The applicant, Mr. Borgers, was accused of forging documents. In his appeal hearing the last word was given to avocat général – a member of prosecutor’s office who was not a party in the trial, but his duty was to recommend the court about whether the appeal should be allowed or not. The avocat général was also allowed to participate in the deliberations of the court, while the applicant was not.
Mr. Borgers complained that the participation of the avocat général in the hearing and in the deliberations violated equality of arms as he was not able to comment on the statements of the avocat général.
The Court noted that the opinion of avocat général could not be regarded as neutral from the point of view of the parties because depending on his opinion he can act either as an ally or opponent to the defence. In the latter event the right to a fair trial requires that equality of arms is respected.
In the case at hand the avocat general recommended that the applicant’s appeal be dismissed thus essentially becoming his opponent. These recommendations were unknown to Mr. Borgers before the trial and, as the avocat général speaks the last during the hearing, he was also unable to comment after they were made. The Court could not find the justification for such restrictions on the rights of the defence. In the Court’s view the inequality was increased even more by the avocat général’s participation, in an advisory capacity, in the court’s deliberations. The participation in the deliberations afforded the avocat général an additional opportunity to promote, without fear of contradiction by the applicant, his submissions. Therefore having regard to the requirements of the rights of the defence and of the principle of the equality of arms and to the role of appearances in determining whether they have been complied with, the Court found a violation of the right to a fair trial.