CASE OF LHERMITTE v. BELGIUM

SECOND SECTION

CASE OF LHERMITTE v. BELGIUM

(Application no. 34238/09)

JUDGMENT

STRASBOURG

26 May 2015

THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 29/11/2016

This judgment may be subject to editorial revision.

In the case of Lhermitte v. Belgium,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Işıl Karakaş, President,
András Sajó,
Nebojša Vučinić,
Helen Keller,
Paul Lemmens,
Robert Spano,
Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 31 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 34238/09) 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 a Belgian national, Ms Geneviève Lhermitte (“the applicant”), on 5 June 2009.

2. The applicant was represented by Mr X. Magnée, a lawyer practising in Brussels. The Belgian Government (“the Government”) were represented by their Agent, Mr M. Tysebaert, Senior Adviser, Federal Justice Department.

3. The applicant alleged, in particular, that there had been a violation of her right to a fair trial on account of the lack of reasons in the jury’s verdict and in the Assize Court’s judgment sentencing her to life imprisonment.

4. On 29 May 2012 notice of the application was given to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1966. She is currently detained in Forest Prison.

6. On 28 February 2007 the applicant called the emergency services to say that she had killed her five children and had tried to commit suicide. When the police, the ambulance crew and the medical services arrived at the scene, they found the applicant, who was injured, and the bodies of five children with their throats slit.

7. In an order of 17 June 2008 the Indictments Division (Chambre des mises en accusation) of the Brussels Court of Appeal committed the applicant to stand trial for the following offence:

“in Nivelles, on 28 February 2007,

having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] with premeditation.”

8. The following details were mentioned in the indictment of 16 October 2008.

9. On the applicant’s admission to the intensive-care unit on the day of the incident, the doctor treating her had noted “depressive, self-destructive thoughts against a background of psychotropic, anti-anxiety and antidepressant medication”. During her initial police interview, the applicant had explained that she had acted in a fit of despair caused by her family’s dependence on Dr S., who lived in the same house as the applicant, her husband and their five children and supported them financially.

10. The investigating judge ordered several psychological reports. Two psychologists examined the applicant and submitted their respective reports on 30 October and 8 November 2007. They both concluded that the applicant was suffering from inner fragility requiring massive, rigid defences to preserve a perfect facade. She had developed a maternal omnipotence and a lack of psychological distance between the children and herself. Thus, by killing her children – love-objects in whom she had over-invested – the applicant was killing herself both as a person and as a mother.

11. The investigating judge also ordered a psychiatric assessment. A panel of three psychiatrists examined the applicant and drew up a lengthy report dated 30 October 2007, in which they concluded:

“We consider that [the applicant] was in a severe state of anxiety and depression which encouraged her to act as she did and profoundly impaired her judgment, without destroying it altogether.

...

The accused was not suffering at the time of the events, and is not currently suffering, from a mental disorder or a severe mental disturbance or defect making her incapable of controlling her actions.”

12. The applicant’s trial took place in the Assize Court of the province of Walloon Brabant from 8 to 19 December 2008.

13. During the trial Dr V., the applicant’s psychiatrist, mentioned two letters which the applicant had sent him a few days before the events but which had not previously been included in the file. The President of the Assize Court accordingly instructed the three psychiatrists who had already been involved at the investigation stage to draw up an additional report in the light of the new evidence.

14. On 14 December 2008 the three psychiatrists submitted their unanimous report, concluding as follows:

“The letter of 13 February [2007] suggests all the signs of melancholic major depression. ... These melancholic features are grounds for hospital admission or observation where necessary. ... These documents thus demonstrate beyond doubt that [the applicant] no longer felt able to control her actions ... she developed a transient dissociative state of depersonalisation, causing her to perform acts of extreme violence. Only operational thought remains; reflective consciousness is completely lacking. ... Conclusion: at the time of the events, the accused was suffering from a severe mental disturbance making her incapable of controlling her actions, and is currently suffering from a severe mental disturbance warranting long-term treatment.”

15. At the end of the oral proceedings, the jury was called to answer the following five questions put to it by the President of the Assize Court:

“1st question (principal question as to guilt)

Is the accused Geneviève Lhermitte, present before this court, guilty of having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] in Nivelles on 28 February 2007?

2nd question (subsidiary to the 1st question, to be answered by the jury only if it has answered the 1st question in the affirmative)

Is it established that the intentional homicide referred to in the first question was premeditated?

3rd question (principal alternative as to the commission of an act classified as a serious crime, to be answered by the jury only if it has answered the 1st question in the negative)

Is it established that the accused Geneviève Lhermitte, present before this court, committed the act classified as a serious crime of having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] in Nivelles on 28 February 2007?

4th question (subsidiary to the 3rd question, to be answered by the jury only if it has answered the 3rd question in the affirmative)

Is it established that the act classified as a serious crime referred to in the 3rd question was premeditated?

5th question (principal question as to social protection, concerning the accused’s current mental state, to be answered by the jury only if it has answered the 1st question in the affirmative or the 3rd question in the affirmative)

Is it established that the accused Geneviève Lhermitte, present before this court, is suffering either from a mental disorder or from a severe mental disturbance or defect making her incapable of controlling her actions?”

16. The jury answered “yes” to the first two questions and “no” to the last question.

17. In a judgment of 19 December 2008 the Assize Court, composed of three judges and the jury, endorsed the guilty verdict reached by the jury and sentenced the applicant to life imprisonment. The judgment included reasons for the sentence. The court took into account the particularly heinous nature of the offences, holding:

“The accused’s heavy family responsibilities and her painful feelings of isolation and dependence may account for a legitimate desire for greater personal freedom. Her mental fragility, depression and character no doubt made it more difficult to handle this desire and, through dialogue, to seek possible improvements within the limits of her specific circumstances, taking into consideration all those close to her.

However, neither those factors, nor even a wish to escape from what she considered a dead-end situation through suicide, nor a lack of appropriate help, can provide a sufficient explanation for the acts of extreme violence which she resolved to commit, and carried out in cold blood.

...

In the specific circumstances relating both to the accused’s character and to her living environment, the genuine difficulties experienced by her do not constitute mitigating factors, having regard to the extremely serious nature of the offences committed.”

As an ancillary penalty, the applicant was stripped of all titles, ranks and functions she held and was permanently deprived of certain rights in accordance with Articles 19 and 31 of the Criminal Code as in force at the material time. Lastly, the judgment was to be printed and publicly displayed in the municipality where the offence had been committed, in accordance with Article 18 of the Criminal Code.

18. On 8 January 2009 the applicant appealed on points of law, raising the same complaints as those submitted before the Court.

19. On 6 May 2009 the Court of Cassation dismissed the applicant’s appeal. With regard to the jury’s guilty verdict, it observed that the Assize Court had had to rule on a plurality of serious crimes (concours matériel de crimes) within the meaning of Article 62 of the Criminal Code and not a single act constituting several different offences (délit collectif) within the meaning of Article 65, which required a unity of intent, and that the parties had agreed to the wording of the questions put to the jury. The Court of Cassation pointed out that Article 6 of the Convention did not require the court to be made up solely of professional judges, lawyers or experts and that the applicant had not adduced any specific evidence to justify her fear that the jury might not be impartial. Furthermore, the wording of the jury’s guilty verdict in the form of a simple “yes/no” answer was prescribed by Article 348 of the Code of Criminal Procedure. With regard to the applicant’s criminal responsibility, the Court of Cassation held that the Assize Court’s judgment had indicated why the conditions for the application of the Social Protection Act were not satisfied:

“In noting the accused’s cold-blooded manner and her determination to carry out her crimes, the [Assize Court] judgment indicates the reason why the Assize Court did not accept that the perpetrator had been suffering from any mental disturbance making her incapable of controlling her actions at the time of the events.”

As regards the reasons for the sentence, the Court of Cassation held that there was no statutory provision prohibiting the Assize Court from finding that the factual circumstances of the case precluded any mitigation of the perpetrator’s guilt; nor was there any statutory provision establishing that a decree of divorce in civil proceedings constituted res judicata in respect of criminal proceedings. Furthermore, the conclusions of the Assize Court judgment to which the applicant had objected had not punished her for refusing to admit her own guilt but had indicated the reasons why the Assize Court had not accepted that there were any mitigating circumstances.

In addition, regarding the ancillary penalties, the Court of Cassation pointed out that deprivation of functions and permanent withdrawal of certain civic rights were mandatory ancillary penalties (Articles 19 and 31 of the Criminal Code) for anyone sentenced to life imprisonment and therefore did not require any reasons. It further held that public display of a criminal conviction did not attain the minimum level of severity required by Article 3 of the Convention. Lastly, the fact that no appeal lay against the jury’s verdict (Article 350 of the Code of Criminal Procedure) resulted from a provision which the Assize Court had not applied in the judgment itself and which was therefore extraneous to the judgment.

II. RELEVANT DOMESTIC LAW AND PRACTICE

20. The relevant domestic law and practice are outlined in Taxquet v. Belgium ([GC], no. 926/05, §§ 22-42, ECHR 2010).

21. With regard to persons sentenced to life imprisonment, the Criminal Code, as in force at the material time, provided:

Article 18

“A judgment imposing a sentence of life imprisonment or imprisonment for twenty to thirty years for serious crimes or political offences shall be printed in extract form and publicly displayed in the municipality where the offence has been committed and the municipality where the judgment has been delivered.”

Article 19

“All judgments imposing a sentence of life imprisonment for serious crimes or political offences, fixed-term imprisonment for serious crimes or imprisonment for twenty to thirty years or fifteen to twenty years for political offences shall deprive the convicted persons of any titles, ranks and public functions, employment and positions they may hold.”

Article 31

“All judgments imposing a sentence of life imprisonment for serious crimes or political offences or imprisonment for at least ten to fifteen years for serious crimes shall permanently disqualify the convicted persons from:

(1) holding public functions, employment or positions;

(2) standing for election;

(3) bearing any decoration or title of nobility;

(4) serving as a juror, expert or attesting or certifying witness to transactions; giving evidence in court proceedings other than straightforward information;

(5) being appointed as a guardian, auxiliary guardian or partial guardian, except of their own children; and acting as a court-appointed adviser, a court-appointed administrator of the property of a person who is presumed absent or a provisional administrator; and

(6) manufacturing, altering, repairing, transferring, keeping, carrying, transporting, importing, exporting or transiting weapons or ammunition, or serving in the armed forces.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION (REASONS FOR THE GUILTY VERDICT AND SENTENCE)

22. The applicant alleged that because the jury’s verdict as to her guilt and the Assize Court’s judgment as to her sentence had not contained reasons, she had not had a fair trial, 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 ...”

23. The Government contested that argument.

A. Admissibility

24. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

25. The applicant submitted that the jury’s verdict and the Assize Court’s judgment had not included the reasons for finding her guilty and fixing her sentence. Firstly, the Assize Court, on the basis of the committal order and the indictment, had dealt with one overall accusation, grouping the five homicides together indiscriminately as a single charge and a single offence, as though there had been a unity of intent. Consequently, only two questions had been put to the jury about the applicant’s guilt. The questions had been succinctly worded and ambiguous, and had not enabled the applicant to understand the jury’s verdict. Secondly, the jury had – without any explanation – disregarded the seven reports and statements under oath by the three court-appointed psychiatric experts and two psychologists, who had unanimously concluded that the applicant had been suffering from a severe mental disturbance making her incapable of controlling her actions at the material time. The applicant, however, had consistently argued that she had not been criminally responsible at the time of the events; accordingly, she was unable to understand why the experts’ unanimous conclusions had not been endorsed by the jury. The lack of reasoning also prevented the applicant from scrutinising the lawfulness of the jury’s verdict and the Assize Court’s judgment.

The reasons given by the Assize Court in fixing the applicant’s sentence were contradictory, and the Assize Court had not given a sufficient explanation for its finding that there were no mitigating circumstances. Furthermore, in determining the applicant’s sentence it had omitted to take into account her divorce from the father of her five children. Lastly, the Assize Court had given undue consideration to the defence strategy chosen by the applicant.

26. The Government submitted that the indictment contained a detailed sequence of the police and judicial investigations and the conclusions of the various psychological and psychiatric expert reports. They argued that the main issue considered at the trial had been the applicant’s capacity to control her own actions. This was a difficult and highly controversial subject because the psychiatric experts were inevitably required to give an “all or nothing” answer. Hence, the experts’ reports simply reflected their personal conviction and amounted purely to an informed opinion, rather than a scientific truth which the jury should accept. The Government submitted that in the sentencing judgment the Assize Court had explained the reasons why it had not found that the applicant had been suffering from a mental disturbance making her incapable of controlling her actions. The applicant had therefore been able to understand the verdict and the reasons for her conviction. The procedure followed had, moreover, afforded sufficient safeguards against arbitrariness.

2. The Court’s assessment

(a)  Applicable principles

27. The Court notes at the outset that the present case follows on from the Taxquet judgment (cited above), to which reference may be made (§§ 83-92) for a summary of the applicable principles. In Agnelet v. France (no. 61198/08, §§ 56-62, 10 January 2013) the Court recapitulated these principles as follows:

“56. The Court reiterates 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. The absence of reasons in a judgment, owing to the fact that the applicant’s guilt has been determined by a lay jury, is not in itself contrary to the Convention (see Saric v. Denmark (dec.), no. 31913/96, 2 February 1999, and Taxquet, cited above, § 89).

57. 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 Taxquet, cited above, § 90). 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; Tatishvili v. Russia, no. 1509/02, § 58, ECHR 2007-III; and Taxquet, cited above).

58. The Court further reiterates that 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 Taxquet, cited above, § 92). In these circumstances, 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. 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, 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 (ibid.; see also Papon, cited above). Lastly, regard must be had to any avenues of appeal open to the accused.

59. 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 (see Taxquet, cited above, § 93). 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; and ibid.).

60. In the Taxquet judgment (cited above) the Court examined the combined impact of the indictment and the questions to the jury. It noted that although the indictment, which was read out at the start of the trial, indicated the nature of the offence and the circumstances determining the sentence, as well as containing a chronological sequence of the investigative measures and the statements taken from witnesses, it did not specify ‘which items of evidence the prosecution could use against’ the accused. Above all, the Court observed that in practice this was of ‘limited effect’ since it was filed ‘before the trial itself, which must serve as the basis for the jurors’ personal conviction’ (ibid., § 95).

61. The questions put in the Taxquet case, totalling thirty-two for eight defendants, including only four that related to the applicant, had been succinctly worded and identical for all the defendants, making no reference to ‘any precise and specific circumstances that could have enabled the applicant to understand why he was found guilty’, in contrast to the Papon case, in which the Assize Court had referred to the jury’s answers to each of the 768 questions put by the court’s president (ibid., § 96).

62. It can be inferred from the Taxquet judgment (cited above) that a combined examination of the indictment and the questions to the jury must make it possible to ascertain which of the items of evidence and factual circumstances discussed at the trial ultimately caused the jury to answer the questions concerning the defendant in the affirmative, in order to be able to: distinguish between the co-defendants; understand why a particular charge was brought rather than another; determine why the jury concluded that the involvement of certain co-defendants had been limited, carrying a lesser sentence; and discern why aggravating factors were taken into account (ibid., § 97). In other words, the questions must be both precise and geared to each individual (ibid., § 98).”

(b)  Application to the present case

28. In the present case, the applicant was sentenced to life imprisonment for the premeditated killing of her five children. A great deal was at stake for the applicant, particularly in view of the fact that she had always claimed to have been incapable of controlling her actions at the time of the events. Since the applicant did not deny having carried out the acts of which she was accused, the difficulty in the trial lay in determining whether or not she had been criminally responsible.

29. The Court reiterates that 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 of the Convention. 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. Furthermore, in cases arising from individual applications 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 Taxquet, cited above, §§ 83-84). As explained in Taxquet (ibid., § 92), in circumstances similar to those of the present case 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 the conviction. Regard must also be had to any avenues of appeal open to the accused.

30. As regards the indictment, the Court observes that its effect was limited since it was filed before the trial itself, which forms the crucial part of the proceedings (ibid., § 95; see also Legillon v. France, no. 53406/10, § 61, 10 January 2013). This is especially true as Article 6 of the Convention encompasses the need to understand the reasons why the members of the jury – as opposed to the bodies responsible for sending the case to the Assize Court – have decided in the course of the deliberations, after hearing the arguments submitted during the trial, that the accused is guilty. In the present case, the Court observes that the indictment mentioned the offence with which the applicant was charged, gave a detailed reconstruction of the events and quoted extensively from the various expert psychological and psychiatric reports that had been produced. Nevertheless, as to the findings of fact set out in the indictment and their value in assisting an understanding of the verdict against the applicant, the Court cannot speculate as to whether such findings influenced the Assize Court’s deliberations and the judgment it ultimately delivered (see Legillon, cited above, § 61, and Voica v. France, no. 60995/09, § 49, 10 January 2013).

31. As regards the five questions put to the jury, the Court notes that four of them related to the five homicides (questions nos. 1 and 3) and the aggravating circumstance of premeditation (questions nos. 2 and 4). The last question concerned the applicant’s criminal responsibility (question no. 5). The Court considers that the questions might not in themselves have enabled the applicant to ascertain which factors, among all those discussed at the trial, had ultimately caused the jury to conclude that she was criminally responsible for her actions (see, to similar effect, Taxquet, cited above, § 97, and Castellino v. Belgium, no. 504/08, § 38, 25 July 2013). However, it considers it necessary to look at the proceedings as a whole, including the subsequent court decisions which clarified the reasons for the jury’s verdict. Thus, it notes that the Assize Court, composed of three professional judges and the jury, stated in its sentencing judgment that the circumstances relied upon by the applicant, in particular her “mental fragility, depression and character”, could not explain the acts she had committed and did not even constitute mitigating factors (see paragraph 17 above). The Court of Cassation, for its part, gave an explicit indication of the grounds on which the Assize Court had found that the applicant had not been incapable of controlling her actions at the material time (see paragraph 19 above). The Court therefore considers that the applicant could have understood from a combined reading of the judgments of the Assize Court and the Court of Cassation why the jury had rejected her defence of a lack of criminal responsibility at the time of the events and had found, on the contrary, that she was capable of controlling her actions.

32. It is true that the jury alone decided that the applicant was responsible for her actions, although the reasons for that decision emerge from the sentencing judgment adopted by the Assize Court, composed of the jury and the three professional judges, and were also explained by the Court of Cassation. The Assize Court judges therefore contributed to drafting a statement of reasons which partly concerned a decision reached during deliberations at which they had not been present. The Court considers, however, that that fact cannot render those reasons invalid in terms of the right to a fair trial. Since the judges joined the jury in deliberating on the sentence and on the reasons for the decision taken in that regard, they were able to ascertain directly from the jurors the grounds on which they had found the applicant guilty, and together they must have agreed on a line of reasoning which self-evidently had to be consistent with the grounds underlying the guilty verdict. The fact that the Court of Cassation subsequently explained how the sentencing judgment was to be understood in the light of the guilty verdict cannot attract criticism. In a system in which certain decisions are subject to appeal, it is only to be expected that the lower court’s decision should be construed according to the higher court’s interpretation of it, where applicable.

33. Furthermore, as regards the specific issue of sentencing, the Court notes that the Assize Court’s judgment gave adequate reasons on this point and does not appear arbitrary in any way (see paragraph 17 above).

34. In conclusion, the Court considers that the applicant was afforded sufficient safeguards enabling her to understand both the guilty verdict against her and her sentence.

35. There has therefore been no violation of Article 6 § 1 of the Convention.

II. OTHER ALLEGED VIOLATIONS

A. Status of members of the jury

36. Alleging a violation of Article 6 §§ 1 and 2 of the Convention, the applicant complained that in the Belgian system, members of the jury did not have the status of lawyers and that no professional judges attended the deliberations on the defendant’s guilt. On that account, the applicant’s guilt had not been lawfully established and there had been a violation of the principle that evidence must be lawful.

37. The Court notes that this complaint is similar to one it has previously addressed and dismissed as manifestly ill-founded (see Taxquet v. Belgium (Chamber), no. 926/05, §§ 71-74, 13 January 2009; see also Zarouali v. Belgium, no. 20664/92, Commission decision of 29 June 1994, Decisions and Reports 78, p. 97). The Court considers that there is nothing in the present case to distinguish it from the two cases cited above. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Severity of the sentence

38.  In addition, alleging a violation of Article 3 of the Convention, the applicant submitted that the excessively severe sentence imposed on her amounted to degrading treatment and punishment.

39. The Court observes that the applicant has not substantiated this complaint. It further reiterates that the imposition of a sentence of life imprisonment on an adult who has committed a particularly serious crime such as premeditated murder is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention (see Kafkaris v. Cyprus [GC], no. 21906/04, § 97, ECHR 2008, and Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, § 106, ECHR 2013 (extracts)). In the present case, firstly, the sentence does not appear grossly disproportionate (see Vinter and Others, cited above, § 102). Secondly, the applicant has not contended that her sentence is irreducible de jure or de facto (ibid., §§ 107 et seq.). It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

C. Deprivation of titles, ranks and other functions and public display of the judgment

40. Alleging a violation of Article 6 of the Convention, the applicant complained that the Assize Court had stripped her of all the titles, ranks and functions she had held and had permanently deprived her of certain rights, without giving any reasons for these ancillary penalties. She further submitted that the order for the Assize Court’s judgment to be publicly displayed in the municipality where the offence had been committed amounted to degrading treatment and punishment, in breach of Article 3 of the Convention.

41. The Court observes that both the Belgian Criminal Code, as in force at the material time, and the Court of Cassation’s judgment indicate that these ancillary penalties are mandatory when the Assize Court sentences a defendant to life imprisonment (see paragraphs 19 and 21 above). The Court therefore considers that the imposition of these ancillary penalties did not require separate reasons from those given for the sentence, since the Assize Court had no discretion as to their imposition. It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

42. Alleging a violation of Article 3 of the Convention, the applicant also complained about the order for the Assize Court’s judgment to be publicly displayed. In her submission, such a measure amounted to degrading treatment and punishment.

43. The Court considers that as far as this measure is concerned, the level of severity for Article 3 of the Convention to apply has not been attained. This complaint must therefore likewise be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

D. Absence of a court of appeal

44.  Lastly, alleging a violation of Articles 6 and 13 of the Convention, the applicant complained that, by virtue of Article 350 of the Code of Criminal Procedure, it was impossible to appeal against the jury’s verdict to a court of appeal composed of professional judges.

45. The Court notes that the provisions relied on do not guarantee the right of appeal and that Belgium was not a party to Protocol No. 7 at the material time (see Castellino v. Belgium (dec.), no. 504/08, § 22, 22 May 2012). The Court further observes that the applicant had the opportunity to appeal on points of law against the Assize Court’s sentencing judgment, and made use of that opportunity. In this connection, the Court has held on a number of occasions that the fact that the review conducted by a supreme court is restricted to questions of law is not in breach of Article 6 § 1 of the Convention (see, among other authorities, Taxquet (Chamber), cited above, §§ 82-84, and the references cited therein). This part of the application must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

FOR THESE REASONS, THE COURT

1. Declares, unanimously, the complaints under Article 6 § 1 of the Convention concerning the reasons given for the guilty verdict and the sentence admissible and the remainder of the application inadmissible;

2. Holds, by four votes to three, that there has been no violation of Article 6 § 1 of the Convention.

Done in French, and notified in writing on 26 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithIşıl Karakaş
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Sajó, Keller and Kjølbro is annexed to this judgment.

A.I.K.
S.H.N.

JOINT DISSENTING OPINION OF JUDGES SAJÓ, KELLER AND KJØLBRO

1. Unfortunately, we do not share the opinion of the majority that there has been no violation of Article 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 members of the jury found her criminally responsible for killing her children. Bearing in mind that the applicant was examined by two psychologists and a panel of three psychiatrists who concluded that she had been incapable of controlling her actions (see paragraphs 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 Article 6 of the Convention. Lastly, the reasoning subsequently provided by the Court of Cassation likewise did not enable the applicant to understand why she had been found criminally responsible 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 criminally responsible (IV.).

I. The jury system and the principle 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). Furthermore, 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 Article 6 of the Convention (see Taxquet v. Belgium [GC], no. 926/05, §§ 90 and 93, ECHR 2010). However, the Court 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 circumstances of the case (ibid., § 93).

4. Article 348 of the Belgian Code of Criminal Procedure provided that the jury’s verdict as to guilt was to take the form of a simple “yes/no” answer (see paragraph 19 of the judgment). The majority of the Court 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 paragraph 31 of the judgment). It cannot be discerned from the jury’s answer why the psychiatric experts’ conclusions 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 depression at the time of the offence (see paragraph 17 of the judgment). It further held that “the extremely serious nature of the offences committed” and the cold-blooded manner of its perpetration ruled out any mitigating factors. In this way, according to the majority’s line of argument, the Assize Court clarified the jury’s reasoning 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 Cassation’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 Cassation 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 simply found that the Assize Court had given reasons for its decision on sentencing, by referring to the accused’s cold-blooded manner and determination while carrying out the offences. Accordingly, the Court of Cassation 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 Article 6 of the Convention, a retrospective explanation does not appear sufficient to rule out the risk of arbitrariness. 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, no. 49684/99, § 30, 27 September 2001, and Hansen v. Norway, no. 15319/99, § 72, 2 October 2014, with further references). The reasoning subsequently provided by the Court of Cassation 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. In conclusion, neither the reasons given by the Assize Court nor the subsequent explanation by the Court of Cassation 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. Turkey [GC], no. 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 reasons 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 Article 6 § 1 of the Convention in the present case.

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