JOINT DISSENTING OPINION OF JU D GES SAJÓ, KELLER AND KJØLBRO

1. U nfortunately, we do not share the opinion of the majority that there has been no violation of A rticle 6 § 1 of the Convention on account of the lack of reasons given for the guilty verdict .

2. We are not satisfied that the applicant was afforded sufficient safeguards enabling her to understand why the memb e r s of the jury found her criminally responsible for killing her children . Bearing in mind that the applicant was examined by two psy chologist s and a panel of three psychiatrist s who concluded that she had been incapa ble of controlling her actions ( see paragraph s 10 and 14 of the judgment ), it is clear to us that the answer given by the jury (I.) and the reasoning provided by the Assize Court (II.) are not sufficient to satisfy the requirements of A rticle 6 of the Convention. Lastly , the reasoning subsequently provided by the Cour t of C assation likewise did not enable the applicant to understand why she had been found criminally responsib l e for the acts committed (III.). Even if the reasoning put forward by the national authorities is read in full , it seems clear to us that the applicant was not in a position to understand the domestic courts ’ reasons for finding her criminal ly respons i b le (IV.).

I. The jury system and the princip l e of a fair trial

3. According to well-established case-law , the institution of the lay jury is generally not incompatible with the safeguards provided by the Convention ( see paragraph 27 of the judgment ). F urthermore, the Convention does not require that members of the jury should always give reasons for their decision . In other words, the absence of a reasoned verdict does not necessarily constitute a violation of A rticle 6 of the Convention ( see Taxquet v. Belgium [GC], n o. 926/05, §§ 90 and 93, ECHR 2010). However , the Cour t should have examined the requirements of a fair trial on the basis of the domestic proceedings as a whole and analysed the specific context of the Belgian legal system and the circum stances of the ca se ( ibid. , § 93).

4. A rticle 348 of the Belgian Code of Criminal Procedure provided that the jury ’ s verdict as to guilt w as to take the form of a simple “yes/no” answer ( see paragraph 19 of the judgment ). The majority of the Cour t have themselves observed that the questions put to the jury “might not in themselves have enabled” the applicant to understand the precise reasons why she was found to have been criminally responsible at the time of the events, despite the experts ’ conclusions to the contrary ( see paragra ph 31 of the judgment ). It cannot be discerned from t he jury ’ s answer why the psychiatric experts ’ concl u sions were not followed. As a result, the jury ’ s decision was not transparent for the applicant .

II. Lack of reasons in the Assize Court ’ s judgment

6. In its sentencing judgment the Assize Court noted that the applicant had been in a state of mental fragility and de pression at the time of the offen ce ( see paragraph 17 of the judgment ). It further held that “the extremely serious nature of the offence s committed ” and the cold-blooded manner of its perpetration ruled out any mitigating factors . In this way, a ccording to the majority ’ s line of argument, the Assize Court clarified the jury ’ s reason ing as to the accused ’ s guilt.

7. In our opinion , the majority ’ s line of argument is unconvincing for two reasons . Firstly, the Assize Court was bound by the jury ’ s finding as to the applicant ’ s guilt/criminal responsibility . It did not express a position on her criminal responsibility, but solely on the determination of her sentence. The members of the jury alone decide on the issue of criminal responsibility, following deliberations at which the judges have not been present ( see paragraph 32 of the judgment ). Secondly, while it is true that the Assize Court briefly discussed the manner in which the crime had been committed, those observations – even when read in the light of the fifth question put to the jury – did not enable the applicant to discern the reasons why the conclusions of the psychiatric reports had been disregarded.

III. The Court of C assation ’ s subsequent reasoning

8. We are well aware that the decision of a lower court must generally be construed according to the higher court ’ s interpretation of it ( see paragraph 32 of the judgment ). However , in our opinion the majority ’ s argument that the Court of Cassation ’ s subsequent explanation cannot attract criticism is problematic .

9. Firstly , under Belgian law , the Court of C assation can only rule on points of law . It therefore did not add any further explanation for the jury ’ s refusal to endorse the experts ’ conclusions and simpl y found that the Assize Court had given reasons for its decision on sentencing, by referring to the accused ’ s cold-blooded manner and de termination while carrying out the offences . Accordingly, the Cour t of C assation did not provide adequate clarification of the reasons why the jury found the applicant to have been criminally responsible ( see Taxquet , cited above , § 99). Secondly , in the light of the requirements of A rticle 6 of the Convention, a retrospective expl an ation does not appear suffi cient to rule out the risk of arbitrar iness . The reasons for a decision must enable the parties to make effective use of any existing right of appeal ( see , among other authorities , Hirvisaari v . Finland , n o. 49684/99, § 30, 27 Septemb e r 2001, and Hansen v . Nor way , n o. 15319/99, § 72, 2 Octob e r 2014, with further references ). The reasoning subsequently provided by the Court of C assation did not remedy the initial lack of reasons and did not give the applicant the opportunity to scrutinise whether the jury ’ s guilty verdict was lawful .

10. I n conclusion, neither the reasons given by the Assize Court nor the subsequent explanation by the Court of C assation enabled the applicant to understand the guilty verdict or to make effective use of an appeal against it .

IV. The judicial decisions as a whole and the specific circumstances of the present case

11. In the judgment the majority have observed that the Court “ must ascertain whether the proceedings as a whole were fair” ( see paragraph 29 of the judgment ). Keeping this approach in mind , we would reiterate that in the present case, Belgian law did not contain sufficient safeguards to avoid any risk of arbitrariness . In the face of such a heavy penalty (life imprisonment), “ respect for the right to a fair trial is to be ensured to the highest possible degree ” ( see Taxquet , cited above , § 93 , and Salduz v . Tur key [GC], n o. 36391/02, § 54, ECHR 2008). None of the reasoning adopted by the domestic courts contains a justifiable explanation of why the guilty verdict departed from the experts ’ opinions . On the contrary , the reason s put forward by the various courts resemble standard phrases . Even looking at the reasoning of the different courts as a whole, it cannot be concluded that the applicant ’ s right to a fair trial has been respected in this case .

12. For these reasons , we consider that there has been a violation of A rticle 6 § 1 of the Convention in the present case .