European Court of Human Rights - case of H. v. Belgium (1987) (excerpts)

European Court of Human Rights - case of H. v. Belgium (1987) (excerpts)


54. As to whether the proceedings were public, the Judicial Code

provides that in some circumstances decisions of the Council of the

Ordre in disciplinary matters may be given in public (Article 460 § 3)

and that proceedings before disciplinary appeals boards may be held in

public (Article 476); but it is silent in respect of restoration to

the roll. In the instant case, H's applications were not heard in

public, nor were the decisions of the Council of the Ordre

"pronounced" in public.

Unless cured at a later stage of the procedure, such a defect may

deprive the person concerned of one of the safeguards set forth in the

first sentence of Article 6 § 1 (art. 6-1) of the Convention (see,

mutatis mutandis, the Albert and Le Compte judgment of

10 February 1983, Series A no. 58, p. 18, § 34).

The grounds for H's applications related directly to the practice of

the profession of avocat, which might conceivably raise questions

coming within the exceptions allowed for in Article 6 § 1 (art. 6-1).

However, the material before the Court does not suffice to show that

the circumstances were such as to warrant the hearings' not being held

in public (ibid.).

The rule requiring a public hearing, as embodied in Article 6 § 1

(art. 6-1), may also yield in certain circumstances to the will of the

person concerned. Admittedly, the nature of some of the rights

safeguarded by the Convention is such as to exclude a waiver of the

entitlement to exercise them, but the same cannot be said of certain

other rights. Thus neither the letter nor the spirit of Article 6 § 1

(art. 6-1) prevents an avocat from waiving, of his own free will and

in an unequivocal manner, the entitlement to have his case heard in

public; conducting disciplinary proceedings of this kind in private

does not contravene the Convention (loc. cit., p. 19, § 35).

The evidence adduced does not establish that H intended to waive his

right to a public hearing (ibid.). He cannot be blamed for not having

demanded to exercise a right which was not afforded him by the

practice of the Belgian Bars and that he had little prospect of

securing. As to the fact that H wished to remain anonymous in the

proceedings before the Convention institutions, it is not decisive in

this context, as those proceedings are quite different both in their

purpose and in their nature and scope.