European Court of Human Rights

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Belgium recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision from the Court as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Article 5 § 3 (art. 5-3).

(a) decided on 1 October 1987 that there was no need at that stage for memorials to be filed; and

(b) directed on 22 October 1987 that the hearing should be held on 26 January 1988 (Rule 38).

(a) the applicant’s claims under Article 50 (art. 50) of the Convention, on 13 November 1987, and observations on those claims by the Delegate of the Commission and by the Government, on 21 December 1987 and 8 January 1988 respectively; and

(b) various documents which the President had instructed him to request the Commission to produce, on 21 December 1987.

There appeared before the Court:

- for the Government

       Mr. C. Debrulle, Deputy Secretary,

                            Ministry of Justice,                                                      Agent,

       Mr. G. Kirschen, former leader

                            of the Brussels Bar, former Chairman of the National          

                            Council of the Ordre des avocats,

       Mr. A. Andries, Advocate-General

                             at the Courts-Martial Appeal Court,                        Counsel;

- for the Commission

       Mr. J.-C. Soyer,                                                                       Delegate;

- for the applicant

       Mr. L. Peeters, avocat,

       Mr. R. Perriens, avocat,

       Ms. E. De Ryck, avocate,                                                          Counsel.

The Government and the applicant produced several documents at the hearing.

The Court adjourned briefly to consider an application from one of Mr. Pauwels’ lawyers for a stay of the proceedings until such time as the Commission referred to it a second application lodged by Mr. Pauwels. It decided to continue its examination of the merits of the case submitted by the Commission in its report.

AS TO THE FACTS

I.   THE CIRCUMSTANCES OF THE CASE

A. The applicant’s arrest and detention on remand

On his arrest a few hours later, the applicant lodged an application for his immediate release but on 8 April the Board of Inquiry, again chaired by Mr. Van Even, confirmed the order in question on the same grounds.

The applicant immediately appealed to the Courts-Martial Appeal Court sitting in Brussels, which dismissed the appeal on 22 April, upholding the contested judgment on every point.

On 23 April, the Board of Inquiry, again chaired by Mr. Van Even, confirmed the arrest order for the second time.

On 30 April, the applicant appealed to the Court of Cassation against the judgment of the Courts-Martial Appeal Court. He relied inter alia on paragraph 3 of Article 7 of the Constitution, which provides that "save for offences discovered while being committed, no one may be arrested except pursuant to an order issued by a judge, which shall state the grounds on which it is based". He argued that neither the Board of Inquiry nor any of its members had the status of judge or possessed the independence and impartiality inherent in such status. In particular, an auditeur militaire carried out his duties under the supervision and direction of the Minister of Justice; he combined the functions of public prosecutor and investigating judge; his interests as prosecutor and those of the remand prisoner or defendant were directly opposed; and he alone was vested with the power of decision, since he was not bound by the dissenting opinion of either or both of the officers designated to sit on the Board (see paragraph 24 below).

On 22 June 1982, the Court of Cassation dismissed the applicant’s appeal. As regards the submission based on Article 7 of the Constitution, it held that paragraph 3 had to be read in the light of Article 105 of the Constitution (see paragraph 18 below). In this context the term "judge" therefore meant a body on which judicial powers were conferred by the provisions governing military criminal procedure. Articles 35 and 36 of the Code of Military Criminal Procedure, adopted under an Act of 15 June 1889, empowered Boards of Inquiry to issue arrest warrants. The drafting history showed that the auditeur militaire who chaired the Board of Inquiry performed the function of an investigating judge, in which capacity he was by definition independent.

"With reference to the application of 1 June 1982 for Pauwels to be released on bail ..., I have the honour to inform you that, having studied the application, I consider that there are not sufficient grounds for the question of his continued detention to be determined by my office under Article 123 of the Code of Military Criminal Procedure.

However, I have asked the auditeur militaire of Field Court Martial A to bring the case before the Court Martial as quickly as possible in order to enable that court to determine the merits and, at the same time, decide on any application for release. ..."

B. The trial proceedings

The trial proceedings resumed on 6 December 1982 following a further summons, signed this time by Mr. Potemans (on 17 November). On 2 May 1983, the Court Martial agreed to allow Mr. Van Even to give evidence, under oath. Since the defence objected, the Court Martial decided to join the issue to the merits. However, it elected to hear Mr. Van Even immediately.

The following day, the defendant appealed against this decision, but on 4 July agreed that the proceedings should continue. In its decision of 8 September 1983, the Court Martial based its conclusion inter alia on Mr. Van Even’s statements, which it ruled were admissible. It sentenced the applicant to six years’ imprisonment and a fine of 6,000 Belgian francs (BF) for forgery, uttering forged documents and embezzlement of State funds.

In the first place, the Courts-Martial Appeal Court quashed the decision of 2 May 1983 concerning Mr. Van Even’s testimony, on the ground that it did not give adequate reasons. It noted in addition that Mr. Van Even, acting not as investigating judge but as representative of the public prosecutor, had taken certain steps in the prosecution, and in particular had issued the summons of 23 June 1982. This meant that he had become a party to the proceedings and accordingly could not appear as a witness. His testimony should therefore have been disregarded.

On the merits, the Courts-Martial Appeal Court reduced the sentence to four years’ imprisonment and a fine of 6,000 BF. It ordered that the applicant be dismissed the service (Article 54 of the Military Criminal Code) but, unlike the court below, did not order his immediate arrest.

II.   THE RELEVANT DOMESTIC LAW

Military criminal procedure is governed principally by the Army Code of Procedure (ACP) of 20 July 1814 and the Code of Military Criminal Procedure (CMCP) of 15 June 1899.

A. The auditeur militaire

Auditeurs militaires and their deputies, however, are not judges within the meaning of Article 100 of the Constitution. The King, who appoints them, may also dismiss them (Article 77 of the CMCP). They are therefore not irremovable.

They are hierarchically subordinate to the auditeur général at the Courts-Martial Appeal Court and to the Minister of Justice, but it is not disputed that in practice they are wholly independent in the performance of their duties.

(a) senior police officers (officiers de police judiciaire - Article 44 of the CMCP);

(b) investigating judges, vested with powers identical to those of civilian investigating judges and which each individual exercises either alone or as chairman of the Board of Inquiry (Article 35 of the CMCP and paragraph 25 below);

(c) members of the public prosecutor’s office, acting as prosecuting counsel before the courts martial, subject to the supervision and direction of the auditeur général (Article 76 of the CMCP).

The Code of Military Criminal Procedure thus derogates from Article 292 of the Judicial Code, which prohibits such plurality of functions "except in the cases prescribed by law".

"... The Principal Public Prosecutor at the Court of Cassation has informed me of his view that, in the light of the Schiesser judgment, it is absolutely essential to ensure that, in cases where a preliminary investigation is held, particularly those in which the accused is placed in detention on remand, the judicial officer who acts as prosecuting counsel before the court martial should not be the one who conducted the preliminary investigation.

I have explained to the Principal Public Prosecutor at the Court of Cassation why in many circumstances, in view of the limited number of auditeurs militaires and deputies, it will no doubt be physically impossible to comply with the rule he wishes to have applied, but have told him that the rule generally will be applied in future.

Pending a solution which will inevitably require legislative reform, I would therefore ask you to ensure that to the fullest extent possible, particularly in cases where the accused is held in detention on remand, the rule laid down by the Principal Public Prosecutor at the Court of Cassation is applied."

In subsequent instructions issued on 11 March 1985, the auditeur général confirmed and clarified the distinction to be maintained between investigation and prosecution, "pending the necessary legislative reforms":

"... It has been held by the European Court of Human Rights that a judge who may be required to act in a given case as prosecuting counsel does not afford the guarantees of independence and impartiality necessary for the performance of the judicial acts inherent in the process of investigation.

This case-law prompted my circular (no. 2920) of 29 March 1983. I now consider that the time has come to take a further step towards separating the processes of investigation and prosecution. That is the purpose of the following instructions.

In all cases in which the auditeur militaire has exercised the judicial powers of investigating judge (e.g. arrest warrant, hearing of witnesses under oath, search warrant, seizure, body search, or appointment of an expert by the Board of Inquiry), the investigation and the prosecution must be conducted by different judicial officers.

 ...

I would ask you:

1. to implement forthwith the instructions in this circular;

2. to send to me by 1 October 1985 a detailed report on the practical application of these instructions, on any problems to which such application has given rise, etc.

 ..."

"The auditeur militaire who chairs the Board of Inquiry discharges the judicial functions of an investigating judge (Cass., 22 June 1982, RW [Rechtskundig Weekblad], 1983-1984, col. 1115). Article 35 of the Army Code of Procedure of 20 July 1814, taken together with Article 70 of the Code of Military Criminal Procedure, lays on the chairman of the Board of Inquiry the duty to act as an independent judge, in particular in regard to the parties (Cour mil., 23 April 1980, RDP [Revue de droit pénal et de criminologie], 1983, p. 929).

It has been held by the European Court of Human Rights that the judge or other officer authorised by law to exercise judicial power during preliminary investigations, and more particularly when an arrest warrant is issued, must be independent of the executive and of the parties (Schiesser judgment, 4 Dec. 1979, Series A, no. 34, §§ 27-31). As an investigating judge, the auditeur militaire is independent of the executive, as under Article 76 of the Code of Military Criminal Procedure (Act of 15 June 1899) he is only subject to the supervision and direction of the auditeur général when discharging his duties as a member of the public prosecutor’s office.

The European Court of Human Rights held in the cases of Duinhof and Duijf (judgment of 22 May 1984, Series A, no. 79, § 38) and van der Sluis, Zuiderveld and Klappe (judgment, 22 May 1984, Series A, no. 78, § 44) that the Dutch auditeur-militair, although independent of the military authorities, could not be independent of the parties during the preliminary stage of the trial because he was liable, at a subsequent stage, to become a party himself, in that instance as prosecuting authority.

Consequently, the Belgian auditeur militaire, in that he intervenes as prosecuting authority, likewise does not afford the guarantees of impartiality and independence necessary for him to be able to perform the duties of investigating judge in the same case.

There is a danger that he might perform his duties as investigating judge from the point of view of the prosecuting authority at a subsequent stage of the proceedings.

This does not apply only to cases in which an arrest warrant is issued. The judicial function of investigating judge is indivisible and embraces all the judicial acts performed during a preliminary investigation.

The preliminary investigation and the prosecution must accordingly be conducted by different judicial officers (Cour mil., 13 Nov. 1983, RDP, 1985, p. 904); having a single judicial officer combine the functions of investigation and prosecution is incompatible with the impartiality and independence required of an investigating judge and accordingly violates Articles 5 and 6 (art. 5, art. 6) of the European Convention on Human Rights as construed by the European Court of Human Rights in the above-mentioned cases.

The explicit provisions of the European Convention on Human Rights regarding judicial safeguards lay down rights which are distinct but stem from the same basic idea, namely a citizen’s right to a fair trial (Golder judgment, 21 Feb. 1975, Series A, no. 18, §§ 28 and 36). This basic right in a democratic society, as laid down in the Convention, has such a prominent place that a narrow interpretation of the Convention’s explicit provisions in this field would not be in accordance with the Convention’s object and purpose (De Cubber judgment, 26 Oct. 1984, Series A, no. 86, §§ 30 and 32). One of the vital prerequisites of the right to a fair trial is precisely that the preliminary investigation and the prosecution should be separate, and Article 5.3 (art. 5-3) of the Convention is but an application of this principle.

In the present case the same judicial officer combined the functions of investigating judge with those of public prosecutor, firstly - as chairman of the Board of Inquiry and with the military members of the Board - by ordering a report to be made by an expert and hearing the accused during the final questioning, and subsequently by participating in the trial as prosecutor.

This amounts to a violation of Articles 5 and 6 (art. 5, art. 6) of the European Convention on Human Rights and is consequently unlawful in Belgian domestic law (Cass., 27 May 1971, Pas. [Pasicrisie], 1971, 919).

The investigative measures taken in the Faymonville case - the appointment of an expert and the final hearing of the accused by the Board of Inquiry - should therefore be declared null and void and the documents relating to those measures (including the expert’s report) should be declared inadmissible in evidence.

Ruling that these documents are inadmissible, however, does not in any way prevent the court from reaching a decision on the basis of the other evidence, namely the police reports and the accused’s statements to the auditeur militaire acting as senior police officer (officier de police judiciaire).

For these reasons,

Having regard to Article 35 of the Army Code of Procedure, Articles 70 and 76 of the Code of Military Criminal Procedure and Articles 5 and 6 (art. 5, art. 6) of the European Convention on Human Rights (Act of 13 March 1955),

I ask the court,

firstly, to declare that the appointment of an expert by the Board of Inquiry and the Board’s final hearing of the accused (item 2 in the file on the expert’s report and items 84 and 85 in the file on the preliminary investigation) together with the expert’s report are null and void and to rule these items inadmissible in evidence;

secondly, to order the costs of the expert’s report to be paid by the State; and

thirdly, taking its decision on the basis of the other evidence, to convict the accused in accordance with my oral submissions." (Journal des tribunaux, no. 5382, 31 May 1986, pp. 370-371)

On 18 December 1985, the Courts-Martial Appeal Court gave its judgment, which included the following reasons (translated from the German original):

"The auditeur général’s office took the view that, as the same senior deputy auditeur militaire acted both as investigating judge and as prosecutor, several items relating to the investigative measures must be declared null and void and inadmissible in evidence, because the investigation and the prosecution must be conducted by different judicial officers.

Every citizen has a right to a fair trial, and one of the vital prerequisites of the right to a fair trial is that the preliminary investigation and the prosecution shall be separate.

The European Court of Human Rights has so held (De Cubber case, judgment of 26 Oct. 1984, Series A, no. 86, §§ 30 and 32), and the Court of Cassation has likewise so decided on several occasions (judgments of 29 May 1985, Pub. v. D... and Pub. Pros. v. R... and others, Jur. Liège [Jurisprudence de la cour d’appel de Liège], 11 Oct. 1985, pp. 541-544).

 ...

For these reasons:

THE COURT,

 ...

Declares the appeals admissible;

Holds that the Board of Inquiry’s appointment of an expert, the final hearing of the defendant by the Board and the expert’s report are null and void and must be excluded as inadmissible evidence;

Sets aside the decision appealed against in so far as it ordered the defendant to pay the costs of the expert opinion (41,882 F);

Orders the State to pay the costs of the expert opinion;

 ..." (ibid., p. 371).

According to the report submitted by Mr. Van Rompaey on behalf of the Senate Legal Affairs Committee, the existing Code "has now been overtaken, in a number of fundamental respects, both by changes in human-rights case-law and by the new patterns of organisation entailed by the separation of preliminary investigation and prosecution" (Sénat 5-VI (1986-1987) no. 2 of 6 October 1987, p. 44).

B. The Board of Inquiry

The auditeur militaire is the sole permanent member of the Board. Th military members of the Board are changed frequently, on the expiry of their term of office or as operational needs require.

By Article 35 of the Code of Military Criminal Procedure, the auditeur militaire "shall direct the investigation". He must endeavour as much to establish the accused’s innocence as to obtain evidence of his guilt and secure a confession (Article 70 of the ACP). The decisions of the Board of Inquiry are his sole responsibility, and any dissenting opinions of the two officer members of the Board are not binding on him. The function of these two members is merely to assist him, not as investigating judges but as technical advisers and as witnesses to the lawfulness of the investigation, which they guarantee by their presence and by their signature.

PROCEEDINGS BEFORE THE COMMISSION

In its report of 4 December 1986 (made under Article 31) (art. 31), the Commission expressed the unanimous opinion that there had been a breach of Article 5 § 3 (art. 5-3). The full text of its opinion is reproduced as an annex to this judgment.

AS TO THE LAW

I.   ALLEGED VIOLATION OF ARTICLE 5 § 3 (art. 5-3)

The applicant claimed that in his own case the auditeur général had sent instructions to the auditeur militaire and thus indirectly to Mr. Van Even while the latter was still completing the investigation; as evidence of this he pointed to the letter sent to his lawyer on 16 June 1982 by the auditeur général, in which the latter wrote that he had asked the auditeur militaire to bring the case before the Court Martial as soon as possible (see paragraph 14 above).

They no longer maintained that the plurality of Mr. Van Even’s functions as senior deputy auditeur militaire was not contrary to the Convention. They considered, however, that he had conducted the investigation completely independently and had subsequently played only a very minor role in the prosecution, on three occasions.

On 11 May and 23 June 1982, Mr. Van Even acted as the public prosecutor’s representative at Field Court Martial "A" when it considered Mr. Pauwels’ applications for release. In the Government’s view, that fact did not entail any prolongation of the applicant’s detention on remand, whose duration of 94 days was very short in relation to the period of imprisonment to which he was sentenced (see paragraph 16 above).

Lastly, again on 23 June 1982, Mr. Van Even signed the summons requiring the applicant to appear for trial on 5 July. According to the Government, Mr. Pauwels suffered no prejudice since his conviction was the outcome of a fresh summons which was not issued by Mr. Van Even.

With reference to the Ben Yaacoub judgment of 27 November 1987 (Series A no. 127-A, pp. 8-9, § 15), they asked the Court, finally, to hold that there had been a clear reversal of Belgian case-law and that, accordingly, the problem to which the case gave rise appeared henceforth no longer to subsist in Belgium.

It must therefore determine the merits.

Although an auditeur militaire in Belgium is hierarchically subordinate to the auditeur général and the Minister of Justice, he is completely independent in the performance of the duties devolving upon him both as a member of the public prosecutor’s office and as chairman of the Board of Inquiry (see paragraph 19 above).

The only issue which really arises is whether in the instant case Mr. Van Even, in his capacity as chairman of the Board of Inquiry, afforded the guarantees of impartiality inherent in the concept of "officer authorised by law to exercise judicial power" when he could be - and in fact was - called upon to act in the same case, in respect of the same defendant, as prosecuting authority and thus as a party.

The same conclusion is inevitable in the instant case. On the one hand, Belgian legislation provides for a system similar to that of the Netherlands; and on the other, pursuant to the Code of Military Criminal Procedure, Mr. Van Even did indeed, in Mr. Pauwels’ case, combine the functions of investigation and prosecution. That being so, his impartiality was capable of appearing to be open to doubt (see, mutatis mutandis, the Piersack judgment of 1 October 1982, Series A no. 53, p. 16, § 31, and the De Cubber judgment of 26 October 1984, Series A no. 86, p. 16, § 30). There was therefore a breach of Article 5 § 3 (art. 5-3).

II.   THE APPLICATION OF ARTICLE 50 (art. 50)

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

Under this provision the applicant sought an amendment of Belgium’s legislation, compensation for damage, reimbursement of costs and an order requiring the respondent State to pay a fine.

A. Legislative amendment

In a letter of 8 January 1988 the Government stated that such reform was a matter for Parliament and that, having regard to the current political situation, they were not in a position to take any steps in that direction.

The Delegate of the Commission made no comment on the matter.

B. Damage

1. Pecuniary damage

The Government, on the other hand, thought that there was no causal link between the violation alleged by the applicant and the prejudice resulting from his loss of liberty. It was not to be forgotten that the decision whether or not to release Mr. Pauwels lay with the Court Martial, an independent and impartial court.

The Delegate of the Commission was of the view that the damage which could give rise to an award of just satisfaction was the damage resulting from the deprivation of liberty that Mr. Pauwels would not have suffered if he had had the benefit of the guarantees of Article 5 § 3 (art. 5-3). The evidence, however, did not afford any reason to suppose that the applicant’s detention on remand would probably have been brought to an end if a judicial officer other than Mr. Van Even - that is to say an independent judicial officer - had chaired the Board of Inquiry. In short, no pecuniary damage had flowed from the breach of the Convention.

2. Non-pecuniary damage

C. Costs and expenses

The Government were inclined to think that the applicant had taken into account costs that had no connection with the Strasbourg proceedings, which related solely to the issue of the detention on remand; this appeared to be the case in particular with the very substantial translation fees and part of the travel expenses. They also submitted that the Court should reject the figure of 346,186 BF, which they considered to be "very large" and to be unsupported by vouchers.

The Delegate of the Commission left it to the Court to assess the merits of this claim, in the light of the Government’s observations.

The only violation the Court has found concerns the applicant’s detention on remand, and certain of the amounts claimed do not appear to relate to costs actually and necessarily incurred for the purposes mentioned above.

Seeing, furthermore, that a number of the supporting documents submitted are inadequate, that some of the amounts sought are excessive, and that no basis for calculating the fees has been provided, the Court can only award the applicant, by way of an equitable assessment, a sum of 150,000 BF.

D. Order requiring the Belgian State to pay a fine

Neither the Agent of the Government nor the Delegate of the Commission expressed any view on this matter.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 5 § 3 (art. 5-3) of the Convention;

2. Holds that the respondent State is to reimburse the applicant 150,000 (one hundred and fifty thousand) Belgian francs in respect of costs and expenses;

3. Rejects the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 26 May 1988.

Rolv RYSSDAL

President

Marc-André EISSEN

Registrar