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FREQUENTLY ASKED QUESTIONS ON CASSATION IN CIVIL MATTERS AND ANSWERS
CONTENTS
WARNINGS
GENERAL (QUESTION 1)

I. QUESTIONS CONCERNING THE ASSISTANCE OF A LAWYER (QUESTIONS 1-10)
II. QUESTIONS RELATING TO COSTS AND FEES (QUESTIONS 11-17)
III. QUESTIONS ON APPEALS IN CASSATION (QUESTIONS 18 TO 19)
IV. QUESTIONS RELATING TO THE PROCEDURE
A. QUESTIONS ON THE COMMENCEMENT OF THE PROCEEDINGS (QUESTIONS 20-21)
B. QUESTIONS ON THE CONDUCT OF THE PROCEDURE (QUESTIONS 22-26)
C. QUESTIONS ON THE CONDUCT OF THE COURT HEARING (QUESTIONS 27-32)
V. QUESTIONS ON THE DECISION OF THE COURT (QUESTIONS 33-37)
VI. QUESTIONS ON THE FURTHER CONDUCT OF THE CASE (QUESTIONS 38-39)
VII. QUESTIONS REFERRED BY PERSONS SUBJECT TO APPEAL IN CASSATION (QUESTIONS 40 TO 44)

WARNINGS


1. What is stated below applies only to civil cassation proceedings in the broad sense of the word: cases concerning civil law, judicial or procedural law, commercial and economic law, financial law, employment and social security law.

In criminal cases and in tax cases, rules apply that are partly different from what is stated below. This does not mean, however, that you cannot use a lawyer at the Court of Cassation for cassation cases in those areas.

2. The questions and answers are primarily aimed at the “layman”, i.e. the non-lawyer.

In formulating the answers to the above questions, an attempt has therefore been made to use language that is as ordinary as possible. As the reader will notice, this has not always been entirely successful: there are concepts and techniques that are difficult to express in any other way than in legal language.

Also, for the sake of readability, we tried to keep the answers as short as possible.

However, simplification and conciseness sometimes lead to a situation where an answer is no longer complete or fully accurate from a legal-technical point of view. Whoever consults the answers below must therefore realise that the issues are often slightly different, usually more complicated, than could be expressed in the answer.

The lawyer who would consult these questions and answers will certainly agree.

3. The questions are those which may arise in someone considering an appeal in cassation against a judgment adverse to him. In other words, they start from the point of view of the claimant (in cassation).

The questionnaire concludes with some questions that might be asked by someone who is considering an appeal in cassation brought by an opposing party.

GENERAL


1. What is cassation?

Cassation or, to be more precise, providing for cassation or lodging an appeal in cassation, is what is known as an extraordinary legal remedy.

A legal remedy is a procedural act by which someone objects to a ruling by a court of law.

The fact that cassation appeals are called extraordinary remedies indicates that they can only be used in exceptional cases. In this connection it is important to bear in mind that an appeal in cassation is only possible against final judgments, i.e. judgments which are not final.

– against final judgments,

– that were delivered at last instance

– on the grounds of infringement of the law or of substantial or prescribed forms of illegality.

To put it more simply and conversely: an appeal in cassation is not possible

– against judgments by which a court has not yet made a final decision on a dispute,

– against decisions that can still be challenged by lodging an appeal,

– on the basis of arguments that have nothing to do with the correct application or interpretation of the law or with compliance with basic procedural rules.

As simple as the above may seem at first glance, in reality the answer to the question of whether the above conditions are met requires a thorough investigation by a lawyer who is fully familiar with the cassation procedure, in particular a lawyer at the Court of Cassation.

I. QUESTIONS CONCERNING THE ASSISTANCE OF A LAWYER


2. Can I lodge a cassation appeal myself or do I need a lawyer to do so?

In civil cases, in the broad sense explained at the beginning of this note, you cannot lodge an appeal in cassation yourself.

3. Can the lawyer who has assisted me until now file an appeal in cassation on my behalf?

In civil cases, in the broad sense explained at the beginning of this note, this can only be done by a lawyer at the Court of Cassation, in other words a member of the Bar at the Court of Cassation.

The reason for this can be found in the answer to question 18.

4. Where can I find the coordinates of a lawyer at the Court of Cassation?

You will find the list of the members of the cassation bar, which is called the tableau, with the addresses and telephone numbers in the tab tableau.

5. How do I choose a lawyer for the Court of Cassation?

The choice of a lawyer for the Court of Cassation is free.

The specialism of cassation lawyers is rather the technique and method of litigation before the Court of Cassation, or one or the other field of law.

This does not mean, of course, that some lawyers at the Court of Cassation are more versed in one or the other field. If a cassation lawyer feels that he is not sufficiently familiar with the area of law that is the subject of the case, he will refuse to take the case, in your interest as well as his own.

In any case, the lawyer who assisted you before the court that delivered the judgment you wish to have examined the possibilities and chances of a cassation appeal is best placed to assist you in making a choice.

Bear in mind that any lawyer who appears on the register of the cassation bar is, in principle, capable of providing you with expert assistance in a cassation case.

6. How do I contact the lawyer at the Court of Cassation I wish to appeal to ?

Contact with the lawyer at the Court of Cassation whose services you wish to use is best made and maintained through the lawyer who assisted you before the court against whose judgment you are considering a possible appeal in cassation. In labour and social security cases, it may also be the trade union or other organisation that represented you.

If you were or are no longer assisted by a lawyer or an organisation, you can contact a lawyer at the Court of Cassation of your choice directly yourself. You can do this by telephone, in writing or by e-mail.

7. Can the lawyer chosen for the Court of Cassation refuse the case or refuse to lodge an appeal in cassation?

There may be various reasons why a lawyer at the Court of Cassation refuses a case.

First of all, by virtue of the oath he has taken, he is obliged to refuse cases that he considers in good conscience to be unjust.

Your case may also be refused because of a conflict of interest. In this context, we also speak of incompatibility. This is the case, for example, when the lawyer at the Court of Cassation has already been consulted by your opposing party, not necessarily in your case or in a case before the Court of Cassation, or when your opposing party was or is a client of a member of the firm or association to which he belongs. Each lawyer at the Court of Cassation judges in good conscience whether there is an impediment of that nature to accept your case.

A lawyer at the Court of Cassation may also refuse your case because he does not have enough time to study it thoroughly and, if necessary, to appeal in cassation. Such situations occur when the time limit for filing an appeal in cassation is about to expire or when you yourself set a time limit that the cassation lawyer believes he cannot respect.

A case can also be refused because the applicant refuses or neglects to pay the requested advance on fees and expenses. If the reason is insufficient financial capacity, legal aid may be sought. If the conditions are met, the President of the cassation bar will, at the request of the Legal Aid Office of the Court of Cassation, appoint a lawyer to the Court to examine the possibilities and chances of a cassation appeal free of charge. You will find more information about this in question 15.

It may also be the case that a lawyer at the Court of Cassation has issued a negative advice, but refuses to respond to your request to lodge an appeal in cassation after all. This is because he then takes the filtering function of the Cassation Bar (see the answer to question 18 on this subject) seriously, as he should.

8. What can I do if I do not agree with the fact that a lawyer at the Court of Cassation refuses my case or refuses to lodge a cassation appeal after a negative opinion?

When a lawyer at the Court of Cassation refuses a case because of incompatibility or because he has too little time left considering that the period for an appeal in cassation is already running (see the answer to question 7), you can contact another lawyer at the Court of Cassation (see the answer to question 4). If you do not find any of the contacted lawyers at the Court of Cassation willing to take up your case, you can contact the President of the Bar Association at the Court of Cassation (cass@advocass.be) who can possibly appoint a lawyer to take up your case. There is a chance that he may refuse to do so for one reason or another, for example because the time remaining for lodging an appeal in cassation is too short to do a proper job or because your application for legal aid for cassation proceedings was rejected on the basis of a negative opinion (see the answer to question 16 on this subject).

If, despite the explicitly negative advice of a lawyer at the Court of Cassation, you still wish to appeal in cassation, you can ask the cassation lawyer to draw up a petition for cassation “on demand”. By doing this, the cassation lawyer will be indicating that he himself does not support the cassation appeal and that he has only developed the arguments put forward (“cassation arguments”) because you demanded this of him in his capacity as a ministerial official which he has in addition to that of a lawyer. For the Court of Cassation, that is an indication that the case is apparently very weak, but that does not necessarily mean that the cassation appeal will be rejected.

If you cannot find any lawyer who is prepared to lodge an appeal in cassation on the basis of an at least moderately positive opinion, for example because the time limit is too short or because, unlike in the case referred to in the previous paragraph, the lawyer who examined the case does not see any valid and cogent argument (‘cassation appeal’) at all to develop, then you may ask the lawyer who assisted you in the proceedings that led to the judgment you wish to challenge to draw up an application for cassation himself or to do so and require a lawyer at the Court to sign it “on demand and according to draft”.

However, you should be aware that the Court of Cassation tends to penalise manifestly invalid (“inadmissible”) cassation appeals and remedies with an order to pay damages. Indeed, one should not pointlessly seize the judicial system and thus the community’s resources.

If a lawyer at the Court of Cassation signs a petition for cassation that he has drawn up himself “on demand”, he will of course continue to follow up and handle the case (see the answer to questions 21 et seq. on this subject).

If he has signed a cassation petition not prepared by him “on demand and according to draft”, his duties end in principle. Unless you expressly request it, he will then only do the following: keep you informed of the further course of the proceedings and in particular inform you of the date of the hearing (see the answer to question 28), send you a copy of the public prosecutor’s written advice if he receives it (see the answer to question 24) and subsequently send you a copy of the judgment if he receives it (see the answer to question 35). However, he will not take any further steps, such as possibly replying to the public prosecutor’s opinion (see answer to question 24) or representing you at the hearing (see answer to question 30). If you wish the lawyer to represent you at the Court of Cassation, you must instruct him to do so and you will of course have to bear the costs associated with the tasks he is asked to perform, such as informing you of the date of the hearing (see the answer to question 28), representing you at the hearing (see the answer to question 30) and, where appropriate, replying to the opinion of the prosecution (see the answer to question 24) and informing you of the result of the hearing (see the answer to question 32) and sending you a copy of the judgment (see the answer to question 35).

9. What can I expect from a lawyer at the Court of Cassation ?

You may expect from the lawyer at the Court of Cassation that you have chosen that he, together with the staff he usually calls upon, will thoroughly and professionally examine the possibilities and chances of a cassation appeal and will inform you of this afterwards.

Unlike in other cases, the handling of a cassation file does not, as a rule, involve a consultation in which the lawyer at the Court of Cassation meets you personally and/or the lawyer who assisted you previously. The technique of cassation appeal is such that all the elements that a lawyer at the Court of Cassation can use must be present in the file submitted to the judge whose decision is being considered for cassation appeal. Other and certainly new elements cannot be included, so that an oral consultation usually serves little purpose and only increases costs.

In principle, the lawyer at the Court of Cassation keeps the lawyer or organisation through which he received the file informed: it is up to him or her to pass on his or her advice and the procedural documents and to consult with him or her. The lawyer or organisation is therefore sometimes referred to in the jargon as the correspondent, who acts as an intermediary between the cassation lawyer and you, the client.

If a lawyer at the Court of Cassation has received the case directly from you, he will of course maintain contact with you.

In principle, the contacts of a cassation lawyer with his correspondent or client are limited to a number of moments: confirmation of the acceptance of the case and of the receipt of the file, communication of the opinion on the possibilities and chances of cassation and, if an appeal in cassation is decided upon, delivery of the deed that the lawyer must draw up for this purpose at the Court of Cassation (a petition that is called “provision in cassation”), the communication of the reply of the opposing party, if any (a document called “statement of reply”), the communication of the date of the hearing and of the final result (the “cassation judgment”), the return of the file and, possibly, the further settlement of the costs that the losing party was ordered to pay.

10. What can a lawyer at the Court of Cassation expect from me?

When a lawyer at the Court of Cassation receives the instruction from an intermediary, the lawyer or organisation that previously assisted you, he will use this information to let you know what he may need for the investigation and handling of the case. More specifically, it concerns the file.

If you have entrusted your case to a lawyer at the Court of Cassation without an intermediary, he will ask you to provide him with a complete file containing all the procedural documents from the first and, possibly, second instance proceedings that the case has undergone: The document instituting the proceedings (summons or application), the written arguments exchanged by the parties (the “claims”), the documents of any investigative measures (examination of witnesses or expert opinion) and the various judgments (interlocutory judgments, first instance judgments, appeal judgments) that have been rendered, and so on.

As mentioned in the answer to question 9, a lawyer at the Court of Cassation does not normally expect you to have a personal interview with him. However, if this were necessary or desirable, he would of course let you know.

II. QUESTIONS RELATING TO COSTS AND FEES


11. Who determines the costs and fees of a lawyer at the Court of Cassation?

Unlike for notaries, the costs and fees of a lawyer at the Court of Cassation do not consist of fixed tariffs: each cassation lawyer determines these himself, with the modesty and fair moderation that the law imposes on each lawyer in this respect.

This does not prevent the amounts that cassation lawyers tend to charge from varying considerably. The reason for this can be found in the answer to the questions below.

12. Is a lawyer at the Court of Cassation expensive ?

Cassation lawyers have a reputation, not only among the public but often also among politicians and other lawyers, of being expensive, sometimes even very expensive.

Unjustifiably so.

The lawyers at the Court of Cassation are of course aware that the costs and fees they charge you are in addition to those you have already had to bear for the previous proceedings or proceedings and will therefore ultimately weigh heavier on you.

They also realise that, especially for private individuals with an average income, the amounts they usually charge may seem high or exaggerated, especially when the preliminary advice is negative (the cassation lawyer is of the opinion that an appeal in cassation is impossible or has no chance of success) or when the result is disappointing (the appeal in cassation is dismissed).

However, it should be borne in mind that the work of lawyers at the Court of Cassation and their assistants is particularly labour-intensive. Not only must the judgment to be appealed be analysed very thoroughly and meticulously, but usually the entire file must be read. In addition, the cassation lawyer and his associates must thoroughly study the legal issues raised by the judgment to be examined. This requires not only often very extensive research but also constant monitoring of the entire body of cassation case law.

In order to be able to do all this at the specialised level that is essential, a cassation lawyer must have good staff, in particular excellent lawyers, as well as an extensive library and wide access to computerised sources of law.

All of this, of course, costs money.

It is therefore wise to bear in mind that the number of pages of text received as an opinion or as a procedural document is rarely representative of the investment in time and infrastructure that made those texts possible.

The 21% VAT increase in the fees of all lawyers as of 1 January 2014 has, of course, also had repercussions in cassation proceedings.

13. How much does a lawyer at the Court of Cassation actually charge?

13. How much does a lawyer at the Court of Cassation actually charge?

As stated in the answer to the previous question, each cassation lawyer is free to determine his or her own fee.

Without being able to put a figure on it, it can be said that the order of magnitude of the fee for advice on the possibilities and chances of cassation in any event, including VAT, is easily €2,500. If legal proceedings are required, an amount of the same order is generally charged.

Do not consider the amount mentioned above as a tariff and certainly not as a fixed tariff, because it is not a tariff at all. Depending on the circumstances, other amounts may be charged.

You will understand, for example, that advice on, and the handling of, a very large file consisting of hundreds or even thousands of pages, on a voluminous judgment comprising dozens of pages and raising a variety of legal issues or in a case in which substantial financial, principled or recurrent interests are at stake may sometimes cost a great deal more than advice on a wafer-thin file in which a judgment of a single page, involving only one easy-to-answer legal question and of negligible financial importance has to be examined.

The fact that a cassation lawyer is given only a short time in which to study the case and prepare a possible appeal in cassation (see the answer to question 18 on this point), so that he must deal with the case before other cases in which a time limit may also apply, also justifies a higher fee.

Finally, the result obtained, for example a favourable judgment which determines the further course of the case, may also lead to an additional fee.

This is no different from what other lawyers do when they determine their fees. And, as is the case for all lawyers, good cost and fee arrangements beforehand can prevent problems and discussions afterwards.

14. To whom do I pay the costs and fees associated with the intervention of a lawyer at the Court of Cassation?

If you have called upon a cassation lawyer through an intermediary, the lawyer or organisation that assisted you in the previous proceedings, it is agreed with this “correspondent” how the bill will be made: to the intermediary or to you, the client. The latter will generally be the case if the client is a company, because then he must have an invoice in his name.

It is a rule of deontology that a lawyer who instructs a lawyer at the Court of Cassation on behalf of his client is personally responsible for the payment of the latter’s costs and fees, unless he expressly states otherwise at the outset. In that case, of course, as when there is no intermediary, the settlement is made directly to the client, who then pays the cassation lawyer directly.

In any event, for all his payments, whether to the intermediary or to the client himself, a lawyer at the Court of Cassation draws up an actual invoice, as he is liable for VAT.

15. What do I do if I am unable to bear the costs and fees of a lawyer at the Court of Cassation?

If you are unable to bear the costs and fees charged by a lawyer at the Court of Cassation, you may apply for legal aid, provided that you fulfil the conditions.

Legal aid is not requested from a cassation lawyer, nor from the Bar Association of the Court of Cassation (the cassation desk) or its president, but exclusively and directly from the Legal Aid Office of the Court of Cassation.

You will find all the information and documents you need on the website of the Court of Cassation, via the hyperlink: Legal aid of the Court of Cassation.

16. What can I do if my application for legal aid has been rejected and I still wish to appeal in cassation ?

The rejection of a request for legal aid implies that you do not meet the requirements, either because you do not have sufficient financial resources or because the preliminary advice given by a cassation lawyer pro bono, i.e. free of charge, is negative.

If you nevertheless wish to obtain an opinion (or, as the case may be, a second opinion), you will have to pay the lawyer at the Court of Cassation whom you find willing to act on your behalf a fee to be agreed with him/her, as well as his/her costs.

17. What legal costs are associated with cassation proceedings?

Various legal costs are associated with cassation proceedings.

First of all, the document instituting the appeal in cassation (a “petition for appeal in cassation”) must be served by a judicial officer on the opposing party or parties. The cost of such service varies according to certain parameters, including the travel required by the judicial officer and the number of parties to be served, but is around € 275 per party.

Except in social law cases (relating to employment or social security law), a court fee of €375 is also payable to the registry of the Court of Cassation.

As a rule, the Court of Cassation orders the losing party to pay the costs. These are the costs referred to above, which are advanced by the plaintiff. Unlike in “ordinary” cases, in cassation cases the losing party does not have to pay the winning party any procedural costs.

III. QUESTIONS RELATED TO THE LODGING OF AN APPEAL IN CASSATION


18. What does it mean if the preliminary advice given by a lawyer to the Court of Cassation is negative?

In order to avoid litigation before the highest court that is impossible or useless, that only burdens the judicial system and can lead to additional frustration for the parties, the law has provided for a kind of filter. A lawyer at the Court of Cassation advises beforehand whether an appeal in cassation is possible against the judgement or ruling to be appealed and, if so, what are the chances of success.

If a lawyer at the Court of Cassation issues a negative opinion, this means, depending on the case, that it is technically and legally impossible to institute an appeal in cassation with a reasonable chance of success (e.g. because the judgement or ruling is not eligible or because the time limit for doing so has already expired) or that the cassation lawyer sees no arguments that are valid from a technical or substantive legal point of view (what is known as “developing means”). A negative opinion therefore does not necessarily mean that you were right to be proved wrong. It may just as well mean that, even if that were not the case, there is no longer anything you can do about it in cassation proceedings. In other words, a negative opinion does not necessarily mean that you are “wrong”.

A cassation recommendation may also be qualified, in the sense that the lawyer at the Court of Cassation says that he sees grounds for challenging the judgement or ruling examined before the Court of Cassation, but doubts about the chances of success. For example, he may express the chances of success as minimal, difficult to estimate, not guaranteed and so on. Usually, no percentage is used for this, because there are also many uncertainties in law.

You may assume that a negative opinion (like a positive opinion) reflects the honest and impartial and independent opinion of the cassation lawyer: from a purely economic point of view it is of course in his interest to give a positive opinion and thus to be able to conduct cassation proceedings, but it is simply part of his job to filter out cases that have no chance of success or are unlikely to succeed. The limited number of lawyers at the Court of Cassation is, moreover, prompted by the concern to guarantee the independence of the opinions delivered.

19. What if I do not agree with the (negative or positive) opinion of a lawyer at the Court of Cassation?

If you do not agree with the advice given by the lawyer appointed by the Court of Cassation, it will generally be a negative advice. But even a positive advice may disappoint you on certain points or for certain reasons, e.g. because it is positive on another point or for another reason than you would like.

In such cases, it is always possible to ask the cassation lawyer for additional explanations, but since the advice generally deals with technical and complex aspects, it is best that such explanations are requested by and given to a lawyer. Moreover, you should bear in mind that additional questions may lead to additional costs.

If you do not wish to ask any additional questions, because the advice is clear to you, or for any other reason, but you cannot accept it, it is of course possible to ask another lawyer at the Court of Cassation for a second opinion. However, fair play seems to require that you inform the other cassation lawyer that it is a second opinion.

It can and does happen that a second cassation lawyer arrives at a different conclusion from that of the first lawyer consulted, but this does not seem to be a common occurrence. It does not mean, however, that the first consultant did not do his job properly, even if a successful appeal in cassation were to be instituted on the second, positive, opinion. The practice of law always remains an uncertain matter, as is evident from the fact that even the Court of Cassation itself sometimes changes its view.

IV. QUESTIONS CONCERNING THE PROCEDURE

A. Questions on the commencement of the proceedings

20. How much time do I have to lodge an appeal in cassation?

In general, the time limit for filing an appeal in cassation is three months. This is calculated from the time of service, by bailiff’s writ, of the judgment to be contested or the notification thereof by judicial letter.

However, it should be emphasised immediately that in some cases the period is not three months but shorter, and that it requires a great deal of technical knowledge to work out which act (service by bailiff’s writ, judicial letter or something else) triggers the period and how it is calculated and, if necessary, suspended.

In other words, when considering an appeal in cassation, do not do the calculations yourself but make sure that the lawyer at the Court of Cassation can do them quickly.

Moreover, it is of the utmost importance that the file is sent to the cassation lawyer of your choice as soon as possible, so that he or she has as long as possible to study the file. Bearing in mind what is said in the answer to question 12 about the work involved in a cassation investigation, the need for prior advice and the obligation to have the deed by which a cassation appeal is lodged served by a bailiff on the opposing party or parties within the time limit and then to deposit both with the registry of the Court of Cassation in Brussels within the same period, it is virtually impossible in practice for a cassation file to be properly completed within a period of only one or a few weeks, let alone a few days. Too short a deadline is therefore one of the reasons why cassation lawyers sometimes refuse to file.

21. How do proceedings before the Court of Cassation commence?

An appeal in cassation starts with the filing with the Court Registry of the Court of Cassation of a procedural document in the form of a petition for an “appeal in cassation”.

This petition must be signed by a lawyer at the Court of Cassation and previously served by a bailiff on the opposing parties. The deed of service must also be deposited with the court registry together with the petition.

B. Questions on the conduct of the proceedings

22. What is the procedure before the Court of Cassation itself ?

The procedure before the Court of Cassation is essentially written.

They are usually conducted as follows:

– the filing of the claim: the lodging of an appeal in cassation (see the answer to question 21 on this subject),

– any defence (the “statement of defence”) submitted by the opposing party (see here the answer to question 23)

– the notification of the date on which the case will be heard before the Court of Cassation (the determination of “the day of court”), possibly accompanied by a written statement by the public prosecutor

– any reply to the written submission of the public prosecutor (in the form of a ‘note’)

– the hearing of the Court at which the case is to be heard,

– and the judgment.

As you can see, each party – not counting any reply to the written submissions of the public prosecutor – only has the opportunity to submit a single procedural document: the plaintiff submits his appeal in cassation, the defendant possibly a statement of defence.

There is therefore no point, for example, in urging your cassation lawyer to reply to the opposing party’s defence (the “statement of reply”): the procedure before the Court of Cassation does not provide for this possibility.

23. When will I hear from my lawyer at the Court of Cassation?

Naturally, you will receive a copy of the document instituting the proceedings (the “petition in cassation”) via the lawyer or organisation acting as an intermediary or, failing that, directly from your cassation lawyer.

In the same way, you will also be informed of the defence (the “response memorandum”) that the opposing party may submit: this is not notified to you as a party, but to the lawyer at the Court of Cassation who has lodged the cassation appeal on your behalf.

You will also be informed of the date when the case will be heard (the date of “the hearing”). If the public prosecutor issues a written opinion, you will receive a copy at the same time.

And of course you will be informed of the result, in the form of a copy of the judgment, with a short commentary if necessary.

24. What does the opinion of the public prosecutor entail ?

At the Court of Cassation, there is a “public prosecutor’s office” made up of advocates-general headed by the public prosecutor. Together they form the public prosecutor’s office at the Court.

In the types of cases dealt with here, the role of the public prosecutor is to advise the Court on the appeal in cassation. An Advocate General receives the file and forms an impartial opinion as to whether the appeal in cassation and the arguments developed in connection with it) (“pleas in law”) can be validly examined (“are admissible”) and, if so, whether they are well-founded. If both questions are answered in the affirmative, the Advocate General decides to allow the appeal in cassation (he ‘concludes that the case should be set aside’); if he believes that one or both questions deserve a negative answer, he advises the Court of Appeal to dismiss the appeal in cassation (he ‘concludes that the case should be dismissed’).

Most of the opinions (‘conclusions’) of the Public Prosecution Service are issued orally, but there are also written opinions, the text of which is then communicated before the hearing. If a party so wishes, a brief “note” can be added, which must be limited to what the opinion would introduce as new in relation to what the parties have already put forward. As this is not the case in most instances, such “notes” are rather exceptional.

25. How long does it take before the case is heard ?

The duration of the procedure, once the cassation appeal has been lodged, varies greatly from “chamber to chamber”, i.e. from the section of the Court of Cassation that will hear the case. The second chamber of the Court, which deals with criminal cases, is the quickest, but as stated at the beginning of this text, criminal cases are not dealt with in these questions and answers.

The third chamber of the Court of Cassation, which deals with labour and social security law cases, also works fairly quickly: as a rule, a judgement is delivered between six months and one year after an appeal in cassation is lodged, although there are exceptions where it takes (much) longer. Disciplinary cases are also handled fairly quickly.

Although the third chamber of the Court also deals with civil and commercial cases, these usually come before the first chamber. Here the duration varies, with (sometimes major) exceptions in both directions, between one and two years after the appeal in cassation is filed.

26. What can I do if I think the case is taking too long?

The time that elapses between the filing of an appeal in cassation and the hearing of the case depends on two factors. First of all, the file is submitted to a reporting counsel, who prepares a draft judgment. Then, the public prosecutor’s office (the “prosecutor’s office” at the Court of Cassation) studies the case with a view to formulating an opinion for the Court. Only then is a day set for hearing the case in open court.

The lawyer acting for you at the Court of Cassation has no influence on the aforementioned lapse of time. Therefore, once the case has been lodged, it is useless to urge him to speed up the proceedings or to reproach him for the length of time taken: he cannot do anything about it.

C. Questions relating to the hearing of the case

27. How much notice will I receive of the date of the hearing?

The period between the moment the court is notified that a case will be heard at a public hearing of the Court of Cassation (the “fixation” of the case) is very short, but in principle it should be at least fifteen days.

28. Who will inform me of the date of the hearing at the Court of Cassation?

The lawyer at the Court of Cassation who acts for you will notify the date on which the Court will hear the case to the intermediary, lawyer or organisation that assisted you previously or, if there is none, to yourself.

29. Must, may and can I be present at the hearing of the Court of Cassation ?

The parties do not have to be present at the hearing of the Court of Cassation where their case is heard.

You may, of course, attend the hearing, which is open to the public, but there is no real point in doing so, as you will see when you read the answers to the following questions.

30. How does a hearing before the Court of Cassation proceed?

The procedure before the Court of Cassation is essentially written, and this is clearly reflected in the conduct of the hearings, which look like this.

When the case is called, in order of the seniority of the lawyers present, the reporting counsel issues an extremely concise “report” (stating which judgment has been appealed in cassation by which Supreme Court lawyer and the number of “pleas” raised, as well as stating whether there is a “statement of reply” for the opposing party and which Supreme Court lawyer drafted it).

Afterwards, the public prosecutor, in the person of the advocate general who attends the hearing, delivers his opinion to the Court: the advocate general “concludes” either positively or negatively for the plaintiff, in other words, either to “set aside” the contested judgment or to “dismiss” the appeal in cassation (see the answer to question 24). If the Public Prosecution Service has submitted a written statement of case, it simply refers to its written opinion (“conclusion”), which you will have received in advance.

Subsequently, the cassation lawyers who are present are given the floor, but it is highly unusual for them to say much more than a formal courtesy. There is no point in repeating what is stated in the application for cassation for the claimant or in the statement of defence for the defendant and, moreover, given the technicality of the questions, it would usually be difficult to follow. Moreover, all the members of the Chamber of the Court sitting in the case have already been given notice and have taken note of the procedural documents referred to above and of a draft judgment prepared by the reporting officer, on which they may even have exchanged views.

As for the opinion of the public prosecutor, if it was delivered in writing, everyone has already read it and the parties have already had the opportunity to respond to it in writing with a “note” (see the answer to Question 24). Revisiting this orally makes no sense and is by no means appreciated by the Court.

If the public prosecutor’s advice is given orally, the lawyers can replicate it orally. But this too is exceptional, because in that case the opinion (the oral “opinion”) usually consists of nothing more than a statement of the reasons why the Advocate General follows the view of one or other party. Those reasons have already been dealt with in the application for cassation and in the response, so that it is superfluous to repeat them orally.

In other words, a hearing at the Court of Cassation, unlike a hearing at another court or tribunal, is rather a formal matter.

If the lawyer representing you at the Court of Cassation cannot be present, which sometimes happens, the case will still be heard in accordance with the legal requirements. However, as shown above, this has no impact on your case. The formal nature of the hearing is respected by the fact that the lawyer who is unable to attend apologises to the Court in advance and the President mentions this when calling the case.

31. What happens after my case has been heard by the Court of Cassation?

After the case has been heard in the manner described in the answer to the previous question, the President of the Chamber declares the debate closed and says that the case is under consideration.

The next case is then called for hearing.

32. What and when will my lawyer at the Court of Cassation tell me about the hearing?

In principle, your lawyer at the Court of Cassation will inform the intermediary, the lawyer or organisation that assisted you in the previous proceedings, the day after the judgment (see the answer to question 33 about the timing), of what the Court’s ruling was according to an unofficial oral communication from the registry: (wholly or partly) in favour of the plaintiff, which means (wholly or partly) setting aside the contested judgment or ruling, (wholly or partly) in favour of the plaintiff, which means (wholly or partly) dismissing the appeal in cassation.

As you can see, it is not always possible to know exactly what the scope of the judgment is for the parties from the first unofficial communication of what the judgment contains. For example, a partial setting aside of the contested judgment may only concern a detail such as the costs. And for a complete annulment of the contested judgment it is sometimes important to know whether it was done on the basis of a formal defect, for example a careless wording, or on the basis of a settlement in principle of a disputed matter.

V. QUESTIONS RELATED TO THE COURT’S RULING


33. When is the judgment pronounced?

In most cases the President, at the conclusion of the debate (see answer to question 31), says that the judgment will follow “later”. As a rule, this means later in the day.

Indeed, after all the cases that are on the list for the hearing (the ‘case list’) have been dealt with, the president declares the hearing closed and the counsels who are sitting down retire to deliberate in chambers.

This deliberation may take several hours, so that a decision on the same day is usually not taken until long after the end of the hearing.

34. Can I go and hear the judgment myself?

In principle, there is nothing to prevent you from hearing the judgment itself, as it is delivered in open court.

However, as stated in the answer to the previous question, it is impossible to predict whether the judgment will be delivered on the day the case is heard, even if it is announced, or at what time of the day.

Moreover, the judgment in open court is just as summary as the unofficial notice from the registry which your lawyer at the Court of Cassation will take note of the next day (see the answer to question 32).

There is therefore no point in going to the courthouse and waiting for hours for a judgment which may not be delivered that day, which may be delivered at a time when you were not exactly in the room, or the scope of which may have escaped you in whole or in part.

35. Do I get a copy of the judgment and when?

As soon as the lawyer at the Court of Cassation has received a copy of the judgement, he will send it to the intermediary, the lawyer or the organisation that assisted you in the previous proceedings or, in the absence of such an organisation, to yourself.

Unfortunately, in practice it sometimes takes a long time, even up to weeks, before the text of the judgment is sent to your cassation lawyer.

That is indeed annoying.

36. With whom do I discuss the judgment of the Court of Cassation?

If you have a lawyer or an organisation assisting you in the cassation proceedings that acted as an intermediary, they will provide you with a copy of the judgement and any necessary comments.

If you have instructed a cassation lawyer directly, he will do so.

The commentary on the judgment is usually quite brief: a reading of the judgment itself will usually make it clear what the Court of Cassation has decided and in many cases it concerns a choice that was made without adding too many reasons. A verbal discussion with the lawyer at the Court of Cassation is therefore generally unnecessary.

For what can or should happen next, reference can be made to the answer to questions 38 and 39.

37. What happens to the decision of the Court of Cassation regarding the legal costs?

In most cases, the ruling of the Court of Cassation on the legal costs of the cassation proceedings will be included in the further processing of the case (see the answers to the following questions). That is by far the easiest thing to do.

But it happens that the lawyer at the Court of Cassation himself intervenes in the settlement of these costs and asks, for example, the intermediary, lawyer or organisation, or if there is none, you, to pay him the amount of the legal costs that the Court of Cassation has ordered you to pay, or to pay them directly to the cassation lawyer of the opposing party. Conversely, the cassation lawyer acting for you can, of course, also claim on your behalf the legal costs that the opposing party has been ordered to pay by the Court of Cassation and transfer the amount to the intermediary or to yourself.

VI. QUESTIONS CONCERNING THE FURTHER HANDLING OF THE CASE


38. What happens to my case after the decision of the Court of Cassation?

Broadly speaking – but again, there are many details – a ruling of the Court of Cassation has one of two consequences.

If your appeal in cassation is dismissed, the judgment against which it was directed remains in force and has effect.

As you can see, it is not always possible to know exactly what the scope of the judgment is for the parties from the first unofficial communication of what the judgment contains. For example, a partial setting aside of the contested judgment may only concern a detail such as the costs. And for a complete annulment of the contested judgment it is sometimes important to know whether it was done on the basis of a formal defect, for example a careless wording, or on the basis of a settlement in principle of a disputed matter.

V. QUESTIONS RELATED TO THE COURT’S RULING

33. When is the judgment pronounced?

In most cases the President, at the conclusion of the debate (see answer to question 31), says that the judgment will follow “later”. As a rule, this means later in the day.

Indeed, after all the cases that are on the list for the hearing (the ‘case list’) have been dealt with, the president declares the hearing closed and the counsels who are sitting down retire to deliberate in chambers.

This deliberation may take several hours, so that a decision on the same day is usually not taken until long after the end of the hearing.

34. Can I go and hear the judgment myself?

In principle, there is nothing to prevent you from hearing the judgment itself, as it is delivered in open court.

However, as stated in the answer to the previous question, it is impossible to predict whether the judgment will be delivered on the day the case is heard, even if it is announced, or at what time of the day.

Moreover, the judgment in open court is just as summary as the unofficial notice from the registry which your lawyer at the Court of Cassation will take note of the next day (see the answer to question 32).

There is therefore no point in going to the courthouse and waiting for hours for a judgment which may not be delivered that day, which may be delivered at a time when you were not exactly in the room, or the scope of which may have escaped you in whole or in part.

35. Do I get a copy of the judgment and when?

As soon as the lawyer at the Court of Cassation has received a copy of the judgement, he will send it to the intermediary, the lawyer or the organisation that assisted you in the previous proceedings or, in the absence of such an organisation, to yourself.

Unfortunately, in practice it sometimes takes a long time, even up to weeks, before the text of the judgment is sent to your cassation lawyer.

That is indeed annoying.

36. With whom do I discuss the judgment of the Court of Cassation?

If you have a lawyer or an organisation assisting you in the cassation proceedings that acted as an intermediary, they will provide you with a copy of the judgement and any necessary comments.

If you have instructed a cassation lawyer directly, he will do so.

The commentary on the judgment is usually quite brief: a reading of the judgment itself will usually make it clear what the Court of Cassation has decided and in many cases it concerns a choice that was made without adding too many reasons. A verbal discussion with the lawyer at the Court of Cassation is therefore generally unnecessary.

For what can or should happen next, reference can be made to the answer to questions 38 and 39.

37. What happens to the decision of the Court of Cassation regarding the legal costs?

In most cases, the ruling of the Court of Cassation on the legal costs of the cassation proceedings will be included in the further processing of the case (see the answers to the following questions). That is by far the easiest thing to do.

But it happens that the lawyer at the Court of Cassation himself intervenes in the settlement of these costs and asks, for example, the intermediary, lawyer or organisation, or if there is none, you, to pay him the amount of the legal costs that the Court of Cassation has ordered you to pay, or to pay them directly to the cassation lawyer of the opposing party. Conversely, the cassation lawyer acting for you can, of course, also claim on your behalf the legal costs that the opposing party has been ordered to pay by the Court of Cassation and transfer the amount to the intermediary or to yourself.

VI. QUESTIONS CONCERNING THE FURTHER HANDLING OF THE CASE

 


38. What happens to my case after the decision of the Court of Cassation?

Broadly speaking – but again, there are many details – a ruling of the Court of Cassation has one of two consequences.

If your appeal in cassation is dismissed, the judgment against which it was directed remains in force and has effect.

 

Using the tabs you can access

– the Basic information on the cassation desk (composition and coordinates, training, court fees, lexicon of terms specific to cassation proceedings, history),

– the Tableau van de cassatiebalie, i.e. the list with the coordinates of its members,

– a Vademecum (FAQ) containing answers to frequently asked questions about cassation,

– an Extranet providing access to a part of the website reserved for members of the Bar of the Court of Cassation, who were given a temporary password for that purpose.

Contact details