Proceedings before the Supreme Court
Omega Law has extensive expertise in litigating before the Belgian Supreme Court (Court of Cassation). With two lawyers at the Supreme Court and an experienced team of associates, our firm is ideally placed to defend your interests before the Supreme Court, either as plaintiff or defendant.
The role of the Supreme Court — It is important to understand that the role of the Supreme Court is more limited than the role of a first instance or appeal judge. The procedure before the Court is not a third instance. Specifically, the Court only examines whether the law has been correctly applied and that no errors of form or procedure have been committed by the appellate court. The Court does not undertake an assessment of the facts. Therefore, pleas requiring an examination of facts cannot in principle be brought before the Supreme Court.
Lawyers at the Supreme Court — There is a specific Bar Association at the Supreme Court. Its members were appointed by Royal Decree after undergoing special training and are familiar with the specific cassation technique.
In civil cases, the intervention of a lawyer at the Supreme Court is required by law. This is not the case in criminal and tax cases, although even there it may be opportune to call on the special expertise of a cassation lawyer.
Note that in criminal cases, the acting lawyer must at least hold the certificate of training in cassation proceedings in criminal cases.
Civil and tax matters
Procedure
Cassation proceedings generally begin with an opinion on the chances of success of a possible cassation appeal. Based on the file (judgments at first instance and in appeal, final trial briefs, etc.), the cassation lawyer examines whether pleas with a reasonable chance of success can be raised before the Court. If not, the proceedings are in principle over, although you are of course free to seek a second opinion from another cassation lawyer.
In case of a positive opinion, an appeal in cassation can actually be filed. This is done by preparing a petition, which is served on the opposing parties and filed at the court registry.
As a rule, the time limit for filing an appeal in cassation is three (3) months from the service of the judgment to be contested. A cassation appeal filed too late is inadmissible. It is possible that the judgment to be contested has not (yet) been served; in that case, the time limit is probably not yet running. But beware: in some cases, the period already runs from the notification by court letter or by registered letter and/or the period is less than three months. A good tip is therefore not to wait too long in any case before contacting a cassation lawyer if you are considering lodging an appeal in cassation.
Once an appeal in cassation has been lodged, the defendant may file a statement of defence. It has a time limit of three (3) months from the service of the appeal. You can also appeal to our office for this.
The Supreme Court will then examine the file and set a hearing at which the case will be heard. Immediately after the hearing, the Court rules.
It is difficult to give a concrete time indication as the court does not hear the cases in the order in which they were received. Moreover, the parties are not informed of the hearing date until about two weeks before the hearing. On average, you can assume about 15 months between the service of the provision and the judgment, but keep in mind that this can vary greatly from case to case.
Cassation proceedings in civil and tax cases have no suspensive effect. In practice, this means that the contested judgment can be executed during the cassation proceedings. Of course, this execution must be reversed if the Court decides to set aside the contested judgment or ruling.
criminal cases
Procedure
Cassation proceedings in criminal cases begin with the filing of a cassation appeal by means of a written statement at the registry of the court or court where the contested decision was rendered. As a rule (subject to exceptions), the cassation appeal must be filed within a period of 15 days from the delivery of the contested decision and the statement of cassation appeal must be served on the opposing parties. The prosecuted person is obliged to serve only to the extent that his cassation appeal is directed against the decision on the civil action brought against him.
Advice is then given on the chances of success of any pleading in support of the cassation appeal. On the basis of the file (judgment at last instance, final trial briefs, etc.), it is examined whether pleas with a reasonable chance of success can be raised before the Court.
In case of a positive opinion, a pleading may be prepared. The pleading is notified to the opposing parties by registered letter and is also filed at the court registry.
The time limit for filing a pleading is generally two months from the filing of the cassation appeal and no later than fifteen (15) days before the hearing at which the case is set for hearing. The defending party has the opportunity to file a statement of reply until no later than eight (8) days before the Court hearing.
Cassation proceedings in criminal cases have suspensive effect, except when the courts have decided, for special reasons, that the decision on the criminal proceedings, other than that of conviction, acquittal or dismissal, as well as the decision on the civil action shall still be provisionally enforced.
Cassation proceedings in criminal cases are settled faster than in civil cases. On average, criminal cases are disposed of within six (6) to 12 (12) months from the filing of the cassation appeal.
Practical
Would you like to call on our firm to investigate the chances of success of a possible cassation appeal in a civil or criminal case?
If so, please contact our office by e-mail or telephone and submit (preferably) electronically or in paper (at least) the following documentation: – The document instituting proceedings (writ of summons/petition) at first instance and in appeal; – Final trial briefs of all parties at first instance and on appeal; – The judgment at first instance; – The judgment or ruling to be examined, rendered at last instance; – Proof of any service of the judgment or decree to be examined.
Before starting the investigation, we will invite you to pay a lump sum fee.
In cassation proceedings, work (both for the advice and the drafting of the possible provision) is done at a pre-agreed, fixed price rather than at hourly rates.
If we would need any further information (e.g. the parties’ bundles of exhibits), we will contact them.