APPLICATION/REQUÊTE N" 12458/86 Raphaël VERSTEELE v/BELGIUM Raphaël VERSTEELE c/BELGIQUE DECISION of 18 January 1989 on the admissibility of the application DÉCISION du 18 janvier 1989 sur la recevabilité de la requèt e Article 6, paragraph 1 of the Convention : n) The right m continue tri exercise the profession of lawyer i.x a civil right , b) When n dispute over civil rights and obligations bas been suecessively examined by different organs . Article 6 para. 1 dues flot demand that thefirsi of these satisfv the reyuirentents of duit provision. r) 77u- composition of the Disciplinary Appeals Boards of Belgiem Bar Associations (finir lauyers sitting in their personal capacity and a judge who pre.sides) dots ooi Taise any doubt as Io their independence and impaniality . d) The fact that the Disciplinary Appeals Board of a Belgian Bar Association, eorrsidered in this case to be independent and impartial, confions (fier a fresh examination of the case the tensons given by the body de<iding al ftrst instance, dues flot violine the guarantees of independence and impartiality . (TRANSLATION) THE FACTS The facts of the case, as submitted by the parties, may be summariscd as follows. Thc applicant, Raphaël Versteele, born in 1926, is a doctor of law and lives in De Panne. On 15 September 1950, he took an oath and was registered on the list of trainees of the Fumes Bar . During his professional cancer, he was President of the Bar, substitute judge, burgomaster and senalor . On 13 September 1984, the Furnes Bar Council decided, in absenria, to impose a disciplinary sanction hy striking him off the roll . The Bar Council considered that following his conviction hy the Ghent Court of Appeul for corruption, forgery of documents and interferenee in matters ouiside his remit, the applicant no longer enjoyed the moral standing required to perform the profession of lawyer and to maintain the dignity, probity and scrupulousness of that profession. 120 The manier had becs refcrred tu the Bar Council hy Mr . La., acting as President of the Bar . The decision mentioned above was taken . on the basis of a report hy Mr. La., by the Bar Council, composed of the following lawyers : Le., then President of the Bar and chairman of the Bar Council, A ., Secretary, La ., Lo . and G.. members . Following an appeal hy the applicant, the latter uns summoned by Le ., the President of the Bar, before the Bar Council which . siuing with the sanie members as betore, once again ordered that lie be struck oit in a decision dated 14 Noveniber 1984, on the hasis of a report by La . The reasons given by the Bar Council for the ,sanction were that tirs offenses had been perpetrated persislently and intcntionally and Chat the applicant had moreover abused iris position as a lawyer to facilitate their perpetralion and conceal thent . The Council also claimed that il had acted objectively and with eyuanintily as is required in disciplinary proceedings . The applicant appealed against this decision to the Disciplinary Appeals Board, which on 19 June 1985 upheld the decision ai issue . The Disciplinary Appeals Board was composed, as stipulated in the Judicial Code, of four lawyers Iwo of whom belonged to the sanie Bar as the applicant, and chaired by the President of the Ghent Court ol Appcal . A member of the Public Prosecmor's Office ai the Court of Appea ; actcd as prosecutor . The Disciplinary Appeals Board considered Chat rentier the tact that the President of the Bar who had referred the malter to the Bar Council then sat on that Council nor the composition of the Disciplinary Appeals Board could fend to the conclusion that ihere had been a breach of Article 6 para . 1 of the Convention . The applicant appealed to the Court of Cassation, alleging a violation of Article 6 para . I of the Convention on accourir of the fart that bis being summoned hetore the Bar Council by an tuf hoc Presidem of the Bar casa jusiifiable douht on the impartiality and independence ni the disciplinary proccedings . The Court of Cassation nevertheless considered Chat since the decision of 13 September 1984 had been modifted by the Bar Council on 14 November 1984 following the applicant's appeal, it only had no examine this latter decision in which La ., the acting President of the Bar who had brought the applicant before the Bar Council, was no longer serving as President of the Bar . Il also considered lhat Article 6 para . I did no( apply in those who ordered the sommons . The applicant had also claimed that the composition of the Disciplinary Appeals Board was in breach of Article 6 para . I of the Convention . The Court of Cassation decided that it could not bc concluded that therc had heen a breach of Article 6 para . I of the Convention from the sole circuntsmnce that a court was made up of nimber., cxercising the sanie profession as the accused . For these reasons, the Court of Cassation dismissed the appl icant's appeals in a decision dated 21 March 1986 . il] COMPLAINTS The applicant alleges Chai rentier the Furnes Bar Council nor the Disciplinary Board in the judicial district of the Ghem Court of Appeal, which imposed the disciplinary sanction, can be regarded as independent and impartial tribunats, particularly on account of their composition and the conduct of the proceedings before these bodies . 1 . The applicant complains first of all of being struck off by courts that do net ment the name "tribunal" within the meaning of Article 6 para . 1, on accourt of their composition, the duration of their members' term of office and their fonctions . With regard to the composition of the Furnes Bar Council, the applicant observes that this Council is composed exclusively of lawyers from the saine Bar and that it is renewed every judicial year. The applicant adds that the Furnes Bar consists of only 30 or so lawyers and thai , particularly in such a small Bar, lawyers with interests conflicting with those of the applicant must bc regarded as unfavnurable to him. The applicant notes that the lawyer who instigated the proceedings and took pan in the decision as a member-rapporteur was a politician helonging to a political party other Chan his own and that, among the Cive lawyers who sat on the Bar Council, three had donc their training wilh him . With regard to the composition of the Disciplinary Appeals Board, the applicant maintains that a body composed of four lawyers performing their duties for one year and a judgc without a casting vote cannot be said to fulfil the criteria of independence and impartiality laid down in Article 6 para . 1 of the Convention . 2. The applicant then alleges that the conduct of the proceedings before the disciplinary organs of the Bar Association did not comply with the reyuirement of impartiality guaranteed by Article 6 of the Convention . With regard to the proceedings before the Bar Council, the applicant maintains that placing the fonctions of investigation, prosecution and judgment in the hands of a single person cannot be reconciled with the criterion of impartiality . He complains that the Bar Council deals with disciplinary matters brought hy the President of the Bar, who thon sils on the body handling the malter as chairman of the Bar Council . The applicant adds that in the particular circumstances of his case, the rapporteur, who also sat and voted as part of the Bar Council, had acted as ad hoc President of the Bar in summoning him on the occasion of the first decision . Concerning the procedure followed hy the Disciplinary Appeals Board, the applicant daims Chat the Board did not redress the breach rince it agreed with the reasons given by the Bar Council . The applicant maintains chat by adopting th e 122 reasons given by the first judge for its own decision (I), the Disciplinary Appeals Board also adopted the grounds of nullity of the firsi judgment. THE LAW The applicant bas made two complainte on the basis of Article 6 para . 1 of the Convention relating to the proceedings brought against him before the organs of the Bar Association which led to his being struck off the roll of Chat association . Article 6 of the Convention entitles everyone, in the determination of his civil rights and obligations, to have his case heard by an independent and impartial tribunal . The applicant complains firstly that his case was not heard by an "independent" and "impartial" tribunal . With regard to the Bar Council, he claims that il was composed exclusively of lawyers front the saure Bar and that il was renewed every judicial year . He adds that given the small size of the Furnes Bar, the members of the Council, given that their interests conflicted with his, should be regarded as being unfavourable to him. He aise, maintains that one of the members was a political adversary and that three others had completed their legal training under him . As far as the Disciplinary Appeals Board is concerned, he points out that il was made up of four lawyers and a single judge. In addition, the applicant claims that the conduct of the proceedings before these bodies did not respect the requirement of impartiality . He notes that within the Bar Council, one member was responsable both for the prosecution and the judgment . Moreover, the Disciplinary Appeals Board also lacked independence and impartiality rince il adopted the reasons given for the Bar Council's decision as the reasons for ils own decision . The Commission is required to decide first of ail on the applicability of Article 6 para . 1 of the Convention to this case . As to whether the dispute ("contestation") before the disciplinary bodies concerned a civil right, the Commission refers to the case H . v. Belgium (Fur. Court H.R., H. judgment of 30 November 1987, Series A no . 127-B), in which the Court found, after examining the various aspects of the profession of lawyer in Belgium, that these aspects conferred a civil character within the meaning of Article 6 para. 1 of the Convention, on the right to request reinstatement on the roll, and tha t (q 15e Disciplinary Appeals Board gave the following tensons for as decision -Op oordeelkundige gronden . die de Tuchtraad van beroep volledig bijtreedt, heeft de Raad van de Onde van adn,nt,n te ventre tcrccht bcdist dat Iveru,ekerl diende geschrapt te worden van hct tableau " . (' The Furnes Bar Council was correct in deeiding . for renons with which the Disciplinary Appeals Board agrees entirely, chat Ithe applicantl shoold bc struck off the roll") 123 il should therefore be applied in the case of an application for reinsiatement . Such a finding applies, u fortiori, to the right tu continue to exercise the profession of lawyer. Given that the dispute ("contestation") over the decisions taken in respect of the applicant concerned a "civil right", the applicant was entitled to have his case examined by "a tribunal" conforming to the conditions laid down in Article 6 para . I . 1 . The Commission is therefore required to examine the applicant's first complaint relating to Article 6 para . 1 of the Convention . namely whether his case was heard by an "independent and impartial" tribunal, within the meaning of Article 6 para . I . This complaira is hased on the tact that Bar Councils are composed exclusively of lawyers and Disciplinary Appeals Board are made up of four lawyers and a single judge. The applicant belicvcs he may conclude, in the light of the European Court's case-law, and in par(icular the Le Compte, Van Leuven and de Meyere judgment of 23 June 1981 (Eur . Court H .R ., Series A no . 43, para. 58) Chat the Bar Councils do not fulfil the conditions of independence and impartiality required by Article 6 para . 1 . The Commission notes that the applicant's allegation relating to the lack of independence and impartiality of the Bar Association's organs . in particular ils Appeals Board, is similar te that made in cases which gave rise to two judgments of the European Court of Hainan Rights , namely the judgment of 23 lune 1981 in the Le Compte, Van Leuven and De Meyere case (Scries A no. 43) and the judgment of 10 February 1983 in the Albert and Le Compte case (Series A no . 58) . a. The Commission recalls that in the Le Compte, Van Leuven and De Meyere case, the Court (para . 51 (a)) considcred that "whilst Article 6 para . I embodies the 'right tu a court', il nevertheless dues not oblige the Contracting States to submit 'conteslutions' (disputes) over 'civil rights and obligations' to a procedure conducted at each of ils stages before 'tribunals' meeting the Article's varions requirements . Demands of flexibility and effciency, which are fully compatible with the protection of humas rights, may justify the prior intervention of administrative or professional bodies and, a fortiori, of judicial bodies which do not satisfy the laid requirements in every respect ; the legal tradition of many member States of the Council of Europe may be invoked in support of such a system" . The Commission therefore considers that in Ibis case, only the proceedings belote the Disciplinary Appeals Board recuire to lie examined . b. The Commission also recalls that in this Le Compte , Van Leuven and De Meyere judgment of 23 June 1983 . the Court declared that there can lie tic) doubt as tu the independence of the Appeals Council , adding that "if is composed of exactly the sanie number of medical practitioners and members of the judiciary and one of 124 the latter, dcsignated by the Crown, always acts as Chairman and bas a casting vote . Besides, the dotation of a Council's member's terni of office (six years) provides a further guarantee in this respect ... As far as the "impartiality" of the Appeals Board is concerned, the Court considered that "the presence . . . of judges making up half the membership, including the Chairman with a casting vote (. . .), provides a definite assurance of impartiality and the method of election of the medical members cannot suffice to bear out a charge of bias" . However, as the Government stress, the Court does not demand, in the case of Appeals Councils of the Medical Association, that there be the saure number of doctors and judges, since doctors do not sit in their capacity as representatives of the Medical Association but in a personal capacity, in the saure way as the judges, whose presence is regarded as an additional guarantee . The Commission refers in this respect Io its decision in the Nystrdm case (No . 11504/85, Dec . 7 .11 .88, D.R. 58 p . 48) . The saure reasoning may be applied to the composition of Disciplinary Appeals Board of the Bar Association, as in the prescrit case . Adopting a similar reasoning in ibis case, the Commission stresses that there is nothing in the case-file that mightjustify the conclusion that the imbalance between the number of judges and lawyers could have made the Appeals Board biased, in breach of the requirements of Article 6 para . 1 . The Commission notes that indeed the lawyers do not sit on the Disciplinary Appeals Board as representatives of the Bar Association but in a personal capacity . In addition, there is no provision of Belgian law that allows the Bar Association to inter-verre before the Disciplinary Appeals Board. It is in tact the public prosecutor ai the Court of Appeal who conducts the prosecution on appeal . The Bar Association which, through its body, took the decision ai first instance on the disciplinary action is no longer responsible for the matter and can neither defend nor challenge the decision referred to the Disciplinary Appeals Board . The Commission also points out thai under Article 473 of the Judicial Code (in fine), the "members of the Bar Council who took the decision against which an appeal has been lodged may not deal with the malter on appeal" . Lastly, the Commission notes chat in this case the Appeals Board's °margin of appreciation" was restricted on accourir of the decision of the Ghent Court of Appeal which had decided that the offences of which the applicant was accused had been established. Given these findings, the Commission considers that the impartial character of the Disciplinary Appeals Board of the Bar Association cannot be doubted . 2. The applicant also alleges chat the proceedings conducted by the Bar Association's disciplinary bodies interfered with the principle of the examination of his case by an independent and impartial tribunal within the meaning of Article 6 of the Convention . He points out that within the Bar Council, one member had been responsibl e 125 for both the prosecution and the judgment . He then maintains tinta the Disciplinary Appeals Board lacked independence and impa rtiality since il adopted the grounds of the Bar Council's decision as the reasons for its own decision . a . The Commission recalls chat in accordante with point (a) of the first reason, il considers chat il can limit ils examination to the proceedings belote the Disciplinary Appeals Board . b. The Commission considers that the Disciplinary Appeals Board cannot be reproached for having based the reasons for its decision on the reasons adopted by the Bar Council, if, naturally, the Disciplinary Appeals Board itself offers the necessary guarantees of independenee and impartiality and chat the case is given a fair hearing, which was indeed the case . The Commission observes chat the Disciplinary Appeals Board took a decision on ail the points raised before if by the applicant and that, even if if adopted the argument used by the Bar Council to justify its decision tu scribe off the applicant, il emerges from the facts and from the sentence delivered on 19 June 1985 that the Disciplinary Appeals Board conducted, independently, a fresh examination of the case referred to il . The Commission notes also chat the adoption or confirmation by an appeal court of the reasons given by the court ai first instance constitutes a pradice - a purely fechnical one - in use both in domestic law and international law . Under there conditions . the Commission considers chat the tact that the Disciplinary Appeals Board based the reasons for ils decision on the reasons given by the Bar Council is not an infringement of the guarantees of independence and imparlialily provided for by Article 6 of the Convention . In the light of the foregoing, the Commission therefore reaches the conclusion that in the circumstances of the case there was no violation of Article 6 para. 1 of the Convention . Il follows chat the application is manifestly ill-founded and must be rejected, in accordance with Article 27 para . 2 of the Convention. For there reasons, the Commission , DECLARES THE APPLICATION INADMISSIBLE . 126