Late notification of hearing date: applicant was unable to reply to opinion of advocate-general at Court of Cassation. Violation of the ECHR
JUDGMENT
Venet v. Belgium 22.10.2019 (no. 27703/16)
SUMMARY
The case concerned proceedings in which Mr Venet 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 Mr Venet 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. The Court also reiterated that the right to
adversarial proceedings necessarily entitled the detainee and his lawyer to be informed within a
reasonable time about the scheduling of the hearing, without which the right would be devoid of
substance.
PROVISION
Article 5§4
PRINCIPAL FACTS
The applicant, Lionel Venet, is a Belgian national who was born in 1979 and lives in Uccle (Belgium).
In 2015 Mr Venet was charged with unlawful possession of drugs and remanded in custody at
Saint-Gilles prison. He challenged the lawfulness of the detention order but the Pre-Trial Division
confirmed the measure. The decision was subsequently upheld by the Indictments Division of the
Court of Appeal.
Mr Venet appealed on points of law. The hearing before the Court of Cassation took place on
10 November 2015 at 9.30 a.m., in the absence of both Mr Venet and his lawyer. They claimed to
have been informed too late: that Mr Venet had received the notice late on 9 November and his
lawyer on 10 November 2015 around noon. That same day the Court of Cassation dismissed the
appeal.
Mr Venet subsequently complained, unsuccessfully, before the national courts, that he had been
unable to attend the hearing of the Court of Cassation on 10 November 2015 because of the late
notification of the hearing date. He alleged that his detention was incompatible with Article 5 of the
Convention.
He was released in 2016 on grounds that have not been established.
THE DECISION OF THE COURT…
Article 5 § 4 (right to a speedy decision on the lawfulness of detention)
The Court emphasised that proceedings concerning an appeal against a measure of detention or its
extension had to be adversarial and to guarantee an equality of arms between the parties.
The Court noted that in Belgium the advocate-general at the Court of Cassation was not a party to
the proceedings. He belonged to the public prosecutor’s office at the Court of Cassation, but unlike
the prosecutors in trial courts, he did not bring prosecutions, save in very exceptional cases. Nor did
he have the capacity of respondent in a case. His main task was to assist the Court of Cassation and
to ensure the consistency of its case-law. His intervention was strictly objective. However, where his
opinion was intended to advise and influence the Court of Cassation, the adversarial principle had to
be respected. The right to adversarial proceedings meant that the parties, in principle, 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, Mr Venet 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 Mr Venet 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 Mr Venet 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 Mr Venet 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 Mr Venet 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
Mr Venet could still have informed him before the hearing began.
Consequently, the Court took the view that Mr Venet 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.
Just satisfaction (Article 41)
The Court held that the finding of a violation constituted sufficient just satisfaction for the
non-pecuniary damage sustained.
