਍ഀ In the case of Van Orshoven v. Belgium (1),਍ഀ ਍ഀ The European Court of Human Rights, sitting, in accordance with਍ഀ Article 43 (art. 43) of the Convention for the Protection of਍ഀ Human Rights and Fundamental Freedoms ("the Convention") and the਍ഀ relevant provisions of Rules of Court A (2), as a Chamber composed of਍ഀ the following judges:਍ഀ ਍ഀ Mr R. Bernhardt, President,਍ഀ Mr L.-E. Pettiti,਍ഀ Mr R. Macdonald,਍ഀ Mr J.M. Morenilla,਍ഀ Sir John Freeland,਍ഀ Mr A.B. Baka,਍ഀ Mr G. Mifsud Bonnici,਍ഀ Mr E. Levits,਍ഀ Mr M. Storme, ad hoc judge,਍ഀ ਍ഀ and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy਍ഀ Registrar,਍ഀ ਍ഀ Having deliberated in private on 25 January and 30 May 1997,਍ഀ ਍ഀ Delivers the following judgment, which was adopted on the਍ഀ last-mentioned date:਍ഀ _______________਍ഀ Notes by the Registrar਍ഀ ਍ഀ 1. The case is numbered 95/1995/601/689. The first number is the਍ഀ case's position on the list of cases referred to the Court in the਍ഀ relevant year (second number). The last two numbers indicate the਍ഀ case's position on the list of cases referred to the Court since its਍ഀ creation and on the list of the corresponding originating applications਍ഀ to the Commission.਍ഀ ਍ഀ 2. Rules A apply to all cases referred to the Court before the entry਍ഀ into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only਍ഀ to cases concerning States not bound by that Protocol (P9). They਍ഀ correspond to the Rules that came into force on 1 January 1983, as਍ഀ amended several times subsequently.਍ഀ _______________਍ഀ ਍ഀ PROCEDURE਍ഀ ਍ഀ 1. The case was referred to the Court by the European Commission਍ഀ of Human Rights ("the Commission") on 25 October 1995, within the਍ഀ three-month period laid down by Article 32 para. 1 and Article 47 of਍ഀ the Convention (art. 32-1, art. 47). It originated in an application਍ഀ (no. 20122/92) against the Kingdom of Belgium lodged with the਍ഀ Commission under Article 25 (art. 25) by a Belgian national,਍ഀ Mr Yvo Van Orshoven, on 13 March 1992.਍ഀ ਍ഀ The Commission's request referred to Articles 44 and 48਍ഀ (art. 44, art. 48) and to the declaration whereby Belgium recognised਍ഀ the compulsory jurisdiction of the Court (Article 46) (art. 46). The਍ഀ object of the request was to obtain a decision as to whether the facts਍ഀ of the case disclosed a breach by the respondent State of its਍ഀ obligations under Article 6 para. 1 of the Convention (art. 6-1).਍ഀ ਍ഀ 2. In response to the enquiry made in accordance with਍ഀ Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he਍ഀ wished to take part in the proceedings and designated the lawyers who਍ഀ would represent him (Rule 30). Initially referred to as I.V.O., he਍ഀ subsequently consented to the disclosure of his identity.਍ഀ ਍ഀ 3. The Chamber to be constituted included ex officio਍ഀ Mr J. De Meyer, the elected judge of Belgian nationality (Article 43਍ഀ of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President਍ഀ of the Court (Rule 21 para. 4 (b)). On 3 November 1995, in the਍ഀ presence of the Registrar, the President of the Court, Mr R. Ryssdal,਍ഀ drew by lot the names of the other seven members, namely਍ഀ Mr L.-E. Pettiti, Mr R. Macdonald, Mr J.M. Morenilla,਍ഀ Sir John Freeland, Mr A.B. Baka, Mr G. Mifsud Bonnici and Mr E. Levits਍ഀ (Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).਍ഀ ਍ഀ On 20 November 1995 Mr De Meyer stated that he wished to਍ഀ withdraw from the case pursuant to Rule 24 para. 2, because it raised਍ഀ issues similar to those which had arisen in the cases of਍ഀ Delcourt v. Belgium - in which he had acted as Agent and Counsel for਍ഀ the Government (judgment of 17 January 1970, Series A no. 11, p. 5,਍ഀ para. 7) - and Borgers v. Belgium and Vermeulen v. Belgium, from which਍ഀ he had withdrawn (judgments of 30 October 1991, Series A no. 214-B,਍ഀ p. 25, para. 3, and 20 February 1996, Reports of Judgments and਍ഀ Decisions 1996-I, p. 227, para. 3). On 22 December 1995 the Agent of਍ഀ the Belgian Government ("the Government") informed the Registrar that਍ഀ Mr M. Storme, Professor of Law at Ghent University, had been appointed਍ഀ to sit as ad hoc judge (Article 43 of the Convention and Rule 23)਍ഀ (art. 43).਍ഀ ਍ഀ 4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,਍ഀ acting through the Registrar, consulted the Agent of the Government,਍ഀ the applicant's lawyers and the Delegate of the Commission on the਍ഀ organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant਍ഀ to the order made in consequence, the Registrar received the਍ഀ Government's and the applicant's memorials on 31 May 1996. On਍ഀ 2 July 1996 the Secretary to the Commission indicated that the Delegate਍ഀ did not wish to reply in writing. On 23 August he supplied various਍ഀ documents, as requested by the Registrar on the instructions of the਍ഀ President.਍ഀ ਍ഀ 5. In accordance with the President's decision, the hearing took਍ഀ place in public in the Human Rights Building, Strasbourg, on਍ഀ 23 January 1997. The Court had held a preparatory meeting beforehand.਍ഀ ਍ഀ There appeared before the Court:਍ഀ ਍ഀ (a) for the Government਍ഀ ਍ഀ Mr J. Lathouwers, Deputy Legal Adviser,਍ഀ Head of Division, Ministry of Justice, Agent,਍ഀ Mr E. Jakhian, of the Brussels Bar, Counsel;਍ഀ ਍ഀ (b) for the Commission਍ഀ ਍ഀ Mr L. Loucaides, Delegate;਍ഀ ਍ഀ (c) for the applicant਍ഀ ਍ഀ Mr J. Coch, of the Hasselt Bar,਍ഀ Mr P. Thiery, of the Hasselt Bar, Counsel.਍ഀ ਍ഀ The Court heard addresses by Mr Loucaides, Mr Coch, Mr Thiery਍ഀ and Mr Jakhian.਍ഀ ਍ഀ AS TO THE FACTS਍ഀ ਍ഀ I. Particular circumstances of the case਍ഀ ਍ഀ 6. Mr Yvo Van Orshoven, a Belgian citizen born in 1940, lives at਍ഀ Neerglabbeek (province of Limburg), where he has a private practice as਍ഀ a doctor.਍ഀ ਍ഀ 7. At the beginning of 1987 he was the subject of an਍ഀ administrative inquiry by the National Institute for Sickness and਍ഀ Disability Insurance (Institut national d'assurance maladie-invalidité਍ഀ ("INAMI")) following a complaint by a mutual insurance company, which਍ഀ accused him of supplying treatment without a prescription and claiming਍ഀ payment for treatment that had not been given or in respect of which਍ഀ the conditions laid down by law had not been satisfied.਍ഀ ਍ഀ 8. On 19 August 1987 the INAMI sent the file to the਍ഀ Limburg Provincial Council of the Ordre des médecins਍ഀ (Medical Association), annexing complaints by three of the applicant's਍ഀ patients who accused him of professional misconduct towards them.਍ഀ ਍ഀ 9. After interviewing the applicant on 2 February 1988, the਍ഀ Executive Committee of the Provincial Council decided to look into the਍ഀ matter.਍ഀ ਍ഀ On 24 March 1988 the Provincial Council held a hearing, which਍ഀ Mr Van Orshoven did not attend despite being summoned to do so. The਍ഀ council joined the INAMI case and the patients' complaints and on਍ഀ 28 April 1988, in the applicant's absence, ordered that he should be਍ഀ struck off the register of the Ordre.਍ഀ ਍ഀ 10. On 11 May 1989, on an application by the applicant to have that਍ഀ decision set aside, the Provincial Council substituted a penalty of਍ഀ suspension from practising medicine for 18 days in respect of the਍ഀ administrative matter and 129 days in respect of the complaints.਍ഀ ਍ഀ 11. The applicant appealed against that decision to the਍ഀ Dutch-language Appeals Board of the Ordre, which on 25 June 1990਍ഀ ordered that he be struck off the register.਍ഀ ਍ഀ 12. Mr Van Orshoven then lodged an appeal on points of law with the਍ഀ Court of Cassation. On 13 September 1991 a hearing was held at which਍ഀ the court heard in turn the reporting judge (Mr Verougstraete), counsel਍ഀ for the applicant, counsel for the other side (the Ordre des médecins)਍ഀ and the avocat général (Mr du Jardin), who after making his submissions਍ഀ - the content of which has not been communicated to the Court - took਍ഀ part in the court of Cassation's deliberations. On the same day the਍ഀ court dismissed the appeal.਍ഀ ਍ഀ II. Relevant domestic law਍ഀ ਍ഀ A. Disciplinary rules਍ഀ ਍ഀ 13. The Ordre des médecins and its councils are governed by਍ഀ Royal Decree no. 79 of 10 November 1967 on the Ordre des médecins and਍ഀ the Royal Decree of 6 February 1970 on the organisation and functioning਍ഀ of the councils of the Ordre.਍ഀ ਍ഀ 14. At first instance disciplinary action is taken by the਍ഀ provincial councils of the Ordre, which are required to "ensure that਍ഀ the rules of professional conduct are complied with and that the਍ഀ reputation, discretion, probity and dignity of ... medical਍ഀ practitioners ... are upheld. To this end, they shall be responsible਍ഀ for imposing disciplinary penalties for misconduct by ... medical਍ഀ practitioners in the performance of their professional duties, as well਍ഀ as serious misconduct unconnected with their professional duties where਍ഀ such misconduct is likely to damage the reputation or dignity of the਍ഀ profession" (Article 6, second sub-paragraph, of Royal Decree no. 79).਍ഀ ਍ഀ 15. The members of the provincial councils are elected by the਍ഀ medical practitioners registered with the Ordre who are not suspended਍ഀ from practising. They are assisted in their task by an assessor who਍ഀ sits in an advisory capacity only. Assessors are appointed by the਍ഀ Crown from among the judges of the tribunaux de première instance਍ഀ (regional courts of first instance), excluding the investigating judges਍ഀ and members of the prosecution (Article 7).਍ഀ ਍ഀ 16. The provincial councils may institute proceedings either of਍ഀ their own motion or at the request of the National Council, the਍ഀ Minister responsible for public health, the procureurs du Roi or the਍ഀ provincial medical boards, or on a complaint from a doctor or other਍ഀ person. The executive committee of the provincial council starts an਍ഀ investigation into the matter and appoints a reporting member. At the਍ഀ end of the investigative stage, either the committee or the reporting਍ഀ member reports to the council (Article 20 para. 1), which may decide਍ഀ to discontinue the proceedings, to order further inquiries into the਍ഀ facts or to summon the doctor under investigation to appear in person਍ഀ at an adversarial hearing (Articles 24 and 26 of the Royal Decree of਍ഀ 6 February 1970).਍ഀ ਍ഀ 17. The council may impose the following penalties: a warning, a਍ഀ censure, a reprimand, suspension of the right to practise medicine for਍ഀ up to two years and striking off the register (Article 16,਍ഀ first paragraph, of Royal Decree no. 79).਍ഀ ਍ഀ 18. Appeals against such decisions of provincial councils lie to਍ഀ appeals boards and may be brought by the doctor on whom the਍ഀ disciplinary penalty has been imposed or the਍ഀ provincial council assessor or by the Chairman of the National Council਍ഀ of the Ordre des médecins acting jointly with one of the vice-chairmen਍ഀ (Article 21 of Royal Decree no. 79). The appeals boards are composed਍ഀ of equal numbers of doctors elected by the provincial councils and਍ഀ judges of the courts of appeal appointed by the King (Article 12). The਍ഀ procedure is adversarial and the doctor, who is entitled to be assisted਍ഀ by his counsel, has the right to address the board. Appeals boards can਍ഀ only impose a penalty where none has been imposed by the਍ഀ provincial council, or impose a heavier penalty than that imposed by਍ഀ the council, by a two-thirds majority (Article 25 para. 4,਍ഀ second sub-paragraph).਍ഀ ਍ഀ 19. An appeal lies from the appeals boards to the਍ഀ Court of Cassation and may be brought by the doctor on whom the਍ഀ disciplinary penalty has been imposed or the Minister responsible for਍ഀ public health or by the Chairman of the National Council of the Ordre਍ഀ acting jointly with one of the vice-chairmen (Article 23,਍ഀ first paragraph). Proceedings in the Court of Cassation are governed਍ഀ by the rules of civil procedure, save in three respects relating to the਍ഀ time-limit for appeals, the form in which they must be lodged and਍ഀ service of the Court of Cassation's judgment (Article 26).਍ഀ ਍ഀ B. The Judicial Code਍ഀ ਍ഀ 20. Article 138 of the Judicial Code provides:਍ഀ ਍ഀ "Subject to the provisions of Article 141, the department of਍ഀ the procureur du Roi shall act as prosecuting authority in the਍ഀ manner laid down by law.਍ഀ ਍ഀ In civil matters it shall intervene by way of legal਍ഀ proceedings, applications or opinions. It shall act of its own਍ഀ motion in the instances prescribed by law and also on each਍ഀ occasion that public policy requires its intervention."਍ഀ ਍ഀ 21. By Article 141 of the Judicial Code,਍ഀ ਍ഀ "The procureur général at the Court of Cassation shall not act਍ഀ as prosecuting authority except where he has instituted਍ഀ proceedings in which the decision on the merits falls to the਍ഀ Court of Cassation."਍ഀ ਍ഀ Examples of the - relatively rare - cases in which the਍ഀ Court of Cassation acts as a tribunal of fact include: trials of਍ഀ Ministers (Article 90 of the Constitution), actions against judges for਍ഀ misuse of authority (Articles 613 (2) and 1140 to 1147 of the਍ഀ Judicial Code) and disciplinary proceedings against certain਍ഀ judicial officers.਍ഀ ਍ഀ In all other cases, the procureur général's department acts,਍ഀ with complete independence, as an adviser to the court.਍ഀ ਍ഀ 22. As to the disciplinary hierarchy of the ministère public, the਍ഀ following provisions of the Judicial Code should be mentioned:਍ഀ ਍ഀ Article 400਍ഀ ਍ഀ "The Minister of Justice shall exercise supervisory authority਍ഀ over all the officials of the ministère public; the਍ഀ procureur général at the Court of Cassation likewise over his਍ഀ counterparts at the courts of appeal; and the latter over the਍ഀ members of their own departments and of those of the਍ഀ auditeurs généraux at the Industrial Appeals Tribunals and over਍ഀ the procureurs du Roi attached to the lower courts, the਍ഀ auditeurs attached to the industrial tribunals and their਍ഀ deputies."਍ഀ ਍ഀ Article 414਍ഀ ਍ഀ "The procureur général at the Court of Appeal may impose on the਍ഀ officials of the ministère public subordinate to him the਍ഀ penalties of a warning, a reprimand or a reprimand with਍ഀ suspension of salary.਍ഀ ਍ഀ The procureur général at the Court of Cassation shall have the਍ഀ same powers in regard to the avocats généraux at that court and਍ഀ the procureurs généraux at the courts of appeal.਍ഀ ਍ഀ The Minister of Justice may likewise warn and reprimand any਍ഀ official of the ministère public or recommend to the King his਍ഀ suspension or dismissal."਍ഀ ਍ഀ 23. With regard to the procedure before the Court of Cassation in਍ഀ both civil and criminal matters the Judicial Code provides:਍ഀ ਍ഀ Article 1107਍ഀ ਍ഀ "After the report has been read out, submissions are heard from਍ഀ counsel present at the hearing. Their addresses shall relate਍ഀ exclusively to the issues of law raised in the grounds for਍ഀ appeal or to objections to the admissibility of the appeal.਍ഀ ਍ഀ The procureur général's department shall then make its਍ഀ submissions, after which no further documents shall be਍ഀ accepted."਍ഀ ਍ഀ Article 1109਍ഀ ਍ഀ "The procureur général or a member of his department shall be਍ഀ entitled to attend the deliberations unless the appeal on਍ഀ points of law has been lodged by the procureur général's਍ഀ department itself; he shall not be entitled to vote in the਍ഀ deliberations."਍ഀ ਍ഀ The procureur général's department may itself lodge appeals on਍ഀ points of law either "in the interests of the law" (Articles 1089਍ഀ and 1090 of the Judicial Code and Article 442 of the਍ഀ Code of Criminal Procedure) or following a complaint by the਍ഀ Minister of Justice (Article 1088 of the Judicial Code and Article 441਍ഀ of the Code of Criminal Procedure).਍ഀ ਍ഀ 24. Since the aforementioned Borgers and Vermeulen judgments਍ഀ (see paragraph 3 above), appellants in the Court of Cassation have been਍ഀ entitled, in both criminal and civil proceedings, to address the court਍ഀ after the representative of the procureur général's department, who਍ഀ does not then attend the court's deliberations.਍ഀ ਍ഀ PROCEEDINGS BEFORE THE COMMISSION਍ഀ ਍ഀ 25. In his application of 13 March 1992 to the Commission਍ഀ (no. 20122/92) Mr Van Orshoven complained of various breaches of his਍ഀ right to a fair hearing as guaranteed by Article 6 para. 1 of the਍ഀ Convention (art. 6-1).਍ഀ ਍ഀ 26. On 7 April 1994 and 27 February 1995 the Commission declared਍ഀ admissible the complaint relating to the fact that it was impossible਍ഀ for the applicant to reply to the procureur général's submissions at਍ഀ the hearing in the Court of Cassation and declared the remainder of the਍ഀ application inadmissible. In its report of 15 September 1995਍ഀ (Article 31) (art. 31), it expressed the opinion by twenty votes to਍ഀ seven that there had been a violation of Article 6 para. 1 (art. 6-1),਍ഀ after indicating that it would not examine the complaint that a member਍ഀ of the procureur général's department had taken part in the਍ഀ Court of Cassation's deliberations, which had been made late. The full਍ഀ text of the Commission's opinion and of the seven separate opinions਍ഀ contained in the report is reproduced as an annex to this judgment (1).਍ഀ _______________਍ഀ Note by the Registrar਍ഀ ਍ഀ 1. For practical reasons this annex will appear only with the printed਍ഀ version of the judgment (in Reports of Judgments and਍ഀ Decisions 1997-III), but a copy of the Commission's report is਍ഀ obtainable from the registry.਍ഀ _______________਍ഀ ਍ഀ 27. In its request of 25 October 1995 bringing the case before the਍ഀ Court, which was signed by its President, the Commission said, in਍ഀ particular:਍ഀ ਍ഀ "The subject matter of the request is the presence of a member਍ഀ of the procureur général's department at the Court of Cassation਍ഀ at that court's deliberations in disciplinary proceedings਍ഀ against a doctor and the question whether that situation਍ഀ complies with the requirements of Article 6 para. 1 of the਍ഀ Convention (art. 6-1)."਍ഀ ਍ഀ FINAL SUBMISSIONS TO THE COURT਍ഀ ਍ഀ 28. In their memorial the Government submitted:਍ഀ ਍ഀ "May it please the Court,਍ഀ ਍ഀ As our primary submission, with respect to the Court's਍ഀ jurisdiction,਍ഀ ਍ഀ To hold that it has no jurisdiction to hear the present case,਍ഀ as the issue referred to it by the Commission was declared਍ഀ inadmissible by implication and the Court cannot extend its਍ഀ jurisdiction beyond the scope of the application or request਍ഀ whereby the case was referred to it;਍ഀ ਍ഀ In the alternative, on the merits,਍ഀ ਍ഀ To hold that generally in civil matters the fact that it is਍ഀ impossible to reply to the submissions of the਍ഀ procureur général's department at the Court of Cassation (and਍ഀ its representative's presence at the court's deliberations) do਍ഀ not amount to a breach of the principle of equality of arms਍ഀ where due process has been complied with before the courts਍ഀ below;਍ഀ ਍ഀ In the further alternative, to hold that in the present case਍ഀ the fact that it was impossible to reply to the submissions of਍ഀ the procureur général's department at the Court of Cassation਍ഀ (and its representative's presence at its deliberations) did਍ഀ not amount to a violation of Article 6 para. 1 of the਍ഀ Convention (art. 6-1) as the applicant's appeal on points of਍ഀ law in the present case could not have affected his legal਍ഀ position and the applicant could not reasonably have mistaken਍ഀ the role of the procureur général's department at the਍ഀ Court of Cassation."਍ഀ ਍ഀ 29. At the hearing before the Court, Mr Van Orshoven's counsel਍ഀ invited the Court to declare the application admissible and to "find਍ഀ against" the Belgian State.਍ഀ ਍ഀ AS TO THE LAW਍ഀ ਍ഀ I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION਍ഀ (art. 6-1)਍ഀ ਍ഀ 30. Mr Van Orshoven submitted that there had been a breach of਍ഀ Article 6 para. 1 of the Convention (art. 6-1), which provides:਍ഀ ਍ഀ "In the determination of his civil rights and obligations or਍ഀ of any criminal charge against him, everyone is entitled to a਍ഀ fair ... hearing ... by [a] ... tribunal ..."਍ഀ ਍ഀ Referring to the Borgers v. Belgium judgment of 30 October 1991਍ഀ (Series A no. 214-B), he complained, firstly, that he had not been able਍ഀ to reply, through his lawyer, to the avocat général's submissions or਍ഀ to address the court last at the hearing on 13 September 1991 before਍ഀ the Court of Cassation; and, secondly, that the representative of the਍ഀ procureur général's department had taken part in the deliberations that਍ഀ had followed immediately afterwards (see paragraph 12 above).਍ഀ ਍ഀ A. The Government's preliminary objection਍ഀ ਍ഀ 31. The Government noted that the only complaint in the਍ഀ Commission's request bringing the case before the Court was based on਍ഀ the fact that a member of the procureur général's department had taken਍ഀ part in the Court of Cassation's deliberations. Yet in its report of਍ഀ 15 September 1995 the Commission had implicitly declared that complaint਍ഀ inadmissible because it had been made out of time (see paragraphs 26਍ഀ and 27 above). That being so, the Court had no jurisdiction to hear਍ഀ it. As to the complaint based on the fact that it had been impossible਍ഀ to reply to the avocat général's submissions, the Court had no਍ഀ jurisdiction to hear that either as it had not been included in the਍ഀ Commission's request.਍ഀ ਍ഀ 32. At the hearing the Delegate of the Commission indicated that਍ഀ the complaint concerning the Court of Cassation's deliberations, which਍ഀ the Commission had rejected as being out of time, had been mentioned਍ഀ in the request by mistake. The only issue before the Court was the਍ഀ avocat général's being the last to address the਍ഀ Belgian Court of Cassation at the hearing.਍ഀ ਍ഀ 33. The Court reiterates that in accordance with its settled਍ഀ case-law the scope of the case before it is determined by the਍ഀ Commission's decision on admissibility (see, as a recent authority, the਍ഀ Mauer v. Austria judgment of 18 February 1997, Reports of Judgments and਍ഀ Decisions 1997-I, pp. 82-83, para. 28).਍ഀ ਍ഀ In the instant case the only complaint declared admissible by਍ഀ the Commission was that it had been impossible for Mr Van Orshoven to਍ഀ reply to the submissions of the procureur général's department਍ഀ (see paragraph 26 above). That complaint therefore constitutes the਍ഀ sole subject matter of the case.਍ഀ ਍ഀ Consequently, the Government's preliminary objection must be਍ഀ dismissed.਍ഀ ਍ഀ B. Merits of the complaint਍ഀ ਍ഀ 34. Mr Van Orshoven said that at no stage in the proceedings before਍ഀ the Court of Cassation had he been able to reply to the਍ഀ avocat général's submissions, which furthermore had not been਍ഀ communicated to him. Yet the avocat général's opinion could not be਍ഀ considered impartial as he had advocated dismissing the appeal. The਍ഀ applicant had therefore had a definite interest in being able to reply਍ഀ before the hearing came to an end, particularly as much was at stake਍ഀ in the appeal, namely the right to practise as a doctor.਍ഀ ਍ഀ Admittedly, the procureur général's department had not in the਍ഀ instant case taken part in the disciplinary proceedings on the merits਍ഀ before the authorities of the Ordre des médecins. Nevertheless, the਍ഀ procureur du Roi could at any time ask a provincial council of the਍ഀ Ordre to commence proceedings against any member of the Ordre. The਍ഀ procureur général's department was therefore to be regarded as every਍ഀ doctor's potential opponent.਍ഀ ਍ഀ In conclusion, Mr Van Orshoven's defence rights had been਍ഀ infringed.਍ഀ ਍ഀ 35. The Delegate of the Commission considered that the instant case਍ഀ raised an issue similar to that in the cases of Lobo Machado਍ഀ v. Portugal and Vermeulen v. Belgium (judgments of 20 February 1996,਍ഀ Reports 1996-I, pp. 195 et seq., and 224 et seq.) and that the same਍ഀ solution accordingly had to apply. He consequently submitted that਍ഀ there had been a violation of Article 6 para. 1 (art. 6-1).਍ഀ ਍ഀ 36. In the Government's view, the fact that the applicant had not਍ഀ been able to reply to the avocat général's submissions did not mean਍ഀ that the rights of the defence or the principle of equality of arms had਍ഀ been infringed, because the avocat général had not been the applicant's਍ഀ opponent or even a party to the proceedings. In disciplinary matters਍ഀ the department of the procureur du Roi did not take part at any stage਍ഀ or in any capacity in the proceedings before the provincial council or਍ഀ the appeals board of the Ordre des médecins, even when it had਍ഀ originated the proceedings.਍ഀ ਍ഀ Furthermore, the proceedings in the tribunals of fact had਍ഀ satisfied the requirements of Article 6 of the Convention (art. 6), as਍ഀ the Commission had found in its decision of 7 April 1994 on the਍ഀ admissibility of the application (see paragraph 26 above). Relying on਍ഀ the Ekbatani v. Sweden judgment of 26 May 1988 (Series A no. 134) in਍ഀ particular, the Government argued that before the Court of Cassation,਍ഀ whose jurisdiction was limited to questions of law, compliance with the਍ഀ requirements could accordingly be less strict without that necessarily਍ഀ incurring the criticism that there had been a breach of the Convention.਍ഀ ਍ഀ An additional factor was that there had not really been਍ഀ anything at stake for Mr Van Orshoven in the proceedings before the਍ഀ Court of Cassation as the grounds in support of his appeal on points਍ഀ of law were clearly unsustainable, either because they were਍ഀ inadmissible or because they raised legal arguments that were contrary਍ഀ to well-established case-law.਍ഀ ਍ഀ Lastly, the applicant could not reasonably have been under any਍ഀ misapprehension either as to the role of the procureur général's਍ഀ department or as to the identity of his opponent, the਍ഀ Ordre des médecins, since the Ordre was represented at the hearing਍ഀ before the Court of Cassation. Thus, even if the applicant had਍ഀ perceived the position differently, he could not be considered to have਍ഀ been objectively justified in so doing.਍ഀ ਍ഀ 37. The Court notes, firstly, that independently of whether the਍ഀ case is a civil, criminal or disciplinary one, the main duty of the਍ഀ procureur général's department at the Court of Cassation at the hearing਍ഀ - as at the deliberations - is always to assist the Court of Cassation਍ഀ and to help ensure that its case-law is consistent.਍ഀ ਍ഀ 38. It should be noted, secondly, that the procureur général's਍ഀ department acts with the strictest objectivity. On this point, the਍ഀ findings in the Delcourt v. Belgium judgment of 17 January 1970਍ഀ (Series A no. 11, pp. 17-19, paras. 32-38) and the Borgers (p. 31,਍ഀ para. 24) and Vermeulen (p. 233, para. 30) judgments cited above਍ഀ regarding the independence and impartiality of the Court of Cassation਍ഀ and its procureur général's department remain wholly valid.਍ഀ ਍ഀ 39. As in its judgments in the Borgers case (see p. 32, para. 26)਍ഀ and the Vermeulen case (see p. 233, para. 31), the Court considers,਍ഀ however, that great importance must be attached to the part actually਍ഀ played in the proceedings by the member of the procureur général's਍ഀ department, and more particularly to the content and effects of his਍ഀ submissions. These contain an opinion which derives its authority from਍ഀ that of the procureur général's department itself. Although it is਍ഀ objective and reasoned in law, the opinion is nevertheless intended to਍ഀ advise and accordingly influence the Court of Cassation. In this਍ഀ connection, the Government emphasised the importance of the਍ഀ department's contribution to ensuring the consistency of the਍ഀ Court of Cassation's case-law.਍ഀ ਍ഀ 40. In its judgment in the Delcourt case the Court noted in its਍ഀ reasons for holding that Article 6 para. 1 (art. 6-1) was applicable਍ഀ that "the judgment of the Court of Cassation ... may rebound in਍ഀ different degrees on the position of the persons concerned" (pp. 13-14,਍ഀ para. 25). It has reached a similar conclusion in several other cases਍ഀ concerning different countries (see, mutatis mutandis, the following਍ഀ judgments: Pakelli v. Germany, 25 April 1983, Series A no. 64, p. 17,਍ഀ para. 36; Pham Hoang v. France, 25 September 1992, Series A no. 243,਍ഀ p. 23, para. 40; Ruiz-Mateos v. Spain, 23 June 1993, Series A no. 262,਍ഀ p. 25, para. 63; Lobo Machado v. Portugal cited above, p. 206,਍ഀ para. 30; and Vermeulen v. Belgium cited above, p. 233, para. 32). The਍ഀ same applies in the instant case, since the appeal on points of law਍ഀ concerned the lawfulness of the applicant's removal from the register਍ഀ and the consequential ban on his practising medicine.਍ഀ ਍ഀ 41. Regard being had, therefore, to what was at stake and to the਍ഀ nature of the submissions made by the avocat général, the fact that it਍ഀ was impossible for the applicant to reply to them before the end of the਍ഀ hearing infringed his right to adversarial proceedings. That right਍ഀ means in principle the opportunity for the parties to a trial to have਍ഀ knowledge of and comment on all evidence adduced or observations filed਍ഀ (see, among other authorities and mutatis mutandis, the਍ഀ Vermeulen judgment cited above, p. 234, para. 33; and the਍ഀ Nideröst-Huber v. Switzerland judgment of 18 February 1997,਍ഀ Reports 1997-I, p. 108, para. 24).਍ഀ ਍ഀ 42. Accordingly, there has been a violation of Article 6 para. 1਍ഀ (art. 6-1).਍ഀ ਍ഀ II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)਍ഀ ਍ഀ 43. Article 50 of the Convention (art. 50) provides:਍ഀ ਍ഀ "If the Court finds that a decision or a measure taken by a਍ഀ legal authority or any other authority of a High Contracting਍ഀ Party is completely or partially in conflict with the਍ഀ obligations arising from the ... Convention, and if the਍ഀ internal law of the said Party allows only partial reparation਍ഀ to be made for the consequences of this decision or measure,਍ഀ the decision of the Court shall, if necessary, afford just਍ഀ satisfaction to the injured party."਍ഀ ਍ഀ A. Damage਍ഀ ਍ഀ 44. The applicant claimed 7,258,855 Belgian Francs (BEF) for਍ഀ pecuniary damage, to which he added BEF 120,980 per month "from਍ഀ delivery of the judgment until the date on which Mr Van Orshoven's name਍ഀ is restored to the list of medical practitioners in the province of਍ഀ Limburg". Those amounts represented the fees he would have received਍ഀ had he not been permanently suspended.਍ഀ ਍ഀ He also sought BEF 1,000,000 for non-pecuniary damage.਍ഀ ਍ഀ 45. The Delegate of the Commission did not express a view.਍ഀ ਍ഀ 46. The Government rightly submitted that there was no causal link਍ഀ between the violation complained of and the alleged pecuniary damage;਍ഀ it is indeed not possible to speculate as to the outcome of the਍ഀ proceedings if they had satisfied the requirements of Article 6਍ഀ para. 1 (art. 6-1).਍ഀ ਍ഀ As to non-pecuniary damage, the Court considers it sufficiently਍ഀ compensated by the finding of a violation (art. 6-1).਍ഀ ਍ഀ B. Costs and expenses਍ഀ ਍ഀ 47. The applicant also sought BEF 250,000 for costs and expenses਍ഀ occasioned by the proceedings in the Court of Cassation and his਍ഀ representation before the Convention institutions.਍ഀ ਍ഀ 48. The Delegate of the Commission made no observations.਍ഀ ਍ഀ 49. Relying on the Welch v. the United Kingdom judgment of਍ഀ 26 February 1996 (Reports 1996-II, p. 386), the Government agreed to਍ഀ pay, if a violation was found, a maximum of one-third of the costs਍ഀ claimed by the applicant.਍ഀ ਍ഀ 50. The Court notes that the Welch judgment concerned only claims਍ഀ made under Article 50 (art. 50), which had been rejected. In the਍ഀ instant case, on the other hand, the Court has found a breach of਍ഀ Article 6 para. 1 (art. 6-1).਍ഀ ਍ഀ Making its assessment on an equitable basis, it awards the਍ഀ amount claimed, that is to say BEF 250,000.਍ഀ ਍ഀ C. Default interest਍ഀ ਍ഀ 51. According to the information available to the Court, the਍ഀ statutory rate of interest applicable in Belgium at the date of਍ഀ adoption of the present judgment is 7% per annum.਍ഀ ਍ഀ FOR THESE REASONS, THE COURT਍ഀ ਍ഀ 1. Dismisses unanimously the Government's preliminary objection;਍ഀ ਍ഀ 2. Holds by seven votes to two that there has been a violation of਍ഀ Article 6 para. 1 of the Convention (art. 6-1);਍ഀ ਍ഀ 3. Dismisses unanimously the claim for just satisfaction for the਍ഀ alleged pecuniary damage;਍ഀ ਍ഀ 4. Holds unanimously that this judgment in itself constitutes਍ഀ sufficient just satisfaction for the alleged non-pecuniary਍ഀ damage;਍ഀ ਍ഀ 5. Holds by eight votes to one that the respondent State is to pay਍ഀ the applicant, within three months,਍ഀ 250,000 (two hundred and fifty thousand) Belgian francs for਍ഀ costs and expenses, on which sum simple interest at an਍ഀ annual rate of 7% shall be payable from the expiry of the਍ഀ above-mentioned three months until settlement.਍ഀ ਍ഀ Done in English and in French, and delivered at a public਍ഀ hearing in the Human Rights Building, Strasbourg on 25 June 1997.਍ഀ ਍ഀ Signed: Rudolf BERNHARDT਍ഀ President਍ഀ ਍ഀ Signed: Herbert PETZOLD਍ഀ Registrar਍ഀ ਍ഀ In accordance with Article 51 para. 2 of the Convention਍ഀ (art. 51-2) and Rule 53 para. 2 of Rules of Court A, the following਍ഀ separate opinions are annexed to this judgment:਍ഀ ਍ഀ (a) concurring opinion of Mr Mifsud Bonnici;਍ഀ (b) dissenting opinion of Mr Pettiti;਍ഀ (c) dissenting opinion of Mr Storme.਍ഀ ਍ഀ Initialled: R. B.਍ഀ ਍ഀ Initialled: H. P.਍ഀ ਍ഀ CONCURRING OPINION OF JUDGE MIFSUD BONNICI਍ഀ ਍ഀ I form part of the majority. However for the sake of਍ഀ precision, I feel bound to note that I do not think it proper for the਍ഀ judgment to contain in its obiter dicta the statements contained in਍ഀ paragraph 38, that is to say, in the first place:਍ഀ ਍ഀ "... the procureur général's department acts with the਍ഀ strictest objectivity."਍ഀ ਍ഀ The Court, in reality did not have the opportunity of examining਍ഀ whether the procureur général acted objectively or otherwise. Indeed਍ഀ it did not have to as that question was not before it. What was before਍ഀ it was that, since the procureur général had to intervene in the case,਍ഀ then the applicant had the right of reply. To state that that਍ഀ intervention is carried out "with the strictest objectivity" not only਍ഀ hands out an unwarranted blanket certificate on the permanent quality਍ഀ and nature of the modus operandi of the procureur général, but it also਍ഀ weakens the considerations on which the judgment is based because this਍ഀ "strictest objectivity" once it exists would not justify the finding਍ഀ of a violation which is anything else but formal.਍ഀ ਍ഀ The question is further loaded in this objectionable sense਍ഀ when, in the same paragraph, the Court approves what it had said in਍ഀ previous judgments:਍ഀ ਍ഀ "... regarding the independence and impartiality of the਍ഀ Court of Cassation and its procureur général's department਍ഀ remain wholly valid."਍ഀ ਍ഀ From my point of view, therefore, paragraph 38 should not form਍ഀ part of the judgment.਍ഀ ਍ഀ DISSENTING OPINION OF JUDGE PETTITI਍ഀ ਍ഀ (Translation)਍ഀ ਍ഀ I voted with the minority in favour of finding that there had਍ഀ been no violation for the following reasons.਍ഀ ਍ഀ The Court's reasoning, in particular in paragraph 39, seems to਍ഀ me to be couched in terms that are too general with the risk that it਍ഀ may be applied in other cases that are more or less similar, with no਍ഀ account being taken of the individual nature of each਍ഀ national legal order so far as proceedings in the Court of Cassation਍ഀ and the role of that court's procureur général and avocats généraux are਍ഀ concerned.਍ഀ ਍ഀ Criminal and civil proceedings cannot be treated identically਍ഀ where the domestic order makes special arrangements; similarly, it is਍ഀ not possible to treat proceedings where one party (such as a਍ഀ professional body) is opposed to an applicant who is a member of the਍ഀ profession in the same way as other proceedings.਍ഀ ਍ഀ In addition, in the context of disciplinary proceedings਍ഀ following a decision of a professional body, there must be taken into਍ഀ account, in each individual case, the special features of the਍ഀ domestic procedural order at the level of the appellate court below the਍ഀ Court of Cassation, namely the composition of the court and the role਍ഀ of the parties and avocats généraux.਍ഀ ਍ഀ Further, there is in my view a contradiction in the reasoning਍ഀ in paragraph 39, which provides that the opinion of the਍ഀ procureur général's department is intended to advise and influence the਍ഀ Court of Cassation. Yet, in the instant case, the judgment of the਍ഀ Court of Cassation merely contains a reference to the fact that it was਍ഀ delivered after the avocat général had made submissions, there being਍ഀ nothing to suggest that he had argued in favour of dismissing the਍ഀ applicant's appeals on points of law or, consequently, that he had਍ഀ exerted any influence on the Court of Cassation that could be਍ഀ considered an infringement of the applicant's right to an adversarial਍ഀ hearing.਍ഀ ਍ഀ With regard to the special nature of the procureur général's਍ഀ department at the Court of Cassation in Belgium, I subscribe to the਍ഀ observations of Judge Storme with reference to the separate opinions਍ഀ in the Borgers and Vermeulen judgments. I also note that the Court has਍ഀ not reiterated the reasoning based on outward appearances or, in਍ഀ paragraph 38, the formulas previously used in the Borgers and਍ഀ Vermeulen judgments.਍ഀ ਍ഀ It is true that in the present case the sole issue concerned਍ഀ the fact that the applicant was unable to reply to the submissions of਍ഀ the procureur général's department.਍ഀ ਍ഀ The Court will no doubt have an opportunity to refine its਍ഀ case-law when dealing with similar proceedings whilst remaining alert਍ഀ to its international impact (particularly with respect to the role of਍ഀ Advocates General at the Court of Justice of the European Communities)਍ഀ and its effect on Court of Cassation proceedings in national systems.਍ഀ ਍ഀ DISSENTING OPINION OF JUDGE STORME਍ഀ ਍ഀ (Translation)਍ഀ ਍ഀ I regret that I am unable to agree with the present judgment਍ഀ as I consider that the fact that it was not possible to reply to the਍ഀ avocat général's submissions did not in the present case infringe the਍ഀ applicant's rights to adversarial proceedings.਍ഀ ਍ഀ I do not intend to reiterate in detail the role of the਍ഀ procureur général's department at the Court of Cassation, which I਍ഀ analysed in my dissenting opinion in the case of Borgers v. Belgium਍ഀ (judgment of 30 October 1991, Series A no. 214-B, pp. 53 et seq.).਍ഀ ਍ഀ It is sufficient to note - as indeed is rightly stated in the਍ഀ judgment - that the function of the procureur général's department is਍ഀ to advise the Court of Cassation on the main principles of law, on਍ഀ compliance with the law and rules governing the form of the procedure਍ഀ and to ensure that the case-law remains consistent.਍ഀ ਍ഀ In the present case, I do not find convincing the argument that਍ഀ the fact that it was not possible to reply to the avocat général's਍ഀ submissions, the content of which is an unknown, meant that the਍ഀ applicant was prejudiced.਍ഀ ਍ഀ It must be emphasised that the words "after submissions" in the਍ഀ Court of Cassation's judgment in the Van Orshoven case have no special਍ഀ meaning, as they do not indicate whether the submissions were in favour਍ഀ of allowing or of dismissing the appeal.਍ഀ ਍ഀ That formula may be used both for submissions in favour of਍ഀ allowing an appeal and submissions in favour of its dismissal.਍ഀ Accordingly, the applicant has not shown any special ground for਍ഀ complaint.਍ഀ ਍ഀ In the present case, it seems to me to be important to਍ഀ highlight certain particular features.਍ഀ ਍ഀ There was no procureur général's department either at਍ഀ first instance or on appeal so that it was unable to take part at any਍ഀ time or in any capacity in the proceedings on the merits.਍ഀ ਍ഀ In the Court of Cassation the applicant had an opponent, namely਍ഀ the Ordre des médecins, which marks an essential difference from the਍ഀ cases of Borgers (cited above) and Vermeulen v. Belgium (judgment of਍ഀ 20 February 1996, Reports of Judgments and Decisions 1996-I). The਍ഀ procureur général could not in the circumstances be the applicant's਍ഀ opponent, that being the role of the Ordre des médecins. Nonetheless,਍ഀ the issue in the judgment is whether the right to adversarial਍ഀ proceedings was infringed (see paragraph 41 of the judgment).਍ഀ ਍ഀ In the present case, the disciplinary proceedings at first਍ഀ instance and on appeal were properly conducted, as was pointed out by਍ഀ the European Commission of Human Rights.਍ഀ ਍ഀ Although the Court appears to have abandoned in its recent਍ഀ case-law the principle of outward appearances, the finding of a਍ഀ violation in the present judgment is in my opinion based on an਍ഀ assessment of the right to adversarial proceedings that is purely਍ഀ formal. Indeed, the Court did not consider whether, in the instant਍ഀ case, the lack of adversarial proceedings could have adversely affected਍ഀ the applicant's interests (compare the Padovani v. Italy judgment of਍ഀ 26 February 1993, Series A no. 257-B; the Nortier v. the Netherlands਍ഀ judgment of 24 August 1993, Series A no. 267; and the Remli v. France਍ഀ judgment of 23 April 1996, Reports 1996-II: the applicant's fears must਍ഀ be such that they may be held to be objectively justified).਍ഀ ਍ഀ Lastly, it has to be said that the purely formal approach taken਍ഀ in the present judgment will have repercussions not only in Belgium,਍ഀ but also in international proceedings. It seems to me that neither the਍ഀ procureur général's department nor Crown Counsel attached to the਍ഀ industrial tribunals (auditorat du travail) will be entitled to address਍ഀ courts or tribunals - whether civil, commercial or industrial - last,਍ഀ as is provided for by the Belgian Judicial Code.਍ഀ ਍ഀ Similarly, the parties will have to have the right to make਍ഀ observations on the opinion of the representative of the਍ഀ Belgian Conseil d'Etat and on the submissions of the Advocates General਍ഀ at the Court of Justice in Luxembourg.਍ഀ ਍ഀ That of course would be a major change entailing, in my਍ഀ opinion, unduly protracted proceedings as the inevitable general਍ഀ consequence of the formal principle stated in the present judgment.਍ഀ