CONCURRING OPINION OF JUDGE JEBENS

I agree that there has been a violation of Article 6 § 1 in respect of the applicant ’ s conviction, and I also agree with the reasoning in the judgment. However, I would like to clarify my own view on the Court ’ s application of Article 6 of the Convention in cases relating to jury trials by adding the following.

1. My point of departure is that , while Article 6 § 1 secures the right to a fair trial in criminal proceedings, it provides limited assistance with regard to the contents of the fair-trial guarantee. This was a deliberate choice by the drafters of the Convention, in acknowledgment of the diversity among European legal systems and the fact that a fair trial in criminal cases can be secured within each system. The Contracting States have therefore been afforded a margin of appreciation in organising their judicial procedures, and the Court must for the same reasons apply the principle of subsidiarity in this respect.

2. It furthermore transpires from the Court ’ s case-law that , when applying the fair-trial test in jury cases, the Court ensures that the operation of the jury system is governed by certain procedural guarantees which it regards as sufficient in order to secure a fair trial. The se guarantees include, in particular, the inclusion in the indictment and questions to the jury of an accurate description of the relevant facts and the applicable legal provisions, both of which are necessary in order to clarify the legal basis on which the conviction of the accused is sought, and the assumption of a central role by the presiding judge in ensuring that the trial proceedings are conducted in a fair manner and that proper instructions are given to the jury.

3. The question of whether the right to a fair trial has been attained in a jury case must therefore be addressed on the basis of the peculiarities of that system, notably the fact that jury verdicts are not accompanied by reasons. For the Court to require juries to give reasons for their verdicts would therefore not only contradict its case-law, but would also, more importantly, undermine the very existence of the jury system, and thereby impermissibly trespass on the State ’ s prerogative to choose its criminal - justice system.

4. Following the Chamber ’ s judgment in this case, Belgium passed the Assize Court Reform Act, which requires the Assize Court to state the main reasons for the conviction of the indicted person, the reasons being formulated by the members of the court and the jury. Another example of national courts ’ attempts to comply with the Chamber judgment is that in Norway the High Courts have been required by the Supreme Court, in exceptional cases, to state which evidence was decisive for the conviction or to present the reasons for the conviction, these explanations to be given by the judges alone, without the participation of members of the jury. Bearing in mind that in both the above-mentioned situations the verdict is reached by the jury and that the judges have not taken part in the deliberations, it is in my view questionable whether such accommodations can be seen as truly reflecting the opinion of the jurors and providing the accused person with any more clarity than an unreasoned verdict.

5. These newly established practices reflect the uncertainty and lack of foreseeability which the Chamber judgment in the present case has caused in some States as to whether and how to provide reasons for jury verdicts. This is in my view another reason why the Court should not question the operation of the jury system as such, but examine whether sufficient procedural guarantees were in place in the particular case before it.