APPLICATION/REQUÊTE N" 14505/89 Walter and Karel BYTTEBIER v/BELGIUM Walter et Karel BYTTEBIER c/BELGIQUE DECISION of 12 January 1991 on the admissibility of the application DÉCISION du I2janvier 1991 sur la recevabilité de la requête Article 6, paragraph 1 of the Convention . The conformity of a trial with the requirements of Article 6 para. 1 must be assessed on the basis of the trial as a whole. However, a particular incident may assume such importance as to constitute a decisivefactor in the general appraisal of the trial as a whole The fact that a court martial has regard to an investigation carried out prior to the Convention entering into force, in which the auditeur militaire successively exercised investigation and prosecution functions, does not in this case infringe the right to a fair trial, since the original conviction was quashed and the applicant was subsequently able to challenge in adversarial proceedings all the evidence, including that gathered during the investigation. Article 6, paragraphe 1, de la Convention : La conformité d'un procès pénal aux Summary of the relevant facts The first applicant, a Belgian national, was born in 1925 The second applicant, also a Belgian national, was born in 193L In a judgment dated 23 September 1946 the Ghent Court Martial sentenced the applicants' fathers to death for political and economic collaboration with the enemy during the Second World War The prosecutor in those proceedings was the deputy 204 "auditeur militaire" Mr L , who had also taken part m the investigation, as chairman of the board of inquiry On 7 October 1949 the Courts-Martial Appeal Court upheld the above judgment and also ordered the payment to the Belgian State, as civil party in the proceedings of compensation in the sum of 200 million Belgian francs in respect of the damage caused by the activity of the applicants' fathers It also ordered the forfeiture to the Treasury of a sum of 50 million Belgian francs, representing the amount gained from collaboration with the enemy On 30 September 1980, m connection with an application for a retrial lodged by the applicants'fathers, the Court of Cassation quashed those parts of the judgment of 7 October 1949 which found the defendants guilty of economic collaboration and ordered them to satisfy the claims of the civil parly, t e the Belgian State The remainder of the application was declared inadmissible Having been limited to the above issues the case was sent back to the Courts-Martial Appeal Court On 17 June 1982 the Courts-Martial Appeal Court found the charge oj economic collaboration proved. It did not pronounce a new sentence because a single sentence had already been pronounced for the political collaboration offences and the other offences of which the defendants had been found guilty, m respect of which their application for a retrial had been declared inadmissible The court ordered the forfeiture to the Treasury of a sum of 30 million Belgian francs, representing the amount gained from economic collaboration with the enemy With regard to the civil party's claim the court ordered the payment of compensation m the sum of 200 million Belgian francs in respect of the damage caused by this activity The applicants' fathers appealed to the Court of Cassation against the above judgment The first applicant's father died on 26 August 1983 On 6 March 1984 the Court of Cassation decided that the appeal had become devoid of purpose with regard to the proceedings agamst the first applicant's father With regard to the proceedings against the second applicant's father and the decisions concerning the claims of the civd party, the Court of Cassation set aside the judgment The case was sent back to the Courts-Martial Appeal Court differently composed The Courts-Martial Appeal Court gave judgment on 5 November 1986 It held that the second applicant's father was guilty of economic collaboration It also noted that the criminal proceedings against the first applicant's father had lapsed It declared the forfeiture to the Treasury of a sum of 30 million Belgian francs, representing the amount gained from economic collaboration with the enemy, pursuant to 205 Article 123 ter of the Criminal Code With regard to the civil party's claim the court ordered the payment of 200 million Belgian francs in compensation to the Belgian State In a judgment dated 21 June 1988 the Court of Cassation dismissed the appeal lodged by the first applicant and the second applicant s father In particular it rejected the submissions based on Articles 5 ~~~~~ I 7 para 1 and 14 of the Convention The second applicant s father died on 30 September 1988 (TRANSLATION) THE LAW (Extract) With regard to the application of Article 25 of the Convention, the Commission first observes that the question may arise whether the applicants, particularly the second applicant, can claim to be victims, within the meaning of that Article, of the alleged violations of the Convention However, the Commission considers that it is not necessary to consider this question, as the application must be rejected as manifestly ill-founded I The applicants complain that the same deputy "auditeur militaire" acted as both investigator and prosecutor in 1946-47 They maintain that the judgment of the Courts-Martial Appeal Court dated 5 November 1986 consequently infnnged the nght guaranteed by Article 6 paras 1 and 2 of the Convention, since the above court based its judgment on the investigation of the case conducted m 1946 47 Article 6 para 1 of the Convention guarantees the right of everyone to a fair heanng, while paragraph 2 of that Article requires everyone charged with a cnminal offence to be presumed innocent until proved guilty according to law The Commission recalls that in its judgment in the Pauwels case (Eur Court H R, judgment of 26 May 1988, Senes A no 135, pp 18 19, para 38) the Court held that when a deputy "auditeur militaire" chaired a board of inquiry even though there was a possibility that m the same case he would later have to prosecute the same defendant (and actually did so), there had been a violation of Article 5 para 3 of the Convention, which guarantees the nght of everyone 206 arrested or detained to be "brought... before a judge or other officer authorised by law to exercise judicial power". The Court ruled that in those circumstances the deputy in question, when chairing the board of inquiry, did not afford the guarantees of impartiality inherent in the concept of "officer authorised by law to exercise judicial power", on the ground that he was likely to have to act as prosecuting authority (and did indeed so act) at a later stage and thus become one of the parties. In that case the Court's ruling concerned the qualities required of a judicial officer when determining the lawfulness of a deprivation of liberty, a matter governed by Article 5 para. 3 of the Convention. In the present case the Commission notes that the same deputy "auditeur militaire" acted as investigator and prosecutor. However, that fact lies outside the scope of the Commission's competence ratione temporis, since the events in question took place in 1946-47, at a time when the Convention had not yet come into being and was accordingly not yet applicable. Consequently, the question which arises in this case is whether the fact that the Courts-Martial Appeal Court had regard, in reaching its judgment of 5 November 1986, to the investigation of the case conducted in 1946-47 could have prejudiced the applicants' rights under Article 6 of the Convention, given that the deputy "auditeur militaire" L. had taken part in that investigation and had acted as prosecutor during the proceedings which closed with the court martial's decision of 23 September 1946. The Commission refers to its constant case-law (see, in particular. No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127) to the effect that the conformity of a trial with the requirements of Article 6 of the Convention must be assessed on the basis of the trial as a whole, except where a particular incident or aspect assumes such importance as to constitute a decisive factor in the general appraisal of the trial as a whole. However, it is important to note that, even then, it is on the basis of the trial as a whole that the decision whether there has been a fair heanng must be taken. The Commission first recalls that in a judgment dated 30 September 1980 the Court of Cassation quashed the judgment of 7 October 1949, given on appeal against the decision of 23 September 1946, which concerned the charge of economic collaboration with the enemy. The examination of the merits of the case conducted between 1946 and 1949 was thus declared null and void with regard to that charge. Similarly, in its judgment of 6 March 1984, the Court of Cassation quashed the judgment of 17 June 1982, thus declaring the previous proceedings null and void. 207 The Commission further observes that in the circumstances of this case the information and evidence gathered during the investigation which took place in 1946-47 were open to challenge by either party dunng the proceedings which ended with the judgment of the Courts-Martial Appeal Court dated 5 November 1986. During those proceedings vanous evidence, including that of witnesses for the defence, was adduced and taken into consideration. On that occasion the applicants - or their fathers - had the opportunity to challenge the validity of the information or evidence the Courts-Martial Appeal Court was required to assess, including any gathered by or at the instigation of the deputy "auditeur militaire" L. In the light of these circumstances, the Commission considers that the Courts-Martial Appeal Court cannot be criticised for having regard to the evidence gathered during the investigation in 1946-47. The Commission thus reaches the conclusion that the case of the applicants - or their fathers - was given a fair hearing. Equally, it can find no appearance of a violation of the presumption of innocence required by Article 6 para 2 of the Convention It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention. 208