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 PERSON , a NORP national born in DATE , is a former member of ORG and a former minister .

Mr PERSON , a NORP national born in DATE , is an economist .

Application no . PERSON was originally lodged by PERSON , a NORP national born in DATE , who was then the director - general of ORG . Following PERSON death on DATE his wife and his daughters announced their intention of pursuing the application in a letter of CARDINAL July DATE .

PERSON is a NORP national , born in DATE . A civil servant , he was deputy mayor of the municipality of PERSON from DATE to DATE and the chairman of ORG ( “ the NORP ” ) from DATE .

Mr PERSON , a NORP national born in DATE , is a psychologist .

In DATE Mr PERSON , 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 ORG , public establishments , political parties , etc . ) . The association also carried out market research and opinion polls on its own initiative . On CARDINAL DATE , while Mr PERSON was in GPE , he was dismissed for serious misconduct .

On DATE an investigating judge at ORG was instructed to conduct an investigation into some of “ I ” 's activities .

On DATE Mr PERSON was placed in pre - trial detention on his return from GPE . 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 ORG , GPE and the NORP - 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 .

NORP In DATE one GPE , “ I ” 's deputy manager , was also placed in pre - trial detention . He was released in DATE , as was PERSON .

On DATE Mr GPE 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 CARDINAL surveys he had requested “ I ” to carry out , in his capacity as secretary - general of ORG . These surveys , CARDINAL of which had allegedly not been carried out , had been requested from “ I ” in CARDINAL contracts dated CARDINAL and CARDINAL DATE , the bills for which had been paid by ORG on DATE and CARDINAL DATE respectively .

In the context of the proceedings brought against Mr PERSON , 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 DATE 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 DATE .

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

On DATE searches were carried out at the home of Mr GPE and the offices he occupied as deputy mayor of PERSON .

On DATE ORG ( 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 PERSON . A report on the proceedings was drawn up ( no . CARDINAL ) . Mr GPE was questioned by ORG on a number of further occasions in DATE and DATE .

On DATE an ORG investigator questioned Mr Javeau about certain contracts entered into by “ I ” , particularly CARDINAL contracts for MONEY ( BEF ) each signed by Minister PERSON which concerned businesses in the GPE area which were geared for exports , operating as sub - contractors or receiving subsidies from ORG ( files nos . IN B/CARDINAL , B/CARDINAL and B/CARDINAL ) .

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

According to the interview record , Mr PERSON replied :

“ Yes , in effect , we signed those contracts at the end of Minister PERSON 's term of office in LOC as I have just explained , but I think that splitting the work CARDINAL 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 ORG inspector for approval , and in the event of an unfavourable opinion we would have had to go up as far as the ORG , all for a contract that PERSON was determined to get through whatever level of the procedure it had to go to . ”

The final report containing the expert opinions ran to CARDINAL volumes which were filed DATE .

Reports concerning the additional expert opinions requested were filed in DATE and DATE .

On DATE the investigating judge charged Mr GPE with misappropriation , fraud , forgery , uttering forged documents and accepting bribes as a civil servant .

On DATE , 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 CARDINAL , CARDINAL or CARDINAL of the LAW ( concerning members of ORG or ORG , ministers and members of ORG respectively ) , the investigating judge sent a copy of the file in the meantime to ORG at ORG .

ORG ( procureur général ) at ORG decided that there did indeed appear to be evidence that offences had been committed by CARDINAL prominent politicians protected by ministerial or parliamentary immunity , including PERSON and Minister M.

On DATE Mr Stalport was interviewed , as former head of the private office of Minister PERSON , by CARDINAL civil servants belonging to the investigation branch of ORG , acting pursuant to instructions given by the investigating judge handling the proceedings against Mr PERSON . This interview mainly concerned the relations between Mr PERSON and the private office of Minister PERSON , and the working practices of the private office . It concentrated on CARDINAL contracts dated DATE between LOC and “ I ” . The verbatim record of the interview records this part of the proceedings as follows :

“ Q [ Question ] On DATE Mr PERSON sent the private office a draft contract for a preliminary study to be carried out among small and medium - sized businesses in the GPE area for a total fee of CARDINAL net of ORG . The study was intended to produce a list of businesses

– geared for exports ;

– operating as sub - contractors ;

– receiving subsidies from LOC .

DATE you informed PERSON that his draft contract had been transmitted to the administration for scrutiny ( appendices CARDINAL to CARDINAL 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 ORG 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 ORG 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 ORG inspectorate . In my private office I was advised to do things differently , namely to split the contract into CARDINAL parts so that the fees would be lower than the CARDINAL threshold triggering compulsory scrutiny by the ORG inspector . I must emphasise that , despite doing things that way , I once again submitted the subdivided project to the ORG inspector , but the second time he gave a favourable opinion .

Q Here you see CARDINAL contracts signed on DATE between LOC , represented by Minister PERSON , and the “ I ” association , represented by Mr PERSON ( see appendices CARDINAL to CARDINAL of the expert report ) . Each of these contracts concerns a preliminary study to be carried out among small and medium - sized businesses in the GPE 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 CARDINAL of the CARDINAL above - mentioned criteria . They represent a total cost for the preliminary study of CARDINAL net of ORG , as compared with the initial project , which would have cost CARDINAL net of ORG . Did not that reduction result from the need to split the initial project into CARDINAL , since there were CARDINAL criteria , while at the same time making sure that none of the CARDINAL contracts exceeded CARDINAL net of ORG , the threshold for intervention by the ORG inspector ?

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

Q Does the fact that Mr PERSON agreed to do the same work for LAW not show that the initial contract accepted by the private office and the administration was overpriced ?

A NORP Your point about the initial price is not wrong , but the agreement on CARDINAL was probably the result of a tripartite or quadripartite agreement between the private office , the administration , the ORG inspectorate and “ I ” . That is a guess , because I ca n't remember the precise details of that transaction now .

Q Here is the commitment slip for CARDINAL of the contracts signed with “ I ” on DATE . This document bears the signature of ORG inspector PERSON , dated DATE , 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 PERSON 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 ORG inspector for authorisation . In my opinion , PERSON must have received the contract before it was signed .

Q When these CARDINAL contracts were received the administration gave them CARDINAL commitment number , which was the number of CARDINAL of them ( see appendices CARDINAL and CARDINAL 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 CARDINAL invoices for part - payment of each of the CARDINAL contracts PERSON informed PERSON that he thought “ I ” must have made a mistake . In fact , he requested CARDINAL original copies of what he believed to be a single invoice and these copies could not bear CARDINAL different numbers ( see appendices CARDINAL of the same report ) . So PERSON could only have authorised expenditure in respect of CARDINAL 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 ORG 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 ORG inspector , seeing that for me this represented a guarantee of lawfulness from the Minister 's budgetary adviser . Therefore , if PERSON 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 PERSON My reply is that I was advised to do things that way and that I made sure that PERSON approved the CARDINAL new contracts .

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

By a DATE letter of DATE ORG at ORG transmitted to the President of ORG “ a file disclosing , in [ his ] opinion , evidence of offences committed by PERSON ... PERSON ... , 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 LAW , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW . 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 LAW are applicable . ”

After a summary of the case , the file set out the facts and the evidence against Mr PERSON regarding offences said to have been committed DATE and DATE . The letter implicated another minister , a former minister and CARDINAL other members of parliament , although ORG considered that in respect of CARDINAL of these prosecution was probably time - barred .

ORG also mentioned a general problem concerning limitation of prosecution arising from the fact that under LAW of DATE , which had come into force on DATE , the limitation period had been extended from DATE and the change applied to “ all prosecutions brought before the PERSON 's entry into force which have not yet become time - barred by that date ” . ORG accordingly submitted the following opinion : “ In the present case all the offences committed before DATE , at least , are subject to limitation . In respect of the offences committed after that date the first DATE time - limit , expiring on DATE , began to run . The first procedural step causing time to begin to run again occurred in DATE , more specifically on DATE , when the information in writing was laid before the investigating judge . ”

ORG sent this report to the President of ORG to enable the ORG to “ exercise the prerogatives conferred on it by LAW . He further requested , in any event , the lifting of the parliamentary immunity of the CARDINAL ministers implicated , including PERSON and Minister PERSON

ORG , sitting on DATE 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 PERSON , assisted by his lawyers .

After deliberating on DATE , the special committee made a recommendation urging ORG to commit PERSON for trial in ORG , but not the other CARDINAL ministers . With regard to Minister PERSON , it expressed the following opinion :

“ The special committee , rejecting all other legal argument put forward , decides to recommend that ORG should find

– that [ Minister PERSON ] should not be committed for trial in ORG in connection with contracts nos . IN BCARDINAL , CARDINAL and CARDINAL , and

– that in connection with the other offences ORG is not required to give a ruling under LAW . ”

On DATE this recommendation was adopted in exactly the same terms by ORG by CARDINAL votes to CARDINAL , with CARDINAL abstentions .

After ORG had reached this decision , ORG at ORG asked the President of ORG , in the interests of the proper administration of justice , to appoint a judge of the ORG , 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 DATE the President , allowing this application , appointed Judge PERSON to investigate the case .

On CARDINAL DATE Judge PERSON sent the case file to ORG at ORG , so that the latter could make his submissions .

As a result of elections held in DATE Mr GPE sat as a member of ORG from DATE .

On DATE ORG at ORG sent a letter to ORG asking it to inform him , “ regard being had to the provisions of Articles CARDINAL § CARDINAL and CARDINAL of the LAW ” , whether it considered it necessary “ to call for a stay of the proceedings brought when PERSON had not yet been invested with the functions [ of a regional councillor ] ” .

On DATE the ORG decided to “ authorise ” proceedings against Mr Hermanus involving investigation of the case before a criminal division of ORG 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 DATE ORG at ORG asked the President of ORG “ to be so good as to request ORG to give a ruling as early as possible on the present application for the authorisation of proceedings against PERSON in ORG ” .

On the advice of its ORG , the ORG decided at its sitting on DATE to give the authorisation requested , considering that “ connection between the offences [ had been ] established by the decision of CARDINAL DATE of ORG of ORG , reached after the ORG 's decision of DATE [ and that ] the questions of connection between the offences , the proportionality between the offences and the consequences of committal for trial in ORG , and the reasonableness of the time taken to investigate the case [ were ] matters for the trial court on which ORG [ did ] not have to rule ” .

In the meantime ORG of ORG had decided , by an order of DATE , 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 PERSON , the prosecuting authorities at ORG decided to prosecute before that court CARDINAL other defendants , including the other CARDINAL 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 ORG 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 PERSON ) of obtaining the payment of certain fees by false pretences . Lastly , they considered that although CARDINAL of the applicants , Mr Stalport and PERSON , had obtained no financial gain from these contracts , they had taken part in drawing them up .

At TIME on DATE ORG at ORG held a meeting with the lawyers of CARDINAL of the persons under investigation , including PERSON and PERSON , 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 DATE . When the lawyers protested , he apparently put off the trial until DATE , 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 ORG 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 CARDINAL DATE the QUANTITY persons under investigation by the prosecuting authorities at ORG were summoned to appear in that court on DATE , to answer various charges relating to offences allegedly committed in connection with public supply contracts awarded to “ I ” , at a time when PERSON PERSON was a member of the government .

Mr PERSON was the only defendant to whom LAW applied ; the others were summoned , pursuant to ORG and CARDINAL of LAW , on account of the connection between the offences they stood accused of and the charges PERSON had to answer .

By a summons served on CARDINAL DATE Mr Stalport was summoned to appear in ORG 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 PERSON , whom ORG had not committed for trial in ORG . According to the summons , he stood accused of the following offences :

“ A. the first ( Mr PERSON ) , second ( Mr PERSON ) , third ( PERSON ) , fourth ( Mr GPE ) , fifth ( Mr Stalport ) , sixth ( Mr H. ) , and seventh ( Mr PERSON )

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 PERSON ) and the fifth ( Mr Stalport )

the fifth , being head of the private office of the Minister for ORG , 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 ORG inspectors , substituted or caused to be substituted for a contract which had been turned down by the ORG inspectors CARDINAL contracts dated DATE , each for a sum lower than the threshold triggering intervention of the inspectorate , but which together had the same purpose as the CARDINAL which had been turned down , namely research on small and medium - sized businesses ;

( contracts IN B CARDINAL , B CARDINAL and B CARDINAL – see in particular : RE , vol . IV , pp . CARDINAL to DATE and annexes CARDINAL to CARDINAL ; C CARDINAL , f CARDINAL , p. CARDINAL ; C CARDINAL , f CARDINAL , pp . CARDINAL and CARDINAL ) . ”

On DATE the lawyers of each of the defendants requested ORG 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 DATE , the President of ORG announced that the case would be investigated in accordance with the provisions of LAW .

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 DATE ORG 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 DATE Mr PERSON filed a first pleading concerning the fact that no legislation had been enacted to implement Article CARDINAL of the LAW , despite the expressly stated intention of ORG . This legislative deficiency had caused the provision originally intended to be transitional , adopted by ORG to fill the legal vacuum – namely LAW , which had later become the transitional provision of LAW to remain in force indefinitely .

He submitted in the first place that although the constitutional revision of CARDINAL DATE had replaced the words “ and in so doing classify the offence and determine the appropriate sentence ” in the transitional provision of LAW 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 DATE and DATE without breaching LAW .

He further submitted that , although the transitional provision gave ORG discretion to try ministers indicted by ORG as regards the question of their guilt and the penalties to be imposed , it did not confer on either ORG or ORG an analogous power concerning the procedure to be followed in such proceedings . ORG 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 DATE Mr PERSON filed a second pleading concerning the procedure followed by the special committee of ORG and reference of the case to ORG .

At the hearing on DATE Mr ORG filed a pleading arguing that no provision of NORP law permitted his committal for trial in ORG 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 PERSON . If ORG thought otherwise , it should refer a preliminary question to ORG as to whether legal provisions which permitted a defendant who was not a minister to be committed for trial in ORG infringed the principles of equality and non - discrimination . He therefore asked ORG to rule that it did not have jurisdiction to try him in the absence of any connection or , in the alternative , to submit to ORG the following preliminary question :

“ In so far as ORG CARDINAL and CARDINAL of LAW have the effect of referring to ORG , sitting as a court of trial , criminal proceedings against a defendant who is not a minister , do they breach Articles CARDINAL and CARDINAL of the LAW taken together with LAW , CARDINAL and CARDINAL of the LAW ? ”

At the hearing on DATE Mr PERSON filed a third pleading in which he asked ORG to stay its decision on the prosecution 's submissions until ORG had answered the following preliminary question :

“ Does the extension of the limitation period for criminal proceedings resulting from LAW DATE containing the preliminary part of LAW , as amended by LAW , 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 LAW 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 LAW ? ”

At the beginning of the hearing on CARDINAL DATE the President read out an interlocutory judgment in which ORG 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 ORG the preliminary questions proposed by the defendants on the principle of connection . In the reasons for its judgment ORG held : “ The transitional provision in LAW ... applies both to the offences committed after the constitutional revision of CARDINAL DATE 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 ORG is sitting as a court of trial it must comply , in procedural matters , with the provisions – directly applicable in NORP law – of ORG and LAW , with the LAW , with the rules of LAW , with the common provisions applicable to all criminal proceedings and with the general principles of law .

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

To that extent , this ORG will apply the procedural rules laid down in Book II , Part CARDINAL , LAW of LAW , 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 ORG is not usurping the function of the legislature . ”

ORG 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 CARDINAL and CARDINAL of LAW 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 LAW to ORG requires the trial of all the accused to be conducted by that court , which is highest in rank .

LAW delimits the powers of ORG when it rules on appeals on points of law .

The ORG '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 LAW .

The rules on connection , which are generally applicable , do not entail an arbitrary difference in treatment between the defendants for the purposes of LAW .

Moreover , the ORG 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 ORG pursuant to the rules on connection constitutes discrimination prohibited by ORG CARDINAL and CARDINAL of the LAW .

They have asked for preliminary questions to be submitted to ORG seeking a ruling as to whether Articles CARDINAL and CARDINAL of LAW , in so far as their effect is to refer to ORG , sitting as a court of trial , the prosecution of a defendant who is not a minister , are in breach of Articles CARDINAL and CARDINAL of the LAW . The defendant ORG raised the same question , referring to the same ORG of the LAW taken together with LAW , CARDINAL and CARDINAL thereof .

Furthermore , the defendant PERSON asked for a question to be submitted to ORG on a contradiction between Articles CARDINAL of the LAW and Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL § CARDINAL of LAW , while the defendants GPE , GPE and PERSON asked for a question on a contradiction between the above - mentioned ORG CARDINAL and CARDINAL and Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Code of ORG and Articles CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , DATE , DATE and CARDINAL of the Judicial Code ' in that they laid down general principles of law permitting ORG 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 ORG CARDINAL and CARDINAL of the LAW , those ORG would be violated not by the provisions complained of in the pleadings but by LAW , which gives ORG jurisdiction to try ministers under the conditions it lays down .

LAW ( CARDINAL ) of LAW of DATE on GPE 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 CARDINAL , CARDINAL and DATE of the LAW by one of the statutes , decrees or rules contemplated by LAW .

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

After this judgment had been delivered , CARDINAL of the defence lawyers , speaking on behalf of all the accused , said that ORG was laying down the rules of the procedure to be followed on its own authority and expressed serious reservations about compliance with LAW . He also asked whether ORG intended to ask the registrar , pursuant to LAW , to read out the CARDINAL pages in the file , explaining that , having stated that it intended to follow the practice of the criminal courts , it was not right for ORG to apply some rules but not others . ORG did not grant this request .

DATE . At the hearing on CARDINAL DATE ORG began an address presenting the facts of the case , which continued on CARDINAL DATE . At the beginning of this address he said :

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

ORG will speak about the other charges against Mr PERSON and PERSON and those against Mr GPE . ”

According to Mr PERSON and PERSON , the President of ORG interrupted ORG address at CARDINAL point to remind him that the purpose of that stage of the proceedings was not for the prosecution to present its case .

On DATE ORG 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 ORG 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 DATE Mr Stalport was examined , together with PERSON , about the offences he stood accused of .

The record of the hearing on DATE includes the following information :

“ At the public hearing of ORG , sitting as a full court , on DATE , in the formal hearing room , where the following members were present and sitting :

President PERSON , Vice - President ORG President PERSON , ORG , PERSON and ORG President PERSON , Judges PERSON , PERSON , GPE , FAC , Verougstraete , PERSON , PERSON , PERSON , Waûters , ORG ; ORG Counsel Baron PERSON , ORG , Chief Registrar PERSON , assisted by PERSON and Deputy Registrar PERSON ,

The accused ORG stated : I was questioned for the first and last time on DATE 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 ORG inspector on CARDINAL DATE ?

Mr ORG 's reply :

Yes , the project was part of a package submitted to the administration with a total cost of LAW . 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 ORG inspectorate .

Question to Mr Stalport :

Why , in your opinion , notwithstanding the unfavourable opinion of the ORG inspectorate , were CARDINAL contracts signed on DATE 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 LAW ?

Mr ORG '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 . DATE my colleagues submitted a new project to me .

Question to Mr PERSON :

Does that not show that the original fee of BEF CARDINAL,CARDINAL,CARDINAL was too high ?

Mr PERSON '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 ORG inspector 's refusal to approve the project , to ask the ORG Minister to arbitrate , and , should the latter 's opinion also be unfavourable , to use the possibility of bringing the matter before the ORG , which would have had the last word on the subject ?

Mr ORG 's reply

PERSON was also the ORG 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 CARDINAL was adopted to evade ORG 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 ORG scrutiny .

Question to Mr Stalport :

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

Mr ORG '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 ORG 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. DATE ) that you were irked by the inflexibility and resistance to change of the ORG inspectorate and that in your private office you were advised to do things differently , namely to split the contract into CARDINAL parts so that the fees would be lower than the CARDINAL threshold triggering compulsory scrutiny by the ORG inspectors , and you went on to say that despite doing things that way you had once again submitted the subdivided project to the ORG inspector , who the second time had given a favourable opinion , and that splitting the project into CARDINAL had led to a significant reduction in cost amounting to PERCENT of the overall fees . Do you stand by that assessment of your conduct ?

Mr ORG 's reply :

Yes , because the ORG inspection procedure took some time . We wanted to work quickly and we came back to another way of doing things , which nevertheless received the ORG 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 ORG 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 PERSON , a minister of ORG of ORG on DATE by PERSON , Inspector - General at the ORG ( p. CARDINAL ) , pointing out that it was highly questionable to continue to implement the CARDINAL 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 ORG 's reply :

I found out about PERSON criticisms afterwards . I do not know whether PERSON knew of CARDINAL contract . In the allegations I think he referred to CARDINAL contracts of BEF CARDINAL . So he was aware that there were CARDINAL contracts .

In reply to the ORG 's question , Mr PERSON 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 CARDINAL contracts and made CARDINAL commitment , believing that it was dealing with CARDINAL copies of a single contract . Does Mr Stalport remember this misunderstanding , which happened with all CARDINAL contracts ?

Mr ORG 's reply :

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

On DATE Mr ORG filed a new pleading in which he argued that there was no connection between the charges against him and those against Mr GPE and that he should therefore stand trial in the appropriate place , namely ORG .

During the trial Mr GPE asked ORG to submit a preliminary question to ORG 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 PERSON 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 .

ORG gave judgment on DATE . It decided firstly that there was a connection between the offences with which Mr PERSON had been charged and those with which the other defendants had been charged , ruling as follows :

“ For the purposes of Articles CARDINAL and CARDINAL of LAW , a connection is the link between CARDINAL 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 PERSON ] 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 PERSON 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 PERSON , 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 PERSON ] 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 CARDINAL and CARDINAL of LAW .

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 ORG any applications they considered useful for the trial of their case . ”

ORG also refused , in the following terms , to submit a preliminary question to ORG on the subject of limitation :

“ PERSON 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 , GPE ] discrimination contrary to Articles CARDINAL of the LAW 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 LAW .

PERSON 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 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 CARDINAL and CARDINAL of the Law of DATE had created discrimination prohibited by ORG CARDINAL and CARDINAL of the LAW .

PERSON 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 PERSON ] and the [ other ] defendants mentioned above requested the ORG , in their final written submissions , to refer to ORG a preliminary question concerning what they alleged to be a contradiction between Articles CARDINAL and CARDINAL of the LAW and LAW , 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 LAW DATE .

Thus , they are criticising not a distinction allegedly created by that PERSON , 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 LAW DATE on ORG , and there is accordingly no call to ask them . ”

ORG further held that the proceedings against Mr PERSON and PERSON 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 DATE will become time - barred , unless the running of time has been suspended , on expiry of a period of DATE from the time of the offences , which may be extended where the case arises by a further period of DATE from any act causing time to begin to run again lawfully performed before expiry of the first DATE 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 . LAW are not applicable to them .

The ORG 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 ORG , 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 CARDINAL laid down for délits , namely DATE .

Where a number of criminal acts are committed successively in execution of a single criminal design and thus form CARDINAL 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 PERSON ] and [ Mr GPE ] have stood trial were committed :

– in the case of PERSON , DATE and DATE , the last being committed on DATE ;

– in the case of Mr GPE , between CARDINAL DATE and DATE , the last being committed on CARDINAL DATE ;

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 PERSON of DATE , which raised from DATE the limitation period for the prosecution of less serious indictable offences , and consequently of crimes reclassified as such , is applicable to [ Mr PERSON ] and [ the other defendants ] since the DATE limit had not been reached when that PERSON came into force and the running of time had been validly retriggered as regards [ Mr PERSON ] and [ the other defendants ] on CARDINAL DATE by ORG report no . CARDINAL ( p. DATE ) , an investigative measure carried out during the former DATE limitation period .

Consequently , the original limitation period of DATE began to run :

– in the case of PERSON , on DATE ;

– in the case of PERSON , on DATE .

The running of time during this period was validly retriggered on DATE by ORG report no . CARDINAL .

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

ORG found Mr PERSON guilty of most of the offences he had been charged with and sentenced him to DATE imprisonment , suspended for DATE , and a fine of BEF CARDINAL,CARDINAL , adjusted to CARDINAL . It also disqualified him from exercising any of the rights listed in LAW for a period of DATE and ordered him jointly with another defendant to pay the civil party – “ I ” – the sums of BEF CARDINAL,CARDINAL , BEF CARDINAL,CARDINAL and CARDINAL .

ORG found Mr PERSON guilty as charged and sentenced him to DATE imprisonment , suspended for DATE , and a fine of BEF CARDINAL , adjusted to LAW .

ORG sentenced Mr Stalport to DATE imprisonment , suspended for DATE , and a fine of BEF CARDINAL , adjusted to BEF CARDINAL , after declaring him guilty as charged on the basis of the following considerations :

“ On DATE the ORG inspectorate gave an unfavourable opinion ( p. DATE ) on a draft contract in which the ' I ' association undertook to carry out for ORG a preliminary study of all businesses in the GPE area ' , the total cost amounting to CARDINAL net of ORG ( p. CARDINAL , at DATE ) .

On DATE CARDINAL contracts , each for an inclusive price of CARDINAL , were signed by [ Minister ] PERSON , representing ORG , and PERSON , representing ' I ' ( p. CARDINAL at DATE ) .

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 ORG ( second contract ) ; and

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

On DATE , when these contracts were signed , they were transmitted under the Minister 's signature to the administration ( p. CARDINAL ) . On DATE the ORG inspectorate approved the commitment slip for CARDINAL of the CARDINAL contracts without making any comment ( p. DATE ) .

It is clear from a comparison of the initial draft contract with the CARDINAL new contracts that , although the scope and price of the initial contract were reduced in the CARDINAL 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 ORG ( p. CARDINAL ) [ ] and PERSON ( p. CARDINAL ) [ ] that the purpose of severing the original contract was to evade the mandatory scrutiny of the ORG inspector .

The approval of the ORG inspector alluded to by ORG is the countersignature required for commitment of the expenditure , which was added on DATE , after the contract was signed , and reveals nothing about the desire for transparency alleged by the defendant ( p. CARDINAL ) .

Neither the assertion that , if the contract had not been severed , it would have been approved in any case nor the assertion that the CARDINAL contracts were submitted to the non - mandatory scrutiny of the ORG 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 PERSON , approved by Minister PERSON , PERSON provided the necessary assistance in the commission of the offence within the time agreed . ... ”

ORG then found Mr Hermanus guilty as charged and sentenced him to DATE imprisonment , suspended for DATE , and a fine of BEF CARDINAL , adjusted to LAW . It also disqualified him from exercising any of the rights listed in LAW for a period of DATE .

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

“ It appears from the case file

– that on DATE ORG transmitted the initial report to the GPE public prosecutor ( p. CARDINAL , at CARDINAL ) ;

– that the information in writing calling for an investigation in respect of PERSON and a person or persons as yet unidentified was lodged on DATE ( p. CARDINAL ) ;

– 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 DATE to appoint a court expert ( p. CARDINAL ) to study and analyse CARDINAL 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 ORG were interconnected in such a way as to complicate the expert 's task ; that after filing a preliminary memorandum on DATE ( p. CARDINAL , at CARDINAL ) , an analysis of PERSON bank accounts on CARDINAL DATE ( p. CARDINAL , at CARDINAL ) , a memorandum replying to PERSON observations on DATE ( p. CARDINAL , at CARDINAL ) and a memorandum on the French - speaking Community 's contract no . D/CARDINAL on DATE ( p. CARDINAL , at CARDINAL ) the expert filed the successive parts of his report on DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE and CARDINAL DATE ( pp . DATE at DATE , DATE at DATE , DATE at DATE , DATE at DATE , DATE at DATE , and CARDINAL at CARDINAL ) ;

– 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 DATE the file was communicated to the President of ORG by ORG at ORG on account of the fact that the file appeared to contain evidence that offences had been committed by PERSON , PERSON and PERSON 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. CARDINAL , at DATE ) .

At its meeting in plenary session on DATE ORG indicted PERSON and committed him for trial in ORG .

On DATE , allowing an application by ORG , the President of ORG appointed Judge PERSON 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 PERSON , who , as matters stood , remained responsible for the same offences in so far as there was evidence of offences committed by persons other than PERSON .

On DATE [ Judge PERSON ] communicated his file to ORG at ORG .

On an application made on DATE by ORG at ORG , ORG , sitting on DATE , authorised the prosecution of ORG Councillor PERSON ' by investigation of the case before a criminal division of ORG . When Investigating Judge PERSON was taken off the case by order of ORG on DATE , ORG , sitting on DATE , decided , allowing an application of CARDINAL DATE by ORG at ORG , to authorise the prosecution of PERSON in this ORG .

The summons to appear for trial on DATE was signed on CARDINAL DATE .

On account of the possible connection between the offences with which [ Mr PERSON ] 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 ORG finds no delay in the prosecution of the case . ... ”

Mr PERSON was sentenced to DATE imprisonment , with CARDINAL of that term suspended , and a fine of BEF CARDINAL , adjusted to CARDINAL .

As a result of his conviction Mr Stalport had to resign from his position as administrator of various public limited companies under NORP law , pursuant to LAW of DATE . The decision to disqualify PERSON from exercising the rights listed in LAW deprived him of all his functions , namely the posts of regional councillor , deputy mayor , secretary - general of ORG and chairman of the SDRB .

The relevant provisions of the LAW 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 ORG may be committed for trial , prosecuted by direct summons or arrested in connection with a criminal matter while ORG is in session without the authorisation of the ORG 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 ORG shall be stayed throughout the session if the ORG concerned so requires . ”

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

“ There shall be a Court of Cassation for GPE .

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

The first paragraph of LAW of DATE ( former LAW DATE ) provided :

“ ORG is empowered to indict ministers and commit them for trial in ORG , 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 LAW of DATE ( former LAW DATE ) 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 ORG or as the result of a prosecution brought by the injured parties , shall be laid down by law . ”

The LAW of DATE included an Article CARDINAL which provided in particular : “ It is necessary to make provision , in separate legislation , and as soon as possible , for the following : ... CARDINAL . the responsibility of ministers and other government agents . ” This Article was repealed on DATE .

DATE . The Law of DATE amending the LAW replaced LAW by a new provision which states : “ Ministers shall be tried only by ORG ” , 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 ” ( LAW ) .

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

The relevant legislation is LAW of DATE governing the criminal responsibility of ministers ( and GPE DATE governing the criminal responsibility of members of community and regional councils ) . “ ORG 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 ORG for the place where the offence was committed , the place where he lives or the place where he has been found ” ( LAW . LAW lays down the rules for the conduct of the prosecution and investigation , the procedure before ORG and the procedure for an appeal on points of law . LAW of GPE lays down CARDINAL special provisions , CARDINAL of these being LAW , 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 , ORG adopted in DATE a transitional provision specifying the scope of the jurisdictions of ORG and ORG .

In its original version , former LAW , which later became the transitional provision of LAW , was worded as follows :

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

In Volume II ( Political and administrative laws ) of the ORG survey of DATE 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 . CARDINAL to CARDINAL , p. CARDINAL ) :

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

In his NORP address of DATE marking the opening of a new judicial session ( Journal des Tribunaux , DATE , pp . CARDINAL - CARDINAL , at CARDINAL and DATE , and pp . CARDINAL - CARDINAL , at CARDINAL ) ORG PERSON said that under the transitional provision of LAW at that time ) ministers were criminally responsible for all offences defined by the criminal law , ORG 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 ORG , it would appear that in the absence of legislation the ordinary rules of criminal law should apply by analogy ” ( p. CARDINAL ) .

In the constitutional revision of CARDINAL DATE the transitional provision of LAW 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 CARDINAL , ORG shall have discretion to indict a minister and ORG to try him in the cases contemplated by the criminal law and applying the penalties laid down therein . ”

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

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

DATE . The first of these laws was enacted after a duel in DATE between a member of ORG and ORG . Both men had used their weapons . As this conduct constituted a criminal offence , ORG at ORG expressed the intention of preferring charges . Since CARDINAL of the CARDINAL antagonists was a minister , it was for ORG to indict him and an application was made to that effect . However , ORG allowed this application only on condition that legislation was first brought in .

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

“ Our committee , gentlemen , was also of the opinion that ORG 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 PERSON 's opinion , for ORG , 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 LAW . 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 ORG , 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 GPE . 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 . ORG 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 ORG be able to make the interests of justice take second place behind that other , even weightier public interest , the defence of the ORG and public safety ?

ORG will observe the procedure laid down by LAW , 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 LAW 's provisions governing assize courts . In the latter case , since ORG sits without a jury , it is clear that the provisions of LAW concerning that part of the procedure can not be applied . ”

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

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

“ ORG shall observe the procedure laid down in LAW ... ”

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

“ The present PERSON shall come into force on DATE following its publication and shall remain in force for DATE only ... ”

In accordance with the provisions of this law the Minister of Defence and the member of ORG were committed for trial in ORG , tried and convicted . The relevant parts of ORG judgment of DATE 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 GPE , the LAW CARDINAL Messidor Year IV , governing the prosecution of the accomplices of a representative of the people or a member of ORG indicted by the legislature and committed for trial in ORG ; whereas it has subsequently been confirmed in new legislation by the way it was applied in LAW ;

“ Whereas , since Lieutenant - General PERSON , the Minister of Defence , must be tried by ORG , pursuant to the PERSON of DATE , that court is , according to the principle stated above , legally seized of the proceedings brought at the same time against representative NORP , co - defendant ;

“ For these reasons , [ the ORG ] 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 DATE ORG enacted a second law providing for the temporary and partial implementation of LAW . This law concerned only the investigative measures which could be ordered by ORG and it was provided that it was to remain in force for DATE .

In its opinion of DATE on the bill which formed the basis for this law , LAW PERSON d'Etat expressed the following views :

“ The bill as it stands uses these broad powers in a very limited way , but ORG 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 DATE ORG enacted a third law providing for the temporary and partial implementation of LAW . This concerned federal ministers . It empowered ORG to order investigative measures in respect of a minister and laid down the conditions and specified the procedures for carrying out such measures . LAW of DATE concerned ministers of the community and regional councils . These CARDINAL laws remained in force until DATE .

Pursuant to LAW DATE , ORG has jurisdiction to give a preliminary ruling , in the form of a judgment , on questions concerning , firstly , contravention by CARDINAL of the statutes , decrees or rules contemplated by LAW rules laid down by or pursuant to LAW to determine the respective powers of the State , the Communities and the Regions ; secondly , any conflict between decrees or rules as contemplated by LAW promulgated by different legislative authorities ; and , lastly , contravention by one of the statutes , decrees or rules contemplated by LAW , CARDINAL bis or CARDINAL of the LAW . Articles CARDINAL and CARDINAL bis of the LAW , which became LAW and DATE after the revision of CARDINAL DATE , enshrine the principles of the equality of all NORP citizens before the law and enjoyment of recognised civil rights and freedoms without discrimination .

Under LAW of LAW , a court before which a preliminary question has been raised must in principle seek a ruling on the matter from GPE 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 LAW d'Etat is also exempted from this obligation either when ORG 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 LAW ) does not contravene any rule or LAW contemplated in LAW .

When LAW of DATE was at the drafting stage , the Minister of ORG 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 CARDINAL § QUANTITY of the Law of DATE containing the preliminary part of LAW formerly provided :

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

Article CARDINAL of the Law of DATE amended the above provision , which now reads as follows :

The papers on the drafting history of the PERSON of DATE include the following observations on LAW :

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

Third case : an offence is committed before DATE and a step retriggering the running of time is taken on DATE . Given that Article CARDINAL has never been amended , it is a moot point whether prosecution for the offence would become time - barred on DATE or on DATE . ...

The rapporteur considers that the DATE period which began on DATE would become DATE on DATE . Proceedings would in that case become time - barred on DATE instead of DATE . 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 . PERSON . PERSON . , PERSON , no . CARDINAL/CARDINAL , p. CARDINAL ) .

Circular no . CARDINAL of DATE on this point from ORG at ORG 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 DATE counting from the last relevant step retriggering the running of time . ”

Article CARDINAL of the Law of DATE containing the preliminary part of LAW , which was not amended by LAW DATE , 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 DATE .

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 CARDINAL § CARDINAL of LAW makes the following provision as regards the conduct of trials before ORG :

“ 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 CARDINAL and CARDINAL of LAW .

Article CARDINAL provides : “ [ ORG ] 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 CARDINAL provides :

“ Offences are connected either where they have been committed at the same time by CARDINAL 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 NORP national , born in DATE and currently living in GPE .

He is represented before the ORG by PERSON , a firm of solicitors based in GPE as well as by Mr PERSON , a solicitor also based in GPE .

On DATE the Secretary of ORG published a ORG ( “ the Report ” ) prepared by ORG appointed by ORG under sections CARDINAL(CARDINAL ) and CARDINAL of LAW DATE to investigate allegations of an unlawful share support operation at the time of the take - over by ORG of ORG .

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 ORG and his responses to the ORG . The content of the ORG 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 CARDINAL and DATE his lawyers submitted detailed representations to the Secretary of ORG urging him not to publish the ORG as he had lodged an application with ORG in connection with the manner in which the ORG 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 ORG the applicant ’s lawyers argued that , at the very least , publication of the ORG should be deferred until the Convention institutions had adjudicated on his complaints . They requested the Secretary of ORG in the event of a decision to publish the ORG 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 DATE and lives in GPE .

In DATE ORG ( ORG ) 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 DATE ORG of First - instance awarded her additional compensation plus interest at the statutory rate .

On DATE ORG held a hearing and quashed the judgment of the First - instance court .

On DATE ORG of First - instance awarded the applicant additional compensation of MONEY ( TRL ) plus interest at the statutory rate , running from DATE , applicable at the date of the court ’s decision .

On DATE ORG held a hearing and upheld the judgment of ORG of First - instance .

On DATE ORG dismissed the applicant ’s request for rectification .

On DATE ORG paid GPE CARDINAL to the applicant .

NORP The relevant domestic law and practice is described in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINALVI , § § DATE ) . Moreover , under LAW no . DATE of DATE concerning enforcement and bankruptcy ( İcra ve PERSON ) , the property belonging to the ORG can not be seized or confiscated .


The applicant is a NORP national who was born in DATE and lives in GPE . He is represented before the Court by PERSON , a lawyer practising in GPE .

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

In DATE the applicant , a wing commander in the airforce , was a military attaché at ORG in GPE .

On DATE the chief liaison officer for military attachés informed ORG that the applicant had been absent from duty , without leave and using an official vehicle , for DATE .

On DATE the ORG Chief of Staff ordered disciplinary proceedings to be brought against the applicant and appointed an officer to conduct the investigation .

On DATE 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 DATE .

On DATE the investigating officer heard evidence from the chief liaison officer in the applicant ’s absence .

On DATE the investigating officer lodged submissions accusing the applicant of dereliction of duty contrary to paragraphs CARDINAL and CARDINAL of Article CARDINAL 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 CARDINAL of the Regulations ( the breach of regulations had occurred overseas and had been detrimental to the service ) .

In his reply lodged on DATE the applicant gave the names of CARDINAL 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 ORG Chief of Staff . On DATE the Chief of Staff found the applicant guilty of the alleged offences and sentenced him to CARDINAL 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 DATE 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 CARDINAL witnesses concerned in the absence of the applicant and his representatives DATE . In his report dated DATE to ORG , he indicated that the statements of the witnesses did not alter his earlier conclusions .

By an order of DATE the Chief of Staff upheld the sentence of CARDINAL days’ detention , which had been served by the applicant in the meantime .

On an unspecified date the applicant appealed against that decision to ORG ( 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 DATE ORG 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 LAW , and in particular those guaranting the rights of the defence . However , criminal proceedings comprise CARDINAL 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 ... ”

ORG 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 LAW ( adopted by LAW . CARDINAL of DATE ) , which provides , inter alia :

“ CARDINAL . 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 DATE in the case of officers . As to its effects , Article CARDINAL lays down that the person concerned shall lose CARDINAL day of seniority rights for every CARDINAL days’ detention .

ORG also lay down other sentences , notably disciplinary imprisonment and aggravated disciplinary imprisonment . Disciplinary imprisonment means detention in suitable LOC . However , the serviceman may be called on to perform any work required of him TIME ( Article CARDINAL ) . Aggravated disciplinary imprisonment means detention in a prison .


Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicants , Mr PERSON , Mr PERSON , PERSON PERSON and PERSON , are NORP nationals who were born in DATE , DATE , DATE and DATE respectively and live in GPE . They were represented before the Court by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , Representative of GPE at ORG .

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

The applicants are a family who resided in a house situated at CARDINAL FAC , GPE , which had allegedly belonged to their family since DATE . It appears that the house in question was situated on public land and had been built without permission .

It appears that in DATE and DATE the applicants PERSON and PERSON ( hereafter , the first and the second applicant respectively ) applied to the relevant public authority to have the house privatised in the framework of the privatisation scheme . According to the applicants , no decision was taken on their applications .

On DATE the Government adopted Decree no . PERSON , approving the expropriation zones of the immovable property ( plots of land , buildings and constructions ) situated within the administrative boundaries of LOC of GPE to be taken for the needs of the State for the purpose of carrying out construction projects , covering a total area of QUANTITY m. FAC was listed as one of the streets falling within such expropriation zones .

On DATE and CARDINAL DATE the first applicant applied to ORG , seeking to have his ownership right registered in respect of the house .

NORP By letters of DATE and DATE ORG refused the first applicant 's request .

On DATE the first applicant applied to GPE and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան ) , seeking to establish a fact of legal significance , namely to have his ownership in respect of the house recognised by virtue of adverse possession . He submitted , in particular , that he had been using the house as his own property since DATE .

On DATE the Government decided to contract out the construction of CARDINAL of the sections of FAC DATE which was to be renamed FAC – to a private company , GPE .

On DATE GPE and ORG signed an agreement which , inter alia , authorised the former to negotiate directly with the owners of the property subject to expropriation and , should such negotiations fail , to institute court proceedings on behalf of the ORG , seeking forced expropriation of such property .

By a letter of CARDINAL DATE GPE Hills CJSC informed the applicant PERSON ( hereafter , the third applicant ) that the house in question was situated within the expropriation zone of the FAC area and was to be taken for ORG needs . The third applicant was offered MONEY ( ORG ) as financial assistance payable under the relevant governmental decree to registered persons , since the house was an unauthorised construction and she was only registered in it .

It appears that a similar offer was made to the other applicants . It further appears that none of the applicants responded to the offer , not being satisfied with the amount of compensation proposed .

On DATE GPE instituted proceedings on behalf of the ORG against the applicants , seeking to oblige them to accept the offer and to have them evicted , with reference to Government Decree No . CARDINAL

On DATE the ORG and ORG of GPE examined jointly the first applicant 's application of DATE and the claim of GPE . The court decided to grant the latter , finding that the house was situated in an expropriation zone as identified by the ORG and was to be taken for ORG needs . The court awarded each applicant compensation payable to persons registered in unauthorised constructions , namely CARDINAL . The court further decided to dismiss the first applicant 's application as unsubstantiated .

On DATE the first applicant lodged an appeal . In his appeal , he argued that the court , in dismissing his application , had incorrectly interpreted various provisions of LAW , LAW and LAW . In support of his arguments the first applicant relied on evidence which allegedly substantiated his ownership claim in respect of the house . He further argued that , even if his ownership was not formally recognised , the amount of compensation awarded to him was inadequate . He finally claimed that as a user of the expropriated property he was entitled under the law to receive other property in its place .

On DATE ORG ( ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան ) granted the claim of GPE and dismissed the first applicant 's application on the same grounds as FAC .

On DATE the first applicant lodged an appeal on points of law . In his appeal , he argued that ORG judgment was unreasoned and was not based on the evidence in the case . ORG had ignored and incorrectly applied various provisions of LAW and LAW , and had failed to establish correctly the facts . He further argued that , regardless of the formal status of the property in question , he should have received adequate compensation or a plot of land or another flat instead . He finally claimed that the house was ownerless and the court should have recognised his ownership in its respect by virtue of adverse possession .

On DATE ORG ( ՀՀ վճռաբեկ դատարան ) dismissed the first applicant 's appeal .

For a summary of the relevant domestic provisions see the judgment in the case of PERSON and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .