CEDH · PRESS;GCJUDGMENTS;ENG — 21 janvier 1999

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BELGIUM       In a judgment delivered at Strasbourg on 21 January 1999 in the case of Van Geyseghem v. Belgium (application no.   26103/95), the European Court of Human Rights held by sixteen votes to one that there had been a violation of Article 6 §§ 1 (right to a fair trial) and 3 (c) (right to legal assistance) of the European Convention on Human Rights. Under Article 41 of the Convention (just satisfaction), the Court awarded the applicant a certain sum for costs and expenses.   1.   Principal facts     The applicant, Mrs Nicole Van Geyseghem, a Belgian national, was born in 1942 and lived at Hoeilaart (Belgium) at the material time.     In 1987 the applicant was prosecuted in the Belgian criminal courts for her involvement on three occasions in an international cocaine-trafficking ring in which her role was to import drugs from Brazil into Belgium.     After being convicted at first instance by the Brussels Criminal Court, she appealed. She did not attend the first hearing of her appeal, and subsequently applied, as she was entitled to do under Belgian law, to set aside the Court of Appeal’s judgment delivered in absentia , in which her conviction and sentence to three years’ imprisonment and a fine of 60,000 Belgian francs had been upheld. That application brought the case back before the Court of Appeal for a further hearing. The applicant did not attend that hearing either. Her counsel appeared and stated that he was representing his client and would be making submissions to the effect that the prosecution had become time-barred. The Court of Appeal refused him leave to represent his client and in a judgment of 4 October 1993 declared her application void. Mrs Van Geyseghem’s appeal to the Court of Cassation was dismissed on 4 May 1994.   2.   Procedure and composition of the Court     The application was lodged with the European Commission of Human Rights on 25   October 1994. Having declared the application admissible, the Commission adopted a report on 3 December 1997 in which it expressed the opinion that there had been a violation of Article 6 of the Convention (fourteen votes to one). The Belgian Government referred the case to the old Court on 9 April 1998. The applicant likewise brought the case before the Court.     Under the transitional provisions of Protocol No. 11 to the Convention, the case was transmitted to the Grand Chamber of the new European Court of Human Rights on the entry into force of the Protocol, on 1 November 1998. Judgment was given by a Grand Chamber of 17 judges, composed as follows:   Luzius Wildhaber   (Swiss), President, Elisabeth Palm   (Swedish), Vice-President, Christos Rozakis   (Greek), Vice-President, Nicolas Bratza   (British), Matti Pellonpää   (Finnish), Benedetto Conforti   (Italian), Antonio Pastor Ridruejo   (Spanish), Giovanni Bonello   (Maltese), Jerzy Makarczyk   (Polish), Pranas Kūris   (Lithuanian), Riza Türmen   (Turkish), Françoise Tulkens   (Belgian), Corneliu Bîrsan   (Romanian), Marc Fischbach   (Luxemburger), Hanne Sophie Greve   (Norwegian), Rait Maruste   (Estonian), Snejana Botoucharova   (Bulgarian), Judges ,   and also Michele de Salvia, Registrar.   3.   Summary of the judgment [1]     Complaint     Mrs Van Geyseghem complained that the Brussels Court of Appeal had refused to grant her counsel leave to defend her in her absence at the hearing of her appeal against a lower court’s refusal of her application to set aside a judgment. She alleged a breach of paragraphs 1 and 3 (c) of Article 6 of the Convention.     Decision of the Court     The merits of the complaint     The Court reiterated the principles laid down in the cases of Poitrimol v. France (judgment of 23 November 1993, Series A no. 277) and Lala and Pelladoah v. the Netherlands (judgment of 22 September 1994, Series A no. 297-A and B) which concerned situations comparable to the one considered in the instant case. In the first of those three cases it had held that it was of capital importance that a defendant should appear, both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of the victim – whose interests needed to be protected – and of the witnesses. The legislature accordingly had to be able to discourage unjustified absences. In the other two cases, it had stated, however, that it was also “of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal, the more so if, as is the case under Netherlands law, no objection may be filed against a default judgment given on appeal”. The Court had added that the latter interest prevailed and that consequently the fact that a defendant, in spite of having been properly summoned, did not appear, could not – even in the absence of an excuse – justify depriving him of his right under Article 6 § 3 of the Convention to be defended by counsel. It was for the courts to ensure that a trial was fair and, accordingly, that counsel who attended trial for the apparent purpose of defending the accused in his absence was given the opportunity to do so.   The Court could not accept the Belgian Government’s argument that the finding that there was no possibility of applying to set aside a conviction in absentia had been decisive in the reasoning of the Lala and Pelladoah judgments. The clause beginning with the adverbial phrase “the more so” had been added as a secondary consideration. On the contrary, the Court had stated that the interest in being adequately defended prevailed. The right of everyone charged with a criminal offence to be effectively defended by a lawyer was one of the basic features of a fair trial. An accused did not lose this right merely on account of not attending a court hearing. Even if the legislature had to be able to discourage unjustified absences, it could not penalise them by creating exceptions to the right to legal assistance. The legitimate requirement that defendants had to attend court hearings could be satisfied by means other than deprivation of the right to be defended.   The principle established in the Lala and Pelladoah cases applied in the instant case. Even if Mrs Van Geyseghem had had several opportunities of defending herself, it had been the Brussels Court of Appeal’s duty to allow her counsel, Mr Verstraeten, – who had attended the hearing – to defend her, even in her absence. That had been particularly true in the instant case since the defence which Mr Verstraeten had intended to put forward had concerned a point of law. Mr   Verstraeten had intended to plead statutory limitation, an issue which the Court had described as crucial. Even if, as the Government had maintained, the Court of Appeal must have examined of its own motion the issue of statutory limitation, the fact remained that counsel’s assistance was indispensable for resolving conflicts and his role was necessary in order for the rights of the defence to be exercised. Furthermore, it did not appear from the judgment of 4 October 1993 that any ruling had been given on the issue.   In conclusion, there had been a violation of Article 6 § 1 taken together with Article   6   § 3 (c) of the Convention.   [See paragraphs 26-36 of the judgment and point 1 of its operative provisions.]   Application of Article 41 of the Convention     Mrs Van Geyseghem claimed 4,332,000 Belgian francs (BEF) for pecuniary damage. The Court held that it could not speculate as to the conclusion the Court of Appeal would have reached if it had granted the applicant leave to appear by counsel. Furthermore, no causal link had been established between the violation of the Convention found in this case and the various heads of the alleged pecuniary damage (due in part, to the applicant’s absconding). It therefore dismissed the claims under that head. As regards the non-pecuniary damage, the Court considered that it had been sufficiently compensated by the finding of a violation of Article 6.     The applicant also requested an undertaking from the Belgian State not to enforce the sentence passed on her by the Brussels Court of Appeal. The Court reiterated that the Convention did not give it jurisdiction to require any such undertaking from the Belgian State.     Lastly, Mrs Van Geyseghem claimed BEF 412,781 for the costs and expenses incurred in the domestic proceedings and before the Strasbourg institutions. The Court held that the applicant was entitled to seek payment of the costs and expenses of the proceedings before the Commission and the Court. Under those heads the Court, making its assessment on an equitable basis in the light of the information before it, awarded Mrs Van Geyseghem BEF   300,000.     [See paragraphs 38-45 of the judgment and points 2-4 of its operative provisions]     Seven judges expressed separate opinions, and these are annexed to the judgment.     The Court’s judgments are accessible on its Internet site (www.dhcour.coe.fr) on the day of their delivery.     Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to requests for information concerning the work of the Court, and in particular to enquiries from the press.   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contact: Mr Roderick LIDDELL Telephone: (0)3 88 41 24 92; fax: (0)3 88 41 27 91   1.     This summary by the Registry does not bind the Court.