Short lexicon for the benefit of the litigant, giving some explanation of the most common written legal language of the Court of Cassation and of the public prosecutor’s office at this Court.
This short lexicon is not intended to be scientific. It is therefore necessarily incomplete and lacks scientific rigour. Moreover, it will never replace the well-considered information provided by a lawyer at the Court of Cassation or a barrister. Its only objective is an attempt to make a professional jargon more accessible to a large audience. The only merit of this lexicon is that it exists
The following is therefore a concise explanation of some of the terms used in the Court’s judgments.
LAWYER AT THE COURT OF CASSATION
In civil, commercial or social cases, as well as in cases of a cassation appeal against decisions of professional bodies in the field of discipline, the parties must be represented by lawyers specialised in the technique of cassation. They are ministerial officials who sign the petitions and the statements of defence. In criminal and tax cases, representation by a member of the Bar at the Court of Cassation is not required.
EX OFFICIO PLEA
In criminal cases, the Court of Cassation examines ex officio, in the interest of the accused, the suspected or accused person who has lodged an admissible cassation appeal against the decision on the public action against him, whether that decision is in accordance with the law and whether everything that is prescribed in the legal procedure under penalty of nullity has been complied with. If the Court of Cassation finds that there is an illegality in this respect, it raises it of its own motion, that is if the plaintiff in cassation has not raised the illegality himself in a cassation appeal.
The contested decision is the decision of the court of fact against which an appeal in cassation is lodged. It should not be confused with the appealed decision rendered by the first court and against which an appeal is lodged.
LEGAL AID OFFICE
Persons who are not able to bear the costs of a cassation procedure may, in particular in cases where the assistance of a lawyer is required at the Court of Cassation, request legal aid. They may request such assistance from this office, which is presided over by a counsel at the Court of Cassation. The relevant information, in particular the requirements for incapacity to benefit from such assistance, can be found on the website (free of charge). Forms for requesting legal aid are available on the website and can also be obtained at the Registry of the Court of Cassation.
The Court of Cassation rules by issuing a judgment. It is usually delivered by five justices (= judges) and sometimes (if the solution seems obvious) by three justices. A judgment can also be delivered by a full bench, which then consists of five counsels belonging to the language role corresponding to the language of the proceedings and of four counsels belonging to the other language role. In the exceptional cases determined by law, the Court sits in united chambers.
Usually, the judgment is delivered on the same day as the hearing. It is pronounced by the magistrate presiding over the case.
Certain judgments are published, in French in the Pasicrisie and in Dutch in the “Arresten van het Hof van Cassatie”. The published judgments can be consulted on the Internet (free of charge).
Cassation appeal is a synonym for the remedy before the Court of Cassation.
APPEAL IN CASSATION (GROUND OF INADMISSIBILITY RAISED AGAINST)
A plea of inadmissibility against a cassation appeal is a plea raised by the defendant or the public prosecutor (i.e. the public prosecutor) before the Court of Cassation against the cassation appeal in order to have it declared inadmissible by the Court. See, below, inadmissible appeal in cassation.
The cassation appeal is a legal remedy directed against the contested decision. It points out what is unlawful in the contested decision or in the preceding legal proceedings. Sometimes the cassation appeal is divided into various parts. These parts are referred to as subparts. The appeal in cassation may consist of one or more grounds of appeal. For a proper understanding of the above remarks, it is important to know that the Court of Cassation is not a third instance reviewing the factual circumstances (after first instance and appeal), but that its mission is to monitor the regularity of the reasoning and the legality of the decisions submitted. By thus verifying the correctness of the contested decision, the Court of Cassation is, in a certain sense, the “judge of judges”.
If the text of the plea is included in the judgment of the Court of Cassation, this is the plaintiff’s own text, without any amendment by the Court
CASSATION APPEAL (GROUND OF INADMISSIBILITY AGAINST)
The ground of inadmissibility is the plea raised by the cassation defendant or the public prosecutor against a cassation appeal in order to have it declared inadmissible by the Court of Cassation. See below, inadmissible plea.
A cassation appeal is well founded when it is accepted by the Court of Cassation and consequently leads to the annulment or partial annulment of the contested decision.
APPEAL THAT FAILS ACCORDING TO LAW
A cassation appeal fails as a matter of law when it is based on a legal proposition that the Court of Cassation finds incorrect.
PLEA LACKING ANY FACTUAL BASIS
A cassation appeal lacks any factual basis if it is based on an incorrect reading or interpretation of the contested decision. When the Court of Cassation uses this formula, it therefore excludes any solution to any legal problem. As a rule, the judgments of the Court of Cassation that give such a response to a cassation appeal are not published on the initiative of the Court of Cassation or its public prosecutor.
PLEA THAT CANNOT BE ACCEPTED
The Court of Cassation uses the formula that a plea cannot be admitted if it finds that the cassation appeal is admissible but unfounded and that it lacks any factual basis and does not fail as a matter of law, so that the Court of Cassation examines, within the limits of the plea, whether the judge of fact has correctly applied the rule of law of which the violation is alleged.
Before ruling on the substance of the cassation appeal, the Court of Cassation must examine certain preliminary questions concerning the admissibility of the cassation appeal. This is due to the fact that the Court of Cassation only takes cognisance of legal questions that have been raised in clear terms and on the basis of facts established in the contested judgment.
If the cassation appeal does not meet all these requirements, it is inadmissible. For example, the following are inadmissible
an inaccurate or unclear plea;
a ground of appeal criticising the factual assessment of the facts of the case by the court of fact;
a plea criticising a decision which does not concern the appellant in cassation.
a plea that is new in that it was not raised before the court of fact and cannot be raised for the first time before the Court.
INADMISSIBLE APPEAL IN CASSATION
An inadmissible appeal in cassation is an appeal that does not meet the legal requirements for cassation. For example: in civil and social matters, the appeal in cassation must be signed by a lawyer at the Court of Cassation. If this is not the case, the appeal in cassation is not admissible.
COURT HEARING OF THE COURT OF CASSATION
During the court session, a brief report is made by the counsel appointed by the first president to draw up a draft. The public prosecutor then concludes. The parties are then heard. The advocate at the Court of Cassation only makes an exceptional statement. Deliberations take place in chambers. Usually the judgment is pronounced the same day.
REFERRAL OF THE CASE AFTER CASSATION
REFERRAL OF THE CASE AFTER CASSATION
If the Court of Cassation quashes the contested decision and refers the case back to another court (in principle of the same rank as the one that gave the contested decision), that court is generally not obliged to comply with the Court’s ruling. However, if a new cassation appeal is lodged on the same point of law, the Court of Appeal will decide in united chambers and, if the case is overturned, the court that referred the case will be bound by the Court of Appeal’s decision. However, if the decision of the court to which the case was referred is consistent with the Court’s judgment referring the case, that decision can no longer be challenged by an appeal in cassation.