The applicants, five Belgian nationals, were accused of fraud and corruption connected with activities carried out by an association who carried out opinion polls and market surveys. As one of the applicants, Mr. Coëme, was a minister at that time according to Article 103 of the Constitution of Belgium, the case was tried by the Court of Cassation which was the only court with a jurisdiction to try a minister. In the absence of implementing legislation for Article 103, rules governing ordinary criminal procedure were applied only in so far as they were compatible with the provisions governing the procedure before the Court of Cassation.
The applicants submitted in the absence of any legislation to implement Article 103 of the Constitution, they had not been tried under clear and predictable procedural rules violating their right to be tried by a tribunal “established by law”.
The Court firstly reiterated that the judicial organization in a democratic society must be regulated by law adopted by the Parliament. It also noted that the organization of the judicial system cannot be left to the discretion of the judicial authorities. It was emphasized that the principle that the rules of criminal procedure must be laid down by law is a general principle of law to ensure the equality of arms.
The Court observed the primary purpose of procedural rules is to protect the defendant against any abuse of authority and it is therefore the defence which is the most likely to suffer from omissions and lack of clarity in such rules. As it was not clear which rules from the ordinary criminal procedure would apply, the parties could not foresee in what way the Court of Cassation would amend or modify the provisions governing the normal conduct of a criminal trial. Consequently, the Court ruled that the uncertainty caused by the lack of clearly established procedural rules placed the applicants at a substantial disadvantage vis-à-vis the prosecution, therefore their rights to fair trial were violated.