Information Note on the Court’s case-law No. 178
October 2014
Panju v. Belgium - 18393/09
Judgment 28.10.2014 [Section II]
Article 13
Effective remedy
Lack of remedy for complaints about the length of pending criminal proceedings: violation
Facts – The applicant was arrested in November 2002 on suspicion of illegal trafficking in gold and money laundering. The 50 kg of gold he was carrying at the time was confiscated and his Belgian bank accounts frozen. In April 2005 he was formally charged with money laundering by an investigating judge. Since then the judicial investigation remained pending, despite numerous applications by the applicant complaining of the procedural delays and seeking the lifting of the confiscation measure.
Law – The applicant’s complaint concerning the length of the judicial investigation was prima facie “arguable”, as the proceedings had lasted for more than eleven years. The applicant was thus entitled to an effective remedy in that connection.
Article 35 § 1: In a judgment of 28 September 2006, the Court of Cassation had acknowledged the possibility of bringing an action to establish the non-contractual liability of the State to complain about the length of the proceedings.
As regards the length of civil proceedings, the Court had recognised in the case of Depauw v. Belgium ((dec.), 2115/04, 15 May 2007, Information Note 97) that the compensatory remedy had acquired a sufficient degree of certainty from 28 March 2007 onwards and that, consequently, for the purposes of Article 35 § 1 of the Convention, any application lodged after that date had to establish that this remedy had been used.
The Court further took the view that there was no reason why the remedy endorsed by the Court of Cassation could not apply to complaints about the length of criminal proceedings as well. However, it noted that among the cases cited the Government had not given a single example of a judicial decision to illustrate the application of this case-law to criminal proceedings.
In the present case, the applicant had not brought an action to establish the State’s liability in respect of the length of the proceedings as he considered that this remedy was not effective.
The Government, on whom the burden of proof lay, had not shown that this compensatory remedy was granted in practice by the courts in the context of criminal proceedings. Accordingly, the remedy could not at present be regarded as an effective remedy to complain of the length of the criminal judicial investigation.
Conclusion: preliminary objection joined to the merits and dismissed (failure to exhaust domestic remedies).
Article 13 in conjunction with Article 6 § 1: In a judgment of 8 April 2008 the Court of Cassation, departing from precedent, had acknowledged that it had to be possible for a breach of an individual’s right to a hearing within a reasonable time to be established at all stages of criminal proceedings, even during the judicial investigation and that, consequently, the Indictments Division had a duty to review, of its own motion or at the request of one of the parties, the lawfulness of the proceedings referred to it, including the issue of their duration.
In the case of Tyteca and Others v. Belgium ((dec.), 483/06, 24 August 2010), taking note of this jurisprudential development, the Court had nuanced its position, declaring inadmissible a complaint about the length of the judicial investigation on the ground that the applicants had neither brought an action to establish civil liability nor used any of the remedies provided for in Articles 136 and 136bis of the Belgian Code of Criminal Procedure, namely a review of the judicial investigation by the Indictments Division of the Court of Appeal, which was entitled, in particular, to give directions to the investigating judge or even to take over the handling of the case.
However, it could not be inferred from that decision that the measures open to the Indictments Division under the relevant Articles of the Code of Criminal Procedure, for the purpose of ensuring the proper conduct of the proceedings, now constituted, in each case, an effective remedy within the meaning of Article 13 of the Convention where the duration of a criminal judicial investigation had exceeded a reasonable time.
Firstly, while admitting that the directions which the Indictments Division was entitled to give could have the effect of expediting the proceedings if they were complied with immediately, the Court noted that none of the measures in question was specifically directed at the delay complained of. Unlike, for example, the system in Spain, Portugal or Slovenia, it was not established that in the Belgian system the Indictments Division could fix time-limits for the completion of procedural acts, order the investigating judge to set a date for a hearing or to close the investigation, or decide that the case should be given priority treatment.
Secondly, in the present case, the Indictments Division had not yet taken, of its own motion, any of the measures that it was entitled to order for the purpose of expediting the proceedings. It appeared to the Court, in examining the possible reason for this failure, that it might have stemmed from the fact that the measures in question would not, in any event, have addressed the shortcomings identified by the Principal Public Prosecutor himself, namely the lack of staff and structural deficiencies in the public prosecutor’s office responsible for the case. Nor had the Indictments Division ordered any such measure at the request of the applicant.
Thirdly, the Court noted that, except in situations where unreasonable length resulted in the proceedings being declared inadmissible or the prosecution being time-bared because defence rights had been irretrievably prejudiced, the courts did not have the power to impose penalties for proceedings exceeding a reasonable time. The fact that the trial court was obliged to take into account, in an overall assessment of the case, the Indictments Division’s finding that the duration had exceeded a reasonable time, could not constitute appropriate redress within the meaning of the Court’s case-law. Moreover, in cases where the judicial investigation was ultimately discontinued or the person charged was acquitted, that power of the trial court would not provide any redress whatsoever.
It followed that the preventive remedies could not therefore be regarded, in the present case, as effective.
Conclusion: violation (six votes to one).
The Court further held, by six votes to one, that there had been a violation of Article 6 § 1 on account of the length of the proceedings, the main cause of which had been the way in which the authorities had handled the case.
Article 41: No claim made in respect of damage.
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This summary by the Registry does not bind the Court.
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