Information Note on the Court’s case-law 203

January 2017

Habran and Dalem v. Belgium - 43000/11 and 49380/11

Judgment 17.1.2017 [Section II]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Adversarial trial

Equality of arms

Defence denied access to documents concerning arrangements under which former criminals had agreed to give evidence for the prosecution: no violation

Facts – The applicants were tried in the Assize Court for an armed raid on an armoured van which resulted in fatalities. As the indictment contained references to certain “witness statements” made by “criminals turned witnesses” ( repentis ), the applicants questioned the probative value of those statements, arguing that the persons concerned had cooperated with the judicial authorities in return for concessions. They complained in that connection of the failure to disclose the prior exchanges between these witnesses and the prosecuting and i nvestigating authorities, which they claimed had hampered their defence. The Assize Court replied in detail to their arguments in an interlocutory judgment. On conclusion of the trial the applicants were found guilty and sentenced to fifteen and twenty-fiv e years’ imprisonment respectively.

Law – Article 6 ( fairness of the proceedings ): Although no such status existed under Belgian law, there was no reason not to consider the witnesses in question in the present case as “criminals turned witnesses”, as they had criminal backgrounds and had secured financial concessions. The timing of the events also suggested that one of them had been granted certain sentencing concessions in return for his statements.

As to the fact that one of the witnesses had been an informer, the Convention did not preclude reliance, at the preliminary investigation stage and where the nature of the offence might warrant it, on sources such as anonymous informers. However, the subse quent use of such sources by the trial court to found a conviction was a different matter and was acceptable only if adequate and sufficient safeguards against abuse were in place. The use of statements of doubtful origin did not rule out the possibility o f a fair trial.

In view of the timing of the events, the combined status of informer and witness and the backgrounds of the two witnesses in question, who had links to organised crime, the applicants had been entitled to raise the question whether they had been accused and convicted on the basis of allegations that had not been fully verified, made by individuals who were not necessarily disinterested.

As to whether the statements of those witnesses had formed the decisive basis for the applicants’ convicti on, other factors had been taken into consideration, such as the ballistic evidence and other witness statements which there had been no reason to doubt and which concurred with those of the witnesses concerned, although the strength of this evidence taken in isolation was open to question. In any event, the fact remained that the testimony in question carried a certain weight. The Court therefore had to examine whether the applicants’ defence had been adversely affected as a result or whether account had b een taken of the difficulties that might be caused by the circumstances in which the evidence had been obtained.

In the course of the oral proceedings concerning the applicants’ guilt, one of the witnesses in question had appeared before the Assize Court a nd had been cross-examined by the defence. However, the other witness had died before the trial began, although his statements had been read out to the jury by the presiding judge.

Nevertheless, as the fairness of the trial had to be assessed as a whole, t he Court took note of other factors that had been apt to compensate for the difficulties that could arise for the applicants’ defence:

– although the witnesses in question had been subject to certain protective measures, they had not been granted anonymity and their identity had been known to the applicants;

– the initial information provided by the witnesses in question had not differed in substance (as stated by the police officers concerned under oath) from their subsequent official statements contained in the criminal file, which had been accessible to the defence;

– the two witnesses in question had hardly known each other;

– the s tatements of the two witnesses had concurred despite coming from different sources. These concurring statements, coming from different sources and given at different times, had formed a “whole” capable of convincing the jury beyond any reasonable doubt. Th e fact that they had been made by persons with a criminal background who could have been indirectly involved in the acts of which the applicants were convicted did not alter that finding;

– although they had not had access to the confidential “informer” fi le or the files of the witness protection commission, the applicants had been able to consult the entire criminal case file. Furthermore, in general terms, they did not claim to have been hindered in the preparation of their defence before the Assize Court ;

– the applicants had not been prevented at any point in the proceedings from challenging the reliability of the witnesses or the content and credibility of their statements. Following the witness confrontation during the investigation stage, adversarial proceedings had taken place at a public hearing before the Assize Court, during which the witness who was still alive had appeared with his face uncovered and could be questioned by the applicants. The applicants’ arguments had all been carefully examined by the Assize Court and subsequently by the Court of Cassation;

– the prosecution had not made use of the undisclosed evidence, which had not been brought to the attention of the jury;

– the Assize Court had been aware of the fact that the testimony came from persons with a criminal background who could have been indirectly involved in the acts of which the applicants were convicted, and the jurors had thus been in a position to assess the risk that this testimony might pose to the fairness of the trial.

A ccordingly, the limits placed on the disclosure of certain items in the case file had been sufficiently counterbalanced in the present case by the oral adversarial proceedings before the trial court. Hence, the proceedings as a whole had been attended by s ufficiently strong safeguards and had not been unfair.

Conclusion : no violation (unanimously).

The Court likewise found no violation of Article 6 with regard to the length of the proceedings.

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

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