European Court of Human Rights - case of De Cubber v. Belgium (1984) (excerpts)

European Court of Human Rights - case of De Cubber v. Belgium (1984) (excerpts)

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32. The Commission's Delegate did not share this view; the Court

agrees in substance with his arguments.


The thrust of the plea summarised above is that the proceedings before

the Oudenaarde court fell outside the ambit of 1Article 6 para. 1

(art. 6-1). At first sight, this plea contains an element of paradox.

Article 6 para. 1 (art. 6-1) concerns primarily courts of first

instance; it does not require the existence of courts of further

instance. It is true that its fundamental guarantees, including

impartiality, must also be provided by any courts of appeal or courts

of cassation which a Contracting State may have chosen to set up (see

the above-mentioned Delcourt judgment, Series A no. 11, p. 14 in fine,

and, as the most recent authority, the Sutter judgment of

22 February 1984, Series A no. 74, p. 13, para. 28). However, even

when this is the case it does not follow that the lower courts do not

have to provide the required guarantees. Such a result would be at

variance with the intention underlying the creation of several levels

of courts, namely to reinforce the protection afforded to litigants.


Furthermore, the case-law relied on by the Government has to be viewed

in its proper context. The judgments of 23 June 1981,

10 February 1983 and 21 February 1984 concerned litigation which was

classified by the domestic law of the respondent State not as civil or

criminal but as disciplinary (Series A no. 43, p. 9, para. 11) or

administrative (Series A no. 73, pp. 10-14, paras. 17-33); these

judgments related to bodies which, within the national system, were

not regarded as courts of the classic kind, for the reason that they

were not integrated within the standard judicial machinery of the

country. The Court would not have held Article 6 para. 1 (art. 6-1)

applicable had it not been for the "autonomy" of the concepts of

"civil rights and obligations" and "criminal charge". In the present

case, on the other hand, what was involved was a trial which not only

the Convention but also Belgian law classified as criminal; the

Oudenaarde criminal court was neither an administrative or

professional authority, nor a jurisdictional organ of a professional

association (see the above-mentioned judgments, Series A no. 43,

p. 23, para. 51, Series A no. 58, p. 16, para. 29, and Series A no. 73,

pp. 21-22, para. 56), but a proper court in both the formal and the

substantive meaning of the term (Decisions and Reports, no. 15, p. 78,

paras. 59-60, and p. 87: opinion of the Commission and decision of the

Committee of Ministers on application no. 7360/76, Zand v. Austria).

The reasoning adopted in the three above-mentioned judgments, to which

should be added the Campbell and Fell judgment of 28 June 1984

(Series A no. 80, pp. 34-39, paras. 67-73 and 76), cannot justify

reducing the requirements of Article 6 para. 1 (art. 6-1) in its

traditional and natural sphere of application. A restrictive

interpretation of this kind would not be consonant with the object and

purpose of Article 6 para. 1 (art. 6-1) (see paragraph 30 in fine

above).