May 15, 2026
by Charlotte Teuwens
When it comes to Article 6 of the European Convention on Human Rights (ECHR), the European Court of Human Rights (the Court) already has an extensive list of case law. Yet, at the beginning of 2026, the Court was once again asked to rule on a case in which there had been a failure to comply with not only the principle of impartiality, but also with the presumption of innocence.
In Kaya v. Belgium, the Court dealt for the first time with a criminal case in which a judge, in the same case and on the same facts, first acted as trial judge and later as judge in the Court of Cassation (para. 47). Additionally, in the same case, a public prosecutor also called the applicant a fraudster in the press. These circumstances resulted in the Court deciding that there had been a breach of both the right to an impartial tribunal, as well as the presumption of innocence.
This blogpost first describes the facts of the case and the argumentation of the Court for deciding that the right to an impartial tribunal and the presumption of innocence, within the meaning of Article 6 ECHR, were violated.
Read more: Kaya v. Belgium: a reminder of the importance of a well-functioning judiciaryThe case concerned criminal proceedings. In 2010, Mr. Kaya was summoned by the labour auditor, D.M., before the Criminal Court in Ghent, presided over by judge A.B. A labour auditor is a member of the Prosecutor’s Office, specialised in labour and social law. Mr. Kaya was accused of, amongst other things, social security fraud and the illegal secondment of labour to third parties. The criminal court found him guilty of all charges and sentenced him to one year’s imprisonment and a fine of 5.500 euros. Both the applicant and the public prosecutor’s office appealed against the judgment.
In 2011, the labour auditor D.M. was asked to answer some questions concerning the case of Mr. Kaya in a financial newspaper, De Tijd. In this interview, D.M. stated several explicit opinions concerning the applicant, including that he is a “hardened fraudster who knew the tricks of the trade” and that “the probability of the State ever receiving money from Kaya is virtually zero” (author’s own translation). The name of the applicant, as well as his company’s name were cited in full in the article. D.M. was clearly referring to the conviction of the applicant in 2010. The proceedings in appeal, however, were at that time still ongoing.
In 2012, the Court of Appeal in Ghent acquitted the applicant partially. The Court of Appeal considered that the statements made by D.M. had irreparably harmed the right to a fair trial of the applicant regarding the offence of the illegal secondment of labour. Nevertheless, the applicant was sentenced to a fine of 2.750 euros in respect of the other offences: failure to pay social-security contributions and the non-payment of an employee’s wages. The Prosecutor General appealed on points of law before the Court of Cassation.
In 2013, the Court of Cassation quashed the judgment of the Court of Appeal. The Court of Cassation argued that a violation of the presumption of innocence by a member of the public prosecutor’s office does not automatically result in the impossibility of starting a criminal procedure. The case was then remitted to the Brussels Court of Appeal.
In 2016, the Brussels Court of Appeal found the applicant once more guilty of all charges. The sentence was, however, changed to four months’ imprisonment and a fine of 6.000 euros. The Brussels Court of Appeal hereby wanted to balance out the serious offences against the excessive length of the proceedings. The applicant brought the case back before the Court of Cassation on points of law.
On 5 September 2017, the Court of Cassation assembled in a five-judge formation. Interestingly, judge A.B., former judge at the Ghent Criminal Court, was now a judge (raadsheer) at the Court of Cassation, the highest Belgian court. The Court of Cassation accepted the appeal, but only regarding the calculation of the fine. The case was not remitted. More notably, the Court of Cassation rejected the argument that the applicant’s presumption of innocence had been infringed in the same way as the 2013 judgment, which brought the applicant before the Strasbourg Court.
The applicant relied on both Article 6 § 1 and Article 6 § 2 ECHR in his application. Under Article 6 § 1, he complained that the Court of Cassation lacked impartiality, since judge A.B. in 2017 had been president of the division within the First Instance Criminal Court, which had ruled in 2010 on the merits of the charges against him and had convicted him. Under Article 6 § 2, he complained about the statements made by labour auditor D.M. in the press.
On 22 January 2026, the Strasbourg Court decided unanimously by a chamber of seven judges that there had been a violation of both Article 6 § 1 and Article 6 § 2 ECHR (paras 85 and 81). The Court found that the participation of judge A.B. in the Court of Cassation, as well as the statements made by labour auditor D.M. in the press, were both sufficient reasons to believe that guarantees of the right to a fair trial had not been respected in the case of the applicant.
Before going into the merits of the case, the Court first responded to a preliminary objection made by the government. The government stated that the applicant had not exhausted all domestic remedies, since he had failed to apply for the recusal of judge A.B. before the Court of Cassation in accordance with article 833 of the Belgian Judicial Code. The Court rejected the preliminary objection of the government, arguing that the applicant could not have known the exact composition of the court with certainty before the hearing, that the procedure before the Court of Cassation is generally mere written and that the judgment is usually delivered on the same day as the proceedings (para 27). For these reasons, the Court concluded that it was, in practice, impossible for the applicant to apply for recusal (paras 30, 31 and 33).
Regarding article 6 § 1 ECHR, the Strasbourg Court first confirms the line of argument established in earlier judgements, such as Piersack v. Belgium, De Cubber v. Belgium, Micallef v. Malta, or Morice v. France (para 40-41), that the appearance of impartiality is crucial for the confidence in the judiciary by the public. Impartiality is therefore assessed not only from a subjective, but also from an objective standpoint. In Kaya v. Belgium, only the objective aspect was contested. The objective aspect considers whether the court or tribunal individually offers sufficient guarantees to exclude any legitimate doubt regarding the impartiality of the judge or court.
The mere participation in two stages of the proceedings by judge, and later judge, A.B., raised objectively justified doubts as to the judge’s impartiality (para 47). Moreover, the role he had played in two courts that had reached unfavorable conclusions for the applicant could not be considered insignificant (para 48): he was first the president of the initial court that had ruled on his guilt and was afterwards also part of the formation that had rejected the majority of the remedies submitted by the applicant at the Court of Cassation. The fact that seven years had passed before the second participation of judge A.B. was not considered sufficient to dispel any possible doubts as to his impartiality (para 54).
Regarding the particular nature of the Court of Cassation, which only exercises a legality review and not a factual one, the Court referred back to Delcourt v. Belgium. In this case, the Court first explained that the first line of Article 6 ECHR “In the determination of his civil rights and obligations or of any criminal charges against him (…)”, relates to both the factual and the legal merits of the charge (paras 25-26). In line with this judgement, the Court found that the Court of Cassation, even though it only reviews questions of legality, also considers the “determination of a criminal charge” and therefore falls within the meaning of Article 6 ECHR (paras 49-51). As a result, the mere participation of judge A.B. in the Court of Cassation, even though it exercises a different role than the initial court in which A.B. acted as a judge, was sufficient to call into question the impartiality of the Court of Cassation itself (para 47).
Finally, the Court noticed the absence of an internal control mechanism within the Court of Cassation through which judge A.B. could have prevented himself from sitting in the formation, or through which the parties could have been informed beforehand (para 56). Consequently, it found a violation of Article 6 § 1.
Regarding article 6 § 2 ECHR, the Court reaffirmed that the presumption of innocence is violated if a statement by a public authority concerning an accused person reflects the feeling that he is guilty, without it already being legally established (para 63). The Court hereby confirmed previous case law on the subject, such as Allenet de Ribemont v. France and Daktaras v. Lithuania (para 63). Consequently, the Court explained that a public prosecutor must respect the presumption of innocence and act with caution when expressing statements in public, for example, in the newspaper.
In Kaya v. Belgium, the Court decided that D.M.’s statements were not restrained. He did not merely elaborate on the pending criminal case with general information or facts but expressed judgments about the applicant containing personal convictions with a strong negative undertone as well. These statements suggested to the general public that the applicant was guilty, while the criminal proceedings were still pending on appeal. The mere fact that D.M. was no longer responsible for the case at the time of the interview did not exempt him from his duty of restraint and his obligation to respect the presumption of innocence.
As a result, the Court unanimously found a violation of the presumption of innocence, within the meaning of article 6 § 2 ECHR. Based on Article 41 ECHR, the Court also awarded 6.000 euros for non-pecuniary damage and 4.754,39 euros for costs and expenses.
The case of Kaya v. Belgium does not depart from the Court’s case law regarding the right to a fair trial within the meaning of Article 6 ECHR, but it does introduce various additions to it.
First, it is the first criminal case in which the Court must examine the participation of a judge as both a trial judge and a judge in the Court of Cassation, in the same case and on the same facts. In Peruš v. Slovenia and Nova Gorica v. Slovenia the dual role played by a judge had already been commented on by the Court, but these cases concerned civil matters. In the present case, the Court took into account the same elements as in these civil cases: the level of involvement by the judge and the amount of time that had passed between the two appearances of the judge in the case.
Notably, the Court argued that the mere passing of seven years was not sufficient to wipe away any possible doubts regarding the judge’s impartiality, leaving a possible opening for cases in which a longer time has passed. In comparison, they could have stated that no passing of time would ever suffice as such.
Second, the Court distinguishes between statements made by a member of the public prosecutor’s office during the exercise of his function and statements made outside the courtroom to the press. The Court starts off by stating in general that the presumption of innocence is violated when a statement made by a public authority reflects the feeling that the accused person is guilty, while the guilt has not yet been legally established (para 63). The Court elaborates on this, by noting that the public prosecutor is not subject to the obligations of independence and impartiality of Article 6 §1 ECHR. During the exercise of his function, the presumption of innocence cannot be relied upon against the public prosecutor, in casu labour auditor D.M. Nevertheless, when speaking outside of its official duties, the public prosecutor is obliged to respect the presumption of innocence and should act with a duty of restraint in the latter scenario (paras 69-70).
Third, the Court criticised the lack of an internal control mechanism within the Court of Cassation that could prevent a Cassation judge from participating in a case in which he has acted as a trial judge before, or which could inform the parties beforehand (para 41 and 56). The Court also noticed that the Belgian government did not object to the criticism raised by the applicant that article 292 of the Judicial Code prohibits the concurrent exercise of various judicial functions and that any internal control was nonexistent (para 56). The lack of such an internal control mechanism explains why judge A.B. did not retreat from the case. The only possible counterargument thinkable, is the limited number of judges present in the Court of Cassation which makes it difficult to prevent any potential reappearance of a trial judge. Nevertheless, the Court insisted on it being the State’s duty to organise its judicial system in a way as to render effective the rights under Article 6 ECHR and consequently to create a control mechanism (para 56).
In the reasoning on the exhaustion of domestic remedies, the Court stated that there was no possibility for the applicant to know beforehand which composition of judges would hear its case and that this point had also not been contested by the Belgian government (para 30). Among the margins of the argument concerning the lack of an internal mechanism and the impossibility of knowing the composition of the Court of Cassation beforehand lies a deeper issue of the Belgian judiciary: the lack of transparency in case assignment rules. Throughout the years, the Group of States Against Corruption and members of the Flemish bar association have criticised the lack of information parties obtain about which chamber or which judges their case is assigned to within a particular court. Now it has also been noticed by the Strasbourg Court. Belgian authorities have brushed off these criticisms before, stating that the lack of transparency in their case assignment rules is a mechanism ensuring flexibility for the courts, which is necessary to avoid further delays for litigants and, according to the High Council of Justice, does not pose a risk to the functioning of the justice system.[1] Although it is certainly true that these principles should be balanced when creating an internal operation structure for a court or tribunal, this balancing exercise should not jeopardise the possibility for an applicant to rightfully ask the recusal of a judge when necessary or, more generally, the respect of the right to an impartial tribunal, as established under Article 6 §1 ECHR.
The Kaya v. Belgium judgment serves as a strong reminder of the importance of a clear and well-functioning judiciary in order to ensure full respect for the right of a fair trial, within the meaning of Article 6 ECHR. This includes not only the explicit protection of the right to an impartial tribunal and a duty of restraint outside the courtroom by the public prosecutor’s office, but also the existence of clear ground rules to begin with. For a party to be able to exercise its right of recusal, he or she must first be able to receive the necessary information for it. Namely, he or she must be able to know beforehand which judge he or she will appear before.
[1] P. LEMMENS, R. VAN RANSBEECK, P. BOVEND’EERT en T. TROTMAN, Rechterlijke Onafhankelijkheid, LeA Uitgevers, 2023, 17-18, available at https://app.lexnow.io/o/book/detail/157451/content.
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