Late notification of hearing date: applicant was unable to reply to opinion of advocate-general at Court of Cassation


Αn important decision on the right of the arrested or detained person to a speedy decision on the lawfulness of detention has issued on 22.10.2019 the European Court of Human Rights. According to Article 5(4) οf the European Convention of Human Rights, “everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”. Systematically the above provision is subject to the more general right to liberty and security (Article 5)
In ECHR’s Chamber judgment in the case of Venet v. Belgium (application no. 27703/16) the Court held, unanimously, that there had been a violation of Article 5 § 4 of the European Convention on Human Rights. The case concerned proceedings in which the Applicant unsuccessfully challenged his pre-trial detention. He complained that he had been unable to attend the Court of Cassation’s hearing on his appeal against his pre-trial detention or to respond to the submissions of the advocate-general, as he had not been given sufficient advance notice.
The Court found in particular that the Applicant and his lawyer had not been informed within a reasonable time about the scheduling of the hearing before the Court of Cassation. They had thus been unable to listen to or reply to the advocate-general’s oral submissions.
The Court noted that in Belgium the advocate-general at the Court of Cassation was not a party to the proceedings. His main task was to assist the Court of Cassation and to ensure the consistency of its case-law. However, where his opinion was intended to advise and influence the Court of Cassation, the adversarial principle had to be respected and this meant that the parties had the right to be informed of and to discuss any document or observation presented to the court for the purpose of influencing its decision, even if it came from an independent legal officer, in this case the advocate-general at the Belgian Court of Cassation.
In the present case, on account of his absence from the Court of Cassation’s hearing, the Applicant had not been made aware of the oral submissions of the advocate-general at the Court of Cassation. The question arising was thus whether it could be considered that the Applicant or his counsel had been informed within a reasonable time of the scheduling of the Court of Cassation’s hearing of 10 November 2015.
The right to adversarial proceedings necessarily entitled the detainee and his lawyer to be notified of the hearing within a reasonable time, without which the right would be devoid of substance. The parties were in agreement that a fax indicating the date and time of the hearing had been sent by the registry of the Court of Cassation to Saint-Gilles Prison on Friday 6 November. The prison staff did not acknowledge receipt of the fax until Monday 9 November, the day before the hearing, then forwarding it to the Applicant at a time that was not established.
The Government had not disputed the applicant’s allegation that his lawyer had only been notified of the hearing after it had taken place, on 10 November. Belgian law provided that a detainee and his lawyer had the right to attend a hearing of the Court of Cassation. However, the law did not provide for any deadline by which the parties had to be notified of the hearing time in cases heard urgently by the Court of Cassation. Nevertheless, the notice stated that the Applicant had to indicate at least 48 hours before the hearing whether he intended to be present. Even though it had not been established precisely at what time the Applicant had received the notification during the day of 9 November, it had been impossible for him, in any event, to express his intention by the deadline given in the notice. As to his lawyer, it had not been shown that the Applicant could still have informed him before the hearing began.
Consequently, the Court took the view that the detainee  and his lawyer had not been informed within a reasonable time about the scheduling of the hearing before the Court of Cassation. They had thus been unable to listen to or reply to the advocate-general’s oral submissions. Accordingly there had been a violation of Article 5 § 4 of the Convention.
Finally, ECHR held that the finding of a violation constituted sufficient just satisfaction for the non-pecuniary damage sustained.
The full text of decision here (in French)

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Editorial

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George Kazoleas, Lawyer

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