Resolution CM/ResDH(2009)65

Execution of the judgment of the European Court of Human Rights
Göktepe against Belgium

(Application No. 50372/99, judgment of 2 June 2005, final on 2 September 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment in this case, transmitted by the Court once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns unfairness of criminal proceedings against the applicant due to the lack of individual examination of the question of the extent of the applicant’s guilt (violation of Article 6 § 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
 - of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)65

Information about the measures to comply with the judgment in the case of
Goktepe against Belgium

Introductory case summary

The case concerns the unfairness of criminal proceedings against the applicant, accused with two others of robbery with violence having caused the death of a victim. The proceedings resulted in all the accused being sentenced to 30 years’ imprisonment by a final judgment of the Eastern Flanders Assize Court of 27/11/1998.

 The European Court considered that the Assize Court’s refusal (confirmed by the Cour de cassation) to formulate individual questions to the jury on the existence of aggravating circumstances, considering that these circumstances applied equally to all those who had taken part in the robbery, infringed the right of the applicant to defend himself in a practical and effective manner with respect to a decisive issue (violation of Article 6 § 1). According to the case-law of the Belgian Cour de cassation, the president of the Assize Court could, on the basis of his discretionary power, decide that questions concerning real aggravating circumstances of a crime attributed to co-defendants would be formulated individually in respect of each of them (§ 22 of the judgment).

I.	Payment of just satisfaction and individual measures

a)  Details of just satisfaction

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total	
-	3 000 euros	2 864 euros	5 864 euros	
Paid on 29/09/2005	

b) Individual measures

1)	Possibility of reopening the criminal proceedings :

a)	Adoption of the Law of 01/04/2007

Given the gravity of the applicant’s conviction following proceedings found unfair by the European Court, reopening of the proceedings seemed to be the best measure to remedy the violation and erase its consequences. Nevertheless at the time when the European Court’s judgment was transmitted to the Committee of Ministers, Belgian law did not provide the possibility of reopening criminal proceedings following a judgment of the European Court. Thus the adoption of individual measures in this case required a legislative change.

Consequently, the Law of 01/04/2007 amending the Criminal Investigation Code so as to permit the reopening of criminal proceedings was adopted on 01/04/2007 and entered into force on 01/12/2007. On the basis of this law, provisions enabling reopening of criminal proceedings following a judgment of the European Court have been introduced in the Criminal Investigation Code.

b)	Relevant provisions of the Law

 Following a violation of the Convention, application may be made to reopen proceedings in cases resulting in the conviction of the applicant or of another person for the same offence and on the basis of the same evidence (new Article 442 bis). Such application may be made by the person convicted or his or her beneficiaries, or by the Prosecutor General before the Cour de cassation either of their own motion or at the request of the Minister of Justice (Article 442 ter). Requests to reopen must be lodged within the 6 months following the date upon which the European Court’s judgment becomes final, and are examined by the Cour de cassation (Article 442 quater), which orders the reopening of the proceedings if it considers that the applicant or his or her beneficiaries continue to suffer from very serious negative consequences and the decision at issue on its merits is contrary to the Convention, or if the violation found arose from mistakes or procedural shortcomings so serious as to raise significant doubt regarding the outcome of the proceedings at issue (Article 442 quinquies).

c)	Transitional measures provided by the Law and applicable to the present case

Article 13 provides that, if the execution of a judgment of the European Court is still pending before the Committee of Ministers, the application for reopening proceedings must be lodged within six months of the entry into force of the Law.

By letter of 09/05/2007, the Federal Justice Service informed the applicant’s counsel of the possibility for the applicant to lodge a request to have the proceedings reopened on the basis of this Article.

2)	Applicant’s release on parole :

By a decision of 03/05/2007 the Ghent Court of First Instance ordered the applicant’s release on parole.

II.	General measures

 The European Court’s judgment has been examined by a group of judges in the framework of an expert group on criminal procedure within the Collegium of Prosecutors General. The judgment has been notified to the Collegium of Prosecutors General to be sent out to the country’s appeal courts, to the Federal Prosecutor and to the Prosecutor at the Cour de cassation.

 Since the broad dissemination of this judgment to courts, Assize Court’s presidents formulate individual questions to juries regarding objective aggravating circumstances.

	III.	Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent new, similar violations and that Belgium has thus complied with its obligations under Article 46, paragraph 1 of the Convention.