DE CUBBER v. BELGIUM JUGDMENT
14
law of the respondent State not as civil or criminal but as disciplinary
(Series A no. 43, p. 9, para. 11) or administrative (Series A no. 73, pp. 1014, paras. 17-33); these judgments related to bodies which, within the
national system, were not regarded as courts of the classic kind, for the
reason that they were not integrated within the standard judicial machinery
of the country. The Court would not have held Article 6 para. 1 (art. 6-1)
applicable had it not been for the "autonomy" of the concepts of "civil rights
and obligations" and "criminal charge". In the present case, on the other
hand, what was involved was a trial which not only the Convention but also
Belgian law classified as criminal; the Oudenaarde criminal court was
neither an administrative or professional authority, nor a jurisdictional organ
of a professional association (see the above-mentioned judgments, Series A
no. 43, p. 23, para. 51, Series A no. 58, p. 16, para. 29, and Series A no. 73,
pp. 21-22, para. 56), but a proper court in both the formal and the
substantive meaning of the term (Decisions and Reports, no. 15, p. 78,
paras. 59-60, and p. 87: opinion of the Commission and decision of the
Committee of Ministers on application no. 7360/76, Zand v. Austria). The
reasoning adopted in the three above-mentioned judgments, to which should
be added the Campbell and Fell judgment of 28 June 1984 (Series A no. 80,
pp. 34-39, paras. 67-73 and 76), cannot justify reducing the requirements of
Article 6 para. 1 (art. 6-1) in its traditional and natural sphere of application.
A restrictive interpretation of this kind would not be consonant with the
object and purpose of Article 6 para. 1 (art. 6-1) (see paragraph 30 in fine
above).
33. At the hearings, the Commission’s Delegate and the applicant’s
lawyer raised a further question, concerning not the applicability of Article
6 para. 1 (art. 6-1) but rather its application to the particular facts: had not
"the subsequent intervention" of the Ghent Court of Appeal "made good the
wrong" or "purged" the first-instance proceedings of the "defect" that
vitiated them?
The Court considers it appropriate to answer this point although the
Government themselves did not raise the issue in such terms.
The possibility certainly exists that a higher or the highest court might, in
some circumstances, make reparation for an initial violation of one of the
Convention’s provisions: this is precisely the reason for the existence of the
rule of exhaustion of domestic remedies, contained in Article 26 (art. 26)
(see the Guzzardi and the Van Oosterwijck judgments of 6 November 1980,
Series A no. 39, p. 27, para. 72, and Series A no. 40, p. 17, para. 34). Thus,
the Adolf judgment of 26 March 1982 noted that the Austrian Supreme
Court had "cleared ... of any finding of guilt" an applicant in respect of
whom a District Court had not respected the principle of presumption of
innocence laid down by Article 6 para. 2 (art. 6-2) (Series A no. 49, pp. 1719, paras. 38-41).