Information Note on the Court’s case-law 250

April 2021

Liesmons and Others v. Belgium (dec.) - 14412/12, 39803/12, 53993/12 et al.

Decision 23.3.2021 [Section III]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Article 6-3-c

Defence through legal assistance

Unilateral declaration by the Government recognising the failure to provide legal assistance before criminal proceedings and offering compensation for non-pecuniary damage: struck out

Article 37

Article 37-1

Striking out applications

Unilateral declaration by the Government no obstacle to the admissibility of applications for a reopening of criminal proceedings: struck out

Facts – The applicants had been tried under criminal proceedings leading to a variety of sentences. In the various cases, the applicants had been questioned during their police custody without prior consultation with a lawyer or in the absence of legal counsel, and/or been subsequently questioned during the investigation phase in the absence of counsel, who had also not taken part in the other investigative acts carried out. At all events, the Court of Cassation had dismissed the applicants’ complaint of a violation of Article 6 §§ 1 and 3 (c) of the Convention.

Law – Article 6 § 1 read in conjunction with Article 6 § 3 (c)

By letter of 17 March 2020 the Government issued a unilateral declaration acknowledging that since the facts had occurred prior to the enactment of the legislation in 2011 and 2016 following the Salduz v. Turkey [GC] judgment concerning pre-trial detention, there had been a violation of Article 6 §§ 1 and 3 (c) owing to the lack of legal assistance for the applicants at all stages prior to the criminal proceedings. They therefore requested that the case be struck out, offering to pay a sum of EUR 4,000 to cover non-pecuniary damage, as well as costs and expenses. As regards individual measures, they pointed to the articles of the Code of Criminal Investigation (CCI) concerning the criteria for reopening proceedings.

Three of the applicants disagreed with the terms of the declaration on account of the refusal by the Court of Cassation to reopen proceedings in the cases of Willems v. Belgium and Gorjon v. Belgium , which had been restored to the list and were currently pending before the Court, and of the consequent risk, in their view, of failing to obtain the reopening of their cases.

In the decision in the case of Willems and Gorjon v. Belgium (dec.), the Court of Cassation had been invited to reopen the applicants’ criminal proceedings following the striking out of their cases on the basis of a unilateral declaration by the Government recognising a violation of Article 6 § 1. In November 2018 the Court of Cassation had stated that it was bound neither by the Government’s unilateral declaration nor by the Court’s decision to strike the cases out of the list. Later, when examining its previous judgment, it held that there had been no violation of the Convention and dismissed the request for a reopening of the criminal proceedings. In May 2019 the Court allowed the applicants’ request to restore the initial applications to the list of cases.

The present applications concern the obligation on the States Parties to guarantee the right to a fair trial, including the right of access to a lawyer, from the time of arrest and throughout all the preliminary phases of the criminal proceedings, including prior notification in a sufficiently explicit manner of the right to remain silent and the privilege against self-incrimination. They follow on from the judgment in the case of Beuze v. Belgium [GC], in which the Grand Chamber had occasion to scrutinise in depth the major structural problem resulting from the state of Belgian law before the entry into force of the Salduz legislation. Later, in February 2020, the Committee of Ministers closed the Beuze case under Resolution CM/ResDH(2020)17 on the basis of the measures adopted to execute the judgment.

The Court of Cassation must examine a request for a reopening of proceedings on the basis of the criteria set out in the provisions of the CCI. That being the case, it cannot be inferred from the terms of the unilateral declaration, read in the light of the Court’s case-law, and in particular of its Beuze judgment, that those terms, as a matter of principle, only satisfy the admissibility criteria laid down in the aforementioned Code if the applicants request the reopening of their case further to the striking out of the latter on the basis of the said declaration. In that connection, in February 2021 the Court of Cassation agreed to reopen a domestic case following a European Court decision of July 2020, in a “ Beuze -type case”, in which it had taken note of a unilateral declaration issued by the Government and struck the case out of its list.

Three other applicants also disagree with the terms of the unilateral declaration because the potential interpretation of Article 442 bi s (3) CCI whereby their agreement could be inferred from “amicable compensation” was such as to jeopardise the admissibility of the requests for reopening of the criminal proceedings in their case.

Having taken note of the Government’s interpretation of this provision in the decision in the case of Willems and Gorjon v. Belgium (dec.), and reiterating that the appraisal of a request for a reopening of proceedings is in any event a matter for the Court of Cassation, it cannot be deduced from the terms of the unilateral declaration that, as a matter of principle, they do not satisfy the criteria for the admissibility of a request for a reopening of proceedings as set out in the CCI.

Moreover, one of the applicants contends that the proposed compensation award is insufficient to cover the costs and expenses incurred, but he has failed to substantiate his allegations, and the amount of the award corresponds to those made in similar cases. Lastly, in the Beuze judgment, given that the finding of a violation of Article 6 §§ 1 and 3 (c) had not warranted the conclusion that the applicant had been wrongly convicted, and that it had been impossible to speculate on what might have happened if that violation had not occurred, the Court had concluded that a finding of a violation was sufficient.

Having regard to the nature of the concessions set out in the Government’s declaration and to the amount of the proposed compensation award, there is no longer any justification for continuing the examination of the applications. Nor does respect for the human rights secured under the Convention and its Protocols so require.

Finally, should the Government fail to comply with the terms of its unilateral declaration, the applications can be restored to the list of cases.

Conclusion : striking out (unanimous).

(See also Salduz v. Turkey [GC], 36391/02, 27 November 2008, Legal summary ; Willems and Gorjon v. Belgium (dec.), 74209/16 and 75662/16 , 13 March 2018 ; Beuze v. Belgium [GC], 71409/10, 9 November 2018, Legal summary ; Willems v. Belgium and Gorjon v. Belgium (communicated case), 74209/16 and 75662/16 , 29 August 2019)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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