PARTLY DISSENTING OPINION OF JUDGES MATSCHER AND DE MEYER

(Translation)

In our view there was no infringement of the rights of the defence in this case. In particular the fact that no confrontation was arranged between the Prince and Mr Bricmont on three of the five charges which the appeal court found to have been established did not constitute such an infringement.

The national courts did not proceed solely on the basis of the Prince ’ s statements, in whatever form and in whatever capacity they were made and whatever their probatory force. It was essentially in the light of other evidence in the extensive file of the case that the first-instance court and the appeal court examined, in detail, the individual charges, having regard to the numerous explanations provided, both in writing and orally, in the course of the different proceedings, each of which involved several hearings. Careful study of the grounds of the judgments of 15 February 1982 and 9 March 1983 , which were set out at length, makes this quite clear. These two courts arrived at different conclusions. The first-instance court dismissed the charges, while the appeal court found some of them established.

If "the proceedings in question, taken as a whole," [1] are considered, it may be thought that what the Prince had said or what he might still have said could hardly, in the light in particular of h is physical and mental state [2] , have contributed usefully, having regard to all the circumstances of the case, to the discovery of the truth, which process was obstructed both by the accused and the complainants.

The judicial authorities which were called upon to investigate or judge the case could reasonably, without exceeding the limits of their power of assessment , take the view that, after the confrontation of 23 October 1979 , further confrontations between the Prince and Mr Bricmont were not necessary [3] .

PARTLY DISSENTING OPINION OF JUDGES PINHEIRO FARINHA AND RUSSO

(Translation)

1.   We agree with the majority in finding a violation of Article 6 (art. 6) on the ground that there was no confrontation between the party seeking damages and Mr Bricmont in respect of three of the five counts on which he was convicted (point 2 of the operative provisions). However, unlike the majority, we also voted in favour of finding that the failure to carry out an audit of the relevant accounts - in relation to both the applicants - constituted a violation.

2.   Even the majority of the Court recognized that "because of the nature of the case an audit would have been desirable" (see paragraph 91 of the Court ’ s judgment). In its judgment of 18 February 1982 , the Brussels first-instance court noted "a clear and inexplicable want of diligence in seeking the truth" (quoted at paragraph 28 of the Court ’ s judgment). It noted "among other deficiencies in the investigation the failure to have any audit carried out in respect of the transactions made on the instructions of or in the name of the Prince and the applicants (the numbers of various Belgian or foreign bank accounts of theirs were in the file). As to the relevant Anstalten , it appeared that an inspection could well have been made of their accounts - the documents seized included many statements, so that it would have been possible to approach the banks in order to find out what transactions had been made on these accounts, at least in so far as the case related to them. At all events, there was nothing to show the contrary. At the same time, ... Mr Bricmont had made ‘ the great mistake ’ of failing to keep any systematic, chronological accounts of the sums he received or paid on the Prince ’ s behalf and of sometimes not answering the precise questions put by the court" (see summary at paragraph 61 of the Court ’ s judgment).

3.   In fact, the nature of the case, the lack of material evidence, the version of events put forward by the accuser (the Prince), which was in clear contradiction with the accused ’ s (the applicant), and the fact that there was no confrontation, although the situation called for one, meant that it was necessary to carry out an audit of the accounts, even if the court had to order one of its own motion, and in particular because Mr and Mrs Bricmont had requested one, albeit somewhat less than clearly.

4.   The experts could have examined all the possibilities to the full and the Belgian judicial authorities could have asked the banks to disclose their records by way of derogation from the principle of the secrecy of banking records.

[*]  Note by the registry.  The case is numbered 19/1987/142/196.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]  Note by the registry.  For practical reasons this annex will appear only with the printed version of the judgment (volume 158 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[1] Barberà , Messegué and Jabardo judgment, 6 December 1988 , Series A no. 146, p. 38, § 89.

[2] Certificate of Dr Devos and Dr Verhelst , 8 September 1981 ; reports of Dr Floré of 18 September 1981 and 4 December 1981 .  Mr Bricmont was himself of the opinion that the Prince should have been received into guardianship.

[3] See, mutatis mutandis, paragraphs 89 and 91 of the judgment.