JOINT DISSENTING OPINION OF JUDGES RAIMONDI, LAZAROVA TRAJKOVSKA, LAFFRANQUE, SICILIANOS, LUBARDA, GROZEV AND HARUTYUNYAN

(Translation)

1. We are regrettably unable to agree with the majority ’ s conclusion that there has been no violation of Article 6 § 1 of the Convention, having regard in particular to the position adopted by the Court in the Taxquet v. Belgium judgment ([GC], no. 926/05, ECHR 2010) and to the circumstances of the present case. On the contrary, we consider that the criteria established by the Court in Taxquet and viewed in the light of the subsequent case-law were not complied with in the present case.

2. It should be emphasised at the outset that the rule of law and the avoidance of arbitrary power are principles underlying the Convention (see, among other authorities, Roche v. the United Kingdom [GC], no. 32555/96, § 116, ECHR 2005 ‑ X, and Taxquet , cited above, § 90). In the judicial sphere, those principles serve to foster public confidence in an objective and transparent justice system, one of the foundations of a democratic society (see Taxquet , ibid.).

3. T he rule of law, which is one of the fundamental principles of a democratic society and is inherent in all the Articles of the Convention (see Amuur v. France , 25 June 1996, § 50, Reports of Judgments and Decisions 1996-III), finds its quintessential expression in Article 6 of the Convention (see Stran Greek Refineries and Stratis Andreadis v. Greece , 9 December 1994, § 46, Series A no. 301-B).

4. Accordingly, the right to a fair hearing must be interpreted in the light of the Preamble to the Convention, which declares the rule of law to be part of the common heritage of the Contracting States (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII).

5. In the present case, we consider that the applicant was not afforded sufficient safeguards for a fair trial observing the principle of the rule of law and, more specifically, that the failure to provide reasons for the jury ’ s decision as to her guilt and criminal responsibility did not satisfy the requirements laid down in the Taxquet judgment and thus amounted to a violation of Article 6 of the Convention.

1. Principles established in the Taxquet judgment

6. In Taxquet (cited above, §§ 83-84) the Grand Chamber noted that the institution of the lay jury existed in a variety of forms in Europe and emphasised that it could not be called into question. Several High Contracting Parties intervened in the case, moreover, submitting arguments in defence of their own national systems (France, Ireland and the United Kingdom).

7. The Taxquet judgment indicates that while “any special procedural features must be accommodated” in systems with a lay jury, “Article 6 requires an assessment of whether sufficient safeguards were in place to avoid any risk of arbitrariness and to enable the accused to understand the reasons for his conviction” (ibid., §§ 90-92).

8. The Grand Chamber gave examples of procedural safeguards. Such safeguards could include, for example, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced, and precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based or sufficiently offsetting the fact that no reasons are given for the jury ’ s answers (ibid., § 92; see also Papon v. France (dec.), no. 54210/00, ECHR 2001 ‑ XII). Lastly, regard must be had to any avenues of appeal open to the accused .

9. Applying these principles to the circumstances of the Taxquet case, the Court found that neither the indictment (whose value in assisting “understanding” was “limited”) nor the questions put to the jury (thirty-two for seven defendants, four of which concerned the applicant alone and did not “refer to any precise and specific circumstances”) contained sufficient information about the applicant ’ s role in the commission of the offences of which he was accused. It made a distinction between the case before it and the Papon v. France case (cited above), in which the Assize Court had referred to the jury ’ s answers to each of the 768 questions put by the court ’ s president (see Taxquet , cited above, § 96). In addition, the Court observed that the Belgian system made no provision for an ordinary appeal against judgments of the Assize Court.

10. The Taxquet judgment thus clearly establishes the need to understand not the reasons that prompted the judicial investigating bodies to send the case for trial in the Assize Court, but the reasons that persuaded the members of the Assize Court, after the trial hearing at which they had been present, to reach their decision on the issues of guilt, criminal responsibility and the corresponding sentence.

11. This idea was reaffirmed in Agnelet v. France (no. 61198/08, 10 January 2013), and also in four other judgments delivered on the same day in cases concerning France ( Oulahcene , Fraumens , Legillon and Voica v. France , nos. 44446/10, 30010/10, 53406/10 and 60995/09 respectively, 10 January 2013) and in subsequent judgments concerning Belgium ( Castellino v. Belgium , no. 504/08, 25 July 2013; Gybels v. Belgium , no. 43305/09, 18 November 2014; Hechtermans v. Belgium , no. 56280/09, 18 November 2014; Khaledian v. Belgium , no. 42874/09, 18 November 2014; Yimam v. Belgium , no. 39781/09, 18 November 2014; Devriendt v. Belgium , no. 32001/07, 17 February 2015; Maillard v. Belgium , no. 23530/08, 17 February 2015; Kurt v. Belgium , no. 17663/10, 17 February 2015; and Magy v. Belgium , no. 43137/09, 24 February 2015).

2. Application of these principles to the present case

12. In the present case, it should be noted that the judgment emphasises the importance of the indictment, which gave an account, running to fifty-one pages, of the events, the steps taken and evidence obtained during the investigation, the forensic medical reports and so on (see paragraphs 29 and 76-77 of the judgment). However, it must be pointed out that, as the majority admit, “the indictment was of limited effect in assisting an understanding of the verdict to be reached by the jury, since it was filed before the trial hearing, which forms the crucial part of proceedings in the Assize Court” (see paragraph 77 of the judgment).

13. This is especially so since the forensic medical reports mentioned in the indictment were the ones produced before the trial. The expert assessment that was ordered during the trial by the President of the Assize Court himself on the basis of new evidence – namely two letters from the applicant disclosed during the trial by her personal psychiatrist – was by definition not included in the indictment. However, it is precisely that report, submitted by the three psychiatrists on 14 December 2008, which was crucial to the present case, given that it was unanimous and diametrically opposed to the previous reports. We would point out that the new expert report reached the conclusion that the applicant “ was suffering at the time of the events from a severe mental disturbance making her incapable of controlling her actions, and [at the time of this fresh assessment was] suffering from a severe mental disturbance warranting long-term treatment ”. Consequently, seeing that the indictment did not in any way reflect this spectacular about-turn, it was of very limited, indeed marginal value as such in assisting an understanding of the reasons underpinning the jury ’ s subsequent verdict.

14. The five questions put to the jury, moreover, were succinctly worded and made no allusion to the specific circumstances, in line with the Court ’ s findings in Taxquet and the other cases cited above concerning assize courts sitting with a lay jury (see in particular the judgments concerning Belgium cited in paragraph 10 above). These questions were of a somewhat standardised nature, making no reference to “any precise and specific circumstances” (to borrow the phrase used in Taxquet ). The key questions – the first and fifth ones – were worded as follows:

“Is the accused Geneviève Lhermitte, present before this court, guilty of having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] in Nivelles on 28 February 2007?”

“Is it established that the accused Geneviève Lhermitte, present before this court, is suffering either from a mental disorder or from a severe mental disturbance or defect making her incapable of controlling her actions?”

15. The jury alone deliberated on these questions and its answer had to be limited to “yes” or “no”, in accordance with Belgian law as in force at the time. Such answers, however, do not constitute proper reasoning. Viewed in isolation, they did not allow the applicant to “understand the reasons for her conviction”, within the meaning of the Taxquet judgment.

16. The same applies to the combined effect of the indictment and the first and fifth questions. Admittedly, the question of the applicant ’ s guilt and criminal responsibility, and thus whether or not she was capable of answering for her actions before a criminal court, was, as the Government noted, a central concern of the investigating judge and the investigators. However, it is important to bear in mind that whereas the two experts in psychology had found that the applicant was not criminally responsible (see paragraph 26 of the judgment), the panel of three psychiatric experts had initially reached the opposite conclusion (see paragraph 27).

17. The emergence of new evidence during the trial in the Assize Court, namely the letters disclosed by the applicant ’ s personal psychiatrist, persuaded the court ’ s president to order a fresh examination of the applicant ’ s condition by the same panel of psychiatrists. This serves to confirm that while the trial hearing undeniably forms the crucial part of criminal proceedings, in the present case the question of the applicant ’ s guilt and criminal responsibility was a central focus of the trial. Accordingly, the about-turn performed by the same experts during the trial, following the discovery of new evidence, in finding that the applicant had not been criminally responsible at the time of the events (and, consequently, the unanimous view shared by all the experts on this point) was indisputably a fundamental aspect of the trial.

18. We therefore consider, in view of the importance of the question of criminal responsibility in the circumstances of the case, that the applicant was entitled to expect an explanation of the reasons that had prompted the jury to disregard the experts ’ unanimous findings, including those ordered and presented during the trial. However, as the Government themselves admitted, it is “not hard to imagine that the analysis set out in the experts ’ report of 30 October 2007 had instilled a firm conviction in the members of the jury and that their minds had already been made up by the time the experts had unanimously reached the opposite conclusion in 2008 after being appointed by the President of the Assize Court to submit a further report” (see paragraph 65 of the judgment, emphasis added).

19. In our opinion, while it provides a likely explanation for the attitude of the members of the jury, this very honest observation by the Government should in itself constitute an important, if not decisive, factor in finding a violation of Article 6 in the present case. “To imagine” is almost the opposite of “to state reasons” and “to understand”. The Government explicitly conceded, moreover, that the members of the jury had already formed their opinion before the submission of the new expert report and that the report had therefore had no bearing on their decision. In other words, according to the Government, a crucial piece of evidence was quite simply ignored before being disregarded, apparently for no particular reason. In such circumstances, it is hard to see how we can speak of procedural safeguards enabling the accused to understand the reasons for her conviction.

20. Furthermore, as regards the explanations said to have been given by the Assize Court (with the members of the jury being joined on this occasion by the three judges) and subsequently by the Court of Cassation, we share the opinion expressed by Judges Sajó, Keller and Kjølbro, appended to the Chamber judgment. It is hard to accept that reasons may be provided not by those judges or members of the jury who reach the decision, but by other persons who did not attend the deliberations on the matter in issue. In any event, the sentencing process was not an occasion to deal with the – separate – issue of guilt and criminal responsibility. As regards the Court of Cassation, while that court may explain the reasoning adopted by a lower court by addressing points of law – a task plainly within its jurisdiction – it cannot do so where the reasoning simply does not exist, as in the present case, especially as in this instance the crucial question was purely factual and not legal. Similarly, we cannot accept that a supreme court can take the place of the lower courts in stating the reasons for their decision: such a practice would run the risk of appearing arbitrary.

3. Legislative amendments and judicial practice following the Taxquet judgment

21. The Taxquet judgment had a considerable impact not only in Belgium, but also in other countries, especially France. It is significant that Law no. 2011-939 of 10 August 2011 introduced, inter alia , a new Article 365-1 into the French Code of Criminal Procedure, reading as follows :

Article 365-1

“The president or one of the other judges designated by him shall draw up the reasons for the judgment.

In the event of a conviction, the reasoning shall consist of a statement of the main items of evidence against the defendant which persuaded the assize court in respect of each of the charges against him. This relates to the evidence examined during the deliberations conducted by the court and the jury in accordance with Article 356, prior to the voting on the questions.

The reasons shall be set out in a document appended to the question sheet known as the ‘ statement of reasons form ’ , which shall be signed in accordance with Article 364.

Where the particular complexity of the case, on account of the number of defendants or the offences with which they are charged, makes it impossible to draw up the statement of reasons form immediately, it shall be drafted, added to the case file and filed with the registry of the assize court no later than three days after the judgment is delivered.”

22. In Agnelet (cited above, § 34) the Court, while finding a violation of Article 6 § 1 of the Convention in respect of proceedings conducted prior to the enactment of the 2011 law, cited the full text of the new Article 365-1 of the Code of Criminal Procedure. Furthermore, in the same judgment and the four other judgments delivered on the same day in cases against France ( Oulahcene , Fraumens , Legillon and Voica v. France , all cited above), as well as in Bodein v. France (no. 40014/10, 13 November 2014), the Court included an identical paragraph at the end of its assessment and immediately before its finding as to the alleged violation of Article 6 § 1, reading as follows:

“ Lastly, the Court takes note of the reform implemented since the time of the events, following the enactment of Law no. 2011-939 of 10 August 2011 which, among other things, introduced a new Article 365-1 into the Code of Criminal Procedure providing that the reasons for the assize court ’ s judgment are now to be set out in a ‘ statement of reasons form ’ appended to the question sheet. In the event of a conviction, the Law requires the statement of reasons to refer to the evidence examined in the course of the deliberations which persuaded the assize court in respect of each of the charges brought against the accused. In the Court ’ s view, this reform appears, on the face of it, to significantly strengthen the safeguards against arbitrariness and to help the accused understand why they were convicted, thus meeting the requirements of Article 6 § 1 of the Convention.” (see Agnelet , cited above, § 72; Oulahcene , cited above, § 56, Fraumens , cited above, § 51; Legillon , cited above, § 68; Voica , cited above, § 54; and Bodein , cited above, § 43)

23. In the more recent decision in Matis v. France ((dec.), no. 43699/13, 6 October 2015) the Court gave its first ruling on criminal proceedings in which a “statement of reasons form” had been drawn up and appended to the case file. The findings in that case indicate that a factual statement of reasons, however brief (in this instance, running to one page and set out as a series of bullet points), is capable of meeting the requirements of Article 6 of the Convention.

24. In Belgium, the Taxquet judgment has led to similar developments. In a judgment of 19 May 2009 the Court of Cassation departed from its previous position and for the first time quashed an assize court judgment on the grounds that it did not state the reasons why the appellant had been found guilty of murder or why his plea as to the mitigating factor of provocation had not been accepted (Court of Cassation, 19 May 2009, Pasicrisie belge (Pas.), 2009, no. 330). It has done likewise in several subsequent cases in which a similar complaint was raised (see, among other examples, Court of Cassation, 10 June 2009, Pas., 2009, no. 392, and Court of Cassation, 17 November 2009, Pas., 2009, no. 673, both cited in Magy , cited above, § 18).

25. Shortly afterwards, the Assize Court Reform Act of 21 December 2009 was enacted, coming into force on 21 January 2010; it provided in particular that after receiving the jury ’ s verdict as to guilt, the professional judges were to retire together with the jury to formulate the main reasons for the jury ’ s decision, to be included in a “reasoning judgment” (see paragraph 42 of the judgment in the present case). A new law of 5 February 2016, which came into force on 29 February 2016, marked a further step. The body composed of the professional judges and the jury now deliberates on the issue of guilt. The members of the jury alone vote on the issue of guilt by answering “yes” or “no” to the questions put to them, and the composite body then formulates the main reasons for the jury ’ s decision . These are included in a reasoned judgment (see the relevant provisions of the Code of Criminal Procedure cited in paragraph 43 of the judgment).

26. These important legislative developments are briefly recounted in the “Facts” part of the judgment (see paragraphs 42-43). In our opinion, they would also have been worth mentioning in the Court ’ s assessment of the merits of the case, in line with the approach taken in all the judgments cited above concerning France. These reforms to Belgian law appear , on the face of it, to significantly strengthen the safeguards against arbitrariness and to help the accused understand why they were convicted, thus meeting the requirements of Article 6 § 1 of the Convention .