Information Note on the Court’s case-law 203

January 2017

Hiernaux v. Belgium - 28022/15

Judgment 24.1.2017 [Section II]

Article 13

Effective remedy

Action for damages for complaints about the length of pending criminal proceedings: no violation

Facts – The applicant complained unsuccessfully about a breach of the reasonable-time requirement in proceedings before the judicial investigating bodies to wh ich she had been a party and which had lasted about 17 years, asking the domestic court to find the entire prosecution inadmissible. Before the European Court, she alleged that she had not had an effective remedy in order to raise her complaint about the e xcessive length of the criminal proceedings.

Law – Article 13 taken together with Article 6 § 1: Several types of remedy provided an opportunity to prevent or remedy the excessive length of criminal proceedings.

(a) Preventive remedies provided for by the Code of Criminal Procedure (CCP) – The judicial investigating bodies had noted, at the stage of closing the proceedings, that the ongoing proceedings had been excessively long. However, they held that it was inappropriate to penalise the excessive length at that stage by discontinuing the proceedings, declaring the prosecution inadmissible or by another method. The passage of time had not in fact resulted in the loss or deterioration of evidence and had not prevented the applicant from exercising her defen ce rights. According to the Court of Cassation’s case-law, in those circumstances it was for the trial court to assess the impact of the failure to comply with the reasonable-time requirement. The first-instance court declared the prosecution inadmissible for infringement of the right to a fair trial on a different ground to that of the right to be judged within a reasonable time.

That approach was not contrary to the Convention. It did not in fact follow from Articles 6 and 13 of the Convention that a fail ure to hear a case within a reasonable time, established in the context of closing the proceedings, where that failure had not given rise to an irretrievable prejudice to the accused’s defence rights or to the loss of evidence, had to be penalised by extin ction of the public prosecution or by discontinuance.

However, the judicial investigating bodies had not themselves penalised the failure to comply with the reasonable-time requirement, in the light of their finding that there had been no irretrievable pre judice to a fair trial; in addition, the outcome of the proceedings had, in the present case, prevented the application of Article 21 ter of the Preliminary Title of the CCP, which provided for the option of a deferred penalty by the trial court.

It followe d that the applicant had been unable to obtain any tangible redress to remedy the delays complained of by her. Thus, the remedies provided for in the CCP had not proved effective in the present case.

(b) Compensatory remedy – In the case of Panju v. Belgi um (18393/09, 28 October 2014, Information Note 178 ) concerning the excessive length of judicial proceedings, the compensatory remedy had not been regarded as an effective remedy within the meaning of Article 13, since it had not been shown that it had been granted in practice by the courts in the context of criminal proceedings, nor therefore that this remedy could lead to results that satisfied the requirements of effectiveness enshrined in Article 13 of the Convention.

In the context of the present case, several examples had been submitted of decisions taken by the civil courts, in order to demonstrate that the compensatory remedy could be used successfully to obtain adequate redress for excessive length of criminal proc eedings where this occurred at the investigation stage or when closing proceedings.

In addition, the Court of Cassation had recently delivered judgments in which it expressly acknowledged that the compensation to which the defendant could make claim in the event of excessive length of the proceedings, occurring at either the investigation stage or when closing the proceedings, could consist in damages, to be claimed before the civil courts.

In the light of this new information and those developments, the co mpensatory remedy could in principle be considered an effective remedy for redressing a violation based on the excessive length of criminal proceedings, including when it was found at the investigation stage or when closing proceedings.

In those circumstan ces, the applicant could not allege that she had been deprived of any effective remedy.

Conclusion : no violation (unanimously).

(See also J.R. v. Belgium , 56367/09 , 24 January 2017)

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

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