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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> LAMY v. BELGIUM - 10444/83 [1989] ECHR 5 (30 March 1989)
URL: http://www.bailii.org/eu/cases/ECHR/1989/5.html
Cite as: (1989) 11 EHRR 529, [1989] ECHR 5
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In the Lamy case*,
_______________
* Note by the Registrar: The case is numbered 16/1987/139/193. The
first number is the case's position on the list of cases referred to the
Court in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to the Court
since its creation and on the list of the corresponding originating
applications to the Commission.
_______________
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr J. De Meyer,
Mr J.A. Carrillo Salcedo,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 November 1988 and
24 February 1989,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 18 December 1987, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 10444/83) against the Kingdom of Belgium lodged with
the Commission under Article 25 (art. 25) by a Belgian national,
Mr José Lamy, on 20 June 1983.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Belgium recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision from the Court as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Article 5 paras. 2 to 4 and
Article 6 para. 3 (b) (art. 5-2, art. 5-3, art. 5-4, art. 6-3-b).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings pending before the Court and
designated the lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr J. De Meyer, the elected judge of Belgian nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of
the Court (Rule 21 para. 3 (b)). On 29 January 1988, in the presence of the
Registrar, the President drew by lot the names of the other five
members, namely Mr J. Cremona, Mr Thór Vilhjálmsson, Mr L.-E. Pettiti,
Mr C. Russo and Mr J.A. Carrillo Salcedo (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of the
Government, the Delegate of the Commission and the lawyer for the
applicant on the need for a written procedure (Rule 37 para. 1). In
accordance with the orders made in consequence, the Registrar
received:
(a) the applicant's memorial, on 5 April 1988;
(b) the Government's memorial, on 25 April; and
(c) the Government's and the applicant's supplementary memorials, on
22 July and 1 August respectively.
In letters received by the Registrar on 27 May and 25 August, the
Secretary to the Commission indicated that the Delegate would submit
his observations at the hearing.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 8 September that
the oral proceedings should open on 23 November 1988 (Rule 38).
6. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting immediately beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Lathouwers, Ministry of Justice, Delegate of
the Agent,
Mr E. Jakhian, leader of the Brussels Bar, Counsel;
(b) for the Commission
Mr A. Weitzel, Delegate;
(c) for the applicant
Mr R. Neuroth, avocat, Counsel.
The Court heard addresses by Mr Jakhian for the Government, by
Mr Weitzel for the Commission and by Mr Neuroth for the applicant.
7. Although, on the President's instructions, the applicant was
requested by the Registrar on 22 December 1985 to "provide
particulars, with vouchers, of expenses incurred ... before the
Belgian courts and the Convention institutions", he did not do so
before this judgment was adopted.
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. Mr José Lamy is a Belgian citizen who was born in 1932; he
lives at Verviers and is a company director.
On 29 November 1982, a private limited company ("société de personnes
à responsabilité limitée - "SPRL Lamy") of which he was the manager
and which built industrial premises filed a declaration of insolvency
with the registry of the Verviers Commercial Court, and the court
adjudged the company bankrupt on the same day.
A. The applicant's remand in custody
1. The arrest warrant
9. On 18 February 1983, an investigating judge of the Verviers
tribunal de première instance (regional court of first instance)
questioned Mr Lamy and issued a warrant for his arrest.
The warrant set out several grounds: the seriousness of the offences
and of the adverse effects on public order and safety; the scale of
the bankrupt company's liabilities (more than 500 million BF); the
needs of the investigation; the accused's deliberate and unmistakable
attempts to deprive the creditors of their security; his expenditure;
and the risk of his absconding abroad.
On the back of the warrant the charges listed against the applicant
were:
"I. That, being the majority partner in SPRL Lamy at
Ensival-Verviers, which was adjudged bankrupt by the Verviers
Commercial Court on 29.11.1982, and himself a trader adjudged
personally bankrupt by the same court on 30.12.1982, he did at
Verviers, Pepinster or elsewhere in the district or Kingdom, within
the limitation period, commit:
(a) ... fraudulent bankruptcy by, among other things:
1. misappropriating or concealing assets worth over 10,000,000 F; and
2. withholding his books or other accounting documents or fraudulently
removing, deleting or altering their content;
(b) ... ordinary bankruptcy by, among other things:
1. incurring excessive personal and household expenditure;
2. not giving notice of cessation of payments within the time-limit
prescribed in Article 440 of the Commercial Code;
3. failing, in the late notice, to give the explanations and accurate
information required by Article 441 of the Commercial Code;
4. paying or favouring some creditors to the detriment of the
creditors as a whole, after cessation of payments.
II. That as principal, joint principal or accessory, at Verviers or
elsewhere in the Kingdom between 1.1.1980 and this day, he did on
several occasions fraudulently or maliciously:
(a) forge notarised and public documents, private documents and bank
or commercial documents by means of false signatures, or by forging or
altering documents or signatures, or by fabricating or inserting
terms, provisions, obligations or discharges in documents, or by
adding or altering clauses, statements or facts which it was the
purpose of the documents to set out and record, in that he inter alia:
(i) submitted a false balance sheet on 29.11.1982;
(ii) kept a separate set of false accounts of his business with
Algeria and Libya among others;
(b) use these documents knowing them to be false;
(c) fraudulently misappropriate or, to the the detriment of another,
part with bills of exchange, money, merchandise, promissory notes,
receipts or documents which he had been given on condition he returned
them or used them for specific purposes, in particular:
(i) 789,000 F due in VAT and,
(ii) over 10,000,000 F to the detriment of SPRL Lamy (sale of
civil-engineering equipment);
(d) obtain, in order to appropriate property of another, funds,
movables, obligations, receipts or discharges, by using assumed names
or false status or making other false pretences to induce belief in
the existence of fictitious businesses, powers or credit, engender
hope or apprehension of success, or otherwise deceive in order more
particularly to:
(i) obtain 1,801,429 F from the VAT authority to the detriment
of SPRL Lamy.
III. That at Verviers or elsewhere in the Kingdom between
14 January 1974 and this day, being a trader, he did carry on a
professional activity for which he was not registered in the Business
Register."
After receiving a copy of the warrant, Mr Lamy was taken into custody
at the remand prison at Verviers.
2. Proceedings in the chambre du conseil of the Verviers tribunal de
première instance
10. On 22 February 1983, the applicant, assisted by his lawyer,
appeared before the chambre du conseil of the Verviers tribunal de
première instance. His counsel filed pleadings in which he disputed
in particular that there were "serious and exceptional circumstances"
within the meaning of section 2 of the Act of 10 April 1874 (see
paragraph 23 below). He also handed over a file concerning, inter
alia, the proceedings relating to the applicant's personal bankruptcy
(see paragraph 17 below).
11. After hearing the investigating judge, Assistant Crown Counsel
and the defence, the chambre du conseil upheld the arrest warrant. It
accepted the reasons given in the warrant and held that the interests
of public safety required that the applicant should continue to be
held in custody.
3. The proceedings in the Indictments Chamber of the Liège Court of
Appeal
12. On 23 February 1983, Mr Lamy challenged the chambre du
conseil's order in the Indictments Chamber of the Liège Court of
Appeal. He argued that no reasons were given for the order, the
circumstances noted by the chambre du conseil were not such as to
justify his detention, and the warrant of 18 February was unlawful as
it did not bear any signature and was wrongly dated (18 March 1983).
The prosecution filed pleadings on 28 February 1983.
13. On 10 March 1983, the Indictments Chamber set aside the order
on grounds of failure to reply to the applicant's submissions. At the
same time, however, it decided that the arrest warrant should remain
in force.
As regards whether there was sufficient evidence of guilt and of
serious and exceptional circumstances relating to public safety, the
Indictments Chamber founded its judgment on the following reasons:
"It is to be noted that even in his own account of the state of the
firm's affairs, given in the form of submissions, the accused conceded
that the balance sheet of 29 November 1982 was inaccurate, although he
denied any fraudulent intent and stated that after verification of
sums owed to the firm its liabilities came to 220 million francs,
against which he set primarily the expected outcome of a hypothetical
action against a third party, whose value he said could 'reasonably'
be put at 300 million francs;
Account must be taken of his admissions concerning the irregular
transactions referred to in report 317 of the Verviers police and in
the record of his examination by the investigating judge on
18 February 1983, corroborated by the admissions of the co-accused
Jungbluth, in police report 292, although the accused now denies their
extent;
The foregoing provides sufficient evidence of guilt to justify the
impugned arrest warrant, given the extremely large sums involved, the
needs of the investigation, which the accused disputed to no avail,
and the risk of his attempting to evade justice despite his
protestations of good faith and the good intentions he professes - all
considerations which are set out in the warrant appealed against,
which are serious and exceptional, and which required his arrest in
the interests of public safety."
As to the alleged unlawfulness of the warrant, the Indictments Chamber
noted, in the first place, that the copy given to the applicant
mentioned that the original identified the investigating judge and was
signed by him. The court added: "It [could] not be seriously
questioned ... that the copy given to the [applicant] bore the date
18 March 1983 instead of 18 February 1983 purely as a result of a
clerical error of no consequence". The court concluded that these
circumstances in no way made the arrest arbitrary and could not have
prejudiced the rights of the defence.
4. The proceedings in the Court of Cassation
14. Mr Lamy appealed on points of law to the Court of Cassation on
11 March 1983, putting forward three grounds. Firstly, he maintained
that mandatory formal requirements had not been complied with, as the
arrest warrant was unsigned and the attached order committing him to
prison bore the date 18 March 1983. Additionally, he considered the
reasoning of the Indictments Chamber's judgment to be unclear and
contradictory. Lastly, he stated that the Indictments Chamber had
relied on reports 292 and 317 of the Verviers police - documents that
had not been communicated to the accused; in this connection he
relied on Article 6 paras. 1 and 3 (art. 6-1, art. 6-3) of the Convention.
15. The Court of Cassation dismissed the appeal on 4 May 1983.
As regards the first ground of appeal, it noted that the formalities
provided for in the Code of Criminal Procedure for serving an arrest
warrant were not mandatory and that failure to comply with them did
not entail nullity. It reiterated the Indictments Chamber's remarks
as to the lack of a signature and the error in the date and concluded
that there had been no infringement of the rights of the defence or of
the principle of personal liberty.
With respect to the second ground of appeal, the Court of Cassation
held that the reasons given for the judgment appealed against were
neither unclear nor contradictory, as the judgment was based not only
on the applicant's admissions concerning the irregular transactions
referred to in reports 292 and 317 but also on the extremely large
sums involved, the needs of the investigation and the risk that the
accused might try to evade justice. The Indictments Chamber inferred
from this that there were serious and exceptional circumstances
affecting public safety.
As to the third ground, the Court of Cassation held that Article 6
(art. 6) of the Convention was concerned with the exercise of the
rights of the defence in trial courts and not with procedure followed
in the matter of detention on remand. Furthermore, the 1874 Act
precluded communication of the file to the accused or his counsel at
this stage in the proceedings; this was apparent from section 4, taken
together with the final paragraph of section 5. The Indictments
Chamber had accordingly not been able to "conclude from the
non-communication of the file that there had been any infringement of
the rights of the defence".
5. Provisional release
16. The chambre du conseil made reasoned orders extending
Mr Lamy's detention on remand month by month (section 5, second
paragraph, of the 1874 Act - see paragraph 23 below). The applicant
regained his freedom on 18 August 1983 as the vacation court,
exercising the jurisdiction of the Indictments Chamber, took the view
that the needs of the investigation no longer precluded his release.
B. The proceedings against the applicant
1. Civil proceedings
17. On 24 December 1982, on an application by the trustees in
bankruptcy for SPRL Lamy, the Verviers Commercial Court adjudged the
applicant personally bankrupt.
An application by Mr Lamy to have that judgment set aside was
dismissed by the Commercial Court on 24 March 1983, but on appeal the
Liège Court of Appeal, in a judgment delivered on 24 April 1985,
quashed the judgment of 24 March 1983 and declared the judgment
of 24 December 1982 to be null and void.
2. Criminal proceedings
(a) The committal for trial
18. On 28 March 1986, the chambre du conseil of the Verviers
tribunal de première instance committed Mr Lamy and five co-defendants
for trial at the Criminal Court.
19. An application by Mr Lamy to have that order set aside was
declared inadmissible by the Indictments Chamber in a judgment given
on 10 December 1986.
20. Mr Lamy's appeal on points of law against that judgment was
dismissed by the Court of Cassation on 4 February 1987.
21. Throughout the proceedings relating to the committal for
trial, the applicant pleaded various grounds of nullity. He argued in
particular that his counsel had not been able to inspect the file when
the arrest warrant was first confirmed by the chambre du conseil and
had subsequently had only forty-eight hours' notice of each
appearance, which was not sufficient for preparing the defence.
(b) The judgment of the Verviers Criminal Court
22. On 12 November 1987, the Verviers Criminal Court convicted the
defendant and sentenced him to three years' imprisonment, suspended
for five years in respect of that part of the sentence which exceeded
the time already spent in custody on remand, and imposed two fines of
60,000 BF.
Unlike his co-defendants, Mr Lamy did not appeal.
II. THE APPLICABLE DOMESTIC LAW
23. Detention on remand is governed by an Act of 20 April 1874, as
amended or supplemented by, inter alia, Acts of 23 August 1919 and
13 March 1973. The main provisions relevant in the instant case are
set out below:
Section 1
"After the examination, the investigating judge may issue an arrest
warrant where the offence is punishable by three months' imprisonment
or a heavier penalty.
If the accused is resident in Belgium, the investigating judge may
issue such a warrant only in serious and exceptional circumstances,
where necessary in the interests of public safety.
..."
Section 2
"In the eventuality provided for in paragraph 2 of section 1, the
warrant shall state the serious and exceptional circumstances
affecting public safety which justify arrest and shall specify the
special features of the case or of the accused's personality."
Section 3
"Immediately after the first interview with the investigating judge,
the accused shall be allowed to communicate freely with his counsel.
..."
Section 4
"The arrest warrant shall expire unless, within the five days
following the examination, the chambre du conseil renews it on the
basis of the investigating judge's report and after hearing
submissions by Crown Counsel and the accused.
If the accused, who shall be asked specifically about his wishes in
the matter, desires the assistance of a lawyer, that fact shall be
mentioned in the record of his examination by the investigating judge.
In that event, the presiding judge of the chambre du conseil dealing
with the case shall cause the place, date and time of the hearing to
be entered in a special register at the registry at least forty-eight
hours beforehand.
The registrar shall notify these details by registered letter to the
lawyer nominated."
Section 5
"If, within one month after the examination by the investigating
judge, the chambre du conseil has not given a ruling on the remand,
the accused shall be released unless, in a unanimous reasoned
decision, after hearing submissions by Crown Counsel and the accused
or his lawyer, the chambre du conseil rules that serious and
exceptional circumstances affecting public safety necessitate the
accused's further remand. Such a decision shall state the relevant
circumstances and the special features of the case or of the accused's
personality.
The same shall apply each month thereafter if the chambre du conseil
has not ruled on the remand by the end of the month.
Prior to a hearing by the chambre du conseil or the Indictments
Chamber, the file shall be made available to the accused's lawyer at
the registry for two days. The registrar shall notify the lawyer
accordingly by registered letter."
Section 19
"The accused and the prosecution may appeal to the Indictments Chamber
against decisions of the chambre du conseil in the cases provided for
in sections 4, 5...."
Section 20
"Such an appeal shall be entered within the twenty-four hours
following the day of the decision in the case of the prosecution and
following the day on which the decision was served on him in the case
of the accused.
Service shall be effected within twenty-four hours. The relevant
document shall advise the accused of his right of appeal and of the
time-limit for exercising that right.
Notice of appeal shall be lodged with the registry of the Criminal
Court and recorded in the register of criminal appeals.
Crown Counsel shall forward the documents to Principal Crown Counsel.
Notifications to the accused's lawyer shall be made by the Registrar.
The Indictments Chamber shall give a ruling straightaway after hearing
submissions by the prosecution and the accused or his lawyer.
..."
24. It should be noted that section 4 does not contain any
provision corresponding to the last paragraph of section 5, which was
inserted by the Act of 23 August 1919.
PROCEEDINGS BEFORE THE COMMISSION
25. In his application of 20 June 1983 to the Commission
(no. 10444/83), Mr Lamy complained that neither he nor his counsel had
had access to the investigation file when the arrest warrant was first
confirmed by the chambre du conseil of the Verviers tribunal de
première instance or when he appealed to the Indictments Chamber of
the Liège Court of Appeal. He alleged a violation of Article 5 paras. 2,
3 and 4 of the Convention and of Article 6 para. 3 (b) (art. 5-2,
art. 5-3, art. 5-4, art. 6-3-b).
26. The Commission declared the application admissible
on 10 December 1985. In its report of 8 October 1987 (made under
Article 31) (art. 31), it expressed the opinion that:
(a) there had been a violation of Article 5 para. 4 (art. 5-4)
(by seven votes to three);
(b) it was not necessary to express a view on whether there had been
a violation of Article 5 paras. 2 and 3 (art. 5-2, art. 5-3)
(unanimously); and
(c) there had not been a violation of Article 6 para. 3 (b) (art. 6-3-b)
(unanimously).
The full text of the Commission's opinion and of the separate opinion
contained in the report is reproduced as an annex to this judgment.
AS TO THE LAW
I. THE ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4)
27. The applicant claimed to be a victim of a breach of
Article 5 para. 4 (art. 5-4) of the Convention, which provides:
"Everyone who is deprived of his liberty by arrest or detention shall
be entitled to take proceedings by which the lawfulness of his
detention shall be decided speedily by a court and his release ordered
if the detention is not lawful."
In his submission, a review of the lawfulness of his detention should
have been the occasion for objective, adversarial proceedings.
These could not be considered to have taken place where the
investigating judge and Crown Counsel had had an opportunity to make
their submissions in full knowledge of the contents of a substantial
file, while the defence could only argue its case on the vague charges
made in the arrest warrant.
Furthermore, the proceedings allegedly did not truly ensure equality
of arms. After a brief interview with the investigating judge, who
read the charges out to him, Mr Lamy received a copy of the warrant,
which was unsigned and bore the wrong date. During the first thirty
days during which he was held in custody, he was not allowed access to
the investigation file; subsequently, his counsel - but not he
himself - had access to it but only during the forty-eight hours
preceding each appearance before the chambre du conseil.
Lastly, the applicant claimed that the chambre du conseil had taken no
account of his submissions. He made the same criticism of the
Indictments Chamber, which he said had taken refuge in stereotyped
phrases. It had based its confirmation of the arrest warrant on his
"confessions" and on police reports 292 and 317. The confessions,
however, were non-existent and the police reports did not demonstrate
guilt, especially as Mr Lamy could not know the content of them from
the mere mention of the numbers. While admitting that he had drafted
two sets of pleadings, running to seven pages and twenty-two pages,
the applicant complained that he had not been able to prepare his
defence adequately and that he was not allowed to inspect the police
reports in question.
28. In the Government's submission, the reason why the file on a
case remained inaccessible to the defence during the first thirty days
of custody was that the investigating judge would only just have
opened it and would be adding new material to it every day (seized
documents, records of witness examinations, searches, expert evidence,
etc.); he could not part with it for the purposes of its being held
permanently at the registry and being made available to the defendant
or his counsel.
Apart from that aspect, Mr Lamy had had the benefit of adversarial
proceedings in accordance with the criteria laid down by the European
Court, notably in the Sanchez-Reisse judgment of 21 October 1986
(Series A no. 107) and the Weeks judgment of 2 March 1987
(Series A no. 114).
In the first place, he had been notified of the evidence against him.
After his interview of 18 February 1983 with the investigating judge,
he had received on the same day a copy of the arrest warrant, which
set out at length the reasons why it had been issued. When he first
appeared before the chambre du conseil he had heard the investigating
judge's report and the prosecution's submissions. He had been fully
informed of the content of police reports 292 and 317, which he had
moreover helped to draw up.
In the second place, Mr Lamy had been able to participate adequately
in the judicial process. He or his counsel had set forth the
arguments in favour of his release, both orally and in writing. He
had filed two sets of pleadings running to seven pages and twenty-two
pages, and the Belgian courts duly ruled on them as they were bound to
do, since otherwise their judgments could have been reversed or
quashed on appeal. He had been present when the arrest warrant was
renewed. And when his lawyer, at the end of the first month of
custody, had had access to the whole file, he had not derived any
fresh argument from it.
More generally, the Government maintained that the overriding need for
proceedings to be adversarial did not extend to making available the
entire file that was being built up and that the requirements of
Article 6 (art. 6) were not identical with the more limited ones
of Article 5 para. 4 (art. 5-4). For the Court to hold that the principle
of equality of arms applied also to the consideration of applications
for provisional release would be tantamount to condemning the system
brought into operation by the legislation complained of and by that of
other Contracting States, when what was at issue was a corollary of
the fact that the investigation was inquisitorial and secret. Belgium
would find itself faced with two alternatives: either maintaining the
present waiting time for appearance before the chambre du conseil,
which would mean photocopying all the documents and would be
impossible in practice; or prolonging the waiting period so that the
file could be lodged at the registry.
29. Like the Commission, the Court notes that during the first
thirty days of custody the applicant's counsel was, in accordance with
the law as judicially interpreted, unable to inspect anything in the
file, and in particular the reports made by the investigating judge
and the Verviers police. This applied especially on the occasion of
the applicant's first appearance before the chambre du conseil, which
had to rule on the confirmation of the arrest warrant (see
paragraphs 10-11 above). The applicant's counsel did not have the
opportunity of effectively challenging the statements or views which
the prosecution based on these documents.
Access to these documents was essential for the applicant at this
crucial stage in the proceedings, when the court had to decide whether
to remand him in custody or to release him. Such access would, in
particular, have enabled counsel for Mr Lamy to address the court on
the matter of the co-defendants' statements and attitude (see
paragraph 18 above). In the Court's view, it was therefore essential
to inspect the documents in question in order to challenge the
lawfulness of the arrest warrant effectively.
The appraisal of the need for a remand in custody and the subsequent
assessment of guilt are too closely linked for access to documents to
be refused in the former case when the law requires it in the latter
case.
Whereas Crown Counsel was familiar with the whole file, the procedure
did not afford the applicant an opportunity of challenging
appropriately the reasons relied upon to justify a remand in custody.
Since it failed to ensure equality of arms, the procedure was not
truly adversarial (see, mutatis mutandis, the Sanchez-Reisse judgment
previously cited, Series A no. 107, p. 19, para. 51).
There was therefore a breach of Article 5 para. 4 (art. 5-4).
II. THE ALLEGED VIOLATION OF ARTICLE 5 PARA. 2 (art. 5-2)
30. The applicant also alleged a violation of Article 5 para. 2
(art. 5-2), which provides:
"Everyone who is arrested shall be informed promptly, in a language
which he understands, of the reasons for his arrest and of any charge
against him."
Mr Lamy claimed that the judicial investigation had begun as a result
of a tendentious report by the administrators of SPRL Lamy of which he
had had no knowledge. That being so, he could not effectively and
usefully prepare his defence and make ready for his appearance before
the chambre du conseil.
31. The Government submitted that Article 5 para. 2 (art. 5-2)
covered only the information to be given a defendant about the charges
against him.
The influence of such information on the conduct of the defence was an
aspect of Article 5 para. 4 (art. 5-4) and was to be looked at from the
point of view of that provision.
As to the way in which the information was to be given, it was clear
from the case-law of the Convention institutions that it could be
given orally or in writing. There was accordingly no obligation to
make the file available for inspection. Furthermore, the record of
the hearing on 18 February 1983 showed that Mr Lamy had admitted some
of the charges. Since he had signed that document and received a copy
of the arrest warrant, he could not claim not to have known the
reasons for his arrest. The interview with the investigating judge had
therefore amply satisfied the requirements of Article 5 para. 2 (art. 5-2).
32. The Court considers the applicant's arguments to be devoid of
foundation. Quite apart from his questioning by the investigating
judge, it notes that on the very day of his arrest Mr Lamy was given a
copy of the arrest warrant. This document set out not only the
reasons for depriving him of his liberty but also the particulars of
the charges against him (see paragraph 9 above). There was
accordingly no breach of Article 5 para. 2 (art. 5-2).
III. THE ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3)
33. The applicant further complained of an infringement of
Article 5 para. 3 (art. 5-3), whereby:
"Everyone arrested or detained in accordance with the provisions of
paragraph 1 (c) (art. 5-1-c) of this Article shall be brought promptly
before a judge or other officer authorised by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to
release pending trial. Release may be conditioned by guarantees to
appear for trial."
In his view, that provision implied proceedings that were meaningful.
Yet neither the chambre du conseil nor the Indictments Chamber had
taken account of his submissions to them.
34. The Government disputed that claim. They said that the
Convention, and in particular Article 5 para. 3 (art. 5-3), did not
contain any obligation to rule on a defendant's submissions or, more
generally, to give reasons for a judgment. They also pointed out that
the Indictments Chamber had set aside the chambre du conseil's order
for failure to rule on Mr Lamy's submissions. The applicant had thus
successfully availed himself of the remedy that Belgian law and the
Belgian courts afforded him, and he therefore had no reason to rely on
Article 5 para. 3 (art. 5-3).
35. The Court notes that the investigating judge at Verviers
issued a warrant - containing reasons - for Mr Lamy's arrest on the
very day that he had questioned him, and that the chambre du conseil
upheld the arrest and likewise gave reasons for its successive orders
(see paragraphs 9, 16 and 32 above).
It should also be noted that the detention on remand ended well before
committal for trial and the subsequent conviction.
The procedure therefore complied with the requirements of
Article 5 para. 3 (art. 5-3).
IV. THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 3 (b) (art. 6-3-b)
36. Lastly, Mr Lamy complained of a breach of Article 6 para. 3 (b)
(art. 6-3-b), which confers on "everyone charged with a criminal
offence" the right "to have adequate time and facilities for the
preparation of his defence".
37. The facts and arguments relied on by the applicant in support
of this complaint are the same as those put forward under
Article 5 para. 4 (art. 5-4). It is accordingly not necessary to consider
the case under Article 6 para. 3 (b) (art. 6-3-b) and in particular to
determine the question - on which there was lengthy argument between
those appearing before the Court - of the applicability of this
provision to the investigation stage of proceedings.
V. THE APPLICATION OF ARTICLE 50 (art. 50)
38. The applicant relied on Article 50 (art. 50) of the
Convention, which reads:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
He sought satisfaction for damage and for costs and expenses.
A. Damage
39. As Mr Lamy considered that the question of compensation was
not ready for decision, he asked the Court to reserve it. He
proceeded on the assumption that the Court would find that there had
been a violation of the Convention and that its judgment would prompt
the Minister of Justice to ask Principal Crown Counsel at the Court of
Cassation to refer to that court the Verviers Criminal Court's
judgment of 12 November 1987 (see paragraph 22 above).
40. The Government considered that the applicant's claim
for 10 million Belgian francs in the pleadings he had filed with the
Commission was premature.
41. The Delegate of the Commission noted that there was no
evidence to warrant the assertion that the detention on remand
complained of would probably have ended earlier if Mr Lamy had been
able to inspect the file - particularly police reports 292 and 317 -
before the hearing by the Verviers chambre du conseil on
22 February 1983. He concluded that the violation of Article 5 para. 4
(art. 5-4) had not caused the applicant any pecuniary damage. On the
other hand, he considered that Mr Lamy might have sustained
non-pecuniary damage, to be assessed ex aequo et bono.
42. The Court regards the question as being ready for decision.
As far as pecuniary damage is concerned, it agrees with the Delegate
of the Commission. It points out that Mr Lamy's conviction by the
Verviers Criminal Court is not in issue in the instant case.
Furthermore, it sees no causal link between the breach of
Article 5 para. 4 (art. 5-4) and any worsening of Mr Lamy's financial
position.
If Mr Lamy did suffer any non-pecuniary damage, the present judgment
provides him with sufficient just satisfaction (see in particular,
mutatis mutandis, the Luberti judgment of 23 February 1984, Series A
no. 75, pp. 18-19, para. 41).
B. Costs and expenses
43. At the hearing the applicant claimed 300,000 BF "on a
provisional basis in respect of costs in the Belgian courts and before
the Convention institutions". Despite a request by the President of
the Court (see paragraph 7 above), the applicant has not since
provided the necessary particulars of the costs he incurred.
That being so, the Court cannot award him more than 100,000 BF under
this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a breach of Article 5 para. 4 (art. 5-4)
of the Convention;
2. Holds that there has been no breach of Article 5 paras. 2 and 3
(art. 5-2, art. 5-3);
3. Holds that it is not necessary to examine the case under
Article 6 para. 3 (b) (art. 6-3-b);
4. Holds that Belgium is to pay the applicant 100,000 (one hundred
thousand) BF in respect of costs and expenses;
5. Rejects the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 30 March 1989.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar