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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DE MOOR v. BELGIUM - 16997/90 [1994] ECHR 20 (23 June 1994) URL: http://www.bailii.org/eu/cases/ECHR/1994/20.html Cite as: 18 EHRR 372, [1994] ECHR 20, (1994) 18 EHRR 372

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In the case of De Moor v. Belgium*,

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 the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr B. Walsh,

Mr J. De Meyer,

Mrs E. Palm,

Mr L. Wildhaber,

Mr G. Mifsud Bonnici,

Mr J. Makarczyk,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 28 January and 26 May 1994,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

* Note by the Registrar. The case is numbered 18/1993/413/492. 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.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 13 April 1993, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 16997/90) against the Kingdom of Belgium lodged with

the Commission under Article 25 (art. 25) by a Belgian national,

Mr Jérôme De Moor, on 26 June 1990.

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 (art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings. He also sought leave to

present his own case (Rule 30 para. 1); the President of the Court

granted this request on 25 June 1993.

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. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 23 April 1993, in the presence of the

Registrar, the President drew by lot the names of the other seven

members, namely Mr F. Gölcüklü, Mr F. Matscher, Mr B. Walsh,

Mr C. Russo, Mrs E. Palm, Mr G. Mifsud Bonnici and Mr J. Makarczyk

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

Subsequently, Mr L. Wildhaber, substitute judge, replaced Mr Russo, who

was unable to take part in the further consideration of the case

(Rules 22 para. 1 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the Belgian

Government ("the Government"), the applicant 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 memorial on 15 October 1993 and the applicant's claims

under Article 50 (art. 50) of the Convention on 20 October.

On 24 November the Secretary to the Commission informed the Registrar

that the Delegate would submit his observations at the hearing.

5. On 10 December the Commission produced the file on the

proceedings before it, as requested by the Registrar on the President's

instructions.

6. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

25 January 1994. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr J. Lathouwers, Deputy Adviser, Head of the

Human Rights Department, Ministry of Justice, Deputy Agent,

Mr E. Jakhian, former Chairman of the French-speaking

Bar of Brussels, Counsel;

(b) for the Commission

Mr J.-C. Geus, Delegate;

(c) the applicant.

The Court heard addresses by Mr Jakhian, Mr Geus and

Mr De Moor.

AS TO THE FACTS

I. The particular circumstances of the case

7. The applicant, a Belgian national born in 1930, pursued a

career in the Belgian army. In 1981 he retired with the rank of

capitaine-commandant. On 7 July 1983 he gained a law degree.

A. The applications for enrolment as a member of the Hasselt Bar

8. On 27 May 1983 Mr De Moor informed the Chairman of the Hasselt

Bar Association that he intended to apply for enrolment on the list of

pupil advocates. On 15 June he had an interview with the Chairman.

9. The Bar Council, when it learnt of the applicant's intention

at its session on 23 June 1983, reacted in a somewhat unfavourable

manner, but took the view that it was unnecessary to give a decision

as no formal application had been made.

10. On 27 June, in the course of a telephone conversation, the

Chairman of the Bar Association allegedly told the applicant that the

Bar Council had decided not to enrol him because he had completed one

full career and the Hasselt Bar already had over two hundred members.

11. By a letter of 25 August 1983 Mr De Moor submitted an

application in the prescribed form.

12. At a meeting on 8 September the Bar Council decided to consult

the Chairman (doyen) of the National Bar Association.

On 6 October, after considering the latter's opinion, according

to which there were no grounds for refusing Mr De Moor's application

("er geen argumenten zijn om de Heer De Moor te weigeren"), the Council

appointed two rapporteurs from among its members.

13. On 17 November the Chairman read out the report of the first

rapporteur, which was unfavourable, and the second submitted a

comprehensive report on the matter. During the deliberations, it was

pointed out that Mr De Moor had not taken the oath and had therefore

not been entitled to seek enrolment. The same day the Council rejected

the application.

14. The Chairman of the Bar Association informed Mr De Moor of this

decision in a letter of 23 November 1983. He stated that it was

consistent with the practice followed by Bar Councils according to

which persons who had completed a full career outside the Bar were not

admitted to the list of pupil advocates.

B. The proceedings in the Conseil d'Etat

15. On 29 November 1983 Mr De Moor filed an application in the

Conseil d'Etat to have the decision set aside on the ground that the

Hasselt Bar Council did not constitute an "independent and impartial

tribunal" within the meaning of Article 6 para. 1 (art. 6-1) of the

Convention.

16. On 16 February 1984 the Bar Council produced its statement of

defence. It argued that the Conseil d'Etat lacked jurisdiction and

that Mr De Moor had no interest in the proceedings inasmuch as he had

not taken the oath and could not therefore be enrolled on the list of

pupil advocates. On the merits, it affirmed that a refusal to enrol

could be based on reasons other than those justifying disciplinary

measures. The fact that the applicant had already completed one full

career justified the impugned decision, particularly because he had

stated that, as his income was sufficient, he wished to engage in what

he regarded as a stimulating occupation on a part-time basis.

17. Mr De Moor filed his reply on 24 April 1984. He maintained

that the uncertainty concerning his admission to the Bar had made it

impossible for him to find an advocate who was prepared to present him

so that he could take the oath; this obstacle could be surmounted only

by the designation of an ad hoc pupil master.

18. On 15 September, 24 October and 5 December 1986 the Legal

Adviser (auditeur) responsible for preparing the case requested various

documents from the Bar Council, which sent them to him on 11 December.

19. On 20 February 1987 the auditeur submitted his report, which

was communicated to the applicant on 20 March. He expressed the view

that the Conseil d'Etat had jurisdiction and that Mr De Moor had an

interest in having the Bar Council's decision quashed. There was no

legal obligation for a law graduate to take the oath before seeking

enrolment on the list of pupil advocates. The text of the decision

refusing the applicant admission to that list had not cited as a reason

the fact, mentioned orally on 27 June 1983 (see paragraph 10 above),

that the Hasselt Bar already had a large number of lawyers. It had

referred solely to the circumstance that the applicant had completed

a full career outside the Bar. Yet, in the light of the judgment of

the Court of Cassation of 13 May 1952 (see paragraph 36 below), a

refusal to enrol of this nature should have been grounded either on the

failure to comply with the conditions laid down in Article 428 of the

Judicial Code or on the postulant's unfitness or incompetence to

practise as a lawyer. It followed that the reason given by the

Hasselt Bar Council did not justify in law the decision of

17 November 1983, which should therefore be set aside.

20. On 13 May 1987 the Bar Council filed a final pleading,

reiterating the same two objections to the admissibility of the

application (see paragraph 16 above). It added that the reason given

fell within the scope of the wide discretion that the Bar Council

considered itself to enjoy in this area.

21. On 21 August 1987 the President of the Conseil d'Etat,

Mr Vermeulen, transferred the case from the Chamber before which it was

pending and directed that it should be heard by the General Assembly

of the Administrative Division. On 14 September he postponed the

public hearing until 12 October 1987 as some members of the Conseil

d'Etat were unable to attend on 8 October, the date for which it had

been initially set down.

22. On 16 September 1987 the National Bar Association sought leave

to intervene in the proceedings. It considered Mr De Moor's

application inadmissible. As he had not taken the oath and did not

therefore satisfy one of the statutory conditions for enrolment, the

Bar Council could only have given an opinion, in respect of which an

application for annulment could not lie. It argued in addition that

the Conseil d'Etat lacked jurisdiction. In its view, the intention of

the legislature had been that only the ordinary courts, and not the

Conseil d'Etat, should have jurisdiction for disputes arising from the

decisions of the Bar Councils.

23. On 12 October 1987 the General Assembly gave leave for this

intervention and heard the parties, after which the President reserved

the decision.

24. On 28 November 1988 the applicant complained to the President

of the length of the proceedings. He allegedly received no reply.

25. On 28 November 1989 he laid a formal complaint with the

Brussels Crown Counsel for a denial of justice. On 7 May 1990 he

learned of the authorities' decision not to proceed with his complaint.

26. In a judgment of 24 September 1991, the General Assembly,

presided over by Mr Baeteman, President of the Conseil d'Etat, noted

that the assembly which had heard the case up to that point had not

concluded its deliberations and could no longer validly sit on account

of the death of the judge-rapporteur, the appointment of one of the

judges to another post and the retirement of Mr Vermeulen on

23 May 1991. It consequently decided to reopen the oral proceedings

before the General Assembly composed differently, at a hearing to be

held on 15 October 1991.

27. On 31 October 1991 that assembly, refusing to follow the

opinion of the auditeur, Mr De Wolf, ruled that the objection based on

the Conseil d'Etat's lack of jurisdiction ratione materiae was

well-founded. It took the view, inter alia:

"that having regard to the relations between the Bars and

the judiciary and the concern to preserve advocates'

independence, the legislature's intention [had been] that the

decisions of the Bar Councils should fall outside the scope of

review by the Conseil d'Etat. Accordingly, the decisions of

the Bar Council [could not] be set aside by the Conseil

d'Etat. The right to have his case heard by an independent

and impartial national tribunal which the petitioner

[inferred] from Article 6 para. 1 (art. 6-1) [of the European

Convention on Human Rights] [did not] mean that the Conseil

d'Etat [had] to rule on a matter which [fell] outside its

jurisdiction;"

It therefore dismissed the application.

II. The relevant domestic law

A. The Bar Council

28. Each Bar has as the administrative organs for the profession

of advocate the Bar Council (conseil de l'Ordre), the Chairman of the

Bar Association (bâtonnier) and the General Assembly.

29. The Bar Council is composed of the Chairman of the Bar

Association and two to sixteen other members, according to the number

of advocates on the Bar roll and the list of the pupil advocates. The

Hasselt Bar Council has fourteen members in addition to the Chairman.

The members are directly elected by the General Assembly of the

Bar Association, to which all advocates on the roll are convened

(Article 450 of the Judicial Code). The election is held before the

end of each judicial year.

30. The Council exercises numerous functions of an administrative,

regulatory, adjudicative, advisory and disciplinary nature. For the

purposes of the present case it is sufficient to mention that it is

responsible for drawing up the roll of advocates and the list of pupil

advocates.

31. At the material time, Article 432 of the Judicial Code gave the

Council unfettered discretion in this respect:

"Enrolment on the roll of advocates and on the list of pupil

advocates shall be determined by the Bar Council. No appeal

shall lie from its decision as it has absolute authority over

the composition of the roll and the list of pupil advocates."

An Act of 19 November 1992 amended that provision by requiring

that any rejection of an application for enrolment had to state

reasons. In addition, under the new Article 469 bis, an appeal from

such a decision lies to the Disciplinary Appeals Board, without

prejudice to the right to file an appeal on points of law with the

Court of Cassation at a later stage.

Another amendment concerned the public nature of the

proceedings. Article 467, second paragraph, of the Judicial Code now

provides: "The Bar Council, sitting in disciplinary proceedings or as

in disciplinary proceedings, shall hear the case in public, unless the

advocate against whom the proceedings have been brought or the person

applying for enrolment or re-enrolment requests that the proceedings

be private."

B. Enrolment on the list of pupil advocates or on the roll of

advocates

32. The enrolment of a lawyer on the list of pupil advocates or as

a member of the Bar was and is governed by Article 428 of the Judicial

Code:

"No one may bear the title of avocat or practise as an

advocate unless he is a Belgian national or a national of a

Member State of the European Economic Community and possesses

the degree of Doctor of Laws; he must have taken the oath

prescribed by law and be enrolled on the Bar roll or on the

list of pupil advocates.

...

Save where the law provides otherwise, no further

qualification may be added to the title avocat."

33. As regards the taking of the oath, which is a separate

formality from admission to pupillage, Article 429 states as follows:

"The oath shall be taken at a public sitting of the Court of

Appeal, candidates being presented by an advocate enrolled as

a member of the Bar of the jurisdiction of that court for not

less than ten years, in the presence of the Chairman of the

Bar Association of the seat of the Court of Appeal and at the

suit of Crown Counsel".

The candidate shall swear the following oath:

'I hereby swear allegiance to the King, obedience to the

Constitution and to the laws of the Belgian people, and not to

deviate from the respect due to the courts and the public

authorities, or to advise or defend any cause that I do not,

to the best of my knowledge and belief, hold to be just.'

The registrar shall draw up a record of the whole

proceedings and endorse each diploma to certify that the

formalities have been completed."

34. To be enrolled on the list of pupil advocates a person holding

a law degree, or Doctor of Laws, who has usually already taken the

oath, lodges with the secretariat of the Bar Association an application

for enrolment and his diploma bearing the endorsement certifying that

he has taken the oath. In principle an application for admission as

a pupil advocate contains the information on the basis of which the Bar

Council can determine whether the candidate meets the required

standards of integrity and decency.

35. The Bar Council considers whether the candidate satisfies all

the requirements as to good character and thus whether he is a fit

person to bear the title of avocat. It also verifies that he does not

fall within any of the statutory categories of incapacity and

incompatibility set out in Article 437 of the Judicial Code, which is

worded as follows:

"The profession of advocate shall be incompatible with:

1° the posts of full-time member of the judiciary (magistrat

effectif), registrar and civil servant;

2° the functions of notary (notaire) and bailiff (huissier

de justice);

3° industrial or commercial activity;

4° remunerated employment and activity, whether in the

public or private sector, unless it does not jeopardise the

independence of the advocate or compromise the dignity of the

Bar.

..."

36. The Bar Council has a very wide discretion in deciding whether

to admit candidates to the Bar. That discretion must however be

exercised within the limits laid down by the code.

Seeking to define those limits Mr Lemmens, the auditeur, in his

report (see paragraph 19 above) took as authority a judgment of the

Court of Cassation of 13 May 1952 concerning a decision taken by the

Council of the Pharmacists' Association. Under the Act of 19 May 1949

setting up the Pharmacists' Association, that Council was vested with

powers, as regards admission to the roll, similar to those of the Bar

Council. The relevant ground of the judgment in question is worded as

follows:

"... it may be inferred from paragraph 3 [of section 2 of

the Act of 19 May 1949] laying down the procedure for appeals

against decisions refusing applications for enrolment, in the

light of the purpose of that text and its legislative history,

that the Councils of the Association, responsible for drawing

up the roll of the Association, can found their refusal of an

application for enrolment only on a defect in the

qualifications on which the application is based or on the

current unfitness of the candidate or on his professional

incompetence." (Pasicrisie, I, p. 578)

PROCEEDINGS BEFORE THE COMMISSION

37. Mr De Moor applied to the Commission on 26 June 1990. Relying

on Article 6 para. 1 (art. 6-1) of the Convention, he maintained that

the Hasselt Bar Council and the Disciplinary Appeals Board had not been

impartial. He further complained that the proceedings before the Bar

Council had lacked fairness and had not been conducted in public and

that the length of the proceedings in the Conseil d'Etat had been

excessive.

38. The Commission declared the application (no. 16997/90)

admissible on 6 January 1992, with the exception of the complaint

concerning the Disciplinary Appeals Board. In its report of

8 January 1993 (made under Article 31) (art. 31), the Commission

expressed the unanimous opinion that there had been a violation of

Article 6 para. 1 (art. 6-1) of the Convention on each of the points

in issue. The full text of the Commission's opinion is reproduced as

an annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 292-A of

Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

39. In their memorial the Government asked the Court to declare

"the application inadmissible and, in the alternative, ill-founded".

AS TO THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 1 (art. 6-1)

40. Mr De Moor asserted that he had been the victim of violations

of Article 6 para. 1 (art. 6-1), which provides as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing within

a reasonable time by an independent and impartial tribunal

established by law. Judgment shall be pronounced publicly but

the press and public may be excluded from all or part of the

trial in the interests of morals, public order or national

security in a democratic society, where the interests of

juveniles or the protection of the private life of the parties

so require, or to the extent strictly necessary in the opinion

of the court in special circumstances where publicity would

prejudice the interests of justice."

41. In view of the different arguments adduced, the first issue to

be addressed is the applicability of that provision.

A. Applicability of Article 6 para. 1 (art. 6-1)

42. Like the Commission, the Court notes in the first place that

there is little to distinguish the present case from that of H. v.

Belgium, even though it concerns enrolment on the list of pupil

advocates rather than the readmission to the Bar of an advocate who

had been struck off the roll (see the H. v. Belgium judgment of

30 November 1987, Series A no. 127-B, p. 31, para. 40).

43. It is clear that the question raised before the Hasselt Bar

Council concerned the determination of a right.

Where legislation lays down conditions for the admission to a

profession and a candidate for admission satisfies those conditions,

he has a right to be admitted to that profession. Indeed this was

recognised by the Belgian legislature when it passed the Act of

19 November 1992 (see paragraph 31 above), which took account of the

H. v. Belgium judgment, but which is not applicable in the instant

case.

44. In the Government's view, Mr De Moor did not satisfy the

relevant requirements. He had not taken the oath before submitting his

application for enrolment, although Article 428 of the Judicial Code

(see paragraph 32 above) establishes a logical sequence for the

formalities to be completed in order to secure admission to the

profession of advocate. The applicant had disregarded that logical

sequence and had thus acted erratically. This had made it impossible

for the Hasselt Bar Council to give a valid decision with the result

that the Bar Council's opinion could not constitute a decision on a

civil right.

45. The applicant submitted that the position adopted by the Bar

Council from the outset made it pointless for him to look for an

experienced advocate in whose chambers he could have effected his

pupillage and who, as pupil master, would have presented him so that

he could take the oath.

46. The Court agrees with the Commission and Mr De Moor that the

refusal to enrol was not based on the fact that the applicant had not

taken the oath. The sole ground for the decision was that the

candidate for enrolment had completed a full career outside the Bar.

In addition, the Chairman of the National Bar Association had expressed

the opinion that there was nothing to prevent the enrolment of the

candidate in question (see paragraph 12 above). Finally, the auditeur

of the Conseil d'Etat noted in his report that the law did not require

a law graduate to take the oath before seeking enrolment (see

paragraph 19 above).

In these circumstances and in view of the wording of

Article 428 of the Judicial Code, the applicant could, on arguable

grounds, claim a right under Belgian law to enrolment on the list of

pupil advocates.

47. The Hasselt Bar Council was therefore called upon to determine

a dispute (contestation) concerning a right which the applicant claimed

and which has already been held by the Court to be a "civil right"

within the meaning of Article 6 para. 1 (art. 6-1) (see the H. v.

Belgium judgment, cited above, pp. 32-34, paras. 44-48); that provision

is therefore applicable.

B. Compliance with Article 6 para. 1 (art. 6-1)

1. Before the Hasselt Bar Council

48. In Mr De Moor's submission the Hasselt Bar Council did not

constitute an impartial tribunal and its proceedings in his case were

neither fair nor public.

(a) The Government's preliminary objection

49. The Government objected that the applicant had failed to

exhaust the following domestic remedies: (i) he had not filed an appeal

on points of law in the Court of Cassation against the judgment of the

Conseil d'Etat of 31 October 1991 (Article 609 2° of the Judicial

Code); (ii) he had not applied to take the oath before the Antwerp

Court of Appeal, and had thus deprived himself of the opportunity to

obtain an assessment of his "fitness"; (iii) he could have challenged

an unjustified refusal to grant that application, in the Court of

Cassation on the basis of a violation of the law (Articles 608 and

609 1° of the Judicial Code); (iv) he had not waited for the outcome

of the proceedings in the Conseil d'Etat before complaining to the

Commission; (v) he had not brought an appeal on points of law against

the refusal of 17 November 1983 (Article 610 of the Judicial Code); and

(vi) he had failed to apply to the Court of Cassation for a transfer

of jurisdiction from the Hasselt Bar Council on the ground of bias

(Articles 648 and 653 of the Judicial Code).

50. The Government are estopped from relying on the first limb of

the objection because they did not raise it before the Commission (see,

among many other authorities, the Tomasi v. France judgment of

27 August 1992, Series A no. 241-A, p. 39, para. 106). This is not the

case of the other five limbs, which had already been adduced in

substance prior to the decision on admissibility.

The application to take the oath cannot be regarded as a

remedy, so that the possibility of filing an appeal on points of law

against a refusal by the Court of Appeal to allow such an application

is immaterial. Although Mr De Moor applied to the Commission without

waiting for the judgment of the Conseil d'Etat, this does not mean that

the Commission's decision on the admissibility of the application was

premature (see paragraphs 27 and 38 above) or that any legitimate

interest of the respondent State was harmed (see the Ringeisen v.

Austria judgment of 16 July 1971, Series A no. 13, p. 38, paras. 91 and

93). On the matter of the last two remedies, the Court observes that

the applicant instituted the proceedings before the Conseil d'Etat and

pursued them to their conclusion. He cannot be criticised for not

having had recourse to legal remedies which would have been directed

essentially to the same end and would in any case not have offered

better chances of success (see, in particular, mutatis mutandis, the

A. v. France judgment of 23 November 1993, Series A no. 277-B, p. 48,

para. 32). The objection is therefore unfounded.

(b) The merits of the complaints

51. Mr De Moor called into question the impartiality of the Hasselt

Bar Council both in terms of its structure and in regard to the

personal impartiality of its members. The Bar Council, being composed

exclusively of advocates, pursued only its own interests whether

pecuniary or non-pecuniary in nature; moreover, the members of the Bar

in question each had an interest in the operation of a disguised

numerus clausus which would protect them from having to share their

fees with more practitioners. The applicant also complained that the

proceedings before the Bar Council had been unfair and had not been

conducted in public. That body's decision had been a corporative

reflex; it had not proceeded on the basis of the statutory conditions

for admission to the Bar. It had not held a public hearing to examine

the application for enrolment or given its decision in public.

52. The Commission in substance subscribed to the views taken by

the applicant.

53. The Government's arguments were confined to the question of

impartiality. Under the objective test, Mr De Moor could not

reasonably entertain suspicions in respect of the Bar Council and

accuse it of having sought to eliminate him as a competitor. He had

already completed a full professional career and was in receipt of a

retirement pension, whereas at the same time the Council had admitted

a considerable number of pupil advocates for whom the Bar constituted

the sole source of income and who were accordingly genuine competitors.

In addition, fears of subjective partiality could not be based on a

mere rumour that two members of the Bar Council regarded the prospect

of a fellow advocate establishing himself in the vicinity of their

chambers unfavourably.

54. The Court notes that under Article 432 of the Judicial Code

(see paragraph 31 above), the Bar Council enjoys a very wide discretion

in dealing with an application for enrolment on the list of pupil

advocates. It observes, nevertheless, that a decision rejecting such

an application must be based either on the failure to comply with the

conditions laid down in Article 428 of the Judicial Code (nationality,

diploma, the taking of the oath), or on the fact that the candidate

falls within one of the categories of incompatibility or again is unfit

or incompetent to practise the profession of advocate (see

paragraphs 19, 35 and 36 above).

55. In the present case the refusal to enrol the applicant did not

refer to the first requirement, and in particular the fact that he had

not taken the oath. Nor did it refer to any incompatibility. To be

valid it should therefore have been founded on the applicant's

unfitness or his professional incompetence. In his report, the

auditeur, Mr Lemmens, took the view that such incapacity could not

automatically be inferred from the circumstance of the candidate's

having completed a full career outside the Bar but should be

ascertained on the basis of the specific and concrete circumstances in

which the previous activities of the person concerned were carried out,

regard being had to the repercussions those activities might have on

his capacity to practise the profession of advocate; as no mention was

made of any such circumstances, the contested decision had no legal

justification.

The Court shares that view and therefore considers that the Bar

Council did not give the applicant's case a fair hearing inasmuch as

the reason it gave was not a legally valid one. It observes further

that at the material time no remedy was available to the applicant (see

paragraph 31 above).

56. At the time the Judicial Code did not contain any rule

regarding the public nature of proceedings in connection with enrolment

on the list of pupil advocates (see paragraph 31 above). No public

hearing was held to examine Mr De Moor's application and the Bar

Council's decision was not delivered in public.

For the reasons set out in the H. v. Belgium judgment (cited

above, p. 36, para. 54), the applicant was entitled to public

proceedings, as there was no reason justifying their being held in

private.

57. In sum, the contested proceedings did not satisfy the

requirements of Article 6 para. 1 (art. 6-1) and there has therefore

been a breach of that provision.

58. That finding makes it unnecessary for the Court to rule on the

complaint based on the Bar Council's lack of impartiality.

2. Before the Conseil d'Etat

59. The applicant also complained of the length of the proceedings

in the Conseil d'Etat.

(a) The Government's preliminary objection

60. The Government contended, as they had already done before the

Commission, that Mr De Moor had not exhausted the domestic remedies

inasmuch as he had failed to file a fresh criminal complaint for denial

of justice with the principal public prosecutor's office of the Court

of Appeal, together with an application to join the proceedings as a

civil party.

61. The Court cannot hold it against the applicant that he failed

to have recourse to a legal remedy which would have been directed

essentially to the same end as those of which he had already availed

himself. Moreover, the Government have not shown that such a remedy

would have been effective. The objection must therefore be dismissed.

(b) The merits of the complaint

62. The period to be taken into consideration began on

29 November 1983, when the application to have the Bar Council's

decision set aside was filed; it ended on 31 October 1991 with the

delivery of the Conseil d'Etat's judgment. It therefore lasted seven

years and eleven months.

63. The reasonableness of the length of proceedings is to be

determined with reference to the criteria laid down in the Court's

case-law and in the light of the circumstances of the case.

64. The Government pleaded the complexity and the sensitive

character of the case, in which the Conseil d'Etat gave a decision

conflicting with the opinion of the auditeur. The intervention of the

National Bar Association, the death of the judge-rapporteur, the

departure of another judge and the retirement of the President all

contributed to slowing down the proceedings.

65. According to the Commission, the case was not a particularly

complex one although it did pose a problem for the Conseil d'Etat,

whose General Assembly had to choose between two positions, the

approach which had been followed up to that point, according to which

it lacked jurisdiction to rule on such an application, and that,

proposed by the auditeur, according to which it had such jurisdiction

(see paragraphs 19 and 27 above). The intervention of the National Bar

Association could not have the effect of delaying the proceedings

(Article 54 of the Regent's decree of 23 August 1948 laying down the

rules for the procedure in the Administrative Division of the Conseil

d'Etat).

66. Like the Delegate of the Commission, the Court distinguishes

two periods. The first ran from the lodging of the application to the

Conseil d'Etat on 29 November 1983 (see paragraph 15 above) to the

hearing of 12 October 1987 before the General Assembly (see

paragraph 23 above). No investigative measure was taken between

24 April 1984, when Mr De Moor's memorial in reply was filed, and

15 September 1986, on which date the auditeur requested various

documents from the Hasselt Bar Council (see paragraphs 17-18 above).

A possible explanation for this delay is that it was considered

desirable to await the outcome in Strasbourg of the case of

H. v. Belgium (see the judgment of 30 November 1987, cited above,

paras. 1, 4 and 33-34). The second period began on 12 October 1987 and

ended on 31 October 1991 with the judgment of the Conseil d'Etat (see

paragraph 27 above). This period was one of total inactivity until the

oral proceedings were reopened on 24 September 1991 (see paragraph 26

above).

67. The applicant's conduct is not open to criticism. The

complexity of the case and the sensitive nature of the question put to

the Conseil d'Etat do not explain the period of just over four years

during which judgment was reserved. The intervention of the National

Bar Association was not sufficient to justify the delay in the

proceedings. It occurred one month before the first hearing on

12 October 1987. Nor do the other events referred to by the Government

justify the above-mentioned lapse of time.

68. A "reasonable time" has therefore been exceeded and there has

accordingly been a violation of Article 6 para. 1 (art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

69. Under Article 50 (art. 50),

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the (...) Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

A. Damage

70. The applicant left it to the Court to assess the amount of

compensation to be awarded him in respect of pecuniary and

non-pecuniary damage.

71. The Government did not express an opinion on this matter.

The Delegate of the Commission noted that Mr De Moor had not

indicated the extent of any pecuniary damage that he might have

sustained. However, for non-pecuniary damage he was entitled to higher

financial compensation than that awarded in the H. v. Belgium case.

72. The Court dismisses the applicant's claims for pecuniary damage

because they are not supported by any detailed information. On the

other hand, it considers that Mr De Moor suffered some non-pecuniary

damage, which is not sufficiently compensated for by the finding of a

violation of Article 6 para. 1 (art. 6-1). Making an assessment on an

equitable basis, it awards him 400,000 Belgian francs (FB).

B. Costs and expenses

73. The applicant requested the Court to reserve the question of

costs and expenses.

74. Neither the Government nor the Delegate of the Commission

expressed a view.

75. As Mr De Moor presented his own case he cannot claim for the

reimbursement of fees. On the basis of the criteria laid down in its

case-law, the Court assesses the costs incurred in connection with the

proceedings conducted before the Conseil d'Etat and the Convention

institutions at 40,000 FB.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the Government's preliminary objections;

2. Holds that Article 6 para. 1 (art. 6-1) is applicable in this

case and that there has been a violation of that provision;

3. Holds that the respondent State is to pay the applicant,

within three months, 400,000 (four hundred thousand) Belgian

francs for non-pecuniary damage and 40,000 (forty thousand)

Belgian francs for costs and expenses;

4. Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 23 June 1994.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Acting Registrar