Brief lexicon aiming at explaining the most common written legal vocabulary used at the Court of cassation and by the public prosecutor’s office.
This lexicon has no scientific claims, it is thence incomplete and lacks rigour. It will never replace the professional and wise advice of a lawyer or of a lawyer member of the bar of cassation. The lexicon solely tries to express in layman terms words which are used by legal professionals. Its only merit is to exist.
APPEAL IN CASSATION (FLAT REFUSAL OPPOSED TO AN)
It is the exception opposed, by the defendant or the public prosecutor’s office, to an appeal for cassation in order to have this appeal declared inadmissible by the Court. See below inadmissible appeal.
Judgment made by the trial judge and subject of the appeal before the Court of cassation. Not to be confused with the first instance ruling which has been appealed.
When the Court is in session as a full court, meaning all chambers sit together, all judges are supposed to attend the hearing. However, the number of judges must be uneven with a minimum of 11.
GROUND FOR CASSATION
The ground for cassation is the legal claim directed against the attacked judgment ; it is the indication of what, in the judgment or in the procedure that preceded it, does not respect the law. Sometimes, the ground for cassation is divided in several parts. Those parts are called branches. There can be one or several grounds for cassation. In order to fully understand what we just exposed, one should note the Court of cassation is not a third degree jurisdiction as it does not look into the facts of the case but solely controls the legality of the decision and the regularity of the motivation. By examining if the challenged judgement respects the law, the Court of cassation is, in some ways, the judge of the judge.
When a judgment of the Court of cassation contains the ground(s) for cassation, it is the text as it was submitted by the plaintiff, in its original form, untouched by the Court.
GROUND FOR CASSATION (FLAT REFUSAL OPPOSED TO A)
It is the exception opposed, by the defendant or the public prosecutor’s office, to a ground for cassation to have this ground declared inadmissible by the Court. See below inadmissible ground.
GROUND FOR CASSATION EX OFFICIO
In criminal matters, the Court of cassation examines ex officio, to the benefit of the accused who has introduced an admissible appeal before the Court of cassation against a decision of the public action brought against him, whether the decision complies with the law and if everything, during the procedure, which is provided under penalty of nullity or is substantial, was respected. Any illegal element found by the Court of cassation will be raised ex officio, even if the accused has not mentioned is as a ground for cassation in his petition.
GROUND FOR CASSATION LACKING IN FACT
Lacks in facts the ground based on an incorrect reading or interpretation of the challenged decision. Therefore, this decision by the Court of cassation excludes any solution given to any question of law.
Usually, these judgments are not published by the Court.
GROUND FOR CASSATION LACKING IN LAW
Lacks in law the ground which is based on a legal statement considered by the Court of cassation as incorrect.
GROUND FOR CASSATION THAT CANNOT BE WELCOMED
This is the case whenever the ground for cassation is receivable but ill-founded, and does not lack in fact or in law. The Court examined the case, within the limit of this ground, if the trial judge correctly applied the challenged rule of law.
HEARINGS OF THE COURT OF CASSATION
During the hearing, the Court first listens to a brief report by the councillor in charge of drafting the judgement. Then, the public prosecutor’s office states its conclusions. Both parties are heard though lawyers of the Court of cassation rarely plead. The deliberations take place in the council chamber. Most of the time, the judgment is pronounced the same day.
Appeal that does not meet the necessary legal requirements. For example, in civil and social cases, the petition must be signed by a lawyer member of the bar of cassation. If this is not the case, the appeal is inadmissible.
INADMISSIBLE GROUND FOR CASSATION
Before examining the foundation of the ground for cassation, the Court of cassation must examine certain preliminary questions regarding the admissibility of the ground itself. Indeed, the Court only examines legal questions that are presented under certain conditions, clearly and based upon facts stated by the judge whose decision is challenged.
Unless all the conditions are met, the ground is declared inadmissible. Is inadmissible:
The unclear or unprecise ground;
The ground criticizing the trial judge’s appreciation of the facts ;
The ground criticizing a decision that does not concern the plaintiff;
The new ground, meaning the ground that was not presented to the trial judge which cannot be first presented to the Court of cassation.
JUDGMENTS OF THE COURT OF CASSATION
The Court of cassation shall decide by way of judgment. The latter is given by five councillors (=judges) and sometimes (whenever the decision seems clear) by 3 councillors (deciding by unanimity). A judgment may also be delivered by a full Chamber, composed of five councillors belonging to the language list corresponding to the language of the proceedings and four councillors from the other language list. In some cases, stated by the law, the case is heard before joint chambers.
Usually, the judgment is delivered the same day as the hearing and is pronounced by the presiding councillor.
Some judgments are published, in French, in the “Pasicrisie” and in dutch in “Arresten van het Hof van Cassatie”. The published judgments can be found on the website.
LAWYER AT THE COURT OF CASSATION
In civil, economic, social cases and in appeals regarding decisions made by professional orders in disciplinary cases, parties must be represented by specialized lawyers, who are judicial officers and sign the petitions for appeal and response briefs. In criminal and fiscal cases, this requirement does not have to be met.
During a plenary audience, the chamber is made of 9 members. This happens whenever the chamber knows of a case which requires both sections to be present in order to ensure the consistency in case law.
OFFICE OF LEGAL AID OF THE COURT OF CASSATION
People who cannot afford the costs of a procedure before the Court of cassation, especially in cases where a specialized lawyer from the Bar of cassation is required, can ask for legal aid by submitting a petition to the Office of legal aid. Information regarding this procedure are stated here. Petition forms are available at the registry of the Court.
REFERRAL OF THE CASE AFTER CASSATION
If the Court quashes the attacked decision and refers the case to a new trial judge, the latter is, in good standing, not required to follow the Court’s decision. However, if the case is appealed before the Court of cassation a second time for the same question of law, the Court hears the case as a full court and if the judgement is once again quashed, the third trial judge to whom the case is referred to is bound to follow the decision of the Court of cassation. On the other hand, if the second trial judge followed the Court’s decision, a new appeal is not admissible.
THE WELL-FOUNDED GROUND FOR CASSATION
The ground for cassation is founded when it leads to a full or partial quashing of the challenged decision by the Court of cassation.