Information Note on the Court’s case-law No. 100
August-September 2007
De Clerck v. Belgium - 34316/02
Judgment 25.9.2007 [Section II]
Article 6
Criminal proceedings
Article 6-1
Reasonable time
Major financial implications of criminal proceedings on the professional activity of the applicants and their companies: violation
Article 13
Effective remedy
Complaint of length of criminal proceedings – whether an effective remedy existed in Belgium: violation
Article 41
Just satisfaction
Request by applicants for order requiring an immediate halt to criminal proceedings which the Court had found to be unduly protracted: request for an injunction refused
Article 46
Individual measures
Article 46-2
Execution of judgment
Individual measures
Request by applicants for order requiring an immediate halt to criminal proceedings which the Court had found to be unduly protracted: application for an injunction refused
Facts: The two applicants had set up a large number of companies. They complained of the length of the criminal proceedings against them for offences which included conspiracy, breaches of company law and money laundering. By June 2007 the proceedings, which had begun in November 1990, were still at the stage of finalisation before trial by the chambre du conseil of the Brussels Court of First Instance, in accordance with Article 127 of the Code of Criminal Procedure, and had apparently been adjourned pending the completion of certain investigative measures. A large number of searches were conducted in connection with the case, in particular on the premises of various Belgian financial institutions. Checks were carried out into the accounts of companies established in various countries and requests for judicial assistance were sent to several countries. A large number of investigative measures were taken. The public prosecutor’s submissions, which were 228 pages long, implicated sixty suspects. The proceedings were still pending when the Strasbourg Court delivered its judgment.
Law: Article 6 § 1 – The preliminary investigation had lasted for approximately sixteen years and ten months. The scope and complexity of criminal proceedings concerning economic and fiscal matters, which were often made more complicated by the involvement of large numbers of suspects, could result in lengthy proceedings. However, the complexity of the present case was not in itself sufficient to justify the length of the proceedings. The applicants’ conduct had not contributed to the length of the investigation. As to the conduct of the authorities, there had been a period of at least three years and eleven months during which very little action had been taken on the case. Special diligence was required of the authorities dealing with the case, in view of the very high financial stakes for the applicants, which were linked to their professional activity and the activity of the companies which they ran.
Conclusion: violation (unanimously).
Article 13 – The Government considered that, from 2 October 1998 onwards, the date on which the Law of 12 March 1998 had entered into force, the applicants had had the right under Articles 61a, 136 and 136a of the Code of Criminal Procedure to apply to the indictments division. This, in the Government’s view, constituted an “effective remedy”. The Court replied that when the application had been lodged on 11 September 2002 no “effective remedy” had existed in domestic law in respect of the applicants’ complaints concerning the length of the proceedings. In the alternative, the Court pointed out that it was for the trial judge and not the investigating judge to decide whether the case was being dealt with within a reasonable time and, if that time had been exceeded, to determine the appropriate compensation.
Conclusion: violation (unanimously).
Articles 41 and 46 – The applicants requested that the criminal proceedings against them be terminated immediately, arguing that the Strasbourg Court had the power to give an order to that effect. The Court pointed out that it was for the State itself to choose the means to be used in its domestic legal system to redress a situation which had given rise to a violation. The Convention did not in principle give the Court the power to issue instructions or orders.
While, in some of its judgments, the Court had sought to indicate to the respondent State the type of overall measures it might take, in order to assist it in complying with its obligations under Article 46, this had been in the context of cases involving structural situations affecting large numbers of persons and where dozens of applications of the same type had been made to the Court. The Court had taken a similar approach in relation to the adoption of individual measures in cases concerning the physical liberty of the applicants or the restitution of property, while at the same time, in the latter case, offering the State the choice between restoring the property to the applicants and paying them compensation. The present case, which concerned an investigation which had exceeded a reasonable time, did not fall into any of these categories. While the Court criticised the lack of action by the authorities over a certain period of time, it also noted the extremely complex nature of the investigation. In addition, it accepted that the remedy under Article 136 of the Code of Criminal Procedure might in the future constitute an effective remedy within the meaning of the Convention.
Most importantly, the Court could not instruct the independent judicial authorities of a State Party to the Convention to terminate proceedings instituted in compliance with the law, nor could it instruct the legislature to adopt legislation with a certain content dictated by the Court.
However, in cases where the length of proceedings had been found to be excessive and incompatible with the “reasonable time” requirement laid down in Article 6 § 1, steps needed to be taken to speed up the proceedings and bring them to a conclusion as rapidly as possible, subject to the needs of the proper administration of justice. The applicants’ request to the Court to issue the order referred to above was therefore rejected.
See also the judgment in Stratégies et Communications and Dumoulin v. Belgium, no. 37370/97, 15 July 2002, Information Note No. 44. As regards the right to an effective remedy before a domestic court by which to complain of a breach of the obligation under Article 6 § 1 to hear cases within a reasonable time, see Kudła v. Poland [GC], no. 30210/96, ECHR 2000‑XI.
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This summary by the Registry does not bind the Court.
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