is for the court of trial to which a case has been referred by a lawful committal decision or direct summons to assess for itself whether there is a connection and, accordingly, the scope of the case and its jurisdiction with regard to the connected offences.

The effect of a connection is that all joint principals and accomplices implicated in the connected offences must be tried together by the same court. It follows that where there is a connection between offences with which a minister has been charged and offences of which other defendants stand accused the jurisdiction given by the Constitution to the Court of Cassation requires the trial of all the accused to be conducted by that court, which is highest in rank.

Article 147 of the Constitution delimits the powers of the Court of Cassation when it rules on appeals on points of law.

The Court's powers to try ministers include, thanks to the principle of connection, the power to try other defendants for whom, in that situation, to the exclusion of any other, it is the court empowered by law to try them for the purposes of Article 13 of the Constitution.

The rules on connection, which are generally applicable, do not entail an arbitrary difference in treatment between the defendants for the purposes of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Moreover, the Court will have to assess, when it looks into the merits of the case, whether there is a connection between the offences listed in the summons, and on this point the objection should be dealt with together with the merits.

As regards discrimination and the preliminary questions

The accused have alleged that the fact that they have been arraigned before the Court pursuant to the rules on connection constitutes discrimination prohibited by Articles 10 and 11 of the Constitution.

They have asked for preliminary questions to be submitted to the Administrative Jurisdiction and Procedure Court seeking a ruling as to whether Articles 226 and 227 of the Code of Criminal Investigation, in so far as their effect is to refer to the Court of Cassation, sitting as a court of trial, the prosecution of a defendant who is not a minister, are in breach of Articles 10 and 11 of the Constitution. The defendant Stalport raised the same question, referring to the same Articles of the Constitution taken together with Articles 12, 13 and 147 thereof.

Furthermore, the defendant Javeau asked for a question to be submitted to the Administrative Jurisdiction and Procedure Court on a contradiction between Articles 10 and 11 of the Constitution and Articles 226, 227, 479 and 501 § 2 of the Code of Criminal Investigation, while the defendants V., Hermanus and Mazy asked for a question on a contradiction between the above-mentioned Articles 10 and 11 and Articles 226, 227, 307, 501 § 2, 526 and 540 of the Code of Criminal Investigation and Articles 30, 31, 566, 753, 856, 1053, 1084 and 1135 of the Judicial Code 'in that they laid down general principles of law permitting the Court of Cassation to try them'.

Even if deprivation of the possibility of defending oneself before the courts of investigation and of access to a second level of jurisdiction and cassation proceedings did constitute a violation of Articles 10 and 11 of the Constitution, those Articles would be violated not by the provisions complained of in the pleadings but by Article 103 of the Constitution, which gives the Court of Cassation jurisdiction to try ministers under the conditions it lays down.

Article 26 § 1 (3) of the Special Law of 6 January 1989 on the Administrative Jurisdiction and Procedure Court provides that that court shall give a ruling, in the form of a judgment, on the merits of questions concerning contravention of Articles 10, 11 and 24 of the Constitution by one of the statutes, decrees or rules contemplated by Article 134 of the Constitution.

The defendants' applications do not come within the scope of the above-mentioned Article 26.”

After this judgment had been delivered, one of the defence lawyers, speaking on behalf of all the accused, said that the Court of Cassation was laying down the rules of the procedure to be followed on its own authority and expressed serious reservations about compliance with Article 6 of the Convention. He also asked whether the Court of Cassation intended to ask the registrar, pursuant to Article 190 § 2 of the Code of Criminal Investigation, to read out the 30,000 pages in the file, explaining that, having stated that it intended to follow the practice of the criminal courts, it was not right for the Court of Cassation to apply some rules but not others. The Court of Cassation did not grant this request.

At the hearing on 12 February 1996 the Principal Public Prosecutor began an address presenting the facts of the case, which continued on 13 February. At the beginning of this address he said:

“I shall deal with the charges against Mr Coëme, Mr Javeau and Mr V., but in respect of these last two defendants only in so far as the charges concerned are closely connected with those against Mr Coëme.

The Principal Advocate-General will speak about the other charges against Mr Javeau and Mr V. and those against Mr Hermanus.”

According to Mr Javeau and Mr Stalport, the President of the Court of Cassation interrupted the Principal Advocate-General's address at one point to remind him that the purpose of that stage of the proceedings was not for the prosecution to present its case.

On 16 February 1996 the Court of Cassation began to take evidence from the accused. It also heard the parties' submissions on the subject of fixing a timetable for the further proceedings and the order in which submissions should be made. The prosecution suggested that the defence case should be heard before the prosecution's. After deliberation, the President announced that the Court had

“fixed the order for submissions in the further proceedings as follows:

Examination of the accused (continued)

Civil party's submissions

Prosecution submissions

Defence submissions

Replies, if any”.

On 20 February 1996 Mr Stalport was examined, together with Javeau, about the offences he stood accused of.

The record of the hearing on 20 February includes the following information:

“At the public hearing of the Court of Cassation, sitting as a full court, on 20 February 1996, in the formal hearing room, where the following members were present and sitting:

President Stranard, Vice-President D'Haenens, Division President Marchal, Judges Ghislain, Rappe and Charlier, Division President Baeté-Swinnen, Judges Willems, Lahousse, Jeanmart, Verheyden, Verougstraete, Forrier, Boes, D'Hont, Waûters, Dhaeyer, Bourgeois and Huybrechts; Principal State Counsel Baron J. Velu, Principal Advocate-General du Jardin, Chief Registrar Vander Zwalmen, assisted by Registrar Sluys and Deputy Registrar Van Geem,

The accused Stalport stated: I was questioned for the first and last time on 16 March 1994 in the context of an investigation into allegations against [Minister] M. I was told that I was being interviewed as a witness and that I would not have to be cross-examined in his presence. At no time did I have the opportunity to present my case. I confirm the statements I made at the time of that interview.

Question to Mr Stalport:

Is it true that when you received the draft contract you transmitted it without further formality to the administration for scrutiny and that when the administration gave a favourable opinion you submitted the file to the Treasury inspector on 23 May 1989?

Mr Stalport's reply:

Yes, the project was part of a package submitted to the administration with a total cost of BEF 20,000,000. It was that [amount] which caused the unfavourable opinion, and also in part the points of divergence between the opinions of the administration and the Treasury inspectorate.

Question to Mr Stalport:

Why, in your opinion, notwithstanding the unfavourable opinion of the Treasury inspectorate, were three contracts signed on 15 June 1989 which now form the basis of the charge against you, and which, taken together, had exactly the same purpose, although the cost of each of them was limited to BEF 1,200,000?

Mr Stalport's reply:

After the refusal I asked the Minister about it. He confirmed that it was politically desirable to go ahead. I looked for a cheaper solution. A few weeks later my colleagues submitted a new project to me.

Question to Mr Javeau:

Does that not show that the original fee of BEF 4,800,000 was too high?

Mr Javeau's reply:

No, Mr Stalport has already answered that question. We altered the project.

Question to Mr Stalport:

According to the procedure in force, was the Minister not required, in the event of the Treasury inspector's refusal to approve the project, to ask the Budget Minister to arbitrate, and, should the latter's opinion also be unfavourable, to use the possibility of bringing the matter before the Cabinet, which would have had the last word on the subject?

Mr Stalport's reply

M. was also the Budget Minister. We wanted to launch a much more limited project and we did a preliminary study. I do not think the solution of splitting into three was adopted to evade Treasury scrutiny. If we had followed the administrative procedures the project would not have got off the ground. My job as head of the private office was to get things moving quickly. Although we did not follow the classic procedure, the project was nevertheless subjected to Treasury scrutiny.

Question to Mr Stalport:

Who in the private office decided to disregard the Treasury inspector's unfavourable opinion and split the contract up in such a way as not to be bound by the opinion in question?

Mr Stalport's reply:

The decision to continue was taken by the Minister, the solution consisting in a reduction of the scope of the original project. Whatever the amount committed, the Treasury inspectorate had the power to supervise and give an opinion. Even though the contract was limited from the financial point of view, everything was above board.

Question to Mr Stalport:

You stated in substance (p. 9540) that you were irked by the inflexibility and resistance to change of the Treasury inspectorate and that in your private office you were advised to do things differently, namely to split the contract into three parts so that the fees would be lower than the BEF 1,250,000 threshold triggering compulsory scrutiny by the Treasury inspectors, and you went on to say that despite doing things that way you had once again submitted the subdivided project to the Treasury inspector, who the second time had given a favourable opinion, and that splitting the project into three had led to a significant reduction in cost amounting to 25% of the overall fees. Do you stand by that assessment of your conduct?

Mr Stalport's reply:

Yes, because the Treasury inspection procedure took some time. We wanted to work quickly and we came back to another way of doing things, which nevertheless received the Treasury inspectorate's approval, but more quickly, even though supervision was maintained. I did not have much time and I had to find a solution by using a faster procedure, namely approval of the order to pay. I knew that I had to give an account of my actions to the Minister and I insisted that the Treasury inspector sign each file, as was done even where this was not mandatory.

Question to Mr Stalport:

Did you know of the memo sent to Mr C., a minister of the Executive Council of the Brussels-Capital Region on 11 September 1989 by Mr L., Inspector-General at the Treasury (p. 9270), pointing out that it was highly questionable to continue to implement the three contracts and calling on him to block payment by the Region of all invoices even where, from the formal point of view, these had been legally drawn up?

Mr Stalport's reply:

I found out about Mr L.'s criticisms afterwards. I do not know whether Mr L. knew of only one contract. In the allegations I think he referred to three contracts of BEF 1,500,000. So he was aware that there were three contracts.

In reply to the Court's question, Mr Javeau stated:

Splitting the contract was a means of dealing with real difficulties that had cropped up.

Question by the Principal Advocate-General:

The administration received three contracts and made only one commitment, believing that it was dealing with three copies of a single contract. Does Mr Stalport remember this misunderstanding, which happened with all three contracts?

Mr Stalport's reply:

The error would have been pointed out to me, but I had left on 18 June 1989.”

On 4 March 1996 Mr Stalport filed a new pleading in which he argued that there was no connection between the charges against him and those against Mr Cöeme and that he should therefore stand trial in the appropriate place, namely the Criminal Court.

During the trial Mr Hermanus asked the Court of Cassation to submit a preliminary question to the Administrative Jurisdiction and Procedure Court about limitation of the prosecution. In the alternative, he requested it to find that the proceedings against him were time-barred. He further submitted that there was no connection between the offences he had been charged with and those Mr Coëme stood accused of. In addition, he argued that his case had not been heard within a “reasonable time”. As regards the merits, he submitted that he had acted without any criminal intent.

The Court of Cassation gave judgment on 5 April 1996. It decided firstly that there was a connection between the offences with which Mr Coëme had been charged and those with which the other defendants had been charged, ruling as follows:

“For the purposes of Articles 226 and 227 of the Code of Criminal Investigation, a connection is the link between two or more offences. By its nature it requires, with a view to the proper administration of justice, and subject to the right to due process, that the cases be dealt with together and by the same court, which may thus determine whether each element of the alleged offences has been made out, and assess the admissibility of the evidence and the guilt of each of the defendants.

[Mr Coëme] and the [other] defendants have stood trial together for offences brought to light by the same investigation. These offences formed part of a system run by Camille Javeau which placed the 'I' association at the point of contact between the financial interests of scientific research and the personal interests of its directors and third parties. By the admission of Camille Javeau, this system consisted in seeking to sign contracts with the public authorities for surveys to be carried out by the 'I' association or by the [...] Institute, each of these contracts being accompanied by advantages for politicians whose power of decision-making, influence or promising future were intended to ensure the effectiveness and continuity of the system.

All the offences [Mr Coëme] and the [other] defendants were charged with link in with this system in such a way that there is a connection between them which justifies application of Articles 226 and 227 of the Code of Criminal Investigation.

Even if such application did cause in the present case all the disadvantages complained of by the defendants, it has not hindered the full exercise of their right to challenge the admissibility of the proceedings or the truth of the charges against them, to raise any argument they chose in their defence or to submit to the Court any applications they considered useful for the trial of their case.”

The Court of Cassation also refused, in the following terms, to submit a preliminary question to the Administrative Jurisdiction and Procedure Court on the subject of limitation:

“Guy Coëme submitted that extension of the limitation period 'in so far as it applie[d] to all prosecutions brought before its entry into force which were not yet time-barred on that date and introduce[d] longer time-limits, create[d] discrimination contrary to Articles 10 and 11 of the Constitution in relation to the situation of persons who [were] subject, on account of the date on which their offences were committed, to the limitation period laid down in the former version of Article 21'.

Jean-Louis Mazy submitted that the law introducing the new limitation period applied to all prosecutions brought before its entry into force which were not yet time-barred on that date, and that limitation of prosecution accordingly depended on the date of procedural steps causing time to begin to run again. He argued on that basis that in the present case application of Articles 25 and 26 of the Law of 24 December 1993 had created discrimination prohibited by Articles 10 and 11 of the Constitution.

Merry Hermanus likewise submitted that 'only the date of procedural steps causing time to begin to run again for limitation purposes determine[d] whether the new law or the old should be applied'.

[Mr Coëme] and the [other] defendants mentioned above requested the Court, in their final written submissions, to refer to the Administrative Jurisdiction and Procedure Court a preliminary question concerning what they alleged to be a contradiction between Articles 10 and 11 of the Constitution and Article 25 of the Law of 24 December 1993, which extended periods of limitation.

It appears from those final written submissions that the inequality of treatment they complained of results solely, according to the defendants themselves, from the date on which procedural steps in the investigation or prosecution were taken and from the effects of such steps on the running of time for the purposes of limitation, but not from the provisions of Article 25 of the Law of 24 December 1993.

Thus, they are criticising not a distinction allegedly created by that Law, but the necessary effects of any application of the law on criminal procedure in the course of time.

The questions raised do not fall within the scope of Article 26 of the Special Law of 6 January 1989 on the Administrative Jurisdiction and Procedure Court, and there is accordingly no call to ask them.”

The Court of Cassation further held that the proceedings against Mr Coëme and Mr Hermanus were not time-barred, ruling in the following terms:

“In the field of criminal procedure, new legislation is of immediate effect, so that it applies to all criminal proceedings brought before the date of its entry into force which are not yet time-barred on that date pursuant to the previous legislation.

Prosecution of offences not subject to limitation on 31 December 1993 will become time-barred, unless the running of time has been suspended, on expiry of a period of five years from the time of the offences , which may be extended where the case arises by a further period of five years from any act causing time to begin to run again lawfully performed before expiry of the first five-year period.

Since limitation of prosecution consists in the extinction, in society's interest, through the lapse of a certain length of time, of the power to prosecute a suspect, statutes of limitation do not affect the substance of the law. Where they extend the limitation period they do not aggravate the penalty applicable at the time when the offence was committed or punish an act or omission which was not punishable at the time it was committed. Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 15 of the International Covenant on Civil and Political Rights are not applicable to them.

The Court must take the date of the judgment as the material time for assessing once and for all whether prosecution is time-barred, and the nature of the offence is determined not according to the penalty applicable but according to the penalty imposed. From the outset, limitation of prosecution of an act which in principle constitutes an offence may be influenced by the penalty imposed. If the Court, after declaring the offences of forgery and uttering forgeries made out, were to accept that there were extenuating circumstances, thus altering the nature of these crimes [crimes] and giving them the status of less serious indictable offences [délits], the limitation period for these offences would be the one laid down for délits, namely five years.

Where a number of criminal acts are committed successively in execution of a single criminal design and thus form only one offence, that offence is only consummated, and the running of time for the purposes of limitation only begins, with regard to all of the acts concerned, when the last of them is committed, provided, however, that each previous criminal act is not separated from the later criminal act by an interval longer than the applicable limitation period, unless the running of time has been retriggered or suspended.

The offences for which [Mr Coëme] and [Mr Hermanus] have stood trial were committed:

– in the case of G. Coëme, between 29 March 1981 and 1 December 1989, the last being committed on 30 November 1989;

– in the case of Mr Hermanus, between 1 December 1987 and 1 March 1988, the last being committed on 29 February 1988;

These offences, if made out, constitute execution of a single criminal design. For each of the defendants the running of time for the purposes of limitation only began, with regard to all of the offences in which they are implicated, when the last of those offences was committed, which in the present case was not separated from the others by an interval longer than the limitation period in force.

The Law of 24 December 1993, which raised from three to five years the limitation period for the prosecution of less serious indictable offences, and consequently of crimes reclassified as such, is applicable to [Mr Coëme] and [the other defendants] since the three-year limit had not been reached when that Law came into force and the running of time had been validly retriggered as regards [Mr Coëme] and [the other defendants] on 22 February 1991 by the Audit Commission's report no. 480 (p. 14690), an investigative measure carried out during the former three-year limitation period.

Consequently, the original limitation period of five years began to run:

– in the case of G. Coëme, on 30 November 1989;

– in the case of Mr Hermanus, on 29 February 1988.

The running of time during this period was validly retriggered on 10 June 1992 by the Audit Commission's report no. 2337.

It follows that prosecution is not time-barred in respect of any of the offences referred to in the summons.”

The Court of Cassation found Mr Coëme guilty of most of the offences he had been charged with and sentenced him to two years' imprisonment, suspended for five years, and a fine of BEF 1,000, adjusted to BEF 60,000. It also disqualified him from exercising any of the rights listed in Article 31 of the Criminal Code for a period of five years and ordered him jointly with another defendant to pay the civil party – “I” – the sums of BEF 476,000, BEF 31,970 and BEF 42,070.

The Court of Cassation found Mr Mazy guilty as charged and sentenced him to nine months' imprisonment, suspended for three years, and a fine of BEF 500, adjusted to BEF 30,000.

The Court of Cassation sentenced Mr Stalport to six months' imprisonment, suspended for one year, and a fine of BEF 26, adjusted to BEF 1,560, after declaring him guilty as charged on the basis of the following considerations:

“On 30 May 1989 the Treasury inspectorate gave an unfavourable opinion (p. 18684) on a draft contract in which the 'I' association undertook to carry out for the Brussels Region 'a preliminary study of all businesses in the Brussels area', the total cost amounting to BEF 4,800,000 net of VAT (p. 18689, at 18694).

On 15 June 1989 three contracts, each for an inclusive price of BEF 1,200,000, were signed by [Minister] M., representing the Brussels Region, and Camille Javeau, representing 'I' (p. 18699 at 18710).

In these contracts 'I' undertook to carry out a 'preliminary study'

(a) among small and medium-sized businesses operating as sub-contractors (first contract);

(b) among all businesses receiving subsidies from the Brussels Region' (second contract); and

(c) among all small and medium-sized businesses geared for exports (third contract).

On 15 June 1989, when these contracts were signed, they were transmitted under the Minister's signature to the administration (p. 18681). On 30 June 1989 the Treasury inspectorate approved the commitment slip for one of the three contracts without making any comment (p. 18680).

It is clear from a comparison of the initial draft contract with the three new contracts that, although the scope and price of the initial contract were reduced in the three new contracts, it was still the same concept with the same initial aim, in other words the same work.

It is apparent from the statements of Jean-Louis Stalport (p. 9540)[] and Camille Javeau (p. 2905)[] that the purpose of severing the original contract was to evade the mandatory scrutiny of the Treasury inspector.

The approval of the Treasury inspector alluded to by Jean-Louis Stalport is the countersignature required for commitment of the expenditure, which was added on 30 June 1989, after the contract was signed, and reveals nothing about the desire for transparency alleged by the defendant (p. 1304).

Neither the assertion that, if the contract had not been severed, it would have been approved in any case nor the assertion that the three contracts were submitted to the non-mandatory scrutiny of the Treasury inspector can justify the artificial severance of the contract.

The fraudulent intent required for the charge to be made out need exist only in the mind of the perpetrator of the offence.

It is sufficient for co-principals to have provided necessary assistance in the commission of the offence or to have directly caused it to be committed, to have had positive knowledge of the facts constituting the main offence and to have conspired, as defined by law, to commit the offence.

With the fraudulent intent of satisfying the request of Camille Javeau, approved by Minister M., Jean-Louis Stalport provided the necessary assistance in the commission of the offence within the time agreed. ...”

The Court of Cassation then found Mr Hermanus guilty as charged and sentenced him to one year's imprisonment, suspended for five years, and a fine of BEF 500, adjusted to BEF 30,000. It also disqualified him from exercising any of the rights listed in Article 31 of the Criminal Code for a period of five years.

The Court of Cassation held that Mr Hermanus had been tried within a reasonable time, on the following grounds:

“It appears from the case file

– that on 7 August 1989 the Audit Commission transmitted the initial report to the Brussels public prosecutor (p. 1120, at 1094);

– that the information in writing calling for an investigation in respect of Camille Javeau and a person or persons as yet unidentified was lodged on 25 August 1989 (p. 1085);

– that numerous reports had to be compiled on account of the many interviews and investigative measures made necessary by the nature of the offences the defendants were accused of;

– that the nature of the offences made it necessary on 20 October 1989 to appoint a court expert (p. 283) to study and analyse thousands of documents and items of computer data; that in that connection it should be noted that the accounts of the 'I' association and those of the ... Institute were interconnected in such a way as to complicate the expert's task; that after filing a preliminary memorandum on 26 December 1989 (p. 358, at 337), an analysis of Camille Javeau's bank accounts on 26 November 1990 (p. 373, at 367), a memorandum replying to Camille Javeau's observations on 6 December 1990 (p. 460, at 440) and a memorandum on the French-speaking Community's contract no. D/100 on 24 September 1991 (p. 664, at 659) the expert filed the successive parts of his report on 29 December 1993, 7 January 1994, 21 January 1994, 4 February 1994, 3 March 1994 and 22 March 1994 (pp. 18256 at 18157, 17939 at 17769, 19406 at 19156, 18909 at 18811, 17285 at 17228, and 20576 at 20464);

– that while the expert was compiling his report and later the investigation continued without a break, as evidenced by the records and inventories;

– that the investigative measures taken as a result show that the interconnections between the offences made it necessary to verify the statements of the numerous persons concerned and to cross-check the evidence obtained before the prosecution could make their submissions;

– that as early as 30 June 1994 the file was communicated to the President of the House of Representatives by the Principal Public Prosecutor at the Brussels Court of Appeal on account of the fact that the file appeared to contain evidence that offences had been committed by Guy Coëme, P. M. and W. C. at a time when they held ministerial office and that the latter was still a minister on the date when the file was sent (p. 26645, at 26572).

At its meeting in plenary session on 14 July 1994 the House of Representatives indicted Guy Coëme and committed him for trial in the Court of Cassation.

On 21 July 1994, allowing an application by the Principal Public Prosecutor, the President of the Court of Cassation appointed Judge F. as the investigating judge in the present case with the task of extending and continuing the investigation of the facts in close collaboration with Investigating Judge V.E., who, as matters stood, remained responsible for the same offences in so far as there was evidence of offences committed by persons other than Guy Coëme.

On 9 May 1995 [Judge F.] communicated his file to the Principal Public Prosecutor at the Court of Cassation.

On an application made on 15 June 1995 by the Principal Public Prosecutor at the Brussels Court of Appeal, the Council of the Brussels-Capital Region, sitting on 10 July 1995, authorised the prosecution of Regional Councillor Merry Hermanus 'by investigation of the case before a criminal division of the Brussels Court of First Instance'. When Investigating Judge V.E. was taken off the case by order of the Committals Division on 22 September 1995, the Council of the Brussels-Capital Region, sitting on 18 October 1995, decided, allowing an application of 25 September 1995 by the Principal Public Prosecutor at the Court of Cassation, to authorise the prosecution of Merry Hermanus in this Court.

The summons to appear for trial on 5 February 1996 was signed on 8 November 1995.

On account of the possible connection between the offences with which [Mr Coëme] and [the other defendants] had been charged, the case against each of them could not be dissociated from the case against the others, regard being had to procedural rules.

Accordingly, the Court finds no delay in the prosecution of the case. ...”

Mr Javeau was sentenced to two years' imprisonment, with half of that term suspended, and a fine of BEF 500, adjusted to BEF 30,000.

As a result of his conviction Mr Stalport had to resign from his position as administrator of various public limited companies under Belgian law, pursuant to Article 1 of the royal decree of 24 October 1996. The decision to disqualify Mr Hermanus from exercising the rights listed in Article 31 of the Criminal Code deprived him of all his functions, namely the posts of regional councillor, deputy mayor, secretary-general of the Ministry of the French-speaking Community and chairman of the SDRB.

The relevant provisions of the Constitution read as follows:

“Individual liberty is guaranteed. No one may be prosecuted save in the cases and under the procedure prescribed by law ...”

“No one may be removed against his will from the jurisdiction of the court empowered by law to try him.”

“No member of either House may be committed for trial, prosecuted by direct summons or arrested in connection with a criminal matter while Parliament is in session without the authorisation of the House to which he belongs, except in cases where an offence is discovered while it is being committed.

The detention or prosecution of a member of either House shall be stayed throughout the session if the House concerned so requires.”

“Any member of a [regional or community] council shall enjoy the immunities laid down in Articles 58 and 59.”

“There shall be a Court of Cassation for Belgium.

The Court of Cassation shall not determine cases on their merits, save for the trial of ministers and members of community or regional governments.”

The first paragraph of Article 103 of the Co-ordinated Constitution of 17 February 1994 (former Article 90 of the Constitution of 7 February 1831) provided:

“The House of Representatives is empowered to indict ministers and commit them for trial in the Court of Cassation, which alone shall have jurisdiction to try them, sitting as a full court, save as provided by statute with regard to a civil action brought by an injured party and crimes or less serious indictable offences allegedly committed by ministers otherwise than in the performance of their official duties.”

The second paragraph of Article 103 of the Co-ordinated Constitution of 17 February 1994 (former Article 134 of the Constitution of 7 February 1831) provided:

“The cases of responsibility, the penalties to be imposed on ministers and the manner of proceeding against them, either on a charge accepted by the House of Representatives or as the result of a prosecution brought by the injured parties, shall be laid down by law.”

The Constitution of 7 February 1831 included an Article 139 which provided in particular: “It is necessary to make provision, in separate legislation, and as soon as possible, for the following: ... 5. the responsibility of ministers and other government agents.” This Article was repealed on 14 June 1971.

The Law of 12 June 1998 amending the Constitution replaced Article 103 of the Constitution by a new provision which states: “Ministers shall be tried only by the Court of Appeal”, whether for “offences they have allegedly committed in the performance of their duties” or for “offences they have allegedly committed otherwise than in the performance of their duties for which they are tried during their term of office” (Article 103 § 1).

The new text further provides: “The procedure for the prosecution and trial of ministers shall be laid down by law” (Article 103 § 2).

The relevant legislation is the Special Law of 25 June 1998 governing the criminal responsibility of ministers (and the Special Law of 25 June 1998 governing the criminal responsibility of members of community and regional councils). “The Brussels Court of Appeal alone is empowered to try a minister for offences allegedly committed in the performance of his official duties”, whereas “for the trial of a minister during his term of office for offences he has allegedly committed otherwise than in the performance of his duties the courts having jurisdiction shall also include the Court of Appeal for the place where the offence was committed, the place where he lives or the place where he has been found” (Article 1). The Special Law lays down the rules for the conduct of the prosecution and investigation, the procedure before the Court of Appeal and the procedure for an appeal on points of law. Title VI of the Special Law lays down two special provisions, one of these being Article 29, which expressly provides:

“Co-principals and accomplices implicated in an offence for which a minister is prosecuted and the perpetrators of connected offences must be prosecuted and tried at the same time as the minister.”

Pending the enactment of a law on procedure, and in order to avoid the paralysis of the criminal justice system in cases concerning ministers during the time it would take to bring in legislation, the National Congress adopted in 1831 a transitional provision specifying the scope of the jurisdictions of the House of Representatives and the Court of Cassation.

In its original version, former Article 134 of the Constitution, which later became the transitional provision of Article 103, was worded as follows:

“Until such time as provision for the purpose has been made by law, the House of Representatives shall have discretion to indict a minister and the Court of Cassation to try him, and in so doing classify the offence and determine the appropriate sentence.”

In Volume II (Political and administrative laws) of the Novelles survey of 1935 it was argued that this provision concerned both ministers' ordinary responsibility and a responsibility specific to their official duties, the following point being made (nos. 723 to 725, p. 236):

“Where it is a matter of offences defined in the Criminal Code, the penalties laid down in that Code are applicable. Where, on the contrary, the Criminal Code has nothing to say about the offences concerned, on a provisional basis, pending the enactment of legislation governing the question, the House of Representatives has discretion to indict ministers and the Court of Cassation to try them, and in so doing classify the offence and determine the appropriate sentence.”

In his Mercuriale address of 1 September 1976 marking the opening of a new judicial session (Journal des Tribunaux, 1976, pp. 653-54, at 4 and 5, and pp. 658-59, at 19) Principal Public Prosecutor Delange said that under the transitional provision of Article 103 of the Constitution (Article 90 at that time) ministers were criminally responsible for all offences defined by the criminal law, the Court of Cassation not having any discretion in the matter (it could, at the most, add charges and penalties but not reduce ministers' ordinary criminal responsibility in any way). He further observed: “As regards the procedure in the Court of Cassation, it would appear that in the absence of legislation the ordinary rules of criminal law should apply by analogy” (p. 669).

In the constitutional revision of 5 May 1993 the transitional provision of Article 103 was amended to read as follows:

“Until such time as provision for the purpose has been made by means of the law referred to in paragraph 2, the House of Representatives shall have discretion to indict a minister and the Court of Cassation to try him in the cases contemplated by the criminal law and applying the penalties laid down therein.”

However, as Parliament never legislated save on a temporary basis, the transitional provision remained in force until the constitutional revision of 1998 (see paragraph 68 above).

Various laws for the implementation of Article 103 of the Constitution have been adopted. These were temporary responses to specific circumstances.

The first of these laws was enacted after a duel in 1865 between a member of the House of Representatives and the Minister of Defence. Both men had used their weapons. As this conduct constituted a criminal offence, the Principal Public Prosecutor at the Court of Cassation expressed the intention of preferring charges. Since one of the two antagonists was a minister, it was for the House of Representatives to indict him and an application was made to that effect. However, the House of Representatives allowed this application only on condition that legislation was first brought in.

In the report of the special committee appointed by the House to consider the constitutional issues arising from this duel, Mr Delcour made the following comments on the bill that had been tabled:

“Our committee, gentlemen, was also of the opinion that the Court of Cassation has jurisdiction to rule on offences committed by accomplices of a minister or connected offences which might be imputed to persons other than the minister facing charges. It referred to general legal principles.

It would not be rational, in Mr Dalloz's opinion, for the Court of Cassation, which, on account of the large number of judges who sit in it, its rank in the judicial hierarchy and the solemnity of its procedure, provides defendants with more safeguards than the ordinary courts, not to have jurisdiction to rule on offences committed by accomplices and connected offences. Provision is already made for that in Article 479 of the Code of Criminal Investigation. Where a public officer charged with an offence has accomplices who are not themselves public officers, the public officer does not follow his accomplices to the Criminal Court, they follow him to the higher court.

It is undoubtedly in the general interest for a minister who has committed a crime or less serious indictable offence to be handed over to the courts, because, as I observed above, no one may lay claim to impunity in Belgium. But side by side with this general interest there is another public interest which is no less respectable, that of the minister's complete freedom to manage public affairs at any particular time. The House of Representatives is the judge of this latter interest, to which the former, it would seem, must give way in certain circumstances. Let us assume that the Minister of Defence has committed an indictable offence: the country is in a critical situation and he alone can properly ensure its defence. In such a serious situation, should not the House of Representatives be able to make the interests of justice take second place behind that other, even weightier public interest, the defence of the State and public safety?

The Court of Cassation will observe the procedure laid down by the Code of Criminal Investigation, according to the nature of the offence referred to it. When dealing with a less serious indictable offence, it will comply with the relevant existing provisions, whereas when dealing with a crime it will comply with the Code's provisions governing assize courts. In the latter case, since the Court of Cassation sits without a jury, it is clear that the provisions of the Code of Criminal Investigation concerning that part of the procedure cannot be applied.”

The law entitled “Law on offences committed by ministers otherwise than in the performance of their official duties” was adopted on 19 June 1865. It provided, inter alia:

“Crimes and less serious indictable offences committed by a minister otherwise than in the performance of his official duties shall be referred to the Court of Cassation, sitting as a full court ...”

“The Court of Cassation shall observe the procedure laid down in the Code of Criminal Investigation ...”

“Summary offences committed by ministers shall be dealt with by the lower courts under the ordinary procedure.”

“The present Law shall come into force on the day following its publication and shall remain in force for one year only ...”

In accordance with the provisions of this law the Minister of Defence and the member of the House of Representatives were committed for trial in the Court of Cassation, tried and convicted. The relevant parts of the Court of Cassation's judgment of 12 July 1865 read as follows:

“Whereas the indivisibility of the procedure is a necessary consequence of the indivisibility of the offence and requires the whole proceedings to be assigned to the highest-ranking court which has jurisdiction to try one of the defendants;

Whereas this public-policy principle, which is universally accepted in case-law, was enshrined in a law promulgated in Belgium, the Law of 24 Messidor Year IV, governing the prosecution of the accomplices of a representative of the people or a member of the Executive Directory indicted by the legislature and committed for trial in the High Court of Justice; whereas it has subsequently been confirmed in new legislation by the way it was applied in Article 501 of the Code of Criminal Investigation;

“Whereas, since Lieutenant-General Baron C., the Minister of Defence, must be tried by the Court of Cassation, pursuant to the Law of 19 June 1865, that court is, according to the principle stated above, legally seized of the proceedings brought at the same time against representative D., co-defendant;

“For these reasons, [the Court] finds both defendants guilty of the offence of fighting a duel without causing injury and the first defendant guilty of the offence of provoking that duel.”

On 3 April 1995 the Federal Parliament enacted a second law providing for the temporary and partial implementation of Article 103 of the Constitution. This law concerned only the investigative measures which could be ordered by the House of Representatives and it was provided that it was to remain in force for only nine weeks.

In its opinion of 23 March 1995 on the bill which formed the basis for this law, the Legislation Section of the Conseil d'Etat expressed the following views:

“The bill as it stands uses these broad powers in a very limited way, but Parliament should use them to define not only the offences which ministers may possibly commit but also the penalties which may be imposed on them or the procedure to be followed for their prosecution, both before and after indictment proper. Such legislation is likely to cause difficulties on account of the uncertainty which it may leave, for example, about how proceedings brought in such conditions would be continued.”

On 17 December 1996 Parliament enacted a third law providing for the temporary and partial implementation of Article 103 of the Constitution. This concerned federal ministers. It empowered the House of Representatives to order investigative measures in respect of a minister and laid down the conditions and specified the procedures for carrying out such measures. The Special Law of 28 February 1997 concerned ministers of the community and regional councils. These two laws remained in force until 1 January 1998.

Pursuant to Article 26 § 1 of the Special Law of 6 January 1989, the Administrative Jurisdiction and Procedure Court has jurisdiction to give a preliminary ruling, in the form of a judgment, on questions concerning, firstly, contravention by one of the statutes, decrees or rules contemplated by Article 26 bis (134) of the Constitution of the rules laid down by or pursuant to the Constitution to determine the respective powers of the State, the Communities and the Regions; secondly, any conflict between decrees or rules as contemplated by Article 26 bis (134) of the Constitution promulgated by different legislative authorities; and, lastly, contravention by one of the statutes, decrees or rules contemplated by Article 26 bis of the Constitution of Articles 6, 6 bis or 17 of the Constitution. Articles 6 and 6 bis of the Constitution, which became Articles 10 and 11 after the revision of 17 February 1994, enshrine the principles of the equality of all Belgian citizens before the law and enjoyment of recognised civil rights and freedoms without discrimination.

Under Article 26 § 2 of the Special Law, a court before which a preliminary question has been raised must in principle seek a ruling on the matter from the Administrative Jurisdiction and Procedure Court. However, this is not mandatory where the action is inadmissible for procedural reasons based on rules which are not themselves the subject of an application for a preliminary ruling. Similarly, a court whose decisions are open to challenge in the form of an ordinary appeal, a petition to reopen proceedings, an appeal on points of law or an application for judicial review in the Conseil d'Etat is also exempted from this obligation either when the Administrative Jurisdiction and Procedure Court has already given a ruling on a question or appeal having the same object or when it considers that the reply to the preliminary question is not essential for it to be able to give judgment, or when it is manifestly apparent that the law, decree or rule contemplated in Article 26 bis (134) does not contravene any rule or Article of the Constitution contemplated in Article 26 § 1.

When the Special Law of 6 January 1989 was at the drafting stage, the Minister of Justice justified the obligation to refer a preliminary question by the need to avoid any risk of arbitrary assessment by the courts of the expediency of doing so.

Article 21 § 1 of the Law of 17 April 1878 containing the preliminary part of the Code of Criminal Procedure formerly provided:

“Prosecution shall be time-barred after ten years in the case of a crime, three years in the case of less serious indictable offences and six months in the case of summary offences, counting from the day when the offence was committed.”

Article 25 of the Law of 24 December 1993 amended the above provision, which now reads as follows:

“Prosecution shall be time-barred after ten years in the case of a crime, five years in the case of less serious indictable offences and six months in the case of summary offences, counting from the day when the offence was committed.”

The papers on the drafting history of the Law of 24 December 1993 include the following observations on Article 25:

“The new limitation period applies where the current period has not yet expired, without any retrospective effect. That is also the minister's opinion.

Third case: an offence is committed before 1 January 1992 and a step retriggering the running of time is taken on 15 December 1993. Given that Article 22 has never been amended, it is a moot point whether prosecution for the offence would become time-barred on 15 December 1996 or on 15 December 1998. ...

The rapporteur considers that the three-year period which began on 15 December 1993 would become five years on 1 January 1994. Proceedings would in that case become time-barred on 15 December 1998 instead of 15 December 1996. The new limitation period applies where the current period has not yet expired, without any retrospective effect. That is also the minister's opinion.” (Doc. Parl. Ch., S.O. 1993-94, no. 1211/8, p. 11).

Circular no. 2/94 of 10 January 1994 on this point from the Principal Public Prosecutor at the Mons Court of Appeal includes, inter alia, the following instruction:

“It follows that, where a step which causes time to begin to run again is taken before prosecution becomes time-barred, the limitation period is extended by five years counting from the last relevant step retriggering the running of time.”

Article 22 of the Law of 17 April 1878 containing the preliminary part of the Code of Criminal Procedure, which was not amended by the Law of 24 December 1993, provides:

“For the purposes of limitation of prosecution, time shall be caused to run again only by procedural steps in the investigation or prosecution of an offence taken within the time-limit laid down by the previous Article.

Such steps shall cause time to begin to run again for a new period of equal length, even for persons who are not directly affected by them.”

Article 190 § 2 of the Code of Criminal Investigation makes the following provision as regards the conduct of trials before the Criminal Court:

“The public prosecutor, the civil party or his counsel shall present the facts of the case; the reports, if any have been drawn up, shall be read out by the registrar; witnesses for the defence and the prosecution shall give evidence, where appropriate, and any objections heard and determined; any exhibits capable of establishing guilt or innocence shall be shown to the witnesses and the parties; the defendant shall be questioned; the defendant and any persons liable under civil law shall present their defence; the public prosecutor shall sum up and make his final submissions; the defendant and any persons liable for the offence under civil law shall have the right to reply.”

The concept of “connection” is defined in Articles 226 and 227 of the Code of Criminal Investigation.

Article 226 provides: “[The Court of Appeal] shall rule, in a single judgment, on connected offences in respect of which the documentary evidence has been placed before it at the same time.”

Article 227 provides:

“Offences are connected either where they have been committed at the same time by more than one person acting together or where they have been committed by different persons, even at different times and in various places, but as the result of a conspiracy between them beforehand, or where the offenders have committed some of the offences in order to obtain the means to commit the others, to facilitate or consummate commission of those other offences or to ensure that they will go unpunished.”


The applicant is a British national, born in 1916 and currently living in Switzerland.

He is represented before the Court by Stephenson Harwood, a firm of solicitors based in London as well as by Mr J.P. Gardner, a solicitor also based in London.

On 27 November 1997 the Secretary of State for Trade and Industry published a Report (“the Report”) prepared by Inspectors appointed by the Department of Trade and Industry under sections 432(2) and 442 of the Companies Act 1985 to investigate allegations of an unlawful share support operation at the time of the take-over by Guinness PLC of the Distillers Company PLC.

The applicant maintains that the Report refers quite extensively to him and is pejorative, containing criticisms of his honesty both in relation to the events which are the principal subject-matter of the Report and his responses to the Inspectors. The content of the Report is seriously detrimental to his reputation, all the more so in view of the intense media interest generated by it.

The applicant refers to the facts that on 11 and 16 October 1997 his lawyers submitted detailed representations to the Secretary of State urging him not to publish the Report as he had lodged an application with the European Commission on Human Rights in connection with the manner in which the Inspectors had obtained evidence from him and how that evidence was subsequently used by the prosecution at his trial. In their representations to the Secretary of State the applicant’s lawyers argued that, at the very least, publication of the Report should be deferred until the Convention institutions had adjudicated on his complaints. They requested the Secretary of State in the event of a decision to publish the Report in opposition to their representations to give them full information on the reasons for doing so.


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in 1937 and lives in Istanbul.

In 1996 the National Water Board (Devlet Su İşleri) expropriated a part of the applicant’s plot of land. A committee of experts assessed the value of the plot of land and the relevant amount was paid to her.

Following the applicant’s request for increased compensation, on 14 July 1997 the Bursa Civil Court of First-instance awarded her additional compensation plus interest at the statutory rate.

On 14 October 1997 the Court of Cassation held a hearing and quashed the judgment of the First-instance court.

On 27 April 1998 the Bursa Civil Court of First-instance awarded the applicant additional compensation of 3,591,690,496 Turkish liras (TRL) plus interest at the statutory rate, running from 29 August 1996, applicable at the date of the court’s decision.

On 7 July 1998 the Court of Cassation held a hearing and upheld the judgment of the Bursa Civil Court of First-instance.

On 6 October 1998 the Court of Cassation dismissed the applicant’s request for rectification.

On 29 December 1998 the National Water Board paid TRL 7,101,232,000 to the applicant.

The relevant domestic law and practice is described in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998VI, §§ 17-23). Moreover, under Article 82 of Law no. 2004 of 9 June 1932 concerning enforcement and bankruptcy (İcra ve İflas Kanunu), the property belonging to the State cannot be seized or confiscated.


The applicant is a Portuguese national who was born in 1953 and lives in Lisbon. He is represented before the Court by Mr A. Fialho Pinto, a lawyer practising in Lisbon.

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1997 the applicant, a wing commander in the airforce, was a military attaché at the Portuguese Embassy in Guinea-Bissau.

On 20 February 1997 the chief liaison officer for military attachés informed the Armed Forces General Staff that the applicant had been absent from duty, without leave and using an official vehicle, for four days.

On 25 February 1997 the Armed Forces Chief of Staff ordered disciplinary proceedings to be brought against the applicant and appointed an officer to conduct the investigation.

On 26 February 1997 the investigating officer sent the applicant a copy of the chief liaison officer’s report with a request for his comments, which the applicant sent him on 7 March 1997.

On 14 March 1997 the investigating officer heard evidence from the chief liaison officer in the applicant’s absence.

On 30 April 1997 the investigating officer lodged submissions accusing the applicant of dereliction of duty contrary to paragraphs 25 and 34 of Article 4 of the Military Disciplinary Regulations (unauthorised use of a military vehicle and absence without leave), aggravated by circumstances set out in subparagraphs (b) and (h) of Article 71 of the Regulations (the breach of regulations had occurred overseas and had been detrimental to the service).

In his reply lodged on 16 May 1997 the applicant gave the names of three witnesses from whom, he said, the investigating officer should take statements.

On an unspecified date the investigating officer declared the investigation to be at an end and sent his report to the Armed Forces Chief of Staff. On 23 May 1997 the Chief of Staff found the applicant guilty of the alleged offences and sentenced him to five days’ detention.

The applicant requested the Chief of Staff to review that decision on the grounds that there had been a breach of the adversarial principle. By an order of 19 June 1997 the Chief of Staff granted the request in part and ordered the investigating officer to take evidence from the witnesses whose names had been provided by the applicant.

The investigating officer heard the three witnesses concerned in the absence of the applicant and his representatives between 13 and 18 June 1997. In his report dated 18 June to the Chief of Staff, he indicated that the statements of the witnesses did not alter his earlier conclusions.

By an order of 18 June 1997 the Chief of Staff upheld the sentence of five days’ detention, which had been served by the applicant in the meantime.

On an unspecified date the applicant appealed against that decision to the Courts Martial Appeal Court (Supremo Tribunal Militar). He alleged among other things a violation of his defence rights and of the adversarial principle. In that connection, he complained that he had not been permitted to question the witnesses whose names he had given, either in person or through his representative.

On 30 October 1997 the Courts Martial Appeal Court dismissed the applicant’s appeal. With regard to the adversarial principle, it said, inter alia:

“Certainly, military disciplinary proceedings, which are not criminal proceedings, are governed subsidiarily by the procedural provisions of the Code of Military Justice, and in particular those guaranting the rights of the defence. However, criminal proceedings comprise two distinct stages: the investigation stage, which is governed by the inquisitorial principle, and the trial stages, which is subject to the adversarial principle. During the investigative stage, the accused’s representative is not entitled to question or contradict witnesses. He is restricted to requesting them to give evidence on certain factual matters before the investigating [officer]. For that reason, there has been no breach of the adversarial principle, which is inapplicable to that stage of the proceedings...”

The Courts Martial Appeal Court went on to hold that the mitigating circumstance pleaded by the applicant, namely his co-operation in uncovering the truth, was not to be taken into consideration.

Detention or a ban on leave (detençao ou probiçao de saída) is a penalty laid down by Article 26 of the Military Disciplinary Regulations (adopted by Legislative-Decree No. 142/77 of 9 April 1997), which provides, inter alia:

“1. Detention or a ban on leave shall consist of the confinement of the person punished to barracks or aboard ship throughout the term of the sentence. The person punished shall not be exempted from military training or the performance of rota (escala) duties.

The sentence may not exceed ten days in the case of officers. As to its effects, Article 53 lays down that the person concerned shall lose one day of seniority rights for every four days’ detention.

The Military Disciplinary Regulations also lay down other sentences, notably disciplinary imprisonment and aggravated disciplinary imprisonment. Disciplinary imprisonment means detention in suitable premises. However, the serviceman may be called on to perform any work required of him between morning and evening (Article 27). Aggravated disciplinary imprisonment means detention in a prison.