CEDH · CASELAW;CLIN;ENG — 13 janvier 2009

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Belgium - 926/05 Judgment 13.1.2009 [Section II] Article 6 Criminal proceedings Article 6-1 Fair hearing Article 6-3-d Examination of witnesses Lack of reasoning in assize court judgment convicting defendant: violation [This case was referred to the Grand Chamber on 5 June 2009] Facts : In 2003 the applicant and seven co-accused stood trial in an assize court on charges of murdering a government minister, A.C., and attempting to murder the minister’s partner, M-H J., in 1991. A person described by the applicant as an anonymous witness had given certain information to the investigators in 1996, but had never been interviewed by the investigating judge. The information, which was set out in 15   points, stated that A.C.’s murder had been planned by 6 people, including the applicant and a senior political figure. In 2004 the assize court convicted the applicant and sentenced him to 20 years’ imprisonment, after the jury had been asked to answer 31 questions from the president of the assize court, 4 of which concerned the applicant. The assize court made 13 interlocutory orders during the trial, which was marked by a number of incidents. The applicant appealed on points of law against both his conviction by the assize court and the interlocutory orders, but his appeal was dismissed by the Court of Cassation. Law : Article 6 § 1 – Lack of reasoning in assize court judgment : While it was acceptable for a higher court to a set out the reasons for its decisions succinctly by reference to the reasoning of the court below, the same was not necessarily true of a criminal court sitting at first instance. In the applicant’s case, the assize court’s judgment was based on 31 questions that had been put to the jury at the trial, 4 of which concerned the applicant. The jury had answered all the questions in the affirmative. Moreover, identical questions had been put to the jury in respect of all 8 accused rather than of each accused individually. The questions had been asked in such a way that the applicant could legitimately complain that he did not know why affirmative answers had been given each question when he had denied all personal involvement in the alleged offences. Such laconic answers to what were vague and general questions could have conveyed to the applicant an impression of arbitrary justice lacking in transparency. Since he had not been given so much as a summary of the assize court’s main reasons for finding him guilty, he was unable to understand – or, therefore, to accept – its decisions. This was particularly significant because the jury did not reach its verdict on the basis of the case file but on the basis of the evidence it heard at the hearing. It had therefore been important in order to explain the verdict to the accused and to public opinion – the “people” in whose name the decision was taken – for the considerations that had persuaded the jury of the accused’s guilt or innocence to be explained and for the precise reasons for the positive or negative replies to each of the questions to be indicated. In these circumstances, the Court of Cassation had been prevented from carrying out an effective review and from identifying issues such as whether the reasoning was defective or inconsistent. Conclusion : violation (unanimously). Article 6 §§ 1 and 3 (d) – Failure to examine the anonymous witness : The applicant submitted that his conviction had been based to a decisive extent on the statements of an anonymous witness whom he had not been able to examine or to have examined at any stage of the proceedings. The witness’s identity had not been disclosed to the assize court and he had not been examined by the investigating judge. He had provided information that was noted down by two non-commissioned officers of the gendarmerie. The information concerned the planning of A.C.’s murder had been set out in 15 points, only one of which referred to the applicant, with his name featuring as one of a group of people who were said to have planned the murder. In the Court’s view, it was desirable in the interests of the proper administration of justice for anonymous statements to be examined by a judge who knew the identity of the witness, had verified the reasons for anonymity and had been able to express an opinion on the witness’s credibility in order to establish whether there was any animosity between the witness and the accused. Further, it was unclear from the case file whether the conviction of the applicant, who had consistently denied the charges, was based on objective evidence, solely on the information provided by the anonymous witness or, as indicated in the indictment, solely on the statement of one of the co-accused incriminating the applicant. As the applicant had been unable to examine the anonymous witness or to have him examined at any stage of the proceedings and since there had been no assessment of the reliability of the witness’s evidence by an investigating judge, the applicant’s fears regarding the use that had been made of the witness’s statements could be regarded as justified. In these circumstances, the procedure before the assize court in the applicant’s case taken both as a whole and as regards its specific features, had hindered the exercise of his defence rights.   He had not, therefore, had a fair trial. Conclusion : violation (unanimously). Article 41   – EUR 4,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes