CEDH · CASELAW;CLIN;ENG — 28 juin 2022

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Belgium - 20762/19 Judgment 28.6.2022 [Section III] Article 6 Criminal proceedings Article 6-1 Fair hearing Applicant convicted of resistance to police on sole basis of statements by officers including those who had subjected him to degrading treatment as acknowledged by Government: violation Article 46 Article 46-2 Execution of judgment Striking-out decision not falling within ambit of Art 46, which concerns only final judgments of the Court: inadmissible Facts – The applicant was arrested by the police after incidents on the public highway. He maintained at all times that the officers had subjected him to unjustified violence when stopping him and had insulted and hit him on the way to the police station. He initiated proceedings against the police, but without success, and lodged an application with the Court under Article 3 of the Convention. The Government submitted a unilateral declaration wherein they acknowledged that degrading treatment had occurred during the applicant’s arrest and undertook to pay a sum in respect of the non‑pecuniary damage sustained as a consequence. Upon the applicant’s agreement, the Court took note of the implicit friendly settlement between the parties and struck the application out of the list ( Boutaffala v.   Belgium (dec.), 48302/15 , 27   June 2017). The applicant was prosecuted for assaulting the police during his arrest and was convicted on a charge of resistance ( rébellion ). The national courts relied heavily on the statements of the officers whose arrest of the applicant had been acknowledged by the Government to be contrary to Article 3. Relying on Article 6 of the Convention, the applicant complained that he had not had a fair trial. Relying on Article 46 in conjunction with the procedural limb of Article 3, he complained that the authorities had misrepresented the scope of the June 2017 striking-out decision whereby the Court had noted the Government’s acknowledgment of an Article 3 violation arising not only from the insults proffered by the officers but also from their unlawful use of force. The result, he argued, was a breach of the obligation to execute that decision of the Court in good faith. Law – Article 46 in conjunction with Article 3: It was very doubtful that Article   46 § 1 could be regarded as conferring upon an applicant a right that could be asserted in proceedings originating in an individual application to the Court. While it was true that the Court had previously examined several applications concerning steps taken by a respondent State to execute a judgment of the Court – where those applications had raised new issues not determined by the original judgment – the fact remained that, outside of proceedings instituted pursuant to the “infringement procedure” under Article 46 §§   4 and 5 of the Convention, the Court did not have jurisdiction to verify whether a State Party had complied with the obligations laid down by one of its judgments. In any event, even on the assumption the applicant could rely on a breach of Article 46 taken in conjunction with Article 3, it sufficed to note in this case that the June   2017 striking-out decision had not amounted to a judgment finding a violation of the Convention. In that decision, the Court had merely taken note of the Government’s unilateral declaration, and the applicant’s agreement to the terms thereof, before striking the application out of the list. The Court had not examined the admissibility, let alone the merits, of the applicant’s complaints. Consequently, the striking-out decision did not fall within the ambit of Article   46, which concerned only final judgments of the Court. In the circumstances, therefore, the applicant could not claim a violation of that provision before the Court. Moreover, where the parties had reached a friendly settlement in consequence of which the Court had struck the application out of the list, the task of supervising the execution of the settlement fell not to the Court but to the Committee of Ministers pursuant to Article 39 § 4 of the Convention. In that connection, the Committee of Ministers had taken note of the Government’s execution of the terms of the friendly settlement. It was nonetheless important to underscore that, in a spirit of shared responsibility on the part of States and the Court to ensure respect for Convention rights, applicants were entitled to expect the national authorities, courts included, to draw fair-mindedly the conclusions that followed from a unilateral declaration by the Government acknowledging a violation of Article   3 and giving rise to a decision of the Court taking note of it. That expectation was heightened by the fact that the issues at stake concerned Article 3, a provision enshrining one of the most fundamental values of democratic societies – the right not to be subjected to torture or to inhuman or degrading treatment. In this case, the issue of the conclusions which the domestic courts had drawn from the Government’s unilateral declaration and from the Court’s subsequent striking-out decision was examined under the head of the Article 6 complaint below. Conclusion: inadmissible (incompatible ratione materiae ). Article 6 § 1: 1. Scope and extent of the Court’s review – In accordance with Article 19 of the Convention, the Court’s only function in examining a complaint under Article 6 was to ascertain whether the national proceedings as a whole had been conducted in such a way as to guarantee the applicant a fair hearing. 2. The Government’s unilateral declaration as to violence by the police – The particularity of the present case lay in the Belgian State’s prior express acknowledgment to the Court that the applicant’s arrest had taken place under conditions contrary to his right under Article 3 not to be subjected to degrading treatment. The Court of Appeal had regarded the unilateral declaration as covering only the insults uttered by the police officers during the applicant’s transfer to the station after his arrest, holding that the declaration did not call into question the decision of the Indictments Division to discontinue the proceedings against the officers. However, the terms of the unilateral declaration were not confined solely to the applicant’s transfer to the police station after his arrest. The Government had expressly acknowledged the violation of Article 3 arising from the conditions in which the applicant had been stopped, and they had done so in the context of an application to the Court alleging that the officers had been excessively violent as well as animated by racial prejudice. Although that acknowledgment in no way meant that the applicant had not been guilty of resisting the officers, it did impose a duty on the national courts to examine the allegations of resistance with the utmost caution and to be satisfied that they were conclusively made out. A violation of Article 3 was a breach of the most fundamental values enshrined in the Convention, the seriousness of which could not be trivialised. Moreover, the allegations of police violence and of resistance by the applicant had arisen in connection with the applicant’s arrest. 3. Assessment as to the fairness of the proceedings for resistance – (a) Pre-trial stage of the criminal proceedings – The applicant complained that he had not been examined by the investigating judge in either set of proceedings. He had been interviewed on the evening of his arrest by a colleague of the officers who had stopped him, and subsequently by the Inspectorate-General in connection with his complaint about police violence. There was nothing to cast doubt on the integrity or independence of his interviewers. The judicial investigations into the allegations of resistance and police violence had been conducted under the authority of a judge whose independence and impartiality the applicant had not called into question. The mere fact that a person charged with a crime had not been examined by the investigating judge did not constitute a violation of Article 6 § 1 where, as here, the person had been afforded the opportunity to argue his case in the trial courts and to challenge, on that occasion, the entirety of the evidence against him. (b) Trial stage – The Court of Appeal’s justification for declining to cast doubt on the officers’ inculpatory statements had been that they were borne out by concordant, detailed statements from other officers who had been bystanders to the events. However, those officers had themselves been named in the proceedings initiated by the applicant for police violence, and the Government’s acknowledgment of the violation of Article 3 had concerned the “conditions” of the applicant’s arrest. Moreover, it could not be ruled out that the officers might have been reluctant to testify against direct colleagues, and likewise it had been open to the applicant to regard them as insufficiently independent from those colleagues. By contrast, the Court of Appeal had attached less probative value to the statements of the four witnesses for the defence on the ground that, as persons who knew the applicant, they had not presented sufficient guarantees of independence. Nor was there any other witness testimony or evidence of any kind from the domestic proceedings to support the police officers’ account of the resistance. This was especially problematic in the specific circumstances of the present case, where the applicant’s arrest had been acknowledged to be contrary to Article 3. In convicting the applicant the Court of Appeal had given decisive weight to the inculpatory testimony of the police officers who had stopped him, and to the evidence given by the other officers who had been present at the scene, although the arrest had been acknowledged to be contrary to Article 3. The Court was unable to accept the Government’s submission that the evidence adduced in the domestic courts had failed to establish “beyond reasonable doubt” that the applicant had not committed the offence of resistance. To do so would be to reverse the burden of proof applicable in criminal cases. This was because the fairness of proceedings prescribed by Article 6 was inseverable from due respect for the presumption of innocence guaranteed by Article 6 §   2 of the Convention. Under the principle of in dubio pro reo , the onus of proof was on the prosecution, and the accused could not be compelled to prove his or her innocence. In view of the foregoing, the domestic courts had not afforded the applicant a fair trial compatible with the requirements of Article 6 § 1. Conclusion: violation (unanimously). Article 41: EUR 7,500 in respect of non-pecuniary damage. (See also Sidabras and Džiautas v. Lithuania , 55480/00 and 59330/00, 27 July 2004, Legal summary ; Willems and Gorjon v.   Belgium , 74209/16 and three others, 21 September 2021, Legal summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes