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You are here: BAILII >> Databases >> European Court of Human Rights >> VIDAL v. BELGIUM - 12351/86 [1992] ECHR 47 (22 April 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/47.html
Cite as: [1992] ECHR 47
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In the case of Vidal v. Belgium*,
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 Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr R. Bernhardt,
Mr J. De Meyer,
Mrs E. Palm,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 29 November 1991 and
25 March 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar:
* The case is numbered 14/1991/266/337. 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.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 8 March 1991 and by
the Government of the Kingdom of Belgium ("the Government") on
6 May 1991, 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. 12351/86) against
Belgium lodged with the Commission under Article 25 (art. 25) by a
Belgian national, Mr Frans Vidal, on 7 July 1986. He was referred
to by the initial "V." during the proceedings before the Commission,
but subsequently agreed to his identity being disclosed.
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
Government's application referred to Article 48 (art. 48). The
object of the request and the application was to obtain a decision
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under paragraph 1 in conjunction
with paragraph 3 (d) of Article 6 (art. 6-1, art 6-3-d) of the
Convention.
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 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 22 March 1991, in the presence
of the Registrar, the President drew by lot the names of the other
seven members, namely Mr Thór Vilhjálmsson, Mr F. Gölcüklü,
Mr F. Matscher, Mr L.-E. Pettiti, Mr C. Russo, Mr R. Bernhardt and
Mrs E. Palm (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 applicant's
lawyer on the organisation of the procedure (Rule 37 para. 1 and
Rule 38). Pursuant to the order made in consequence, the Registrar
received the applicant's memorial on 18 July 1991. He was informed
by the Government on 19 July and by the Delegate on 16 October 1991
that they would not be submitting memorials.
5. On 8 July 1991 the Commission produced the documents in the
proceedings before it, as requested by the Registrar on the
President's instructions.
6. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg, on
26 November 1991. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Lathouwers, Legal Officer,
Ministry of Justice, Deputy Agent,
Mr E. Jakhian, avocat, Counsel;
(b) for the Commission
Mr C.L. Rozakis, Delegate;
(c) for the applicant
Mr M. Forges, avocat, Counsel.
The Court heard addresses by Mr Jakhian for the Government,
Mr Rozakis for the Commission and Mr Forges for the applicant, as
well as their replies to its questions.
AS TO THE FACTS
I. The particular circumstances of the case
7. In 1983 Mr Frans Vidal was a warder at Saint-Gilles Prison
(Brussels), having previously worked at Namur Prison until
October 1982.
A. Background to the case
8. On 6 February 1983 Mr Bosch Hernandez, an inmate of Namur
Prison serving a life sentence imposed by the Brabant Assize Court,
attempted to escape. Using a revolver which he had managed to
obtain clandestinely, he took the chief warder hostage, but another
warder succeeded in disarming him. A note signed by Mr Vidal was
found on him; it was undated and read as follows:
"I hereby promise to pay the sum of ten thousand francs by
1 or 2 November 1982."
When questioned by the Namur police and an investigating
judge, he first refused to disclose where the weapon had come from,
and then stated that he had been given it by the applicant.
9. Mr Vidal was charged on the following day by the
investigating judge of the Namur Court of First Instance (tribunal
de première instance).
He was detained on the same day and denied that he had
provided the weapon. He admitted having written and signed the
document, but claimed that he had given it to another inmate,
Mr Bieseman, from whom he said he had borrowed the sum of
10,000 Belgian francs to pay gambling debts.
10. The detention order was confirmed on several occasions in
1983.
11. Mr Derriks, the Deputy Director of Namur Prison, indicated
that he had new information for the investigators, and was
interviewed on 31 August 1983 by the police inspector assigned to
the inquiry. He stated as follows:
"For some months there have been rumours among the
prisoners in C wing suggesting that the former warder,
Frans Vidal, was not the person who brought into the prison
the revolver used by Bosch Hernandez.
More recently, on 29 August 1983, I saw the inmate
Alain Scohy in an office of our prison. I had to inform him
of an internal administrative decision. On that occasion
Scohy told me that he wished to give me information confided
in him by other inmates of C wing. He said that the weapon
used by Bosch Hernandez had been introduced into the prison
initially for the use of the prisoner Omer Bieseman by a
certain Miss Lhoir, a visitor of the prisoner
Marcel Castris. After she had smuggled the weapon into the
prison and hidden it in the visitors' lavatory, Bieseman had
escaped when, on 10 January 1983, he had been taken for a
medical examination at the Ste-Camille Clinic. The weapon
remained in the prison and finally ended up in the hands of
Juan Bosch Hernandez, who had planned to escape with
Bieseman using the weapon.
According to Scohy, after it had been brought into the
building, the weapon was hidden at the bottom of a dustbin,
which Bosch alone, as a server, had the possibility of using
as a hiding place for at least three months.
...
I must inform you that Alain Scohy made this statement
spontaneously, but hoping to increase his chances of release
on licence.
I would add that Bieseman has still not been re-arrested
since his escape on 10 January 1983 and that Marcel Castris,
nicknamed the 'C wing banker', was provisionally released,
with a view to deportation, on 19 August 1983.
The latter's visitor may be identified as: Dominique Lhoir
..., or her sister Marie-Eve Lhoir, ...
Again according to Scohy, Frans Vidal is totally
unconnected with the bringing into the prison of these
weapons.
..."
12. The investigators tried to question the persons referred to
in the above statement.
On 8 September 1983 Mr Bosch Hernandez reaffirmed before the
investigating judge that the applicant had provided him with the
weapon, in exchange for payment of 100,000 Belgian francs.
Mr Scohy, who was questioned in prison on 27 September 1983,
refused to say anything, for fear of provoking animosity from the
other inmates. He added that he would report of his own accord to
the investigating judge once he had obtained his release on licence,
and that he would give evidence in the Assize Court if, by then, he
was back with his family so that he could protect them from any
reprisals by Mr Castris.
On 3 October 1983 the police questioned
Miss Marie-Eve Lhoir, who denied the accusation that she had
introduced a weapon for the use of Mr Castris, a close friend of her
sister Dominique. She stated that, although they used her address,
Mr Castris and her sister lived elsewhere.
Mr Castris and Miss Dominique Lhoir were summoned to appear
on 4 October 1983. They telephoned the investigators on that day to
tell them that for personal reasons they were unable to appear for
the time being but they were willing to come forward at a later
date. They did not comply with three further summonses. On
14 October 1983 the investigators informed the investigating judge
that the two persons concerned had left their residence for an
unknown destination, and that Mr Castris, a foreign national, had
been released provisionally shortly before and was subject to a
deportation order.
13. On 7 October 1983 the Namur Committals Chamber (chambre du
conseil) rescinded the detention order concerning the applicant.
Its decision was confirmed by the Liège Indictments Division
(chambre des mises en accusation) on 18 October 1983.
B. The trial
1. The judgment of the Namur Criminal Court
of 9 August 1984
14. Mr Vidal was sent for trial before the Namur Criminal Court,
charged with:
"A. on 6 February 1983 ... as an accessory ... having
procured weapons which were used to commit a criminal
offence, knowing that they were intended to be so used, or
having knowingly aided or abetted the perpetrator of the
offence ... in respect of action which prepared or
facilitated the offence or which carried it out, having
attempted to take a hostage, by holding, detaining or
seizing Roger Frederick, a prison warder, in order to ...
prepare or facilitate the escape [of Bosch Hernandez], the
intention to commit the offence having been manifested by
conduct which objectively constituted the first step towards
the perpetration of the offence and which conduct was halted
or failed to attain the aim pursued only as a result of
circumstances outside the control of its perpetrators.
B. ... having, between 1 October 1982 and 6 February 1983,
being the officer on duty with responsibility for an
inmate convicted of a criminal offence, namely,
Juan Carlos Bosch Hernandez, facilitated the latter's escape
by supplying him with a weapon, the said escape having been
attempted using violence or threats.
C. ... having, in 1982, prior to 1 November, over an
unspecified period, had in his possession a firearm without
having duly registered it.
D. ...
E. ... having, in October or November 1982, at a date as yet
undetermined, sold a firearm to a person who was neither a
manufacturer nor an arms dealer nor in possession of an
authorisation to purchase it.
..."
On 9 August 1984 the court acquitted him on the following
grounds:
"...
It is not possible on the basis of the case-file or the
evidence adduced at the hearing to form, beyond all possible
doubt, a conviction as to the ... defendant's guilt; the
statements, albeit categorical, [of Bosch Hernandez] cannot
in fact be verified by any specific objective evidence in
the case-file;
..."
In the same judgment, it convicted Mr Bosch Hernandez and
sentenced him to three years' imprisonment.
At the hearing on 28 June 1984 the court had heard the
applicant and Mr Bosch Hernandez, and had also taken evidence from
two prison warders and three police officers.
2. The judgment of the Liège Court of Appeal
of 26 October 1984
15. The prosecution and the civil party seeking damages
appealed. By a unanimous judgment of 26 October 1984, the Liège
Court of Appeal sentenced Mr Vidal to three years' imprisonment, the
part of the sentence exceeding the time spent in detention on remand
being suspended for five years.
It found that:
"... the co-defendant's accusations have remained
consistent although he had no interest in ... securing [the
applicant's] downfall, and in addition to other information
in the case-file concerning the defendant's financial
circumstances and conduct, the latter having admitted
borrowing money from a prisoner, they give rise to serious,
precise and concurring presumptions which constitute proof
of the charges ..."
At the same time it confirmed the sentence imposed on
Mr Bosch Hernandez at first instance.
16. Mr Vidal appealed, and the Court of Cassation quashed the
judgment on 29 May 1985, on the grounds that the Court of Appeal had
been presided over by a judge who had on 26 August 1983 presided
over the Indictments Division when it had confirmed a decision of
the Committals Chamber refusing to order the appellant's release,
and, having regard to Article 6 para. 1 (art. 6-1) of the
Convention, on which he had relied, such a circumstance could arouse
in the appellant "a legitimate doubt as to the ability of the Court
of Appeal ... to hear the case in an impartial manner."
3. The judgment of the Brussels Court of Appeal
of 11 December 1985
17. On an application by Mr Vidal, the principal public
prosecutor of the Brussels Court of Appeal, to which the case had
been remitted, sent the public prosecutor of Créteil (Val-de-Marne)
a letter of request on 26 July 1985 asking him to question
Mr Bieseman, who had in the meantime been arrested in France and was
being held at Fresnes Prison. He was questioned by the French
police on 25 October 1985 and denied having lent the applicant
10,000 Belgian francs. The record of his statements was added to
the applicant's case-file.
18. On 11 December 1985 the Brussels Court of Appeal, by a
unanimous decision, sentenced Mr Vidal to four years' imprisonment.
The court gave the following reasons for its decision:
"...
A detailed examination of the evidence in the case-file
and of the evidence adduced at the hearing has enabled the
court to form the conviction that the defendant is guilty of
the offences as charged;
This conviction is based on two items of evidence which
are complementary:
(1) the statements of Bosch Hernandez;
(2) the promissory note signed by Vidal;
(1) The statements of Bosch Hernandez
Notwithstanding the caution with which the statements of a
person such as Bosch Hernandez should be treated, the court
is bound to observe that the accusations which he levelled
against Vidal have remained consistent throughout the
investigation and that the statements which he made on
numerous occasions both when questioned by the police and on
examination by the investigating judge are precise and
coherent;
In addition it should be stressed that the case-file
contains no evidence to support the claim that there was
between Vidal and Bosch Hernandez a matter of dispute or
disagreement capable of explaining or justifying the
accusation made by the latter against the former;
Vidal himself has not cited in this respect any reason for
his accuser to bear ill-feelings against him;
The defendant unsuccessfully alleged in his submissions
that Bosch Hernandez's statements were improbable in
numerous respects and contained discrepancies;
The court is bound to note that, as regards the essential
question, namely the allegation that Vidal supplied
Bosch Hernandez with the firearm which was used to carry out
the escape attempt, Bosch Hernandez has never altered his
statements;
In short, these statements at no time appeared improbable
or incoherent; on the contrary, they are highly believable
and capable of sustaining the conviction formed by the
court;
(2) The promissory note signed by Vidal
It is established that a document constituting a
promissory note for a sum of 10,000 francs, signed by Vidal,
was discovered in the search made of Bosch Hernandez after
his abortive escape attempt;
The court notes that the existence of this document
accordingly constitutes an objective fact which corroborates
Bosch Hernandez's accusations and shows that there existed
between the two men business relations of which the least
that can be said is that they were unacceptable as far as
Vidal was concerned because of his duties as a prison warder
and that these relations were such as to undermine his
independence vis-à-vis prisoners;
Although he is unable to deny that he had contracted a
debt, he has unsuccessfully alleged that he had borrowed the
sum from another inmate;
This statement, in the first place, is formally contested
both by Bosch Hernandez and the other prisoner, a certain
Bieseman, and secondly, is not at all consistent with the
fact that the disputed document was found in
Bosch Hernandez's hands;
It is hard to see why the promissory note should be among
the documents in Bosch Hernandez's possession if Vidal had
not been his debtor;
These two objective items of evidence, which are in no way
incompatible with all the other evidence regarding the
defendant's conduct in relation to the inmates (borrowing
sums of money from them, abnormal familiarity, serious
failures to carry out proper surveillance), are sufficient
to lead the court to form its conviction;
The first-instance court wrongly found that charges A, B
and E were not established; it did not rule on charge C;
These four charges [see paragraph 14 above] are
established; the offences referred to therein are a
manifestation of a single criminal intention and justify the
imposition of only one sentence, the heaviest of those
applicable;
...
The offences committed by the defendant are extremely
serious ones;
By facilitating by supplying a weapon the escape of a
prisoner serving life imprisonment, even though the escape
failed because of circumstances outside his control, the
defendant Vidal endangered the lives of certain of his
fellow-warders who, like him, were on duty with
responsibility for prisoners;
Such actions must be punished by a sentence commensurate
with their seriousness, and the imposition of any suspended
sentence is consequently out of the question;
..."
19. In submissions of 19 November 1985 counsel for the defence
had asked the court:
"...
As principal submission
To hold that each and every charge brought against the
defendant Vidal is not established, to find him not guilty
and acquit him.
In the alternative
To carry out all appropriate additional investigative
measures, and in any event to order Alain Scohy,
Jules Bodart, Gérard Dauphin and Pierre Dausin, all detained
in Namur Prison at the time of the alleged offences, to be
called as witnesses ..."
With respect to Mr Scohy, the application was based on the
following considerations (pp. 3-4 and 21-23 of the said
submissions):
"...
Short statement of the facts
...
7. During the investigation ...
In late August 1983, following rumours which had
circulated persistently for some months in C wing of Namur
Prison (Vidal had not been inside this prison since being
arrested on 7 February 1983, hence no contact with the
prisoners in that wing), it had turned out, according to
these rumours among prisoners, that it had not been Vidal
who had introduced the revolver 'used by Bosch Hernandez'
...
On 29 August 1983 prisoner Alain Scohy reported these
rumours and gave full details as to how the weapon had been
introduced and the persons involved - directly or
indirectly: Castris, another server in C wing when being
visited by his friend Dominique Lhoir - concealment of the
weapon, passing it to Bieseman, finally reaching
Bosch Hernandez.
Bieseman escaped on 10 January 1983.
Castris released on licence and deported in October 1983.
N.B. No detailed investigation took place regarding these
facts.
Scohy was not even questioned by the investigating judge,
although he had promised [the police] that he would give
evidence (i.e. on oath) before the Court of Assizes if
necessary ...
...
Critical appreciation of the investigation ...
...
1. The Deputy Director of Namur Prison, Mr Derriks,
considered it his duty to bring to the attention of the
judicial authorities certain facts (which he thus considered
to be sufficiently important), rumours of long standing and
statements made by a prisoner Scohy, all of direct relevance
to the Vidal/Bosch Hernandez case-file.
2. Rumours (persistent ones) had been circulating for
months among the inmates of C wing (the wing of Bosch, a
server, of Bieseman, often in the workshop, of Castris,
another server ...)
according to which the former warder Frans Vidal had not
been the person who had introduced the revolver used by
Bosch Hernandez ...
Commentary
This literal quotation from the beginning of the statement
by the Deputy Director itself demonstrates uncontradictably
that there was a 'serious' item of evidence here, to be
verified and checked in an exhaustive and thorough manner of
course, as to the introduction of the revolver into the
prison by some person other than Vidal.
The saying 'no smoke without fire' which applies here is a
vivid expression of popular wisdom.
3. Statements made by prisoner Scohy (to Mr Derriks on
29.8.83)
These statements are precise enough as to how the weapon
was introduced:
(a) by a woman visitor ... in the lavatory
(b) Castris, the deported 'banker'
(c) Bieseman, escaped on 10 January 1983 ...
(d) Bosch Hernandez
these two were known as having made plans to escape ...
(e) the weapon was hidden at the bottom of a dustbin.
Commentary
These three facts mentioned above would on their own have
deserved a thorough investigation (the third fact appears
believable since Bosch Hernandez stated it himself).
4. Scohy's offer to give evidence on oath - possibly at
the Assizes, with reference to the correctness of the
content of his statements ...
Commentary
Even if this declaration appears from his point of view to
favour his request for release on licence, nothing prevented
such statements and such an offer of sworn evidence at the
very least engaging the attention of an impartial
investigator, always hard at work in such a case to find out
an undeniable method or opportunity of introducing a weapon
into the prison (by a method not involving a prison warder),
as Mr Gouverneur, the acting Director of the prison,
appositely said ...
The investigation appears to us to be manifestly
incomplete, as the investigating judge did not consider it
necessary to question Scohy before terminating the
investigation, even though many facts in the case-file gave
Scohy's statements definite verisimilitude - the possibility
of an object being introduced by a woman visitor, who is not
searched and has access to the lavatory; the undoubted
possibility of hiding a weapon there (for example, securing
it in the flushing system or elsewhere); because of his
duties in the workshop, access to whole prison by Bieseman,
Castris, server, Bosch Hernandez, server, obsessed with
gaining freedom, as was his fellow-prisoner Bieseman (escape
plans).
Extensive contacts between these prisoners in C wing,
20-30 in contact daily for at least two hours usually ...
from 12.30 to 1.30 p.m. and from 4.30 to 5.30 p.m., for over
ten months.
It follows from the above:
persistent specific rumours for some months (Vidal did not
introduce the weapon),
statements made by a prisoner in C wing (no doubt one
prisoner among many, in view of the rumours),
offer to testify on oath with reference to these quite
precise statements, highly likely to be true at least in
part,
that additional investigative measures in great detail
were necessary, at appropriate times and under appropriate
conditions;
The defence must deplore such a deficiency in the case-
file, even though it now appears unnecessary or superfluous
in view of the conclusions which now necessarily follow,
after a methodical examination of all the facts which have
been presented and a critical evaluation of them.
..."
This offer to produce evidence was implicitly rejected by
the Brussels Court of Appeal, which did not mention it in its
decision, and did not call any witnesses before giving judgment.
20. The applicant appealed to the Court of Cassation, relying
inter alia on Article 6 paras. 1, 2 and 3 (d) (art. 6-1, art. 6-2,
art. 6-3-d) of the Convention. In an appeal comprising six points,
he criticised the Court of Appeal in essence for not having replied
to certain of his submissions, including his request for witnesses
to be called, and for having based its decision on the extremely
dubious statements of Mr Bosch Hernandez and a promissory note of no
probative value.
The Court of Cassation dismissed the appeal on
12 February 1986, for the following reasons:
"...
... The judgment states: 'that a detailed examination of
the evidence in the case-file and of the evidence adduced at
the hearing has enabled the [Court of Appeal] to form the
conviction that the [appellant] is guilty of the offences as
charged' and specifies the facts on which that conviction
was based;
As the court thus gave the reasons on the basis of which
it formed its conviction, it was not bound to indicate the
reasons for which it dismissed the application submitted to
it for additional evidence to be taken, considered
implicitly but clearly in its decision to be of no value in
establishing the truth;
...
... The submission, which ... does not state in what way
the Court of Appeal failed to give adequate reasons for its
decision, or indicate the defence submissions or
applications which the appellant put forward in his appeal
and which the judgment allegedly failed to answer, is
inadmissible as insufficiently specific;
...
The judgment noted that the accusations made by the
co-defendant Bosch Hernandez against Vidal had been
consistent throughout the investigation and that the
statements which he had made on numerous occasions, both
when questioned by the police and before the investigating
judge, were precise and coherent, and considered that they
were at no time improbable or incoherent, that they were, on
the contrary, highly believable and capable of sustaining
the conviction formed by the Court of Appeal and that the
appellant's allegations concerning the loan which he had
contracted were categorically denied both by Bosch Hernandez
and by another inmate, a certain Bieseman, and moreover were
in no way consistent with the fact that the document in
question was in Bosch Hernandez's possession;
Where statute, as in this case, does not lay down a
specific form of proof, the trial court assesses with
unfettered discretion the probative value of the evidence
which has been adduced before it and which the parties have
been able freely to contradict;
The judgment was therefore able, without infringing the
statutory provisions cited [by the appellant], to rely on
the statements of a co-defendant as evidence against the
appellant;
...
In addition, the submission which ... amounts to
criticising the appellate court's assessment of the facts is
inadmissible;
...
... It is not contradictory to consider that certain
statements should be treated with caution and to find that
the accusations contained in such statements were formulated
consistently throughout the investigation, that they were
made on numerous occasions, that they were precise, that at
no time did they appear improbable or incoherent and that
they were, on the contrary, highly believable and capable of
sustaining the conviction formed by the court;
... On the basis of such considerations, the judgment,
which decided that 'the [appellant] unsuccessfully alleged
in his submissions that Bosch Hernandez's statements were
improbable in numerous respects and contained
discrepancies', answered the submissions indicated in this
point of the appeal;
...
That the contested judgment did not base its decision on
an element of fact which had been mentioned by the decisions
of the investigating authorities or the trial court below
does not in itself lead to the conclusion that there has
been a violation of the statutory provisions relied on in
the appeal;
In so far as the judgment under appeal convicted the
appellant on the basis of the statements of a co-defendant
and the fact that the appellant had signed a promissory
note, it gave an adequate statement of the reasons on which
it was based and a justification in law for reaching its
decision;
..."
II. Relevant domestic law and practice
21. Under Article 154 of the Code of Criminal Procedure,
"Petty offences (contraventions) shall be proved by
official reports or, where there are no such reports, or in
support thereof, by evidence taken from witnesses.
On pain of nullity, witness evidence in addition to or
contradicting the contents of official reports or reports of
police officers empowered by law to make findings in respect
of lesser offences and petty offences, unless it is alleged
that they have been tampered with or forged, shall not be
admissible. As regards reports made by other officials and
officers whose reports are not regarded by the law as
authoritative in the absence of such an allegation, they may
be contested by written or oral evidence, if the court
considers it appropriate to admit such evidence."
This provision applies also to lesser offences (délits
correctionnels), under Article 189 of the Code.
22. "Official reports duly drawn up are evidence of the material
facts stated by the reporting officers acting within their
capacities, and in particular of the reality of the declarations
which they state have been made to them", but "this probative force
does not extend to the honesty of the declaration or the accuracy of
the facts stated to them" (Court of Cassation (Cass.),
22 January 1980, De Rijcke, Pasicrisie (Pas.), 1980, I, p. 575).
23. The above-mentioned Articles 154 and 189 "are merely
declaratory" (Cass., 18 September 1950, De Bock et De Broe, Pas.,
1951, I, p. 3). "[They are] not an exhaustive list of the means
whereby offences may be proved" and "[do] not prevent the trial
court, in cases where statute does not prescribe ... a particular
method of proof, reaching its conviction on the basis of all the
evidence in the case which has been duly admitted and which the
parties have been able to contradict" (Cass., 17 August 1978,
Segers, Pas., 1978, I, p. 1259; see also Cass., 7 May 1934, Sevrin
c. Thill, Pas., 1934, I, p. 269, and the aforementioned De Bock et
De Broe judgment). The court may thus also "have regard to items of
evidence other than official reports, other reports and the
testimony of witness" (see the above-mentioned De Bock et De Broe
judgment).
24. The court may base its conviction on presumptions, that is
to say, on what Article 1349 of the Civil Code defines as
"assumptions about an unknown fact which statute or the court makes
on the basis of a known fact", but under Article 1353 of the Code it
"can only admit presumptions which are serious, precise and
concurring".
Such presumptions may legally be admitted as evidence of an
offence and "the court need not state its reasons for considering
that the presumptions on which it bases its conviction are serious,
precise and concurring" (Cass., 25 March 1981, Gueben c. Godefroid,
Pas., 1981, I, p. 805): it has unfettered discretion to assess
whether the items of evidence mentioned by it are of such nature
(Cass., 6 May 1946, De Broyer, Pas., 1946, I, p. 171).
25. The court decides, again at its discretion, on "the
necessity or appropriateness of an investigative measure or
additional steps" (Cass., 11 March 1957, Sors et Mniszek, Pas.,
1957, I, p. 826; see also Cass., 15 April 1981, De Buck, Pas., 1981,
I, p. 919, and Cass., 6 March 1973, Neyrinck, Pas., 1973, I,
p. 624), inter alia as to the calling of witnesses (Cass.,
13 June 1907, Jolly, Pas., 1907, I, p. 273; see also the
aforementioned Neyrinck judgment).
It "is empowered to determine with unfettered discretion
whether, having regard to the evidence already received, further
witnesses for the prosecution or the defence must be heard in order
for it to form its conviction" (Cass., 26 November 1962, Thomas,
Pas., 1963, I, p. 395; see also the aforementioned De Buck
judgment). "If it refuses such a request on the grounds that it
considers the measure requested to be unnecessary for founding its
conviction, it does not violate the rights of the defence" (see the
above-mentioned Neyrinck judgment).
This rule applies on appeal as well as at first instance
(Cass., 4 March 1912, Bonus, Pas., 1912, I, p. 141; Cass.,
23 December 1912, Deckers, Pas., 1913, I, p. 42; Cass., 8 July 1940,
De Smedt c. Bultinck et consorts, Pas., 1940, I, p. 188).
26. Finally, unless statute prescribes "a particular method of
proof" (see the above-mentioned De Rijcke and Segers judgments), the
trial court "assesses in unfettered discretion the probative value
of the evidence in the case": this is a "general rule with respect
to the taking of evidence in criminal cases" (see the above-
mentioned Neyrinck judgment).
27. Under Article 211 bis of the Code of Criminal Procedure, an
appellate court may not replace an acquittal by a conviction or
impose a more severe sentence on a defendant, unless its members are
unanimous in reaching that decision.
PROCEEDINGS BEFORE THE COMMISSION
28. Mr Vidal applied to the Commission on 7 July 1986. He
complained of breaches of paragraphs 1, 2 and 3 (d) of Article 6
(art. 6-1, art. 6-2, art. 6-3-d) of the Convention, inasmuch as he
had been unable to have defence witnesses called and questioned and
had been convicted on the basis of unreliable testimony.
29. On 14 May 1990 the Commission found the latter complaint
inadmissible; on the other hand, it declared the application
(no. 12351/86) admissible as regards the former.
In its report of 14 January 1991 (Article 31) (art. 31) it
expressed the opinion, by twelve votes to one, that there had been a
violation of paragraph 1 of Article 6, in conjunction with
paragraph 3 (d) (art. 6-1, art. 6-3-d). The full text of its
opinion is reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: For practical reasons this annex will
appear only with the printed version of the judgment (volume 235-B
of Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 3 (d)
(art. 6-1, art. 6-3-d)
30. Mr Vidal claimed that there had been a violation of
paragraph 1 in conjunction with paragraph 3 (d) of Article 6
(art. 6-1, art. 6-3-d), according to which:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(d) to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;
..."
He claimed that by failing to call the four defence
witnesses he had requested (see paragraph 19 above) the Brussels
Court of Appeal had deprived him of his only means of establishing
his innocence. Its failure to respect the equality of arms had been
more blatant in that it had based its decision solely on the
untrustworthy statements of Mr Bosch Hernandez, who had testified
before the Namur Criminal Court and the Liège Court of Appeal (see
paragraphs 14-15 above) but not before itself.
31. The Government maintained that in the present case there
were no "exceptional circumstances" which might prompt the Court to
conclude, in accordance with its own case-law (see the Bricmont v.
Belgium judgment of 7 July 1989, Series A no. 158, p. 31, para. 89),
that the failure to hear the witnesses in question had been
incompatible with Article 6 (art. 6). The Brussels Court of Appeal
had found that there were a number of items of evidence which, taken
together, were in its opinion sufficient to dispel any doubt as to
the applicant's guilt. After examining the matter it had considered
that the investigative measure requested was not necessary for
establishing the truth. Moreover, its decision had been a unanimous
one, as required by Article 211 bis of the Code of Criminal
Procedure (see paragraph 27 above), which constituted a safeguard
for the defence.
32. The Court notes that the Namur Criminal Court had acquitted
the applicant on 9 August 1984 after hearing as witnesses, apart
from himself and his co-defendant Bosch Hernandez, two prison
officers and three police officers (see paragraph 14 above). On
26 October 1984 the Liège Court of Appeal had, however, sentenced
the applicant to three years' imprisonment, suspended, on the sole
basis of the case-file and the allegations of Mr Bosch Hernandez
(see paragraph 15 above).
Once his appeal to the Court of Cassation had succeeded,
Mr Vidal requested the Brussels Court of Appeal, the court to which
the case had been remitted, to call four persons who had been
detained at Namur Prison at the time of the alleged offences,
Mr Scohy, Mr Bodart, Mr Dauphin and Mr Dausin, as defence witnesses.
This request appeared on page 26 of his counsel's submissions of
19 November 1985. On pages 3-4 and 21-23 his counsel explained in
some detail why the evidence of Mr Scohy appeared to him to be
likely to fill in certain deficiencies in the investigation (see
paragraph 19 above). He did not specify what purposes would be
served by the calling of Mr Bodart, Mr Dauphin and Mr Dausin as
witnesses, but given the context it could scarcely be doubted that
he wished them to be questioned about the rumours Mr Scohy had
spoken of to Mr Derriks on 29 August 1983 (see paragraph 11 above).
The Court of Appeal disregarded the point. On
11 December 1985, basing its decision on the earlier statements by
Mr Bosch Hernandez, who was no longer involved in the case, and the
promissory note signed by the applicant, it sentenced him to four
years' imprisonment, not suspended, in view of the "extremely
serious" nature of the offences (see paragraphs 18-19 above). On
12 February 1986 the Court of Cassation dismissed the applicant's
second appeal, based inter alia on Article 6 (art. 6) (see
paragraph 20 above).
33. As a general rule, it is for the national courts to assess
the evidence before them as well as the relevance of the evidence
which defendants seek to adduce (see, inter alia, the Barberà,
Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A
no. 146, p. 31, para. 68). More specifically, Article 6 para. 3 (d)
(art. 6-3-d) leaves it to them, again as a general rule, to assess
whether it is appropriate to call witnesses, in the "autonomous"
sense given to that word in the Convention system (see, as the most
recent authority, the Asch v. Austria judgment of 26 April 1991,
Series A no. 203, p. 10, para. 25); it "does not require the
attendance and examination of every witness on the accused's behalf:
its essential aim, as is indicated by the words 'under the same
conditions', is a full 'equality of arms' in the matter" (see the
Engel and Others v. the Netherlands judgment of 8 June 1976,
Series A no. 22, pp. 38-39, para. 91, and the above-mentioned
Bricmont v. Belgium judgment, Series A no. 158, p. 31, para. 89).
The Brussels Court of Appeal did not hear any witness, whether for
the prosecution or for the defence, before giving judgment.
The concept of "equality of arms" does not, however, exhaust
the content of paragraph 3 (d) of Article 6 (art. 6-3-d), nor that
of paragraph 1 (art. 6-1), of which this phrase represents one
application among many others (see, inter alia, the Delcourt v.
Belgium judgment of 17 January 1970, Series A no. 11, p. 15,
para. 28, and the Isgrò v. Italy judgment of 21 February 1991,
Series A no. 194-A, pp. 11-12, para. 31). The task of the European
Court is to ascertain whether the proceedings in issue, considered
as a whole, were fair as required by paragraph 1 (art. 6-1)
(see, inter alia, the Delta v. France judgment of 19 December 1990,
Series A no. 191, p. 15, para. 35).
34. The applicant had originally been acquitted after several
witnesses had been heard. When the appellate judges substituted a
conviction, they had no fresh evidence; apart from the oral
statements of the two defendants (at Liège) or the sole remaining
defendant (at Brussels), they based their decision entirely on the
documents in the case-file. Moreover, the Brussels Court of Appeal
gave no reasons for its rejection, which was merely implicit, of the
submissions requesting it to call Mr Scohy, Mr Bodart, Mr Dauphin
and Mr Dausin as witnesses.
To be sure, it is not the function of the Court to express
an opinion on the relevance of the evidence thus offered and
rejected, nor more generally on Mr Vidal's guilt or innocence, but
the complete silence of the judgment of 11 December 1985 on the
point in question is not consistent with the concept of a fair trial
which is the basis of Article 6 (art. 6). This is all the more the
case as the Brussels Court of Appeal increased the sentence which
had been passed on 26 October 1984, by substituting four years for
three years and not suspending the sentence as the Liège Court of
Appeal had done.
35. In short, the rights of the defence were restricted to such
an extent in the present case that the applicant did not have a fair
trial. There has consequently been a violation of Article 6
(art. 6).
II. APPLICATION OF ARTICLE 50 (art. 50)
36. Under Article 50 (art. 50),
"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."
Mr Vidal claimed compensation for damage and reimbursement
of costs and expenses. However, he invited the Court to hold that
the question of the application of Article 50 (art. 50) was not
ready for decision, in view of the possibilities which Belgian
internal law might offer for remedying the consequences of the
violation of Article 6 (art. 6), and also the possibility of an
attempt to reach a friendly settlement.
The Government disputed the applicant's claims, while the
Delegate of the Commission expressed no opinion.
37. In these circumstances the Court considers that it should
reserve the question and fix the subsequent procedure, bearing in
mind the possibility of an agreement reached between the respondent
State and the applicant (Rule 54 paras.1 and 4 of the Rules of
Court).
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that there has been a violation
of Article 6 (art. 6);
2. Holds unanimously that the question of the application of
Article 50 (art. 50) is not ready for decision;
accordingly,
(a) reserves it in whole;
(b) invites the Government and the applicant to submit to it
in writing within three months their observations on the
question and in particular to communicate to it any
agreement which they may reach;
(c) reserves the subsequent procedure and delegates to the
President of the Court power to fix the same if need be.
Done in English and in French and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 22 April 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the dissenting
opinion of Mr Thór Vilhjálmsson is annexed to this judgment.
Initialled: R.R.
Initialled :M.-A.E.
DISSENTING OPINION OF JUDGE THOR VILHJALMSSON
To my regret, I am not able to agree with the Court's
finding of a violation of Article 6 (art. 6) of the Convention in
this case.
The Court has once more been called upon to consider its
role under the Convention as regards the question whether, in the
circumstances, the rules on fair trial, as well as the rules on
presentation of evidence, were respected. The taking and assessment
of evidence fall primarily within the sphere of national
legislatures and courts. In the Bricmont case our Court stated as
follows: "It is normally for the national courts to decide whether
it is necessary or advisable to call a witness. There are
exceptional circumstances which could prompt the Court to conclude
that the failure to hear a person as a witness was incompatible with
Article 6 (art. 6) ..." (judgment of 7 July 1989, Series A no. 158,
p. 31, para. 89).
When the case of the applicant was remitted to the Brussels
Court of Appeal, his defence counsel requested that four named
persons, including Mr Scohy, should be called as witnesses. The
reasons given by counsel in support of his request are set out in
paragraph 19 of the present judgment. Mr Scohy had reported to the
Deputy Director of the Namur prison that there were rumours
circulating among the inmates in a certain wing of the prison that
the applicant had in fact not supplied a revolver to a prisoner.
Counsel argued that it was necessary for Mr Scohy to appear before
the court. The purpose of calling the three other persons to give
evidence is less clear.
In my opinion, it is not the proper role of our Court to
assess whether it was necessary to call the above-mentioned persons
to give evidence. I do not think that it is of relevance in this
connection that the Brussels court gave no reasons for not hearing
the four men or that it increased the sentence imposed on the
applicant. I find no violation of Article 6 (art. 6) in this case.