SECOND SECTION
CASE OF HABRAN AND DALEM v. BELGIUM
(Applications nos. 43000/11 and 49380/11)
JUDGMENT
(extracts)
STRASBOURG
17 January 2017
FINAL
29/05/2017
This judgment became final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Habran and Dalem v. Belgium,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Işıl Karakaş, President,
Julia Laffranque,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Jon Fridrik Kjølbro,
Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 13 December 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 43000/11) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Belgian nationals, Mr Marcel Habran (“the first applicant”), and Mr Thierry Dalem (“the second applicant”) on 4 July 2011 and 27 July 2011.
2. The first applicant was represented by Mr M. Uyttendaele and Mr L. Kennes, lawyers practising in Brussels, as well as by Mr G. Thuan dit Dieudonné, a lawyer practising in Strasbourg. The second applicant was represented by Mr S. Mary and Ms Bosmans, lawyers practising in Brussels. The Belgian Government (“the Government”) were represented by their Agent, Mr M. Tysebaert, General Adviser, Federal Department of Justice.
3. The applicants alleged that their conviction on the basis of witness statements from “criminals turned informers” had rendered the proceedings unfair and that the length of proceedings had been excessive (Article 6 § 1 of the Convention).
4. On 8 April 2014 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The first applicant was born in 1933 and lives in Brussels. The second applicant was born in 1958 and is detained in Verviers Prison.
A. Investigation conducted before the applicants’ arrest
6. On 12 January 1998 an attempted robbery was carried out on an armoured van owned by the B.Z. company on the motorway adjacent to the municipality of Waremme in Belgium. Two of the three occupants of the van were killed. Two vehicles abandoned by the perpetrators were found on the scene, and a Kalashnikov, two Fal-type magazines and ammunition were discovered inside the latter.
7. A ballistic expert assessment carried out on 14 February 1998 revealed that the Fal-type weapon had been used in an attack on a mail van in Dison in 1996.
8. The surviving occupant of the armoured van recounted the attack, pointing out that it had been carried out by five masked men wearing gloves.
9. The Liège public prosecutor submitted those facts to an investigating judge, classifying them as assault and robbery accompanied by murder.
10. An anonymous witness stated that the possible offenders included one L.C., who had been convicted of offences linked to organised crime and had been acting as an informer, as well as L.M., who subsequently became a co-defendant (see paragraph 13 below). On 30 March 1998 L.C. stated that he had been invited by the second applicant and C.K., who was also a co-defendant, to reconnoitre the area prior to the attack on the B.Z. armoured van. L.C.’s partner, E.E., subsequently confirmed that witness statement. The anonymous witness was murdered on 4 October 1999.
11. According to a document prepared by the Liège Federal Police on 19 June 2002, an individual who had been detained at the time, R.C., had voiced a wish to “cooperate with the judicial authorities in exchange for certain advantages”. On 11 March 2002 R.C., who was known to the police in connection with numerous robbery offences, had been charged with complicity in armed robbery in a different banditry case, the “B. case”. On 20 June 2002, R.C. was questioned by the police concerning the attack on the B.Z. van and the Dison mail van.
12. On 24 June 2002 the arrest warrant issued against R.C. in the B. case was quashed on the grounds of insufficient evidence, but he remained in detention to serve the remainder of a two-and-a-half year sentence.
13. According to the aforementioned document (see paragraph 11 above), when R.C. had again been questioned by the police on 25 June 2002, he had mentioned, in connection with the attack on the B.Z. van, the names of the applicants and of L.M. and J.S., who subsequently became co-defendants.
14. On 30 September 2002 a warrant was issued for the purposes of a police hearing of R.C., following which he was first questioned officially on 2 October 2002. On that occasion he confirmed his wish to make disclosures on high-profile individuals in the organised crime circles, including the applicants, and, in particular, on the attack on the armoured van in Waremme.
15. On 25 October 2002, according to the aforementioned document prepared by the Liège Federal Police, the Witness Protection Board ordered provisional emergency protection measures in respect of R.C.
16. On 28 October 2002 R.C. was heard by the investigating judge as a witness under oath. R.C.’s statements were reproduced in the indictments subsequently drawn up by the Federal Prosecutor. He admitted his involvement in preparing the attack on the van at the beginning of 1994, stating that the second applicant had been one of the instigators. He explained that in 1997 he had left the group of instigators following his conviction for other offences. Subsequently, while in prison in 2000, he had approached M.A., a member of the aforementioned group, which had in the end refrained from taking part in the attack on the van. M.A. had recounted the course of events and discussed the first applicant’s involvement in the attack on the van.
17. On 5 November 2002 R.C. was released on licence.
B. First arrest of the applicants
18. On 31 October 2002 the first applicant had a face-to-face meeting with R.C. and a warrant was issued for his arrest. The second applicant was arrested on 4 November 2002.
19. Appearing before the investigating judge, the applicants denied any involvement in the attack on the van in Waremme, claiming that L.C. and R.C., who were themselves involved in organised crime, had provided false information. The first applicant also described, as an alibi, exactly what he had been doing and when on the day of the attack on the van.
20. The applicants were released on licence in the absence of sufficient evidence to prolong their pre-trial detention, under decisions taken by the Indictments Division of the Liège Court of Appeal, on 30 October 2003 in respect of the first applicant and on 27 November 2003 in respect of the second applicant.
C. The continued investigation
21. On 15 September 2004 L.M., one of the co-defendants, was murdered.
22. On 15 November 2004 D.S. informed the Liège Federal Police Department that he feared for his life and that he was prepared to submit to questioning on L.M.’s murder in exchange for police protection. The police questioned him on 2 December 2004. On 6 December 2004 he officially informed the authorities of his intention to cooperate with the authorities and to give statements on the Waremme attack.
23. According to the indictment subsequently drawn up by the Federal Prosecutor (see paragraph 34 below), R.C. and D.S. hardly knew each other even though they both belonged to the world of organised crime.
24. On 9, 10 and 16 December 2004 D.S. officially gave evidence as a witness, and his statements were reproduced in the indictment. He provided the investigators with information which he had obtained from L.M., in particular stating the names of those involved in the attack, including the applicants, and mentioning that the attack had been prepared a long time in advance by a different team and that one of the weapons discovered in one of the vehicles abandoned at the scene of the crime had been purchased by L.M. from the first applicant and used in an attack on a van in 1996.
25. On 20 December 2004 D.S. was granted provisional emergency protection. In a statement of 28 October 2005 he mentioned the assistance which he had received by way of protection measures. The special protection was lifted on 22 December 2005.
26. After D.S.’s initial statements, the investigators travelled to France following an international letter of request in order to present M.A. with the statements made by D.S. M.A admitted that he had met the latter and that they had discussed the information which he had given R.C. in confidence (see paragraph 16 above), and also that he had reconnoitred with R.C. prior to the van attack.
27. On 8 March 2005 H.P., the wife of the late L.M., was also questioned, in the framework of police protection measures, in particular concerning the B.Z. van attack. She cited the name of the second applicant but said that she did not know whether the first applicant had taken part in the van attack.
28. In 2006 the applicants had several face-to-face meetings with the witnesses D.S. and H.P., who maintained their statements.
D. Second arrest of the applicants and committal for trial before the Assize Court
29. In the meantime, on the basis of the statements by D.S. and H.P., the applicants were arrested once again, on 18 May and 8 June 2005 respectively. Appearing before the investigating judge, they contested the new evidence against them, arguing that D.S. was an untrustworthy character who had negotiated his witness statement in order to secure criminal impunity. The second applicant also contested H.P.’s statements. Subsequently, the first applicant admitted that the alibi which he had put forward after his first arrest (see paragraph 19 above) had been “made up”.
30. On 28 September 2006 the Indictments Division of the Liège Court of Appeal ordered the first applicant’s release.
31. On 19 December 2006 the investigation was closed by the investigating judge. On 6 March 2007 the Federal Prosecutor applied for twelve persons, including the applicants, to be committed for trial. On 26 June 2007 the Liège Court of First Instance, sitting in private, committed those twelve defendants for trial before the Indictments Division of the Liège Court of Appeal in order to decide on possible committal for trial before the Assize Court. On 3 December 2007 the Indictments Division committed the twelve defendants for trial before the Liège Assize Court.
32. Four persons, including the first applicant, lodged appeals on points of law against the judgment of the Indictments Division. Those appeals on points of law were dismissed by the Court of Cassation by judgment of 19 March 2008.
33. In February 2008 D.S. died of natural causes.
E. Trial before the Liège Assize Court
34. On 2 July 2008 the Federal Prosecutor deposited the 130-page indictment.
35. On 3 September 2008 the Liège Assize Court commenced proceedings against eleven of the defendants, including the applicants, for offences connected with the attack on the B.Z. van, as well as other offences linked to organised crime.
36. During a hearing before the Assize Court, V., a prosecution witness, stated that R.C. had been awarded a bounty. The President of the Assize Court invited R.C. to explain himself. The latter stated, with his face in plain view, that he had been paid 50,000 euros (EUR). He explained that he had received half of that sum in 2006 and the other half just before his appearance before the Assize Court in 2008.
37. On 3 March 2009 the Liège Assize Court acquitted two of the defendants and convicted the other nine, including the applicants. The first applicant was convicted of offences linked to the attack on the van, in his capacity as leader of a criminal organisation. The aggravating circumstances of murder and of bearing or using a firearm were not made out against him. He was sentenced to fifteen years’ imprisonment and twenty years’ placement at the Government’s disposal. The second applicant was convicted of offences of robbery committed in Luxembourg and of the offences committed in Waremme and Dison. The aggravating circumstance of murder was made out against him in the attempted robbery in Waremme. He was sentenced to thirty years’ imprisonment. The applicants’ conviction was also based on the charges of possession of firearms and leadership of a criminal conspiracy and a criminal organisation.
38. On 30 September 2009, since the Liège Assize Court had given no reasons for its sentences, and with reference to the Chamber’s judgment in the case of Taxquet v. Belgium (no. 926/05, 13 January 2009), the Court of Cassation quashed the judgment inasmuch as it adjudicated on the proceedings brought against four appellants, including the applicants, and referred the case to the Brussels-Capital Assize Court.
F. Trial before the Brussels-Capital Assize Court
39. On 1 February 2010 the Federal Prosecutor filed a bill of indictment. That bill set out R.C.’s and D.S.’s witness statements verbatim (see paragraphs 16, 22 and 24 above).
40. On 2 April 2010 the retrial commenced before the Brussels-Capital Assize Court.
41. During the proceedings the applicants filed conclusions contesting, pursuant to Article 6 § 1 of the Convention, the lawfulness of the prosecution inasmuch as it had been based on the statements of R.C. and D.S., the latter having since died.
...
44. By interlocutory judgment of 2 July 2010, the Assize Court declared ill-founded the applicants’ request that their prosecution be declared inadmissible, and ordered the immediate continuation of proceedings....
49. On 28 September 2010 the jury found the applicants guilty, in particular, of the attack on the B.Z. van in their capacity as leaders of a criminal organisation. The main reasons for the jury’s decision were subsequently summarised as follows in a statement of reasons issued by the Assize Court that same day:
“The [first applicant’s guilt] regarding his involvement in the attempted robbery in Waremme on 12 January 1998 transpires from the concurring statements of [R.C. and D.S.], which come from different sources. Those indirect testimonies are corroborated by the objective fact that a Kalashnikov was found in the Chrysler vehicle on the scene of the crime. When an ‘appeal for witnesses’ programme was broadcast, [D.S.] recognised that weapon as one of those belonging to [L.M.], who had purchased it from [the applicant].
...
Among the sources of R.C.’s information to the effect that [the applicant] had taken part in the Waremme attack were [the second applicant and J.S.], both of whom admitted that they had had talks with [R.C.], although they disputed the content of those talks.
...
The [second applicant’s guilt] regarding his involvement in the attempted robbery in Waremme on 12 January 1998 transpires from the concurring statements of [R.C., D.S. and H.P.], and from the information provided by C.S. as confirmed by witness E.E. Those statements and information are confirmed by objective facts ... (ballistic links relating to the use of the same Fal firearm and ammunition found in a bag handed over to J.P.M. by [the second applicant]).”
50. By judgment of 30 September 2010 the Assize Court determined the sentence. ... The court sentenced the first applicant to fifteen years’ imprisonment and the second to twenty-five years’ imprisonment.
51. Relying on a series of violations of Article 6 § 1 of the Convention, the applicants lodged an appeal on points of law against the aforementioned three judgments of the Brussels Assize Court. The Court of Cassation dismissed that appeal on points of law by judgment of 30 March 2011.
52. In contesting the interlocutory judgment of 2 July 2010, the applicants argued that R.C.’s witness statement could only be taken into consideration if it came from a citizen desirous of promoting justice, but not from a person who was testifying for reasons of personal interest. The Court of Cassation dismissed that plea on the following grounds:
“... it falls to the trial court to gauge the impact on the evidential value of a witness statement of its purported venal motivation. ... The reasons impelling a witness to testify may give rise to doubts concerning his or her credibility, but that is not necessarily inconsistent with the holding of a fair trial.
Article 6, cited above, does not prohibit ... the judge from using in evidence a statement by a witness under police protection pursuant to Articles 102 to 111 of the Code of Criminal Procedure, even where such witness is an informer who has decided, after having provided information under informer status, to testify officially in court.”
53. The applicants submitted that R.C.’s use of the status of informer and then that of witness, given that confidentiality had been observed in respect of his contacts as informer with the police, had amounted to a violation of the principle of adversarial proceedings, because his statement had been used in evidence against them, especially since that witness had received a bounty in the context of his informer status. The Court of Cassation dismissed those arguments as follows:
“An official statement by a person having previously provided information under informer status does not infringe the general principle of law relating to compliance with the rights of the defence, given that it has the effect of making the witness statements subject to inter partes debate and that the confidentiality requirement set out in Article 47decies, § 6 of the Code of Criminal Procedure does not cover evidence referred to the trial court.
...
The right to a fair trial requires the communication neither of information supplied by an informer nor of data on the contacts which that informer has had with the police.
The subsequent questioning of such informer as a witness has the effect of making his statements subject to inter partes debate. The judgment notes that, according to the police officers having received the statements contained in the case-file, the latter do not diverge from the information previously supplied confidentially.
The appellant’s submission to the effect that the confidentiality of the informer’s involvement has the effect of removing the evidence which the latter provided against him from the inter partes debate is therefore unjustified.”
54. The Court of Cassation gave the following reply to the applicants’ criticism of the fact that the procedure for granting a threatened witness assistance and protection is not subject to court supervision and, owing to its confidentiality, prevents the defendant from establishing that the financial assistance provided is tantamount to the covert purchase of witness statements:
“Article 6 of the Convention requires the prosecuting authorities to communicate to the defence all the relevant evidence in their possession for or against the defendant.
The right to disclosure concerns neither the measures taken in order to protect witnesses at risk of reprisals, on pain of exposing the latter to the danger which those measures are supposed to prevent, nor the management of a police officer’s contacts with an informer, on pain of jeopardising the implementation of that specific investigative method.
The limits on the disclosure of those confidential data are adequately offset by the oral adversarial proceedings conducted before the jury, since the case-file presented to the latter comprises no elements other than those communicated to the defence and the latter has had an opportunity before the trial court to criticise the statements received against the defendant, as regards both their content and their origin.
The judgment lawfully decides that the lack of supervision by an independent and impartial court of the procedure for granting protection to threatened witnesses has no impact on the fairness of the proceedings.”
55. The first applicant complained that the statement of reasoning of 28 September 2010 had been based on two indirect witness statements whose authors had been paid to testify against the applicants. The Court of Cassation declared that plea inadmissible as being based on a factual premise. For the remainder it considered that Article 6 § 1 of the Convention did not relate to a jury’s assessment of the evidential value of the evidence presented to it. The court also dismissed the second applicant’s argument concerning the insufficiency and irrelevance of the evidence used by the jury to corroborate the statements given by the protected witnesses.
56. Finally, the first applicant complained that the judgment of 30 September 2010 determining the sentence had not taken account of the abnormal length of the proceedings against the applicants when the sentence was passed. The Court of Cassation had dismissed the argument on the grounds that the Assize Court, on the basis of the specific circumstances of the case, had legitimately ruled that the proceedings had not been excessively lengthy.
...
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS FAIRNESS OF PROCEEDINGS
81. The applicants complained that their conviction on the basis of witness statements by “criminals turned informers” had infringed the fairness of the proceedings in breach of Article 6 § 1 of the Convention, the relevant part of which provides:
“In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by a ... tribunal.”
...
B. Merits
1. The parties’ submissions
a) The applicants
87. The applicants submitted that they had been convicted on the basis of statements given by R.C. and D.S., who had not been “ordinary” witnesses but “criminals turned informers” in that they had been involved in organised crime and had testified for reasons of personal interest, in return for certain advantages. The manner in which the statements had been gathered had therefore raised specific questions concerning the fairness of the proceedings, and the authorities ought to have provided special procedural safeguards.
88. As regards R.C., it transpires from the timescale of events that in addition to receiving a bounty, he had benefited from advantages in terms of the criminal proceedings against him: he had not been prosecuted for taking part in the offences which he had denounced, his arrest warrant had been annulled and he had obtained early release in return for his collaboration with the authorities. Regardless of the nature of the collaboration (confidential and then official), the accusations had been levelled by a person who had received advantages in return for co-operating with the courts in the same set of proceedings relating to the same facts. It had been disproportionate to conceal the precise conduct and content of the negotiations leading up to the provision of such a witness statement. Given that R.C. had become a witness even before he had received any kind of bounty, there had been no justification for concealing that information, which was in the prosecution’s possession, from the defence and the jury, unless the intention had been to prevent a challenge to the lawfulness of the proceedings and the evidential value of the witness statement.
89. The applicants alleged that their conviction had been based exclusively on the witness statements given by R.C. and D.S. In fact, given the circumstances under which those statements had been given, they ought to have been corroborated by objective evidence of the applicants’ guilt. As regards the first applicant, the fact, taken into account by the Brussels Assize Court, that a weapon had been discovered in the vehicle abandoned on the crime scene could not be used as evidence of guilt because the contradiction in D.S.’s statements on the origin of the weapon had been ignored. By the same token, to affirm, as the Assize Court had done, that the second applicant’s guilt had been demonstrated by the concurring statements of R.C. and D.S., without noting their contradictions as highlighted by that applicant, amounted to a gratuitous assertion which did not constitute proof of guilt.
90. The applicants complained that they had not benefited from sufficient procedural safeguards to offset the use of the said witness statements by the Assize Court. Unlike in the case of Cornelis v. the Netherlands ((dec.), no. 994/03, 25 May 2004), the agreements concluded between the police authorities and the witnesses before they had made their formal deposition had been subject neither to court scrutiny nor to adversarial proceedings in the presence of the applicants. In the absence of such safeguards, which would have allowed the applicants to assess the credibility and reliability of the statements, R.C.’s questioning had been superficial and the jury had not been in possession of the requisite facts to assess the risks which those statements had posed to the fairness of proceedings.
b) The Government
91. The Government contested the applicants’ argument that the witnesses R.C. and D.S. had benefited from unlawful advantages negotiated with the Belgian authorities. They added that technically, although both witnesses had indeed benefited from police protection, only R.C. had held informer status, and that for a very short period of time. At any event, the lawful provision of expenses for an informer could not in itself constitute an infringement of a fair trial where the information received had no evidential value and had not been included in the case-file to be used in evidence against the defendant. Moreover, even though one of the witness statements had been given by R.C., a person who had previously been questioned confidentially as an official informer, that statement had been an “ordinary” testimony whose content had remained unchanged throughout the proceedings. R.C. had been questioned officially and with his face in plain view during the proceedings before the Brussels-Capital Assize Court concerning all the facts of the case and of his statement, including the defrayal of expenses. Therefore, the statements given by R.C. and D.S. and used by the Assize Court to convict the applicants had posed no particular threats to the fairness of the proceedings.
92. Contradicting the applicants’ interpretation, the Government submitted that the Assize Court’s judgment clearly showed that, as in the aforementioned Cornelis case, the jury had not had exclusive or decisive regard to those witness statements in reaching their verdict. Although the defence had not had access to the confidential “informer” file, it had had cognisance of the whole procedural file and had been able, during the adversarial proceedings, to raise objections and put forward arguments concerning the special status of witnesses R.C. and D.S.
93. The fact that the statements made by those two witnesses and the data on the procedure for granting protected witness status had not been disclosed before they made their formal deposition had not particularly jeopardised the fairness of proceedings, since those statements had been confidential, and in any case they had not been used in evidence against the applicants. The defence had been presented with the witnesses’ statements and been able to discuss them on an inter partes basis. Moreover, it transpired from the submissions of the competent departments that the information provided by R.C. and D.S. before they made their formal deposition had not differed from that which they had given as protected witnesses.
2. The Court’s assessment
94. The Court reiterates that its primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings.
95. Furthermore, its task under Article 19 is to ensure the observance of the obligations undertaken by the States Parties to the Convention (see paragraph 84 above). It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence accepted by the domestic courts in order to establish the applicants’ guilt, may be admissible (see, mutatis mutandis and among other authorities, Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002‑IX; Jalloh v. Germany [GC], no. 54810/00, § 95, ECHR 2006‑IX; Bykov v. Russia [GC], no. 4378/02, § 89, 10 March 2009; and Ibrahim and Others, cited above, § 254). While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Gäfgen v. Germany [GC], no. 22978/05, §§ 162 and 175, ECHR 2010, and Al‑Khawaja and Tahery, cited above, § 118).
96. The Court, in making its assessment, will look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted and, where necessary, to the rights of witnesses (see Al‑Khawaja and Tahery, cited above, § 118, and Schatschaschwili, cited above, § 101).
97. The applicants submitted that the impugned witness statements had been obtained, in the absence of any legal framework, from “criminals turned informers” whose cooperation with the judicial authorities had been negotiated, confidentially and in return for certain advantages, by the prosecuting authorities, and that they therefore had had no evidential value. They complained that the failure to disclose the exchanges between the prosecuting and investigating authorities and the witnesses in question before they made their formal deposition had, in fact, prevented the Assize Court from verifying the credibility and reliability of the evidence against them and noting that that evidence had been negotiated by those authorities in return for certain advantages in the criminal proceedings.
98. By interlocutory judgment of 2 July 2010 the Brussels-Capital Assize Court analysed in detail all the pleas entered by the applicants and, considering that the witness statements complained of by the applicants could be used in evidence, dismissed their request to dismiss those statements ... . The Assize Court ruled that the applicants’ allegations that the two witnesses were “criminals turned informers” and had benefited from advantages in the proceedings against them were unfounded. It emphasised that no provision of Belgian law prevented anyone from being successively an informer and a witness in the same case or from receiving financial assistance in those respects. Under that hypothesis, only statements given as witnesses were admitted as evidence. The Assize Court pointed out that neither the informers’ statements included in the confidential file created by the Public Prosecutor’s Office nor those appearing in the file set up by the Witness Protection Board contained, or could contain, evidence for use in a subsequent set of proceedings. That being the case, the Assize Court ruled that the failure to communicate evidence contained in the said files to the defence and the absence of court supervision of the procedure for granting police protection had not influenced the adversarial nature of the proceedings, the rights of the defence or the fairness of the trial.
99. The Court observes, at the outset, that despite the lack of any official “criminal turned informer” status in Belgian law, it is quite legitimate to consider that in the present case the witnesses in question were indeed “criminals turned informers”. It was sufficient to note that both those witnesses had been involved in criminal circles and had benefited from certain financial advantages. The Court also considers that in the light of the timescale of events (see paragraphs 11-17 above), the applicants were justified in suspecting that R.C. had been granted certain advantages in return for his statements.
100. The Court reiterates that the use of statements given by witnesses in return for immunity or other advantages may cast doubt on the fairness of the proceedings against the accused and can raise difficult issues to the extent that, by their very nature, such statements are open to manipulation and may be made purely in order to obtain the advantages offered in exchange, or for personal revenge. The risk that a person might be accused and tried on the basis of unverified allegations that are not necessarily disinterested must not, therefore, be underestimated (see Cornelis, decision cited above; Vladislav Atanasov v. Bulgaria (dec.), no. 20309/02, 3 March 2009; and Shiman v. Romania (dec.), no. 12512/07, § 33, 2 June 2015; see also, mutatis mutandis, on the use of statements given by criminals-turned-informers under Article 5 § 3, Labita v. Italy [GC], no 26772/95, § 157, ECHR 2000‑IV, and Ereren v. Germany, no. 67522/09, § 59, 6 November 2014).
101. As regards the particular circumstance, as accepted by the Brussels-Capital Assize Court, that one of the witnesses, R.C., had been an informer, the Court reiterates that the Convention does not preclude reliance, at the preliminary investigation stage and where the nature of the offence may warrant it, on sources such as anonymous informants. However, the subsequent use of such sources by the trial court to found a conviction is a different matter and is acceptable only if adequate and sufficient safeguards against abuse are in place, in particular a clear and foreseeable procedure for authorising, implementing and supervising the investigative measures in question (see Doorson v. the Netherlands, 26 March 1996, § 69, Reports of Judgments and Decisions 1996‑II, and Ramanauskas v. Lithuania [GC], no. 74420/01, § 53, ECHR 2008).
102. Nonetheless, the Court also reiterates, as emphasised by the Court of Cassation (see paragraphs 52-55 above), and contrary to the applicants’ submissions, that the use of statements of dubious origin does not render the holding of a fair trial impossible (see, in particular, the Cornelis, Vladislav Atanasov, and Shiman decisions cited above).
103. In the instant case, the Court takes the view, in the light of the timescale of events and in view of the combined informer and witness statuses, as well as the profiles of the two contested witnesses, that the boundary between what is and what is not valid evidence is not as impermeable as the Assize Court claimed, and that the applicants might legitimately have wondered whether their indictment and conviction had been based on allegations that had not been fully verified, put forward by persons who were not necessarily disinterested.
104. That being the case, the Court notes that although the witnesses in question, R.C. and D.S., benefited from police protection, they had not been granted anonymity and their identities were known to the applicants. Furthermore, the Court agrees with the domestic courts that it was important that the police officers who gathered the information from R.C. and D.S. declared on oath that that initial information had not been different in substance from the formal deposition subsequently made by those persons as included in the criminal file, which was accessible to the defence ....
105. As regards the question whether, as the applicants complained, the statements by the witnesses R.C. and D.S. formed the decisive basis for the applicants’ conviction, the Court notes that other factors such as ballistics and other “non-suspect” witness statements concurring with those of the witnesses in question were taken into consideration (see paragraph 49 above), although, as the applicants pointed out (see paragraph 89 above), the solidity of those factors taken in isolation was somewhat dubious.
106. However that may be, it is clear that definite importance was attached to the witness statements in question. Given the particular circumstances surrounding the giving of those statements and the difficulties which their admission necessarily caused the defence (see paragraphs 97-104 above), the Court holds that it must consider whether those difficulties were duly taken into account such as to ensure that the proceedings as a whole could be deemed fair.
107. The Court notes that one of the witnesses, R.C., was present during the proceedings before the Brussels-Capital Assize Court, which adjudicated on the applicants’ guilt. R.C. was questioned and also cross-questioned by the defence pursuant to the rules governing the conduct of assize trials under Belgian law ....
108. On the other hand, the other witness, D.S., was not questioned during the proceedings before the Assize Court because he had died before the commencement of the first set of proceedings. Even though the applicants’ observations did not concern that aspect taken on its own, the Court notes that D.S.’s witness statements were read out to the jury by the President of the court ....
109. The Court reiterates that in the case of Al-Khawaja and Tahery, cited above, the crucial witness in the proceedings against Al-Khawaja, whose statements had been taken by the police and read out to the jury, had been absent because he had died before the commencement of proceedings. The Court examined whether there had been sufficient compensatory factors counterbalancing the difficulties caused to the defence to be able to consider the proceedings fair (see Al-Khawaja and Tahery, cited above, §§ 153-158).
110. In the present case, as the Court has already noted, it transpires from the indictment that the two witnesses R.C. and D.S. hardly knew each other (see paragraph 23 above). In its reasons for finding the applicants guilty, the Assize Court emphasised that the statements given by the two witnesses had concurred, even though their sources were different (see paragraph 49 above). The Court considers that the concurring statements by R.C. and D.S., originating from different sources and given at different times, constituted a “whole” which convinced the jury beyond any reasonable doubt.
111. The circumstance mentioned by the applicants that the statements had been given by persons from a criminal background who might have been indirectly involved in the offences of which the applicants were convicted (see paragraphs 15 and 24 above) does not alter that fact (see, mutatis mutandis, Jerino v. Italy (dec.), no. 27549/02, 7 June 2005).
112. The Court further notes that although the applicants did not have access to the confidential “informers’” file or the files held by the Witness Protection Board, they did have cognisance of the whole criminal file. Moreover, in general terms, they did not allege that the preparation of their defence before the Assize Court had been hampered as such.
113. Furthermore, and this is very important, at no stage in the proceedings were the applicants prevented from disputing the reliability of the witnesses or the content and credibility of their statements. After the face-to-face meeting with the witnesses during the investigation, adversarial proceedings were conducted before the Assize Court on the basis, in particular, of D.S.’s written statements and R.C.’s formal deposition at a public hearing, with his face in plain view and available for questioning by the applicants. All the pleas put forward by the applicants were accepted and carefully scrutinised by the Assize Court and then by the Court of Cassation.
114. Moreover, the Court assumes, in the absence of any allegations to the contrary from the applicants, that at no stage in the proceedings did the prosecution rely on non-disclosed facts, and that such facts were never brought to the attention of the jury.
115. The Court observes that the fact that the witness statements were given by persons with a criminal background who might have been indirectly involved in the offences of which the applicants were convicted was known to the Assize Court. The Court also considers that this is also an important datum which suggests, contrary to the applicants’ submissions, that the jurors were in a position to assess the threats posed by their testimony to the fairness of the trial.
116. Having regard to the foregoing considerations, the Court considers that the Court of Cassation was right to hold, in its judgment of 30 March 2011, that the restrictions on the disclosure of specific items of evidence on file had, in the instant case, been sufficiently compensated by the oral adversarial proceedings conducted before the trial court.
117. The Court concludes that the proceedings as a whole were surrounded by sufficiently solid guarantees and were not unfair vis-à-vis either of the applicants.
118. Accordingly, insofar as the application concerns the fairness of proceedings, there was no violation of Article 6 § 1 of the Convention.
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B. The merits
1. The parties’ submissions
121. The applicants complained that the excessive length of the proceedings, from 2002 to 2011, had not been taken into account by the Brussels-Capital Assize Court in sentencing them.
122. The Government explained that the case had been very unusual and exceptionally complex: initially involving eighteen cases, which were joined in 2007, twelve murders, twenty-seven large-scale criminal offences, 143 boxes in the case-file for the proceedings and twenty-three applications to join proceedings as civil parties. Regard must also be had to the applicants’ conduct and to the fact that owing to the “law of silence” which is observed in such criminal circles, it was very difficult indeed to make swift headway at the preliminary and judicial investigation stages. It was not until R.C. and D.S. gave their statements that further evidence against the applicants was discovered and the investigation, which had come to a standstill, began to progress again. The delay thus caused lasted an estimated three years. Once the investigators had obtained cogent new evidence, they completed the investigation within a year and a half. Moreover, the applicants availed themselves of all the remedies at their disposal and had recourse to the option of requesting additional investigative measures, which necessarily extended the overall length of the proceedings. The outcome was an exceptional set of proceedings which had encountered such unusual circumstances as the quashing of the judgment of the Liège Assize Court, which had been delivered barely a month and a half after the judgment of a Chamber of the Court in the case of Taxquet v. Belgium (no. 926/05, 13 January 2009). Apart from those circumstances, the various stages of the proceedings were conducted within very reasonable time-frames, and, in any event, the authorities cannot be accused of inertia at any stage.
2. The Court’s assessment
123. The Court reiterates its case-law to the effect that the reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities. In addition, only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement (see Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Idalov v. Russia [GC], no. 5826/03, § 186, 22 May 2012).
124. The Court observes that the applicants were arrested for the first time on 31 October 2002, in the case of the first applicant, and on 4 November 2002, in the case of the second applicant. The Court takes those two dates as the starting point for the impugned criminal proceedings (see Neumeister v. Austria, 27 June 1968, § 18, Series A no. 8). The final judgment was delivered on 30 March 2011 by the Court of Cassation, which dismissed the applicants’ appeal on points of law against the applicants’ conviction by the Brussels-Capital Assize Court on 28 September 2010. Consequently, the proceedings lasted eight years and five months, including the investigation and the examination of the case at two levels of jurisdiction.
125. The Court notes the extreme complexity of the case, given, as emphasised by the domestic courts (see paragraphs 50 and 56 above), the multiplicity of facts to be considered, the organised nature of the crime of which those facts formed part, the number of persons involved, the difficulty of the investigation and the mass of information to be processed during both the preparatory investigation and the judicial proceedings.
126. The Court further notes that the applicants used various remedies and submitted a large number of requests. It reiterates, in that connection, that applicants cannot be blamed for making use of the remedies available to them under domestic law (see McFarlane v. Ireland [GC], no. 31333/06, § 148, 10 September 2010).
127. As regards the conduct of the authorities, the Court observes that the proceedings as a whole were conducted with sufficient diligence (see, for a similar assessment in a “case ... of extraordinary complexity”, Neumeister, cited above, § 21). The only extension of the length of proceedings which might be attributed to the authorities stemmed from the fact that in order to take account of the aforementioned Taxquet case-law, the first assize decision was set aside and the whole proceedings had to start again from the beginning (see paragraph 38 above).
128. Making an overall assessment of the complexity of the case, the conduct of the parties and the total length of the proceedings, the Court considers that the latter did not go beyond what may be considered reasonable in this particular case.
129. There was therefore no violation of Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
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2. Holds that there has been no violation of Article 6 § 1 of the Convention as regards the fairness of the proceedings;
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Done in French, and notified in writing on 17 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley NaismithIşıl Karakaş
RegistrarPresident
Full & Egal Universal Law Academy