Legal summary

May 2023

Panju v. Belgium (no. 2) - 49072/21

Judgment 23.5.2023 [Section II]

Article 13

Effective remedy

Refusal of compensation for excessive length of criminal proceedings, as found by the European Court, on the grounds that the non-pecuniary damage had been redressed by the subsequent declaration that the prosecution was inadmissible: no violation

Facts – In May 2011, the chambre du conseil (the “pre-trial division”) of the Court of First Instance declared void the entirety of the investigative measures carried out after November 2002 with regard to the applicant being charged with money laundering; in consequence, the measure freezing his bank accounts was lifted, as was a confiscation order in respect of gold belonging to him.

On 28 October 2014 the Court held, in its judgment in Panju v. Belgium (see the Legal summary ), that the length of the judicial investigation in the criminal proceedings against the applicant had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention.

The Indictments Division of the Court of Appeal subsequently declared the proceedings against the applicant inadmissible, on the grounds that this excessive duration had made it impossible to exercise the rights of the defence, and that this had irremediably prejudiced his right to a fair trial. An action for damages brought against the Belgian State by the applicant, seeking compensation for the damage sustained on account of the excessive length of the proceedings, was dismissed by the Court of Appeal and the Court of Cassation.

Law – Article 13 in conjunction with Article 6 § 1:

In view of the judgments of the Court and of the Indictments Division of the Court of Appeal, the applicant had an “arguable” complaint.

In the context of the applicant’s claim for compensation, while acknowledging the State’s responsibility for the excessive length of the criminal proceedings, the Court of Appeal considered that the non-pecuniary damage alleged by the applicant had been redressed by the decision that the prosecution case was inadmissible. Furthermore, it considered that the pecuniary damage had not resulted from the length of the criminal investigation, but rather from the delay in returning the seized assets and gold following the chambre du conseil ’s finding of May 2011 that the proceedings had been unlawful.

The Court of Cassation dismissed an appeal by the applicant on points of law. It considered that the question of compensation for the damage sustained was a matter for factual assessment by the trial court, and that there was no legal merit in the argument that the finding that the prosecution case was inadmissible had been unable to provide full reparation for such damage.

Under Article 13 of the Convention, the inadmissibility of the prosecution case could amount to adequate redress for a breach of the reasonable-time requirement, in that, under Belgian law, it implied an acknowledgment that the right to a fair trial had been irremediably prejudiced and conclusively terminated both the prosecution case and the duration complained of.

The Court saw no reason to question the Court of Appeal’s assessment that the finding that the prosecution case was inadmissible had placed the applicant in at least as favourable a position as if the reasonable-time requirement had not been breached.

It could not agree with the applicant’s argument that the courts had been under an obligation, in addition to finding that the prosecution had been inadmissible, to award him financial compensation. Such an interpretation of Article 13 could not be inferred from the Court’s case-law, on the basis of which such compensation was one “option”.

Furthermore, the Court had already held that a significant reduction in or the setting-aside of a sentence by the trial court for failure to comply with the reasonable-time requirement could amount to adequate redress and lead to the loss of victim status in respect of the right to a trial within a reasonable time. The same conclusion had to be reached in cases of findings by the courts that the prosecution case was inadmissible.

Moreover, Belgian law did not rule out granting compensation (in addition to a finding that the prosecution case was inadmissible) where an applicant was able to show that there existed damage for which the inadmissibility finding did not provide adequate redress. In the present case, the absence of compensation for the applicant had not been because this was excluded by any rule of national law in force, but because he had not provided any evidence of damage in accordance with those rules. Lastly, the applicant complained that the appeal courts had not made an in concreto assessment of the pecuniary damage he had sustained as a result of the delay in returning the frozen assets and seized gold. In the Court of Appeal’s view, this damage had not resulted from the excessive length of the criminal investigation opened in respect of the applicant in 2002, but rather from the delay in returning this property. The Court of Appeal considered that, while the applicant had reason to complain from May 2011 onwards about the delay in returning the assets and gold seized, which occurred at the beginning of 2013, he had nevertheless failed to provide tangible evidence of such damage, in that he had not submitted any documents establishing it.

Having regard to the domestic courts’ findings, the Court saw no reason to consider that the applicant had not had an effective remedy to obtain compensation for the damage allegedly sustained as a result of the breach of the reasonable-time requirement, as found by the Court in its judgment of 28 October 2014.

Conclusion : no violation (unanimously).

(See also Panju v. Belgium , 18393/09, 28 October 2014, Legal summary )

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

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