The applicant had failed in appeals against conviction and sentence for offences of fraud and forgery before the Belgian Cour de Cassation. He complained that he had not enjoyed the right to a fair trial recognised by Article 6(1) of the Convention because a member of the Procureur general’s department, which was attached to the Cour de Cassation, had retired with the Court to consider the result of the appeal. The Procureur general’s department plays an active role in prosecuting criminal offences. This was true of the lower courts in Belgium.
Held: This might also appear to be the case to litigants in the Cour de Cassation: ‘And one may imagine that such litigants can have a feeling of inequality if, after hearing a member of the Procureur general’s department at the Court of Cassation make, in open court, final submissions unfavourable to their pleas, they see him withdraw with the judges to attend the deliberations held in the privacy of chambers.’ However it had to `make a careful examination of the real position and functions of the Procureur general’s department attached to the Cour de Cassation’ This disclosed that, unusually, the Procureur general’s department did not adopt an adversarial role at that court, but performed a neutral advisory function which might lead it to intervene in favour of an appellant as readily as against him. The complainant’s concerns were understood, but ‘The preceding considerations are of a certain importance which must not be underestimated. If one refers to the dictum `justice must not only be done; it must also be seen to be done’, these considerations may allow doubts to arise about the satisfactory nature of the system in dispute. They do not, however, amount to proof of a violation of the right to a fair hearing. Looking behind appearances, the Court does not find the realities of the situation to be in any way in conflict with this right.’ The question of how equality of arms can be achieved between a defendant and prosecutor when a witness is to be protected is what, if anything, the court needs to do to ensure that the defendant is not at a substantial disadvantage compared with the prosecution and any other defendants. That can only be judged on a case by case basis at trial and on appeal.
Citations:
2689/65, [1970] ECHR 1, (1970) 1 EHRR 355
Links:
Jurisdiction:
Human Rights
Cited by:
Cited – D (A Minor), Regina (on the Application of) v Camberwell Green Youth Court HL 27-Jan-2005
The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Not followed – Borgers v Belgium ECHR 30-Oct-1991
Hudoc The Court reconsidered the nature of the involvement of the Procureur general’s department in decisions taken by the Belgian Cour de Cassation. The Court sitting in plenary session reached, by a majority, a . .
Cited – Dudson, Regina (on the Application of) v Secretary of State for the Home Department HL 28-Jul-2005
The defendant had committed a murder when aged 16, and after conviction sentenced to be detailed during Her Majesty’s Pleasure. His tarriff had been set at 18 years, reduced to 16 years after review.
Held: ‘What is at issue is the general . .
Cited – Regina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
Cited – Goldtrail Travel Ltd v Onur Air Tasimacilik As SC 2-Aug-2017
At first instance the appellant had dishonestly assisted another party to defraud the respondent, and ordered payment of substantial damages. The defendant, non-resident, sought to appeal, and the respondent asked the court to order payment into . .
Cited – O’Connor v Bar Standards Board SC 6-Dec-2017
The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time . .
Lists of cited by and citing cases may be incomplete.
Human Rights
Updated: 26 November 2022; Ref: scu.164850