The Advocate General’s Role Reviewed Again in the European Court of Human Rights. The Case of Venet vs Belgium

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In Venet vs. Belgium, the European Court of Human Rights has once again declared a breach of the Convention as a result of the role played by the Advocate General in a national procedure. This is not the first time that the Advocate General of the Belgian Cour de Cassation comes under scrutiny in Strasbourg, but it adds further doubts in a long array of negative judgments putting pressure on the role played by this relevant legal officer in France, Belgium, the Netherlands and, most notably, the EU’s Court of Justice in Luxembourg.

In Venet vs. Belgium (French available only, but English press release published here), the applicant was absent from the Cour de Cassation’s hearing and therefore was unaware of the oral submissions of the Advocate General, which were presented orally in the course of that hearing. Mr. Venet was not present because he was summoned the day before of the hearing in the evening, without means to communicate with his lawyer. Mr. Venet was at that time a detainee awaiting sentence in the Saint-Gilles Prison.

The European Court of Human Rights ruled that Belgium breached Article 5 ECHR as a result of the insufficient anticipation of the arrangements of the hearing and, thus, Mr. Venet’s inability to be present. However, the violation results from the fact that Mr. Venet could not reply to the Advocate General’s submissions. That was the crux of the matter. The judgment takes note of the reasons why Mr. Venet was not present at the hearing, but the circumstance that triggers the violation is the applicant’s inability to react to the Advocate General’s submissions in the course of the hearing.

The judgment reviews the role of the Advocate General in the Belgian Cour de Cassation and highlights that it is not a party to the proceedings. However, the adversarial principle requires the parties to have a 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 comes from an independent legal officer. In line with prior case-law, the judgment states that the Advocate General’s submissions are an essential part of the proceedings and need to be subject to observations from the parties. As a result, Mr Venet was deprived of his right to react to the submissions and this amounted to a breach of Article 5 ECHR.

Venet vs. Belgium is not a landmark decision, for it basically reinstates a prior position of the European Court of Human Rights, but it proves that the role of Advocates General is still a contentious issue in the countries in which they exist. In the EU’s Court of Justice, the matter was raised in the Emesa Sugar Order, in which a thorough analysis of the role of the Advocate General was undertaken, to conclude that this legal officer acts in accordance with the standards of Article 6 ECHR. However, the growing pressure coming from Strasbourg in multiple cases concerning the role of the Advocate General in national jurisdictions, and the rising number of criminal cases reaching Luxembourg, including preliminary references under the urgent procedure (where a party can be under arrest in the context of criminal proceedings, and utmost attention must be paid to procedural guarantees), may prove to be a more challenging burden in future days ahead.

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