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The Court of Cassation (Dutch: Hof van Cassatie, French: Cour de cassation, German: Kassationshof) is the main
court of last resort in Belgium. It was originally modelled after the
French Cour de cassation. Its
jurisdiction and powers are similar to those of its French
counterpart.
Jean-Louis van Dievoet (1777-1854), who was the first Secretary of
the Court of Cassation of Belgium, after the independence.
To maintain readability: Dutch will be abbreviated as D,
French as F.
Organisation
The court comprises three chambers with 16 judges. Each chamber
in turn has a Dutch and a French division. Each chamber has a chief
judge, called the President, and two heads of division, one for
each language group. The entire court is headed by a chief judge
called the First President.
The parket generaal (D) or parquet général (F)
is headed by the Chief Prosecutor (D: procureur-generaal,
F: procureur général). The Prosecutor is a magistrate, but
does not actually try cases (his role is to give legal advice to
the Court, in a similar manner to the Commissioner of the
Government of Council of State (D:
Raad van State, F: Conseil d'État). He brings
cases to the Court "in the name of the law." The Chief Prosecutor
is aided by the First Prosecutor (first advocat-general)
and about 12 Prosecutors (D: advocaten-generaal, F:
avocats généraux).
Bar
The lawyers, while
not employees of the Court and not technically part of it, play an
important role in the correct application of justice.
With the exception of a few categories of litigation (namely in
penal cases), it is compulsory to use an advocate when referring
matters to the Court of Cassation. Lawyers admitted to
pleading before this high court are known as advocaat bij het
Hof van Cassatie (D) or avocat à la Cour de Cassation
(F). Admission to this bar is particularly difficult, with special
classes and a hard exam. The roles of these specialized lawyers
includes advising litigants on whether their pleas are admissible,
particularly that cassation cases only review points of
law and not points of fact.
Jurisdiction
- Appeal to the Court of Cassation is only possible against
judgements against which no ordinary appeal is possible anymore.
This will happen when all normal appeal procedures have been
followed, usually before the Courts of Appeal or the Courts of Labour. The Court
of Cassation can only confirm these judgements, or annul them
("cassation", from the French "casser", to break). It
can not examine the case and make a new judgement. The court can
annul the entire judgement, or just part of it (D:
gedeeltelijke cassatie, F: cassation partielle).
If the court annuls a judgement, the case is remitted to a court at
the same level as the one which judgement was overturned. The
decision of the Court of Cassation is not (yet) binding, however
(article 6 of the Judiciary Code [D Gerechtelijk Wetboek / F Code
judiciaire]). The new court may decide the case as it pleases (but
the decision of the Court of Cassation has a persuasive value). The
decision of the new court may again be appealed to the Court of
Cassation. In this case, if the earlier decision of the Court of
Cassation is confirmed, the case is brought before a third court at
the same level as the one which judgement was overturned, but this
time the decision of the Court of Cassation is binding on points of
law.
- In some cases, it is unclear whether a case should be heard
before administrative
courts or judiciary courts. In these conflicts of attribution,
the Court of Cassation can be asked to decide who has
jurisdiction.
- The Court of Cassation also acts as venue of appeal for
jurisdictional judgements of the Court of Audit of Belgium.
The Court of Audit decides by administrative ruling whether the
accounts of accounting officers answerable to the Treasury are in
balance, whether the balance is in their favour or in the State's
favour. If the ruling shows a deficit the officer after a public
procedure the Court of Audit either exonarates the accounting
officer or condemns him to make good that amount or part of it. The
ruling can be appealed to the Court of Cassation. If the judgement
is vacated, the case is referred to an appropriate "ad hoc"
committee, made up of members of the Belgian Chamber of
Representatives who judge the case without the possibility of
any subsequent appeal.
See also
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