EHRM, 16-11-2010, nr. 926/05

Proceedings in assize courts in Belgium afford a number of safeguards, particularly as regards the defence rights of the accused.

Article 241 of the Code of Criminal Procedure (CCP) requires the Principal Public Prosecutor to draw up an indictment indicating the nature of the offence forming the basis of the charge, and any circumstances that may cause the sentence to be increased or reduced. Pursuant to Article 313 of the CCP, the Principal Public Prosecutor must read out the indictment and the defendant or his counsel the statement of defence. Article 337 states that the questions put to the jury must derive from the indictment (which itself must be consistent with the judgment committing the accused for trial — Article 271 of the CCP) and must comply with certain formal requirements; for example, questions that are complex or concern points of law are prohibited.

At the close of the oral proceedings, questions are put to the jury in order to establish the factual circumstances of the case and any particular factors likely to lead to the precise determination of whether or not the accused is guilty as charged. The president of the Assize Court is empowered to put questions to the jury on all the circumstances which might have an influence on the facts which served as the basis for the indictment, provided that these circumstances were discussed during the oral proceedings. The principal question concerns the constituent elements of the offence, while there must be a separate question in respect of each count. Separate questions regarding other facts, such as aggravating circumstances or the existence of any justification or mitigating factor, may also be put. The prosecution and the accused can challenge the questions and have the opportunity to ask the president to put one or more additional questions to the jury. In the event of dispute regarding the questions, the Assize Court must decide by a reasoned judgment.

Article 341 provides that after asking the questions, the president hands them to the jury; at the same time, he hands over the indictment, the reports establishing the offence and the documents in the file other than the written witness statements.

In accordance with Article 342, once the questions have been put to and handed to the members of the jury, they retire to deliberate in private. The foreman is either the first member of the jury drawn by lot or is appointed by the jury with his or her consent. Before the deliberations begin, the foreman reads out the following instruction, which is also displayed in large type in the most visible place in the deliberation room: ‘The law does not ask jurors to account for how they reached their personal conviction; it does not lay down rules on which they are to place particular reliance as to the completeness and sufficiency of evidence; it requires them to ask themselves questions, in silence and contemplation, and to discern, in the sincerity of their conscience, what impression has been made on their rational faculties by the evidence against the defendant and the submissions of the defence. The law does not tell them: ‘You will hold every fact attested by this number of witnesses to be true’; nor does it tell them: ‘You will not regard as sufficiently established any evidence that does not derive from this report, these exhibits, this number of witnesses or this many clues’; it simply asks them this one question, which encompasses the full scope of their duties: ‘are you inwardly convinced?’’

Article 343 authorises members of the jury to leave the deliberation room only when they have arrived at their verdict.

Lastly, Article 352 provides that if the judges are unanimously persuaded that the jurors, while complying with the procedural requirements, have made a substantive error, the court must stay the proceedings and adjourn the case until the following session for consideration by a new jury, which cannot include any of the original members. However, according to information supplied by the Government, this option has been used on only three occasions.

The Chamber judgment of 13 January 2009 has had repercussions on the case-law of the Belgian courts.

In judgment no. 2505 (P.09.0547.F) of 10 June 2009 the Court of Cassation held:

Other judgments to similar effect have subsequently been delivered.

In Belgium, even before the Chamber judgment in the Taxquet case, a Bill of 25 September 2008 that sought, among other things, to allow the president of the Assize Court to be present during the jury's deliberations in order to assist its members was considered by the Senate. The proposed version of Article 350 of the CCP stated that the Assize Court should give reasons for its decision as to guilt, but was not required to address the parties' submissions.

The Assize Court Reform Act of 21 December 2009, which was published in the Moniteur belge on 11 January 2010 and came into force on 21 January 2010, has introduced a requirement for the Assize Court to state the main reasons for its verdict. The relevant provisions of the CCP now read as follows:

The applicant submitted that his conviction had been based on a guilty verdict which had not included any reasons and had not been subject to any form of appeal. As the case had been extremely complex in both factual and legal terms, it had been difficult for twelve jurors without any appropriate legal qualifications to be able to make a wholly lawful assessment of the merits of the charge against him. The lack of reasoning in the guilty verdict precluded any possibility of an appropriate judicial review of the reasons on which the jury's finding had been based. The mere fact that Article 364 bis of the CCP provided that every judgment convicting an accused had to mention the grounds for the determination of the sentence was not sufficient to satisfy the reasoning requirement imposed by Article 6 of the Convention.

Referring to Ruiz Torija v. Spain (9 December 1994, Series A no. 303-A) and Papon v. France ((dec.), no. 54210/00, ECHR 2001-XII), the applicant pointed out that an obligation to state reasons was laid down in the Court's case-law, although the Court had qualified it in a number of ways. However, he submitted that his case could not be compared to that of Maurice Papon, in which it had been possible to discern a proper set of reasons from the 768 answers given by the jury. Those answers had provided an indication of why the French Assize Court had found him guilty and sentenced him. In the present case, however, the questions put during the trial had not in any way addressed the substance of the case; there had been very few of them — only four of the thirty-two questions had concerned the applicant — and they had related solely to whether he was guilty of murder or attempted murder and had simply received the answer ‘yes’, without any further explanation.

In the applicant's submission, three arguments based on legal logic militated in favour of requiring assize courts to give reasons for their judgments. The first two were based on Article 6 § 1 of the Convention. Firstly, the case-law acknowledged that reasoned court decisions formed part of the guarantees of a fair trial. It would be illogical for the standard required in this area to be lower for proceedings resulting in the most severe criminal penalties. Secondly, Article 6 § 1 forcefully emphasised the public nature of justice. The third argument was based on Article 6 § 3 (a), which acknowledged that anyone charged with a criminal offence was entitled to be informed in detail of the nature and cause of the accusations against him. The applicant contended that that right should also extend to the cause of his conviction. The problem of miscarriages of justice likewise supported the view that reasons should be given. The fact of requiring a court to state reasons for a decision meant that it had to express a coherent and rational line of reasoning purged of all emotional and subjective considerations. Lastly, the inclusion of reasons made a review by the courts of appeal and cassation possible; such a review would not have the same scope at all where no reasons were given for the decision as to guilt.

The Government noted, firstly, that European legal systems were marked by considerable diversity: some did not have, or no longer had, a system of lay adjudication, while others did, but its operation, in particular the role entrusted to the jury and the way in which it functioned, differed from one State to another. Furthermore, the Court was not a third- or fourth-instance body. Its task was not to decide in the abstract or to standardise the different legal systems, but to ascertain whether the procedures in place satisfied the requirements of Article 6 of the Convention.

In Belgium the legitimacy of the assize courts was ensured by the institution of the jury. The jurors represented the people, from whom they came, and thus themselves enjoyed institutional legitimacy. The composition of the jury was the principal safeguard against arbitrary justice.

The absence of explicit reasons did not mean that the verdict as to guilt was not reached as the result of a reasoning process, which the persons concerned were capable of following and reconstructing. Furthermore, the Court had never found that the lack of reasons in assize court decisions raised an issue in the abstract under Article 6 of the Convention. Although the Court had held in Göktepe v. Belgium (no. 50372/99, 2 June 2005) that it was necessary to put distinct questions in respect of each defendant on the existence of aggravating circumstances, it had not objected to the functioning of the Assize Court or to the absence of reasons in decisions reached by the jury in such courts under Belgian law.

The conduct of proceedings in Belgian assize courts ensured that each accused was able to obtain a reasoned judgment on the lawfulness and validity of the evidence and to have a sufficient idea of what evidence had been decisive and, where appropriate, which of the defence's arguments the jury had taken into account in reaching its verdict. In the instant case the questions formulated at the end of the oral proceedings by the President of the Liège Assize Court in relation to the applicant's guilt had been sufficiently precise to serve as an adequate basis for the court's judgment. The constituent elements of the offences and the acts held against the accused had been clearly indicated, as had the aggravating circumstances. The applicant had had access to the indictment and had had the opportunity to attend the lengthy oral proceedings during which the evidence had been discussed. It was therefore futile for him to claim that he was not aware of the grounds for his conviction. The mere fact that the jurors reached the verdict on the basis of their personal conviction did not amount to a violation of the Convention.

The Court notes that several Council of Europe member States have a lay jury system, guided by the legitimate desire to involve citizens in the administration of justice, particularly in relation to the most serious offences. The jury exists in a variety of forms in different States, reflecting each State's history, tradition and legal culture; variations may concern the number of jurors, the qualifications they require, the way in which they are appointed and whether or not any forms of appeal lie against their decisions (see paragraphs 43–60 above). This is just one example among others of the variety of legal systems existing in Europe, and it is not the Court's task to standardise them. A State's choice of a particular criminal justice system is in principle outside the scope of the supervision carried out by the Court at European level, provided that the system chosen does not contravene the principles set forth in the Convention (see Achour v. France [GC], no. 67335/01, § 51, ECHR 2006-IV). Furthermore, in cases arising from individual petitions the Court's task is not to review the relevant legislation in the abstract. Instead, it must confine itself, as far as possible, to examining the issues raised by the case before it (see, among many other authorities, N.C. v. Italy [GC], no. 24952/02, § 56, ECHR 2002-X).

Accordingly, the institution of the lay jury cannot be called into question in this context. The Contracting States enjoy considerable freedom in the choice of the means calculated to ensure that their judicial systems are in compliance with the requirements of Article 6. The Court's task is to consider whether the method adopted to that end has led in a given case to results which are compatible with the Convention, while also taking into account the specific circumstances, the nature and the complexity of the case. In short, it must ascertain whether the proceedings as a whole were fair (see Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247-B, and Stanford v. the United Kingdom, 23 February 1994, § 24, Series A no. 282-A).

The Court observes that it has already had occasion to deal with applications concerning procedure in the assize courts. Thus, in the case of R. v. Belgium (no. 15957/90, Commission decision of 30 March 1992, Decisions and Reports (DR) 72) the European Commission of Human Rights found that although no reasons had been given for the jury's finding of guilt, the President of the Assize Court had at least put questions to the jury beforehand concerning the facts of the case and the accused had been able to challenge the questions. The Commission considered that those precise questions, some of which could be put at the request of the prosecution or the defence, formed a framework for the decision in issue and compensated sufficiently for the brevity of the jury's replies. The Commission rejected the application as being manifestly ill-founded. It followed a similar approach in the cases of Zarouali v. Belgium (no. 20664/92, Commission decision of 29 June 1994, DR 78) and Planka v. Austria (no. 25852/94, Commission decision of 15 May 1996).

In the Papon v. France decision (cited above) the Court observed that the prosecution and the accused had been afforded the opportunity to challenge the questions put and to ask the president to put one or more additional questions to the jury. Noting that the jury had answered the 768 questions put by the President of the Assize Court, it considered that the questions formed a framework on which the decision had been based and that their precision sufficiently offset the fact that no reasons were given for the jury's answers. The Court dismissed as manifestly ill-founded the complaint concerning the lack of reasoning in the Assize Court's judgment.

In Bellerín Lagares v. Spain ((dec.), no. 31548/02, 4 November 2003) the Court observed that the impugned judgment — to which a record of the jury's deliberations had been attached — contained a list of the facts which the jury had held to be established in finding the applicant guilty, a legal analysis of those facts and, for sentencing purposes, a reference to the circumstances found to have had an influence on the applicant's degree of responsibility in the case at hand. It therefore found that the judgment in question had contained sufficient reasons for the purposes of Article 6 § 1 of the Convention.

In Göktepe v. Belgium (cited above, § 28) the Court found a violation of Article 6 on account of the Assize Court's refusal to put distinct questions in respect of each defendant as to the existence of aggravating circumstances, thereby denying the jury the possibility of determining the applicant's individual criminal responsibility. In the Court's view, the fact that a court had not taken into account arguments on a vital issue with such serious consequences had to be considered incompatible with the adversarial principle, which lay at the heart of the notion of a fair trial. That conclusion was particularly compelling in the case at hand because the jurors had not been permitted to give reasons for their verdict (ibid., § 29).

In the Saric v. Denmark decision (cited above) the Court held that the absence of reasons in a judgment, owing to the fact that the applicant's guilt had been determined by a lay jury, was not in itself contrary to the Convention.

It follows from the case-law cited above that the Convention does not require jurors to give reasons for their decision and that Article 6 does not preclude a defendant from being tried by a lay jury even where reasons are not given for the verdict. Nevertheless, for the requirements of a fair trial to be satisfied, the accused, and indeed the public, must be able to understand the verdict that has been given; this is a vital safeguard against arbitrariness. As the Court has often noted, the rule of law and the avoidance of arbitrary power are principles underlying the Convention (see, among many other authorities, mutatis mutandis, Roche v. the United Kingdom [GC], no. 32555/96, § 116, ECHR 2005-X). 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 Suominen v. Finland, no. 37801/97, § 37, 1 July 2003, and Tatishvili v. Russia, no. 1509/02, § 58, ECHR 2007-III).

In proceedings conducted before professional judges, the accused's understanding of his conviction stems primarily from the reasons given in judicial decisions. In such cases, the national courts must indicate with sufficient clarity the grounds on which they base their decisions (see Hadjianastassiou v. Greece, no. 12945/87, 16 December 1992, § 33, Series A no. 252). Reasoned decisions also serve the purpose of demonstrating to the parties that they have been heard, thereby contributing to a more willing acceptance of the decision on their part. In addition, they oblige judges to base their reasoning on objective arguments, and also preserve the rights of the defence. However, the extent of the duty to give reasons varies according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija, cited above, § 29). While courts are not obliged to give a detailed answer to every argument raised (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288), it must be clear from the decision that the essential issues of the case have been addressed (see Boldea v. Romania, no. 19997/02, § 30, ECHR 2007-II).

In the case of assize courts sitting with a lay jury, any special procedural features must be accommodated, seeing that the jurors are usually not required — or not permitted — to give reasons for their personal convictions (see paragraphs 85–89 above). In these circumstances likewise, 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 (see paragraph 90 above). Such procedural safeguards may include, for example, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced (see paragraphs 43 et seq. above), 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 (see Papon, cited above). Lastly, regard must be had to any avenues of appeal open to the accused.

In the present case, it should be noted that in his submissions before the Court the applicant complained that no reasons had been given for the guilty verdict in his case and that no appeal lay against the Assize Court's decision. As has been reiterated (see paragraph 87 above), the absence of a reasoned verdict by a lay jury does not in itself constitute a breach of the accused's right to a fair trial. Seeing that compliance with the requirements of a fair trial must be assessed on the basis of the proceedings as a whole and in the specific context of the legal system concerned, the Court's task in reviewing the absence of a reasoned verdict is to determine whether, in the light of all the circumstances of the case, the proceedings afforded sufficient safeguards against arbitrariness and made it possible for the accused to understand why he was found guilty. In doing so, it must bear in mind that it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies (see Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008-…).

In the instant case, the applicant was charged with the murder of an honorary minister and the attempted murder of the latter's partner. However, neither the indictment nor the questions to the jury contained sufficient information as to the applicant's involvement in the commission of the offences of which he was accused.

With regard, firstly, to the indictment drawn up by the Principal Public Prosecutor, the Code of Criminal Procedure provides that it should indicate the nature of the offence forming the basis of the charge and any circumstances that may cause the sentence to be increased or reduced, and that it must be read out at the start of the trial (see paragraph 26 above). Admittedly, the accused may challenge the indictment by filing a statement of defence, but in practice the statement will have only limited effect since it is filed at the start of the proceedings, before the trial itself, which must serve as the basis for the jurors' personal conviction. The value of such a statement for a convicted defendant's understanding of why the jury has reached a guilty verdict is therefore limited. In the instant case an analysis of the indictment of 12 August 2003 shows that it contained a detailed sequence of the police and judicial investigations and the many contradictory statements made by the co-accused. Although it mentioned each of the offences with which the applicant was charged, it did not indicate which items of evidence the prosecution could use against him.

Furthermore, in order to be able to reach a verdict, the jury had to answer thirty-two questions put by the President of the Assize Court. The applicant, who was appearing in court with seven co-defendants, was concerned by only four of the questions, each of which was answered by the jury in the affirmative (see paragraph 15 above). The questions, which were succinctly worded and were identical for all the defendants, did not refer to any precise and specific circumstances that could have enabled the applicant to understand why he was found guilty. In that respect the present case differs from the Papon case (cited above), in which the Assize Court referred to the jury's answers to each of the 768 questions put by the court's president and also to the description of the facts held to have been established and the Articles of the Criminal Code which had been applied (see paragraph 86 above).

It follows that, even in conjunction with the indictment, the questions put in the present case did not enable the applicant to ascertain which of the items of evidence and factual circumstances discussed at the trial had ultimately caused the jury to answer the four questions concerning him in the affirmative. Thus, the applicant was unable, for example, to make a clear distinction between the co-defendants as to their involvement in the commission of the offence; to ascertain the jury's perception of his precise role in relation to the other defendants; to understand why the offence had been classified as premeditated murder (assassinat) rather than murder (meurtre); to determine what factors had prompted the jury to conclude that the involvement of two of the co-defendants in the alleged acts had been limited, carrying a lesser sentence; or to discern why the aggravating factor of premeditation had been taken into account in his case as regards the attempted murder of A.C.'s partner. This shortcoming was all the more problematic because the case was both factually and legally complex and the trial lasted more than two months, from 17 October 2003 to 7 January 2004, during which time many witnesses and experts gave evidence.

In this connection, it should be emphasised that precise questions to the jury were an indispensable requirement in order for the applicant to understand any guilty verdict reached against him. Furthermore, since the case involved more than one defendant, the questions should have been geared to each individual as far as possible.

Lastly, it should be noted that the Belgian system makes no provision for an ordinary appeal against judgments of the Assize Court. An appeal to the Court of Cassation concerns points of law alone and accordingly does not provide the accused with adequate clarification of the reasons for his conviction. As regards Article 352 of the CCP, which provides that if the jurors have made a substantive error, the Assize Court must stay the proceedings and adjourn the case until a later session for consideration by a new jury, that option, as recognised by the Government (see paragraph 31 above), is used only rarely.

In conclusion, the applicant was not afforded sufficient safeguards enabling him to understand why he was found guilty. Since the proceedings were not fair, there has accordingly been a violation of Article 6 § 1 of the Convention.