Information Note on the Court’s case-law 207

May 2017

Van Wesenbeeck v. Belgium - 67496/10 and 52936/12

Judgment 23.5.2017 [Section II]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Equality of arms

Non-disclosure to defence of identity and reports of undercover agents: no violation

Article 6-3-d

Examination of witnesses

Refusal by trial court to allow examination of undercover agents: no violation

Facts – In 2011 the applicant was given a prison sentence for his involvement in an international criminal organisation. The main case file (to which the defence had access) comprised the results of a “proactive” investigation involving undercover officers. The applicant complained unsuccessfully about a breach of his defence rights, on the ground that he had been unable to examine or have examined the undercover officers and had not been given access to a separate confidential file containing the full results o f their intervention.

Belgian law allows the prosecution, under certain conditions, to keep a separate confidential file containing authorisations and reports about the implementation of special investigation methods. In the present case the public prosecu tor had authorised the use of infiltration and observation in 2006. This “proactive” investigation had been followed up in 2008 by a judicial investigation stage involving the use of more conventional methods (phone tapping and house searches). In 2010 the Indictments Division ruled that the judicial investigation had been lawful and that the main case file was complete.

Law

Article 6 § 1: Lack of access to confidential file – Under Belgian law, the confidential file was necessary to protect the anonymity a nd therefore the safety of the undercover officers and to ensure that the methods used were kept secret. That justification was consonant with the Court’s case-law.

In addition, the legislature had limited the evidence in the confidential file to documents that were likely to undermine those aims. Any other information (especially the nature of the methods used, the reasons for their use and the stages of their implementation) had to be contained in the main file, to which the adversarial principle by contr ast applied.

Under Belgian law, review of the lawful use of certain investigation methods was carried out by the Indictments Division. That independent and impartial court also verified whether the main case file was complete and thus indirectly whether it was necessary to exclude certain information. In the present case that court had found that there was a balanced relationship between the confidential file and the main file, which contained the implementation report and non-confidential information from the proactive investigation.

There was nothing to support the applicant’s allegation that he had been the victim of entrapment. Moreover, the courts had verified from the main case file that this was not substantiated. In particular, the Indictments Division had found that the launchi ng of a proactive investigation was justified by sufficient circumstantial evidence; the relevant inferences had been mentioned in reports added to the main criminal case file and referred to in the public prosecutor’s written submissions, to which the app licant also had access.

Thus the restriction of defence rights had been justified and the review carried out upstream by the Indictments Division had constituted a sufficient safeguard.

Conclusion : no violation (unanimously).

Article 6 §§ 1 and 3 (d): Inab ility to have the undercover officers examined – As the undercover officers could be regarded as witnesses for the prosecution, the Court examined the complaint using the three criteria set out below (see Schatschaschwili v. Germany [GC], 9154/10, 15 Decem ber 2015, Information Note 191 ).

(a) The reasons for denying the examination of the undercover officers – It was in principle for the national judge to assess the necessity or appropriateness of su mmoning a witness to give evidence. In the present case the domestic courts had taken the view that (i) the officers’ safety and the importance of anonymity, as they were to be redeployed in such operations, precluded their appearance, and (ii) the defence had not indicated any questions to which the answer had not already been available in the main case file. The refusal by the Belgian courts to examine the undercover officers had thus been based on serious grounds.

(b) Weight attached to impugned stateme nts in the conviction – Even though they had not been the sole and decisive basis of the applicant’s conviction, the Court acknowledged that the statements of the undercover officers could have caused difficulties for the defence.

(c) Whether there were s ufficient counterbalancing safeguards – A significant safeguard of fairness had been provided by the upstream review carried out by the Indictments Division. This independent and impartial tribunal had been able to verify the identity of the undercover off icers and their reliability, by reviewing the lawfulness of their actions. That review had enabled the applicant to challenge the investigation methods used, including to allege that he had been the victim of entrapment. Before the trial courts, the refusa l in question had been accompanied by detailed reasoning.

Admittedly, it did not appear from the file that the courts had shown particular prudence vis-à-vis the statements of the undercover officers in view of their non-appearance. However, the Court foun d that there had been procedural safeguards to counterbalance any resulting difficulties for the defence: the defence had been able to call witnesses, some of whom had been examined as to the allegations about the undercover officers; and it had been possi ble to compare the reports drawn up by the two officers in question and their results with the evidence gathered during the searches and phone tapping.

The applicant had thus been in a position to challenge the evidence gathered through the intervention of the undercover officers. His inability to secure their examination had not therefore undermined the fairness of the proceedings as a whole.

Conclusion : no violation (four votes to three).

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

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