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TAXQUET v. BELGIUM - 926/05 [2009] ECHR 2279 (13 January 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2279.html
Cite as:
[2009] ECHR 2279
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SECOND
SECTION
CASE OF
TAXQUET v. BELGIUM
(Application
no. 926/05)
JUDGMENT
STRASBOURG
13 January
2009
Referred
to the Grand Chamber
05/06/2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Taxquet v. Belgium,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Ireneu
Cabral Barreto,
President,
Françoise
Tulkens,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Işıl
Karakaş,
judges,
and
Sally Dollé, Section
Registrar,
Having
deliberated in private on 9 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 926/05) against the Kingdom of
Belgium lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Belgian national, Mr Richard Taxquet (“the
applicant”), on 14 December 2004.
The
applicant was represented by Mr L. Misson and Mr J. Pierre, lawyers
practising in Liège. The Belgian Government (“the
Government”) were represented by their Agent, Mr D. Flore,
Director-General, Federal Justice Department.
The
applicant alleged, in particular, a violation of Article 6 §§
1 and 3 (d) of the Convention, on account of the lack of
reasoning in a judgment of the Assize Court, the impossibility of
examining or having examined an anonymous witness and the Assize
Court's refusal to hear or rehear evidence from certain witnesses.
On
10 December 2007 the Court decided to give notice of the
above-mentioned complaints to the Government. It also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1957 and lives in Angleur.
On
17 October 2003 the applicant appeared before the Liège Assize
Court, together with seven co-defendants, on charges of murdering a
government minister, A.C., and attempting to murder the minister's
partner, M-H.J., on 18 July 1991. The indictment stated that they
were accused of the following:
“1. having knowingly and intentionally
killed [A.C.], with the additional circumstance that the killing was
premeditated; this offence is classified by law as premeditated
murder (assassinat);
2. having attempted, knowingly, intentionally
and with premeditation, to kill [M-H.J.], the intention to commit the
offence having been manifested by conduct which objectively
constituted the first step towards perpetration of the offence and
which was halted or failed to attain the aim pursued only as a result
of circumstances outside the control of its perpetrators; this
offence is classified by law as attempted premeditated murder.”
The
indictment further noted on pages 11 to 12:
“Carlo T. accuses Richard Taxquet, P.D.M. and
A.V.D.B. of having ordered the murder of A.C. ...
In April 1991 Richard Taxquet informed him about an
altercation he had had with A.C., who, having evidently found out
about certain matters, had told Richard Taxquet 'that he would get
it'.
Richard Taxquet also confided in his uncle that someone
had issued a death threat against him, adding: 'it will be him or
me'.”
In
June 1996 a person described by the applicant as an anonymous witness
had passed on certain information to the investigators. A record of
3 September 1996 mentioned the informer's intention to remain
anonymous, which he justified by fears for his safety “in view
of the importance of his information and the media outcry that has
always surrounded the C. case”. The person was never
interviewed by the investigating judge. He had given the
investigators information obtained in confidence from a person whose
identity he refused to disclose. During the trial in the Assize
Court, the investigators were asked on the initiative of several
defendants about the informer's identity. They stated that their
informer was not one of the defendants and had not personally
witnessed the alleged offences. According to the information
supplied, which was set out in fifteen points, A.C.'s murder had been
planned by six people, including the applicant and a leading
political figure. The only point incriminating the applicant stated:
“V.der B. and Taxquet apparently laid particular
emphasis on the urgent need to kill C. before the '91 holidays as he
had promised to make some significant disclosures after the summer
break.”
On
7 January 2004 the Assize Court sentenced the applicant (and his
co-defendants) to twenty years' imprisonment.
The
jury had been asked to answer thirty-one questions from the President
of the Assize Court. Four of them concerned the applicant and were
worded as follows:
“Question 25 – PRINCIPAL COUNT
Is the accused Richard Taxquet, who is present before
this court, guilty,
as principal or joint principal,
– either through having perpetrated the offence or
having directly cooperated in its perpetration,
– or through having, by any act whatsoever, lent
such assistance to its perpetration that without it the offence could
not have been committed,
– or through having, by gifts, promises, threats,
abuse of authority or power, scheming or contrivance, directly
incited another to commit the offence,
– or through having, by means of speeches in a
public place or assembly, or by means of any written or printed
matter, image or emblem displayed, distributed or sold, offered for
sale or exhibited in a place where it could be seen by the public,
directly incited another to commit the offence,
of having knowingly and intentionally killed [A.C.]
in Liège on 18 July 1991?
ANSWER: yes
Question 26 – AGGRAVATING CIRCUMSTANCE
Was the intentional homicide referred to in the
previous question premeditated?
ANSWER: yes
Question 27 – PRINCIPAL COUNT
Is the accused Richard Taxquet, who is present before
this court, guilty,
as principal or joint principal,
...
of having attempted knowingly and intentionally to
kill [M.-H.J.] in Liège on 18 July 1991, the intention to
commit the offence having been manifested by conduct which
objectively constituted the first step towards perpetration of the
offence and which was halted or failed to attain the aim pursued only
as a result of circumstances outside the control of its perpetrator?
ANSWER: yes
Question 28 – AGGRAVATING CIRCUMSTANCE
Was the attempted intentional homicide referred to in
the previous question premeditated?
ANSWER: yes”
On
account of the numerous events occurring in the course of the trial,
the Assize Court delivered thirteen interlocutory judgments:
(1) judgment
of 17 October 2003 noting the absence of certain defendants and
directing that they were to be tried in absentia;
(2) judgment
of 20 October on the submissions of a co-defendant on the issue of
cassette recordings of a video link;
(3) judgment
of 27 October 2003 concerning the examination of witnesses without
one of the co-defendants being present;
(4) judgment
of 18 December 2003 on the civil parties' submissions as to the
examination of certain witnesses;
(5) judgment
of 3 November 2003 on the examination of a witness in camera;
(6) judgment
of 6 November 2003 setting aside the order for a co-defendant to be
tried in absentia;
(7) judgment
of 13 November 2003 refusing a request by the prosecution for a
hearing in camera;
(8) judgment
of 19 November 2003 on the examination of certain witnesses in
camera;
(9) judgment
of 18 December 2003 on the submissions of a co-defendant objecting to
the showing of a recording made by video link;
(10) judgment
of 18 December 2003 on the submissions of a co-defendant as to the
issue of witnesses who had failed to appear and witnesses to be
reheard;
(11) judgment
of 18 December 2003 on the submissions of a co-defendant as to the
issue of the anonymous witness;
(12) judgment
of 18 December 2003 on the applicant's submissions as to the issue of
the anonymous informer;
(13) judgment
of 18 December 2003 on the applicant's submissions as to the issue of
witnesses who had failed to appear and witnesses to be reheard.
With
regard to the request for an investigating judge to hear or rehear
evidence from the person who had anonymously supplied information
noted down by two non-commissioned gendarmerie officers, the Assize
Court held:
“This information, obtained anonymously by members
of the police force, has no probative value as such. In the present
case it simply constituted information capable of giving fresh
impetus or a new slant to the investigation and leading to the
independent gathering of lawful evidence.
When examined at the hearing as witnesses, [the two
non-commissioned gendarmerie officers] stated that their informer was
not one of the defendants and that he himself had not witnessed any
of the acts he described; he had merely relayed information he said
he had received in confidence from a person whose identity he refused
to disclose.
...
In the investigators' view, the process of drawing up an
official record of information given to them by an anonymous informer
did not in itself constitute any infringement of the defence rights
of the persons named by the informer. All that was involved at that
stage was the disclosure, with a view to its analysis and
verification, of information that might be of interest to the
investigation and might assist in clarifying the facts. Viewed in
isolation from any objective data that might subsequently confirm it,
this information did not constitute evidence of the acts allegedly
carried out by the persons whose identity was mentioned by the
informer.
...
Lastly ... it is not possible to speak of rehearing when
it does not appear from the case file or the oral proceedings that
[the person described as an anonymous witness] gave evidence under
oath to an investigating judge.
With regard to the request for cross-examination of that
person, firstly, the court is unaware of his identity and, secondly,
regardless of the grounds relied on by the investigating judicial
authorities in that respect, it does not appear useful for
establishing the truth and would delay the proceedings needlessly
without giving the hope of more certain results.”
In
another interlocutory judgment delivered the same day, the Assize
Court held as follows in relation to the applicant's request for a
second examination of certain witnesses:
“The witnesses S.N., J.M., L.L. and A.R. gave
evidence to the Assize Court, and the defendant Richard Taxquet and
his counsel had the opportunity to put to them any questions they
wished and to challenge freely all the evidence adduced by the
prosecution and the civil parties.
In any event, as matters stand a second examination of
those witnesses is unlikely to assist in establishing the truth and
would tend to prolong the proceedings needlessly without giving cause
to hope for more certain results.
...
Lastly, the requested examination of the witness E.G.,
who was called but refused to appear, and of a new witness, F.R., are
likewise not necessary for establishing the truth and would tend to
prolong the proceedings needlessly without giving cause to hope for
more certain results, since the jury already has all the information
required to form its verdict.”
The
applicant appealed on points of law against his conviction of
7 January 2004 by the Assize Court and against all the
interlocutory judgments given by that court.
In
a judgment of 16 June 2004 the Court of Cassation dismissed the
appeal. It held, in particular, that:
–
the belated appearance of a co-defendant could not infringe the
appellants' defence rights as they had been able to challenge freely
both the statements made by that defendant during the preliminary
investigation and relayed at the hearing by the persons to whom they
had been given, and the statements made directly by the defendant
before the jury.
–
the Assize Court had rightly ordered that two witnesses should be
examined in camera, fearing that they might not be able to express
themselves freely if the hearing were public, which would have
hindered the proper administration of justice;
–
in refusing to show the film of the confrontation between witnesses
on the ground that it might delay the proceedings needlessly, the
Assize Court had not breached the principle of respect for the rights
of the defence or the principle that hearings must be conducted
orally, since the refusal had been based on the fact that those
taking part in the confrontation, having appeared at the hearing, had
been afforded the opportunity to be brought directly face to face
with the defendants;
–
in directing that the proceedings should continue on the ground that
the examination of certain absent witnesses (who had been duly
summoned to appear in court) was not necessary for establishing the
truth, and in holding that a further appearance by certain other
witnesses “would tend to prolong the proceedings needlessly
without giving cause to hope for more certain results”, the
Assize Court had not breached Article 6 of the Convention and the
principle that hearings must be conducted orally;
–
since the presumption of innocence related above all to the attitude
of judges called upon to determine a criminal charge, the comments
made by an investigator and the press reports, even if inaccurate,
malevolent or resulting from a criminal offence, could not in
themselves cause the trial to breach Article 6 §§ 1 and 2
of the Convention;
–
it could not be inferred from the alleged inexperience of the jurors,
the speed with which they deliberated or the lack of reasons given
for their verdict that they were incapable of impartial adjudication
in a case that had attracted considerable press coverage;
–
the procedure for appointing members of the jury and the fact that
they reached their verdict as to guilt without having discussed the
issue with the court did not mean that the Assize Court was not an
independent and impartial tribunal established by law within the
meaning of Article 6 § 1 of the Convention or that the
presumption of the accused's innocence could not be lawfully rebutted
in that court;
–
neither Article 6 nor Article 13 of the Convention guaranteed the
right of appeal;
–
neither Article 6 §§ 1 and 3 (b) of the Convention nor
Article 14 § 3 (b) of the International Covenant on Civil and
Political Rights, nor Article 149 of the Constitution, even when read
in conjunction with the above-mentioned treaty provisions, placed any
obligation on a jury to state reasons for its answers;
–
the ground of appeal relating to Article 6 § 3 (b) of the
Convention (inability to confer freely with his lawyer as a result of
his detention the day before the trial had begun) was inadmissible as
it did not appear from the evidence in the file that the applicant
had alleged before the Assize Court that there had been a violation
of the right to have adequate facilities for the preparation of his
defence;
–
Articles 10 and 11 of the Constitution, Article 14 of the
International Covenant on Civil and Political Rights and Article 6 §
1 of the Convention did not state that reasons had to be given for a
guilty verdict, or lay down the right of appeal or the right to
appear before courts made up solely of career judges; the discretion
of the lay jury, which, moreover, was restricted by Articles 351,
352, 364 and 364 bis of the Code of Criminal Procedure, did
not give rise to an arbitrary difference in treatment for the
purposes of Article 14 of the Convention.
As
to the argument that the appellants' conviction had been decisively
or incidentally based on the statements of an anonymous informer, the
Court of Cassation stated:
“In so far as they challenge the observation that
the Assize Court was unaware of the identity of the person whose
examination was being requested and could therefore not order it,
these grounds of appeal, being directed against an obiter dictum,
are immaterial.
On that account, they are inadmissible.
As to the other submissions, the presence in a criminal
case file of a record containing information from an unidentified
source does not require the trial court to ensure that the informer
is identified and examined in accordance with the procedure set forth
in Articles 189 bis and 315 bis of the Code of Criminal
Procedure in order for the prosecution to be valid or admissible;
those provisions leave it open to the trial court to appoint an
investigating judge to that end if such a step appears useful for
establishing the truth.
The judgments consider, on the basis of a factual
assessment which this court is not empowered to overrule, that the
examination requested would delay the proceedings needlessly without
giving cause to hope for more certain results.
The judgments also observe that the information obtained
anonymously did not correspond to the evidence obtained lawfully and
independently against the defendants.
It does not appear from the Assize Court's reply to the
appellants' submissions that the trial courts contested their right
to rebut the evidence produced at the trial.
On that account, these grounds of appeal cannot be
allowed.
As to the remaining grounds, a breach of Article 6 §
3 (d) of the Convention ... does not result from the mere fact that
the trial court considered it unnecessary, or impossible, to order
the cross-examination of the anonymous informer whose disclosures
provided helpful guidance for the investigation.
On that account, these grounds of appeal have no basis
in law.”
Addressing
a further ground of appeal, the Court of Cassation noted:
“The appellant [another co-defendant] submitted
that before the start of the trial, the President of the Assize
Court, acting by virtue of the powers conferred on him by Article 298
of the Code of Criminal Procedure, had 'called a series of witnesses
who, according to the criminal file, had been connected with with the
matter of the anonymous witness'; the appellant observed that the
session had, however, opened without those persons being examined and
concluded that his trial had therefore not been fair within the
meaning of Article 6 of the Convention ...
However, the investigative measures described by the
appellant could also have been ordered after the start of the trial,
even under a different procedure, by the President of the Assize
Court acting by virtue of his discretionary power.
It does not appear from the evidence in the file that
the appellant requested the President of the Assize Court to order
the examinations that, according to the ground of appeal, were not
carried out.
Since this ground of appeal cannot be raised for the
first time before this court, it is inadmissible.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant provisions of the Judicial Code on Assize
Court proceedings
The
Assize Court includes a President and two other judges (assesseurs);
it sits with a jury. For the investigation and trial of civil
actions, the court sits without a jury (Article 119). Persons
appearing on the list of jurors must be registered on the electoral
roll, enjoy full civic and political rights, be aged at least thirty
and less than sixty and be able to read and write (Article 217).
Members of the jury are chosen by lot from the list of persons on the
electoral roll (Article 218). The procedure for compiling the list of
jurors consists of several stages.
Article
223 provides that the mayor (bourgmestre) is required to carry
out a survey of all the voters on the preliminary list in order to
determine whether they can read and write, whether they are capable
of following the proceedings in the Assize Court in the language of
the region concerned, whether they are in active employment and, if
so, in what capacity, whether they occupy a public office, whether
they are a minister of a religion, whether they are a member of the
armed forces in active service, what academic qualifications they
have obtained, whether they have previously held elected office at
national, provincial or municipal level, whether they are a member of
one of the committees listed in point (9) of Article 223, and whether
there are any impediments preventing them from carrying out the
duties of a juror. Persons on the electoral roll must accurately
complete the form drawn up for this purpose.
The
prosecution is responsible for ensuring that, at least forty-eight
hours before the opening of the oral proceedings, the list of jurors
is served on each accused person, and the documents relating to the
survey provided for in Article 223 in respect of the actual jurors
and the additional jurors called for service are attached to the
criminal file, where they remain until the trial jury is formed
(Article 241).
Before
the opening of the oral proceedings in each case, on the day
appointed for that purpose, the jurors are called before the Assize
Court in the presence of the Principal Public Prosecutor and the
defendant, who is assisted by counsel (Article 242). The president of
the Assize Court draws the names of the jurors one by one. First the
defendant, then the Principal Public Prosecutor, may challenge an
equal number of jurors. Neither the defendant nor the Principal
Public Prosecutor may disclose their grounds for challenging a juror
(Article 247). The jury is formed as soon as the names of twelve
jurors have been drawn by lot without being challenged. The president
of the court then draws the substitute jurors by lot (Article 248).
The examination of the case begins immediately after the formation of
the jury (Article 252).
B. Relevant provisions of the Code of Criminal
Procedure
The
president addresses the members of the jury, who stand, and asks them
to take the following oath: “You will swear and promise to
examine with the most scrupulous attention the charges which will be
made against ...; not to betray either the interests of the accused
or those of society which accuses him; to communicate with no one
until after your verdict; to allow no hatred, spitefulness, fear or
affection to influence your judgment; to reach your decision in the
light of the charges and the submissions in defence, according to
your conscience and your innermost conviction, with the impartiality
and resolution which befit a free and upright person” (Article
312). Each member of the jury, called on individually by the
president, raises his hand and replies “I so swear”, on
pain of nullity.
The
president may order the clerk to read out the judgment by which the
defendant was committed for trial. He orders the distribution to each
juror of a copy of the bill of indictment and the statement of
defence, if one has been filed. The Principal Public Prosecutor reads
out the indictment and the defendant or his counsel the statement of
defence (Article 313).
A
witness whose identity has been kept secret in accordance with
Articles 86 bis and 86 ter cannot be summoned to appear
in court as a witness without his consent. The president reads out
the witness statement at the hearing and mentions that details of the
witness's identity have been kept secret in accordance with Articles
86 bis and 86 ter. If the witness agrees to give
evidence at the trial, he retains full anonymity. In that
eventuality, the president takes the necessary steps to guarantee the
witness's anonymity. The president may direct the investigating
judge, either of his own motion or on an application by the
prosecution or by the defendant, the civil party or their counsel, to
rehear evidence from the witness or to interview a new witness in
accordance with Articles 86 bis and 86 ter with a view
to establishing the truth. The president may decide to be present
when the witness is interviewed by the investigating judge
(Article 315).
Following
the witness's depositions, the civil party and the Principal Public
Prosecutor address the court. The defendant may make submissions in
reply and the civil party and the Principal Public Prosecutor are
allowed to reply to the defence submissions, but the defendant always
has the final word. The president then declares the oral proceedings
closed (Article 335).
The
president reminds members of the jury of the duties they will have to
discharge. He then puts questions to them. The question arising from
the indictment is put in these terms: “Is the defendant guilty
of committing this murder, this theft or this other crime?”
(Articles 336 and 337).
After
asking the questions, the president hands them to the jury,
represented by the foreman; at the same time, he hands over the bill
of indictment, the reports establishing the offence and the documents
in the file other than the written witness statements. He advises the
jury that if the defendant is found guilty on the principal count by
a simple majority, this must be mentioned at the top of their
verdict. (Where appropriate, the president advises the jury that
evidence obtained under Articles 86 bis and 86 ter
cannot be admitted unless it is corroborated to a decisive extent by
other evidence (Article 341).)
Once
the questions have been put to and handed to the members of the jury,
they retire to deliberate in private. The foreman is either the first
member of the jury drawn by lot or is appointed by the jury with his
consent. Before the deliberations begin, the foreman reads out the
following instruction, which is also displayed in large type in the
most visible place in the deliberation room: “The law does not
ask jurors to account for how they reached their personal conviction;
it does not lay down rules on which they are to place particular
reliance as to the completeness and sufficiency of evidence; it
requires them to ask themselves questions, in silence and
contemplation, and to discern, in the sincerity of their conscience,
what impression has been made on their rational faculties by the
evidence against the defendant and the submissions of the defence.
The law does not tell them: 'You will hold every fact attested by
this number of witnesses to be true'; nor does it tell them: 'You
will not regard as sufficiently established any evidence that does
not derive from this report, these exhibits, this number of witnesses
or this many clues'; it simply asks them this one question, which
encompasses the full scope of their duties: 'are you inwardly
convinced?'” (Article 342).
The
members of the jury may leave their room only when they have arrived
at their verdict (Article 343).
If
the jury finds the defendant guilty, the Principal Public Prosecutor
makes submissions as to the application of the law. The defendant may
file a defence; however, he can no longer dispute the facts but can
merely submit that a particular act is not prohibited or defined in
law as an offence, or that he does not deserve the sentence sought by
the prosecution (Article 362).
The
court, consisting of the judges and the jury, subsequently
deliberates on the sentence to be imposed in accordance with the
criminal law. The court then delivers its judgment (Article 366).
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
The
Government objected that the application was inadmissible as the
applicant had not lodged it in accordance with the formal
requirements and within the six-month time-limit, that is, before 16
December 2004.
The
Government pointed out that an application drawn up on the basis of
the Court's application form had been signed on 16 November 2005 by
the applicant himself in Lantin Prison. The application had been
registered by the Court on 13 December 2005, almost a year after the
expiry of the time-limit for applying to the Court. Furthermore, in a
letter sent on 6 December 2005 to the registry of the Liège
Court of Appeal, the applicant had stated that he had not had any
contact with his lawyers for thirteen months, in other words since
6 November 2004. The letter and the application of 16 November
2005 both suggested that “his lawyers” did not have the
requisite authority to act on his behalf. Moreover, as it was not
signed, the relevant document had no legal force and could not
therefore constitute a valid application to the Court.
The
Court observes, as the applicant did, that his lawyers sent a
document, by fax on 16 December 2004 and by a registered letter which
arrived at the Registry on 3 January 2005, on paper with the Misson
law firm's letterhead, in which they stated that they were lodging an
application on his behalf. The document indicated that the applicant
had designated Mr Misson's law firm as his address for service.
This initial document contained a statement of the facts and the
alleged violations. Being the first communication, it interrupted the
running of the six-month period (Rule 47 § 5 of the Rules of
Court). On 16 November 2005 the applicant submitted the
application form, to which was appended an unsigned copy of the
initial document, which his lawyers had supplied for his information.
Accordingly,
since the application was lodged on 14 December 2004 and the final
decision was the one given by the Court of Cassation on 16 June
2004, the Court cannot find that the applicant did not comply with
the requirements of Article 35 § 1 of the Convention and thus
dismisses this objection.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant alleged that his right to a fair trial had not been
respected in the present case, in view of the fact that his
conviction by the Assize Court had not included a statement of
reasons and could not be appealed against to a body competent to hear
all aspects of the case. He relied on Article 6 § 1 of the
Convention, the relevant part of which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
The
Court observes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. The
Court notes, moreover, that that no other ground for declaring it
inadmissible has been established. It must therefore be declared
admissible.
B. Merits
The
Government relied on the case of Zarouali v. Belgium
(application no. 20664/92, Commission decision of 29 June 1994,
Decisions and Reports 78) in asserting that the Belgian criminal-law
system was compatible with Article 6 § 1 of the Convention.
The procedural safeguards referred to in that decision compensated
for the lack of more specific reasoning in a jury's guilty verdict.
The Government submitted that the principles established in Zarouali
were applicable mutatis mutandis in the instant case. The four
questions put at the end of the oral proceedings by the President of
the Assize Court had been sufficiently precise to serve as an
adequate basis for the court's decision. The constituent elements of
the offences, the alleged facts and the aggravating circumstances had
been noted and described in detail in those questions. The applicant
had not objected to the questions at any stage of the trial. Lastly,
reasons had been given for the sentence imposed on the applicant and
had likewise not been challenged.
The
applicant submitted that his case could not be likened to Papon v.
France ((dec.), no. 54210/00, ECHR 2001-XII), in so far as Mr
Papon, the sole defendant at his trial, had received 768 replies to
768 questions which had also dealt with the factual circumstances of
his case. The replies had provided him with an indication – in
view of the intensity and precision of the approach adopted by the
president of the court vis-à-vis the jury – of
why the court had found him guilty and sentenced him. In the present
case, however, it was clear that the Assize Court had not stated its
reasons for finding him guilty. The applicant noted that the
investigation in his case had been conducted in a heated atmosphere
which had not been conducive to the smooth administration of justice.
Furthermore, he had always denied having been involved in the
minister's murder and no irrefutable evidence of his guilt had been
adduced. The investigators had had regard to mere inferences, whose
probative value and relevance he had disputed. However, his arguments
had not been addressed.
The
Court reiterates that, according to its settled case-law, judgments
of courts and tribunals should adequately state the reasons on which
they are based. The extent to which this duty to give reasons applies
may vary according to the nature of the decision and must be
determined in the light of the circumstances of the case (see Ruiz
Torija v. Spain and Hiro Balani v. Spain, 9 December
1994, § 29 and § 27 respectively, Series A nos. 303-A and
303-B, and Higgins and Others v. France, 19 February 1998, §
42, Reports of Judgments and Decisions 1998-I). Although
Article 6 § 1 obliges courts to give reasons for their
decisions, it cannot be understood as requiring a detailed answer to
every argument (see Van de Hurk v. the Netherlands, 19 April
1994, § 61, Series A no. 61). Thus, in dismissing an appeal, an
appellate court may, in principle, simply endorse the reasons for the
lower court's decision (see, mutatis mutandis, Helle v.
Finland, 19 December 1997, §§ 59-60, Reports
1997-VIII, and García Ruiz v. Spain [GC], no. 30544/96,
§ 26, ECHR 1999-I).
The
requirement for reasons to be given must also accommodate any unusual
procedural features, particularly in assize courts, where the jurors
are not required to give reasons for their personal convictions.
The
Court notes that in the Zarouali and Papon cases (both
cited above), the Commission and the Court found that “although
the jury could answer only 'yes' or 'no' to each of the questions put
by the President, those questions formed a framework on which the
jury's decision was based”, that “the precision of those
questions sufficiently offsets the fact that no reasons are given for
the jury's answers” and that “this appraisal is
reinforced by the fact that the Assize Court must state its reasons
for refusing to refer a question from the prosecution or the defence
to the jury”.
However,
since the Zarouali case there has been a perceptible change in
both the Court's case-law and the Contracting States' legislation. In
its case-law the Court has frequently held that the reasoning
provided in court decisions is closely linked to the concern to
ensure a fair trial as it allows the rights of the defence to be
preserved. Such reasoning is essential to the very quality of justice
and provides a safeguard against arbitrariness. Thus, certain States,
such as France, have made provision for the right of appeal in assize
court proceedings and for the publication of a statement of reasons
in assize court decisions.
The
Court considers that while it is acceptable for a higher court to set
out the reasons for its decisions succinctly by simply endorsing the
reasons for the lower court's decision, the same is not necessarily
true of a court of first instance, particularly one sitting in a
criminal case.
The
Court notes that the Assize Court's judgment in the applicant's case
was based on thirty-two questions that were put to the jury at his
trial. The applicant was concerned by four of them, which the Court
considers it useful to reiterate:
“Question no. 25 – PRINCIPAL COUNT
Is the accused Richard Taxquet, who is present before
this court, guilty,
as principal or joint principal,
of having knowingly and intentionally killed [A.C.] in
Liège on 18 July 1991?
Question no. 26 – AGGRAVATING
CIRCUMSTANCE:
Was the intentional homicide referred to in the previous
question premeditated?
Question no. 27 – PRINCIPAL COUNT
Is the accused Richard Taxquet, who is present before
this court, guilty,
as principal or joint principal,
...
of having attempted knowingly and
intentionally to kill [M.-H.J.] in Liège on 18 July 1991,
the intention to commit the offence having been manifested by conduct
which objectively constituted the first step towards perpetration of
the offence and which was halted or failed to attain the aim pursued
only as a result of circumstances outside the control of its
perpetrator?
Question no. 28 – AGGRAVATING CIRCUMSTANCE:
Was the attempted intentional homicide referred to in
the previous question premeditated?”
The
jury answered all the questions in the affirmative.
The
Court further notes that the same questions were put to the jury in
respect of all eight defendants and were not adapted to each
individual case. In this connection, the Court observes that in the
case of Goktepe v. Belgium (no. 50372/99, 2 June
2005), where admittedly there were objective aggravating
circumstances, it found a violation of Article 6 on account of the
Assize Court's refusal to put distinct questions in respect of each
defendant as to the existence of such circumstances, thereby denying
the jury the possibility of determining the applicant's individual
criminal responsibility.
In
the instant case, the questions to the jury were formulated in such a
way that the applicant could legitimately complain that he did not
know why each of them had been answered in the affirmative when he
had denied all personal involvement in the alleged offences. The
Court considers that such laconic answers to vague and general
questions could have left the applicant with an impression of
arbitrary justice lacking in transparency. Not having been given so
much as a summary of the main reasons why the Assize Court was
satisfied that he was guilty, he was unable to understand – and
therefore to accept – the court's decision. This is
particularly significant because the jury does not reach its verdict
on the basis of the case file but on the basis of the evidence it has
heard at the trial. It is therefore important, for the purpose of
explaining the verdict both to the accused and to the public at large
– the “people” in whose name the decision is given
– to highlight the considerations that have persuaded the jury
of the accused's guilt or innocence and to indicate the precise
reasons why each of the questions has been answered in the
affirmative or the negative.
In
these circumstances, the Court of Cassation was prevented from
carrying out an effective review and from identifying, for example,
any insufficiency or inconsistency in the reasoning.
The
Court concludes that there has been a violation of the right to a
fair trial, as guaranteed by Article 6 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 3 (d) OF THE
CONVENTION
The
applicant complained that he had not at any time been able to examine
or have examined the anonymous witness whose statements had been
decisive for his conviction, and that, in any event, it had been
impossible to know whether they had been decisive as no reasons had
been given for the jury's guilty verdict. The applicant further
complained about the Assize Court's refusal to hear or rehear
evidence from certain witnesses. He relied on Article 6 § 3 (d),
which provides:
“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;
...”
A. The anonymous witness
1. Admissibility
The
Court observes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. The
Court notes, moreover, that that no other ground for declaring it
inadmissible has been established. It must therefore be declared
admissible.
2. Merits
(a) The parties' submissions
The
Government submitted that, contrary to what the applicant maintained,
the information supplied by the anonymous informer had not been
decisive for his conviction. That was particularly clear from the
fact that in its interlocutory judgment of 18 December 2003 the
Assize Court had held that the information supplied by the informer
could not be admitted in evidence and was not reliable as it was not
corroborated by any other evidence. It was important to note in that
connection that one of the other defendants had directly accused the
applicant.
The
Government observed that the applicant had not indicated the identity
of the witnesses whom he had been unable to have reheard, but they
presumed that he was referring to the witnesses whom he had wished to
cross-examine a second time according to the submissions he had filed
at the hearing on 12 December 2003, namely S.N, J.M., L.L. and A.R.
Those witnesses had all given evidence to the Assize Court and the
applicant and his counsel had been able to put to them any questions
they wished and to challenge any evidence adduced by the prosecution
and the civil parties. With regard to the persons not featuring on
the list of witnesses submitted to the Assize Court before the start
of the trial and the witness who had refused to appear in court, the
Government pointed out that the Assize Court had held that the
examination of those witnesses would tend to prolong the proceedings
needlessly and would not produce any results. They noted that Article
6 § 3 (d) in principle left it to the domestic courts to decide
whether the examination of witnesses was necessary.
The
applicant contended that the question of the anonymous witness
testimony took on particular significance in his case as it was
linked to the preceding complaint concerning the lack of reasoning in
the Assize Court's judgment. In order to be able to find that a
witness statement had played a decisive role in a person's
conviction, it was necessary to know the reasons for the decision,
but in the present case none had been given. If the reasoning had
been known, it might have been possible to identify the information
received anonymously as having been a decisive factor, or the sole
factor, in establishing his guilt.
The
applicant asserted that he had not been given all the necessary
guarantees that the members of the jury were intellectually capable
of reasoning in decisive terms, even though professional judges had
previously drawn their attention to that issue. In the applicant's
submission, it would have been possible to proceed in a manner that
respected everyone's rights; it was not unfeasible to hear evidence
from masked or hidden witnesses at a public hearing in the Assize
Court, or during an investigation, as was shown by the case of Van
Mechelen and Others v. the Netherlands (23 April 1997, Reports
1997-III).
(b) The Court's assessment
(i) General principles
The
Court reiterates that the admissibility of evidence is primarily a
matter for regulation by national law and as a general rule it is for
the national courts to assess the evidence before them. The Court's
task under the Convention is not to give a ruling as to whether
statements of witnesses were properly admitted as evidence, but
rather to ascertain whether the proceedings as a whole, including the
way in which evidence was taken, were fair (see Van Mechelen and
Others, cited above, § 50, and De Lorenzo v. Italy
(dec.), no. 69264/01, 12 February 2004). As the requirements of
paragraph 3 of Article 6 are to be seen as particular aspects of the
right to a fair trial guaranteed by paragraph 1, the Court will
examine the present case under both provisions taken together (see,
among many other authorities, Van Geyseghem v. Belgium [GC],
no. 26103/95, § 27, ECHR 1999-I).
All
the evidence must normally be produced in the presence of the accused
at a public hearing with a view to adversarial argument. There are
exceptions to this principle, but they must not infringe the rights
of the defence; as a general rule, paragraphs 1 and 3 (d) of Article
6 require that the defendant be given an adequate and proper
opportunity to challenge and question a witness against him, either
when he makes his statements or at a later stage (see Lüdi v.
Switzerland, judgment of 15 June 1992, § 49, Series A
no. 238, and Van Mechelen and Others, cited above, § 51).
As the Court has stated on a number of occasions (see, among other
authorities, Isgrò v. Italy, 19 February 1991, §
34, Series A no. 194-A, and Lüdi, cited above, §
47), it may prove necessary in certain circumstances for the judicial
authorities to refer to depositions made during the investigative
stage. If the defendant has been given an adequate and proper
opportunity to challenge the depositions, either when made or at a
later stage, their admission in evidence will not in itself
contravene Article 6 §§ 1 and 3 (d). The corollary of that,
however, is that the rights of the defence are restricted to an
extent that is incompatible with the requirements of Article 6 if the
conviction is based solely, or in a decisive manner, on the
depositions of a witness whom the accused has had no opportunity to
examine or to have examined either during the investigation or at the
trial (see A.M. v. Italy, no. 37019/97, § 25,
ECHR 1999-IX, and Saïdi v. France, 20 September 1993, §§
43-44, Series A no. 261-C).
This
applies all the more in the case of depositions made by anonymous
witnesses. Although the Convention does not preclude reliance, at the
investigation stage, on sources such as anonymous informants, the
subsequent use of their statements by the trial court to found a
conviction is capable of raising issues under the Convention (see
Kostovski v. the Netherlands, 20 November 1989, § 44,
Series A no. 166; Windisch v. Austria, 27 September 1990, §
30, Series A no. 186; and Doorson v. the Netherlands, 26
March 1996, § 69, Reports 1996–II).
The
Court further reiterates that Article 6 § 3 (d) of the
Convention leaves it to the domestic courts, again as a general rule,
to assess whether it is appropriate to call witnesses. 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 full equality of arms in
the matter. The concept of “equality of arms” does not,
however, exhaust the content of paragraph 3 (d) of Article 6, nor
that of paragraph 1, of which this phrase represents one application
among many others. It is not enough to prove that the “accused”
was unable to question a certain witness for the defence. He must
also put forward a plausible argument that the appearance of the
witness was necessary for ascertaining the truth and that the failure
to examine the witness prejudiced the rights of the defence (see,
among other authorities, Priebke v. Italy (dec.),
no. 48799/99, 5 April 2001). Accordingly, only exceptional
circumstances may prompt the Court to conclude that the failure to
hear a person as a witness was incompatible with Article 6 (see
Bricmont v. Belgium, 7 July 1989, § 89, Series A no. 158,
and Destrehem v. France, no. 56651/00, 18 May 2004).
(ii) Application of the above principles
in the present case
The
Court observes at the outset that it is required to apply the
above-mentioned principles in the particular context of the
proceedings as conducted in the Assize Court.
As
regards the part of the complaint concerning the anonymous witness,
the Court observes that the applicant submitted that his conviction
had been based to a decisive extent on the statements of an anonymous
witness whom he had not been able to examine or to have examined at
any stage of the proceedings. The Government asserted that the
statements in question had not been admitted in evidence before the
Assize Court.
The
Court observes, firstly, that the applicant, in his defence
submissions, sought the examination by an investigating judge of the
anonymous witness who had provided information that was noted down by
two non-commissioned gendarmerie officers. The information, which
concerned the planning of A.C.'s murder, was set out in fifteen
points, only one of which referred to the applicant, whose name
appeared as one of a group of people said to have planned the murder.
It appears from the interlocutory judgment of 18 December 2003 that
that witness, whose identity was unknown to the Assize Court, had not
been interviewed by an investigating judge and that the information
he supplied served simply to “[give] fresh impetus or a new
slant to the investigation and [to lead] to the independent gathering
of lawful evidence”.
The
Court further notes that in seeking to remain anonymous, the witness
referred to the importance of his information and the media impact of
the case. In that connection, the Belgian legal system allows senior
police officers to refuse to divulge the identity of an informer with
a view to protecting the latter. However, the Court considers it
desirable, in the interests of the proper administration of justice,
that anonymous statements should be examined by a judge who knows the
identity of the witness, has verified the reasons for granting
anonymity and is able to express an opinion on the witness's
credibility in order to establish whether there is any animosity
between the witness and the accused.
The
fact that the jurors, who are not professional judges, base their
verdict on their personal conviction and are not required to give
reasons for their decision means that they are not bound by any
hierarchy in the types of evidence they take into consideration.
However, these procedural features do not make it possible to
ascertain whether the conviction is based to a significant extent on
other evidence not derived from anonymous sources.
In
the instant case it is unclear from the case file whether the
conviction of the applicant, who has always denied the offence, was
based on objective evidence, or solely on the information supplied by
the anonymous witness, or, as indicated in the indictment, solely on
the statement by one of the co-defendants accusing him. The
Government submitted that the investigation had shown that part of
the information supplied by the anonymous witness was irrelevant.
However, they have not produced anything to show that the finding of
the applicant's guilt was based on other real evidence, on inferences
drawn from the examination of other witnesses or on other undisputed
facts.
As
the applicant was unable to examine or have examined the anonymous
witness at any stage of the proceedings, and as there was no
assessment of the reliability of the witness's evidence by an
investigating judge, the applicant's misgivings as to the use made of
the witness's statements may be regarded as justified.
That
being so, the Court considers that the procedure in the Assize Court
in the instant case, taken both as a whole and in relation to its
specific features, hindered the exercise of the applicant's defence
rights. Accordingly, he did not have a fair trial.
There
has therefore been a violation of Article 6 §§ 1 and 3 (d)
of the Convention in that the applicant did not have the opportunity
at any stage of the proceedings to examine or have examined the
anonymous witness whose statements were decisive for his conviction.
B. The other witnesses
With
regard to the hearing or rehearing of evidence from certain other
witnesses mentioned by the applicant, the Court observes that he did
not give any indication of how their appearance in court, had it been
allowed, would have contributed to producing new evidence relevant to
his defence and to changing the Assize Court's verdict against him.
It follows that this part of the application must be declared
inadmissible as being manifestly ill-founded pursuant to Article 35
§§ 3 and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS
A. Status of the “tribunal”
Relying
on Article 6 §§ 1 and 2 of the Convention, the applicant
complained that he had not been tried by a “tribunal”
within the meaning of Article 6 § 1, since the twelve members of
the Assize Court jury, aged between thirty and sixty, who had no
legal knowledge and were drawn by lot from an electoral roll, did not
provide an adequate guarantee as to the composition of a “tribunal”.
He further complained that his guilt had not been “established
by law” as the members of the jury had deliberated on their own
without a judge or legal adviser being present.
The
Court notes that this complaint is similar to the one considered by
the Commission in the Zarouali case cited above. The
Commission found in that case:
“The Commission observes that the Assize Court
consists of a President and two judges and that in criminal matters
it sits with a jury (Article 119 of the Judicial Code). Once the jury
has expressed its views on the accused's guilt, the penalty is
determined at the close of deliberations by the panel of judges and
the jury.
The Commission has held that a tribunal within the
meaning of Article 6 of the Convention need not necessarily be
composed solely of professional judges or jurists (in particular No.
4622/70, Dec. 22.3.72, Collection 1).
The Commission recalls that 'in order to establish
whether a body can be considered “independent”, regard
must be had, inter alia, to the manner of appointment of its
members and their term of office, the existence of guarantees against
outside pressures and to the question whether or not the body
presents an appearance of independence ...'
The Commission further observes that, apart from the
statement that the members of the jury are not professional judges,
the applicant adduces no other concrete and specific evidence to
justify his legitimate reasons to fear a lack of independence and
impartiality on their part.
Recalling that 'under the Constitution (Articles 99 and
100) and by statute, the three judges of whom Belgian assize courts
are composed enjoy extensive guarantees designed to shield them from
outside pressures, and the same purpose underlies certain of the
strict rules governing the nomination of members of juries', the
Commission considers that the applicant cannot legitimately claim
that he was tried by a tribunal which did not satisfy the requirement
of impartiality (Eur. Court H.R., Piersack judgment of 1 October
1982, Series A no. 53, p. 13, para. 27).
Considering that the constitution of the jury is
determined by lot, that before the proceedings commence each of the
parties has the opportunity to challenge an equal number of jurors,
that in this case each member of the jury undertook under oath to
discharge his task to the best of his ability and with complete
impartiality, that the applicant had the opportunity to apply to have
the case heard by a differently composed jury on the ground of bias,
and that in the absence of sufficiently substantiated arguments in
support of the allegation regarding the lack of impartiality of the
jury, the Commission considers that in the present case this part of
the application must be rejected as manifestly ill-founded within the
meaning of Article 27 para. 2 of the Convention.”
The
Court considers that there is nothing in the present case to
distinguish it from the Zarouali case.
It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
B. Impartiality
Relying
on Article 6 §§ 1 and 2 of the Convention, the applicant
submitted that the Assize Court had not been impartial on account of
the excessive media coverage of the case, which had been widely
discussed for more than twelve years, and on account of that court's
refusal to restart the proceedings when a co-defendant who had failed
to appear at the beginning of the trial was subsequently allowed to
take part.
The
Court observes that it has already had occasion to address this
issue, for example in Craxi v. Italy (no. 34896/97, 5 December
2002); Garaudy v. France ((dec.), no. 65831/01, ECHR 2003-X);
and Papon (cited above). It held that, in certain cases, a
virulent press campaign could prejudice the fairness of the trial by
influencing public opinion and, consequently, the jurors called upon
to decide on the guilt of an accused.
However,
the Court notes that in the present case the applicant has not shown
that there was such a virulent media campaign against him personally
as to sway the outcome of the Assize Court's deliberations concerning
him. Rather, he complained about the role of the press, which had
interviewed a large number of witnesses, published statements by them
and disclosed information deriving directly from the file on the
investigation; he also submitted those arguments to the Court of
Cassation, which found that “the press reports, even if
inaccurate, malevolent or resulting from a criminal offence, could
not in themselves cause the trial to breach Article 6 §§ 1
and 2 of the Convention”.
It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
C. Communication with a lawyer
Relying
on Article 6 § 3 (b) of the Convention, the applicant submitted
that he had not had an adequate opportunity to communicate freely
with his counsel as he had been detained the day before the start of
the trial in the Assize Court and had not been allowed to consult the
criminal case file (which ran to several hundred thousand pages and
had been stored on CD-ROM) when his counsel had come to visit him in
prison.
The
Court reiterates that domestic remedies have not been exhausted where
an appeal is dismissed as a result of a procedural error on the
applicant's part (see, among many other authorities, Askis and
Others v. Greece, no. 48229/99, 22 June 2000). It notes that
in the present case the Court of Cassation dismissed this argument on
the ground that the applicant had not submitted it before the Assize
Court.
It
follows that this part of the application must be rejected for
failure to exhaust domestic remedies, pursuant to Article 35 §§
1 and 4 of the Convention.
D. Effective remedy
Relying
on Article 6 § 1 and Article 13 of the Convention, the applicant
complained that an appeal against the Assize Court's judgment lay
only to the Court of Cassation, which did not determine cases on
their merits.
The
Court observes that the Articles relied on do not guarantee any right
of appeal and that, moreover, Belgium is not a party to Protocol No.
7. In addition, the Court has held on a number of occasions that the
fact that the review conducted by a supreme court is restricted to
questions of law is not in breach of Article 6 § 1 (see, mutatis
mutandis, Loewenguth v. France (dec.), no. 53183/99,
ECHR 2000-VI; Pesti and Frodl v. Austria (dec.), nos. 27618/95
and 27619/95, ECHR 2000-I; Deperrois v. France (dec.),
no. 48203/99, 22 June 2000; and Ramos Ruiz v. Spain (dec.),
no. 65892/01, 19 February 2002).
It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
E. Difference in treatment
Relying
on Article 6 § 1 and Article 14 of the Convention, the applicant
submitted that the difference in the treatment of a defendant in the
Assize Court as compared with a defendant in an ordinary criminal
court, in terms of the possibilities of appealing, had no objective
and reasonable justification, seeing that defendants in the Assize
Court were in a more complex legal position, being accused of more
serious offences.
According
to the Court's settled case-law, Article 14 complements the other
substantive provisions of the Convention and its Protocols. It has no
independent existence since it has effect solely in relation to “the
enjoyment of the rights and freedoms” safeguarded by those
provisions. Although the application of Article 14 does not
presuppose a breach of those provisions, there can be no room for its
application unless the facts at issue fall within the ambit of one or
more of the latter.
The
Court notes that the applicant's complaint under Article 14 concerns
the organisation and conduct of proceedings in the Assize Court and
the court's composition. It observes that in the present case the
difference in treatment relates not to different groups of people but
to the type of offence and its seriousness under the law (see,
mutatis mutandis, Budak and Others v. Turkey (dec.),
no. 57345/00, 7 September 2004). The Court does not consider that
such a practice constitutes a form of discrimination contrary to the
Convention. This part of the application must therefore be rejected
pursuant to Article 35 §§ 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 150,000 euros (EUR) in respect of pecuniary damage,
representing the sum he would have been able to earn had he carried
on working during his five years in prison, on the basis of a monthly
income of EUR 2,500. He also claimed EUR 100,000 for the
non-pecuniary loss resulting from the damage to his honour and
reputation.
The
Government submitted that the applicant had not shown that there was
the requisite causal link between the violation complained of and the
alleged pecuniary damage. As to non-pecuniary damage, they considered
his claim excessive.
The
Court considers that an award of just satisfaction must be based in
the present case on the fact that the applicant did not have a fair
trial on account of the lack of reasoning in the Assize Court's
judgment and the failure to examine an anonymous witness. It cannot
speculate as to the outcome of the trial had the applicant had the
benefit of the safeguards set forth in Article 6 of the Convention.
It accordingly dismisses the applicant's claim in respect of
pecuniary damage. On the other hand, the applicant undeniably
sustained non-pecuniary damage as a result of the breach, although it
is difficult to quantify the damage. Making its assessment on an
equitable basis, as required by Article 41, the Court therefore
awards him the sum of EUR 4,000.
Lastly,
the Court refers to its settled case-law to the effect that in the
event of a violation of Article 6 § 1 of the Convention the
applicant should as far as possible be put in the position he would
have been in had the requirements of that provision not been
disregarded. The Court reiterates that, where it finds that an
applicant has been convicted after not being afforded one of the
safeguards of a fair trial, the most appropriate form of redress
would, in principle, be trial de novo or the reopening of the
proceedings, in due course and in accordance with the requirements of
Article 6 of the Convention (see, mutatis mutandis, Gençel
v. Turkey, no. 53431/99, § 27, 23 October 2003; Tahir
Duran v. Turkey, no. 40997/98, § 23, 29 January 2004;
Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004-V;
and Öcalan c. Turquie [GC], no. 46221/99, ECHR 2005-IV).
B. Costs and expenses
The
applicant claimed EUR 8,173.22 for costs and expenses incurred before
the Court.
The
Government left the matter to the Court's discretion.
According
to the Court's case-law, an award can be made in respect of costs and
expenses only in so far as they have been actually and necessarily
incurred by the applicant and are reasonable as to quantum (see, for
example, Entreprises Robert Delbrassine S.A. and Others
v. Belgium, no. 49204/99, § 35, 1 July 2004, and
Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR
1999-V). In the present case, on the basis of the documents submitted
by the applicant and the above-mentioned criteria, the Court
considers that the sum claimed is reasonable and awards it in full.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Article 6 § 1
(lack of reasoning in the Assize Court's judgment) and Article 6 §
3 (d) of the Convention admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of the
right to a fair trial, as guaranteed by Article 6 § 1 of
the Convention, on account of the lack of reasoning in the Assize
Court's judgment;
Holds that there has been a violation of
Article 6 §§ 1 and 3 (d) of the Convention on account
of the failure to examine the anonymous witness;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
8,173.22 (eight thousand one hundred and seventy-three euros and
twenty-two cents), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in French, and notified in writing on 13 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Ireneu Cabral Barreto
Registrar President
