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You are here: BAILII >> Databases >> European Court of Human Rights >> VIDAL v. BELGIUM - 12351/86 [1992] ECHR 47 (22 April 1992) URL: http://www.bailii.org/eu/cases/ECHR/1992/47.html Cite as: [1992] ECHR 47

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In the case of Vidal v. Belgium*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention")** and the

relevant provisions of the Rules of Court, as a Chamber composed of

the following judges:

Mr R. Ryssdal, President,

Mr Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr C. Russo,

Mr R. Bernhardt,

Mr J. De Meyer,

Mrs E. Palm,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 29 November 1991 and

25 March 1992,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar:

* The case is numbered 14/1991/266/337. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 8 March 1991 and by

the Government of the Kingdom of Belgium ("the Government") on

6 May 1991, within the three-month period laid down by

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the

Convention. It originated in an application (no. 12351/86) against

Belgium lodged with the Commission under Article 25 (art. 25) by a

Belgian national, Mr Frans Vidal, on 7 July 1986. He was referred

to by the initial "V." during the proceedings before the Commission,

but subsequently agreed to his identity being disclosed.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Belgium recognised

the compulsory jurisdiction of the Court (Article 46) (art. 46); the

Government's application referred to Article 48 (art. 48). The

object of the request and the application was to obtain a decision

as to whether the facts of the case disclosed a breach by the

respondent State of its obligations under paragraph 1 in conjunction

with paragraph 3 (d) of Article 6 (art. 6-1, art 6-3-d) of the

Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings and designated the lawyer

who would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Mr J. De Meyer, the elected judge of Belgian nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of

the Court (Rule 21 para. 3 (b)). On 22 March 1991, in the presence

of the Registrar, the President drew by lot the names of the other

seven members, namely Mr Thór Vilhjálmsson, Mr F. Gölcüklü,

Mr F. Matscher, Mr L.-E. Pettiti, Mr C. Russo, Mr R. Bernhardt and

Mrs E. Palm (Article 43 in fine of the Convention and Rule

21 para. 4) (art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent of

the Government, the Delegate of the Commission and the applicant's

lawyer on the organisation of the procedure (Rule 37 para. 1 and

Rule 38). Pursuant to the order made in consequence, the Registrar

received the applicant's memorial on 18 July 1991. He was informed

by the Government on 19 July and by the Delegate on 16 October 1991

that they would not be submitting memorials.

5. On 8 July 1991 the Commission produced the documents in the

proceedings before it, as requested by the Registrar on the

President's instructions.

6. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg, on

26 November 1991. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr J. Lathouwers, Legal Officer,

Ministry of Justice, Deputy Agent,

Mr E. Jakhian, avocat, Counsel;

(b) for the Commission

Mr C.L. Rozakis, Delegate;

(c) for the applicant

Mr M. Forges, avocat, Counsel.

The Court heard addresses by Mr Jakhian for the Government,

Mr Rozakis for the Commission and Mr Forges for the applicant, as

well as their replies to its questions.

AS TO THE FACTS

I. The particular circumstances of the case

7. In 1983 Mr Frans Vidal was a warder at Saint-Gilles Prison

(Brussels), having previously worked at Namur Prison until

October 1982.

A. Background to the case

8. On 6 February 1983 Mr Bosch Hernandez, an inmate of Namur

Prison serving a life sentence imposed by the Brabant Assize Court,

attempted to escape. Using a revolver which he had managed to

obtain clandestinely, he took the chief warder hostage, but another

warder succeeded in disarming him. A note signed by Mr Vidal was

found on him; it was undated and read as follows:

"I hereby promise to pay the sum of ten thousand francs by

1 or 2 November 1982."

When questioned by the Namur police and an investigating

judge, he first refused to disclose where the weapon had come from,

and then stated that he had been given it by the applicant.

9. Mr Vidal was charged on the following day by the

investigating judge of the Namur Court of First Instance (tribunal

de première instance).

He was detained on the same day and denied that he had

provided the weapon. He admitted having written and signed the

document, but claimed that he had given it to another inmate,

Mr Bieseman, from whom he said he had borrowed the sum of

10,000 Belgian francs to pay gambling debts.

10. The detention order was confirmed on several occasions in

1983.

11. Mr Derriks, the Deputy Director of Namur Prison, indicated

that he had new information for the investigators, and was

interviewed on 31 August 1983 by the police inspector assigned to

the inquiry. He stated as follows:

"For some months there have been rumours among the

prisoners in C wing suggesting that the former warder,

Frans Vidal, was not the person who brought into the prison

the revolver used by Bosch Hernandez.

More recently, on 29 August 1983, I saw the inmate

Alain Scohy in an office of our prison. I had to inform him

of an internal administrative decision. On that occasion

Scohy told me that he wished to give me information confided

in him by other inmates of C wing. He said that the weapon

used by Bosch Hernandez had been introduced into the prison

initially for the use of the prisoner Omer Bieseman by a

certain Miss Lhoir, a visitor of the prisoner

Marcel Castris. After she had smuggled the weapon into the

prison and hidden it in the visitors' lavatory, Bieseman had

escaped when, on 10 January 1983, he had been taken for a

medical examination at the Ste-Camille Clinic. The weapon

remained in the prison and finally ended up in the hands of

Juan Bosch Hernandez, who had planned to escape with

Bieseman using the weapon.

According to Scohy, after it had been brought into the

building, the weapon was hidden at the bottom of a dustbin,

which Bosch alone, as a server, had the possibility of using

as a hiding place for at least three months.

...

I must inform you that Alain Scohy made this statement

spontaneously, but hoping to increase his chances of release

on licence.

I would add that Bieseman has still not been re-arrested

since his escape on 10 January 1983 and that Marcel Castris,

nicknamed the 'C wing banker', was provisionally released,

with a view to deportation, on 19 August 1983.

The latter's visitor may be identified as: Dominique Lhoir

..., or her sister Marie-Eve Lhoir, ...

Again according to Scohy, Frans Vidal is totally

unconnected with the bringing into the prison of these

weapons.

..."

12. The investigators tried to question the persons referred to

in the above statement.

On 8 September 1983 Mr Bosch Hernandez reaffirmed before the

investigating judge that the applicant had provided him with the

weapon, in exchange for payment of 100,000 Belgian francs.

Mr Scohy, who was questioned in prison on 27 September 1983,

refused to say anything, for fear of provoking animosity from the

other inmates. He added that he would report of his own accord to

the investigating judge once he had obtained his release on licence,

and that he would give evidence in the Assize Court if, by then, he

was back with his family so that he could protect them from any

reprisals by Mr Castris.

On 3 October 1983 the police questioned

Miss Marie-Eve Lhoir, who denied the accusation that she had

introduced a weapon for the use of Mr Castris, a close friend of her

sister Dominique. She stated that, although they used her address,

Mr Castris and her sister lived elsewhere.

Mr Castris and Miss Dominique Lhoir were summoned to appear

on 4 October 1983. They telephoned the investigators on that day to

tell them that for personal reasons they were unable to appear for

the time being but they were willing to come forward at a later

date. They did not comply with three further summonses. On

14 October 1983 the investigators informed the investigating judge

that the two persons concerned had left their residence for an

unknown destination, and that Mr Castris, a foreign national, had

been released provisionally shortly before and was subject to a

deportation order.

13. On 7 October 1983 the Namur Committals Chamber (chambre du

conseil) rescinded the detention order concerning the applicant.

Its decision was confirmed by the Liège Indictments Division

(chambre des mises en accusation) on 18 October 1983.

B. The trial

1. The judgment of the Namur Criminal Court

of 9 August 1984

14. Mr Vidal was sent for trial before the Namur Criminal Court,

charged with:

"A. on 6 February 1983 ... as an accessory ... having

procured weapons which were used to commit a criminal

offence, knowing that they were intended to be so used, or

having knowingly aided or abetted the perpetrator of the

offence ... in respect of action which prepared or

facilitated the offence or which carried it out, having

attempted to take a hostage, by holding, detaining or

seizing Roger Frederick, a prison warder, in order to ...

prepare or facilitate the escape [of Bosch Hernandez], the

intention to commit the offence having been manifested by

conduct which objectively constituted the first step towards

the perpetration of the offence and which conduct was halted

or failed to attain the aim pursued only as a result of

circumstances outside the control of its perpetrators.

B. ... having, between 1 October 1982 and 6 February 1983,

being the officer on duty with responsibility for an

inmate convicted of a criminal offence, namely,

Juan Carlos Bosch Hernandez, facilitated the latter's escape

by supplying him with a weapon, the said escape having been

attempted using violence or threats.

C. ... having, in 1982, prior to 1 November, over an

unspecified period, had in his possession a firearm without

having duly registered it.

D. ...

E. ... having, in October or November 1982, at a date as yet

undetermined, sold a firearm to a person who was neither a

manufacturer nor an arms dealer nor in possession of an

authorisation to purchase it.

..."

On 9 August 1984 the court acquitted him on the following

grounds:

"...

It is not possible on the basis of the case-file or the

evidence adduced at the hearing to form, beyond all possible

doubt, a conviction as to the ... defendant's guilt; the

statements, albeit categorical, [of Bosch Hernandez] cannot

in fact be verified by any specific objective evidence in

the case-file;

..."

In the same judgment, it convicted Mr Bosch Hernandez and

sentenced him to three years' imprisonment.

At the hearing on 28 June 1984 the court had heard the

applicant and Mr Bosch Hernandez, and had also taken evidence from

two prison warders and three police officers.

2. The judgment of the Liège Court of Appeal

of 26 October 1984

15. The prosecution and the civil party seeking damages

appealed. By a unanimous judgment of 26 October 1984, the Liège

Court of Appeal sentenced Mr Vidal to three years' imprisonment, the

part of the sentence exceeding the time spent in detention on remand

being suspended for five years.

It found that:

"... the co-defendant's accusations have remained

consistent although he had no interest in ... securing [the

applicant's] downfall, and in addition to other information

in the case-file concerning the defendant's financial

circumstances and conduct, the latter having admitted

borrowing money from a prisoner, they give rise to serious,

precise and concurring presumptions which constitute proof

of the charges ..."

At the same time it confirmed the sentence imposed on

Mr Bosch Hernandez at first instance.

16. Mr Vidal appealed, and the Court of Cassation quashed the

judgment on 29 May 1985, on the grounds that the Court of Appeal had

been presided over by a judge who had on 26 August 1983 presided

over the Indictments Division when it had confirmed a decision of

the Committals Chamber refusing to order the appellant's release,

and, having regard to Article 6 para. 1 (art. 6-1) of the

Convention, on which he had relied, such a circumstance could arouse

in the appellant "a legitimate doubt as to the ability of the Court

of Appeal ... to hear the case in an impartial manner."

3. The judgment of the Brussels Court of Appeal

of 11 December 1985

17. On an application by Mr Vidal, the principal public

prosecutor of the Brussels Court of Appeal, to which the case had

been remitted, sent the public prosecutor of Créteil (Val-de-Marne)

a letter of request on 26 July 1985 asking him to question

Mr Bieseman, who had in the meantime been arrested in France and was

being held at Fresnes Prison. He was questioned by the French

police on 25 October 1985 and denied having lent the applicant

10,000 Belgian francs. The record of his statements was added to

the applicant's case-file.

18. On 11 December 1985 the Brussels Court of Appeal, by a

unanimous decision, sentenced Mr Vidal to four years' imprisonment.

The court gave the following reasons for its decision:

"...

A detailed examination of the evidence in the case-file

and of the evidence adduced at the hearing has enabled the

court to form the conviction that the defendant is guilty of

the offences as charged;

This conviction is based on two items of evidence which

are complementary:

(1) the statements of Bosch Hernandez;

(2) the promissory note signed by Vidal;

(1) The statements of Bosch Hernandez

Notwithstanding the caution with which the statements of a

person such as Bosch Hernandez should be treated, the court

is bound to observe that the accusations which he levelled

against Vidal have remained consistent throughout the

investigation and that the statements which he made on

numerous occasions both when questioned by the police and on

examination by the investigating judge are precise and

coherent;

In addition it should be stressed that the case-file

contains no evidence to support the claim that there was

between Vidal and Bosch Hernandez a matter of dispute or

disagreement capable of explaining or justifying the

accusation made by the latter against the former;

Vidal himself has not cited in this respect any reason for

his accuser to bear ill-feelings against him;

The defendant unsuccessfully alleged in his submissions

that Bosch Hernandez's statements were improbable in

numerous respects and contained discrepancies;

The court is bound to note that, as regards the essential

question, namely the allegation that Vidal supplied

Bosch Hernandez with the firearm which was used to carry out

the escape attempt, Bosch Hernandez has never altered his

statements;

In short, these statements at no time appeared improbable

or incoherent; on the contrary, they are highly believable

and capable of sustaining the conviction formed by the

court;

(2) The promissory note signed by Vidal

It is established that a document constituting a

promissory note for a sum of 10,000 francs, signed by Vidal,

was discovered in the search made of Bosch Hernandez after

his abortive escape attempt;

The court notes that the existence of this document

accordingly constitutes an objective fact which corroborates

Bosch Hernandez's accusations and shows that there existed

between the two men business relations of which the least

that can be said is that they were unacceptable as far as

Vidal was concerned because of his duties as a prison warder

and that these relations were such as to undermine his

independence vis-à-vis prisoners;

Although he is unable to deny that he had contracted a

debt, he has unsuccessfully alleged that he had borrowed the

sum from another inmate;

This statement, in the first place, is formally contested

both by Bosch Hernandez and the other prisoner, a certain

Bieseman, and secondly, is not at all consistent with the

fact that the disputed document was found in

Bosch Hernandez's hands;

It is hard to see why the promissory note should be among

the documents in Bosch Hernandez's possession if Vidal had

not been his debtor;

These two objective items of evidence, which are in no way

incompatible with all the other evidence regarding the

defendant's conduct in relation to the inmates (borrowing

sums of money from them, abnormal familiarity, serious

failures to carry out proper surveillance), are sufficient

to lead the court to form its conviction;

The first-instance court wrongly found that charges A, B

and E were not established; it did not rule on charge C;

These four charges [see paragraph 14 above] are

established; the offences referred to therein are a

manifestation of a single criminal intention and justify the

imposition of only one sentence, the heaviest of those

applicable;

...

The offences committed by the defendant are extremely

serious ones;

By facilitating by supplying a weapon the escape of a

prisoner serving life imprisonment, even though the escape

failed because of circumstances outside his control, the

defendant Vidal endangered the lives of certain of his

fellow-warders who, like him, were on duty with

responsibility for prisoners;

Such actions must be punished by a sentence commensurate

with their seriousness, and the imposition of any suspended

sentence is consequently out of the question;

..."

19. In submissions of 19 November 1985 counsel for the defence

had asked the court:

"...

As principal submission

To hold that each and every charge brought against the

defendant Vidal is not established, to find him not guilty

and acquit him.

In the alternative

To carry out all appropriate additional investigative

measures, and in any event to order Alain Scohy,

Jules Bodart, Gérard Dauphin and Pierre Dausin, all detained

in Namur Prison at the time of the alleged offences, to be

called as witnesses ..."

With respect to Mr Scohy, the application was based on the

following considerations (pp. 3-4 and 21-23 of the said

submissions):

"...

Short statement of the facts

...

7. During the investigation ...

In late August 1983, following rumours which had

circulated persistently for some months in C wing of Namur

Prison (Vidal had not been inside this prison since being

arrested on 7 February 1983, hence no contact with the

prisoners in that wing), it had turned out, according to

these rumours among prisoners, that it had not been Vidal

who had introduced the revolver 'used by Bosch Hernandez'

...

On 29 August 1983 prisoner Alain Scohy reported these

rumours and gave full details as to how the weapon had been

introduced and the persons involved - directly or

indirectly: Castris, another server in C wing when being

visited by his friend Dominique Lhoir - concealment of the

weapon, passing it to Bieseman, finally reaching

Bosch Hernandez.

Bieseman escaped on 10 January 1983.

Castris released on licence and deported in October 1983.

N.B. No detailed investigation took place regarding these

facts.

Scohy was not even questioned by the investigating judge,

although he had promised [the police] that he would give

evidence (i.e. on oath) before the Court of Assizes if

necessary ...

...

Critical appreciation of the investigation ...

...

1. The Deputy Director of Namur Prison, Mr Derriks,

considered it his duty to bring to the attention of the

judicial authorities certain facts (which he thus considered

to be sufficiently important), rumours of long standing and

statements made by a prisoner Scohy, all of direct relevance

to the Vidal/Bosch Hernandez case-file.

2. Rumours (persistent ones) had been circulating for

months among the inmates of C wing (the wing of Bosch, a

server, of Bieseman, often in the workshop, of Castris,

another server ...)

according to which the former warder Frans Vidal had not

been the person who had introduced the revolver used by

Bosch Hernandez ...

Commentary

This literal quotation from the beginning of the statement

by the Deputy Director itself demonstrates uncontradictably

that there was a 'serious' item of evidence here, to be

verified and checked in an exhaustive and thorough manner of

course, as to the introduction of the revolver into the

prison by some person other than Vidal.

The saying 'no smoke without fire' which applies here is a

vivid expression of popular wisdom.

3. Statements made by prisoner Scohy (to Mr Derriks on

29.8.83)

These statements are precise enough as to how the weapon

was introduced:

(a) by a woman visitor ... in the lavatory

(b) Castris, the deported 'banker'

(c) Bieseman, escaped on 10 January 1983 ...

(d) Bosch Hernandez

these two were known as having made plans to escape ...

(e) the weapon was hidden at the bottom of a dustbin.

Commentary

These three facts mentioned above would on their own have

deserved a thorough investigation (the third fact appears

believable since Bosch Hernandez stated it himself).

4. Scohy's offer to give evidence on oath - possibly at

the Assizes, with reference to the correctness of the

content of his statements ...

Commentary

Even if this declaration appears from his point of view to

favour his request for release on licence, nothing prevented

such statements and such an offer of sworn evidence at the

very least engaging the attention of an impartial

investigator, always hard at work in such a case to find out

an undeniable method or opportunity of introducing a weapon

into the prison (by a method not involving a prison warder),

as Mr Gouverneur, the acting Director of the prison,

appositely said ...

The investigation appears to us to be manifestly

incomplete, as the investigating judge did not consider it

necessary to question Scohy before terminating the

investigation, even though many facts in the case-file gave

Scohy's statements definite verisimilitude - the possibility

of an object being introduced by a woman visitor, who is not

searched and has access to the lavatory; the undoubted

possibility of hiding a weapon there (for example, securing

it in the flushing system or elsewhere); because of his

duties in the workshop, access to whole prison by Bieseman,

Castris, server, Bosch Hernandez, server, obsessed with

gaining freedom, as was his fellow-prisoner Bieseman (escape

plans).

Extensive contacts between these prisoners in C wing,

20-30 in contact daily for at least two hours usually ...

from 12.30 to 1.30 p.m. and from 4.30 to 5.30 p.m., for over

ten months.

It follows from the above:

persistent specific rumours for some months (Vidal did not

introduce the weapon),

statements made by a prisoner in C wing (no doubt one

prisoner among many, in view of the rumours),

offer to testify on oath with reference to these quite

precise statements, highly likely to be true at least in

part,

that additional investigative measures in great detail

were necessary, at appropriate times and under appropriate

conditions;

The defence must deplore such a deficiency in the case-

file, even though it now appears unnecessary or superfluous

in view of the conclusions which now necessarily follow,

after a methodical examination of all the facts which have

been presented and a critical evaluation of them.

..."

This offer to produce evidence was implicitly rejected by

the Brussels Court of Appeal, which did not mention it in its

decision, and did not call any witnesses before giving judgment.

20. The applicant appealed to the Court of Cassation, relying

inter alia on Article 6 paras. 1, 2 and 3 (d) (art. 6-1, art. 6-2,

art. 6-3-d) of the Convention. In an appeal comprising six points,

he criticised the Court of Appeal in essence for not having replied

to certain of his submissions, including his request for witnesses

to be called, and for having based its decision on the extremely

dubious statements of Mr Bosch Hernandez and a promissory note of no

probative value.

The Court of Cassation dismissed the appeal on

12 February 1986, for the following reasons:

"...

... The judgment states: 'that a detailed examination of

the evidence in the case-file and of the evidence adduced at

the hearing has enabled the [Court of Appeal] to form the

conviction that the [appellant] is guilty of the offences as

charged' and specifies the facts on which that conviction

was based;

As the court thus gave the reasons on the basis of which

it formed its conviction, it was not bound to indicate the

reasons for which it dismissed the application submitted to

it for additional evidence to be taken, considered

implicitly but clearly in its decision to be of no value in

establishing the truth;

...

... The submission, which ... does not state in what way

the Court of Appeal failed to give adequate reasons for its

decision, or indicate the defence submissions or

applications which the appellant put forward in his appeal

and which the judgment allegedly failed to answer, is

inadmissible as insufficiently specific;

...

The judgment noted that the accusations made by the

co-defendant Bosch Hernandez against Vidal had been

consistent throughout the investigation and that the

statements which he had made on numerous occasions, both

when questioned by the police and before the investigating

judge, were precise and coherent, and considered that they

were at no time improbable or incoherent, that they were, on

the contrary, highly believable and capable of sustaining

the conviction formed by the Court of Appeal and that the

appellant's allegations concerning the loan which he had

contracted were categorically denied both by Bosch Hernandez

and by another inmate, a certain Bieseman, and moreover were

in no way consistent with the fact that the document in

question was in Bosch Hernandez's possession;

Where statute, as in this case, does not lay down a

specific form of proof, the trial court assesses with

unfettered discretion the probative value of the evidence

which has been adduced before it and which the parties have

been able freely to contradict;

The judgment was therefore able, without infringing the

statutory provisions cited [by the appellant], to rely on

the statements of a co-defendant as evidence against the

appellant;

...

In addition, the submission which ... amounts to

criticising the appellate court's assessment of the facts is

inadmissible;

...

... It is not contradictory to consider that certain

statements should be treated with caution and to find that

the accusations contained in such statements were formulated

consistently throughout the investigation, that they were

made on numerous occasions, that they were precise, that at

no time did they appear improbable or incoherent and that

they were, on the contrary, highly believable and capable of

sustaining the conviction formed by the court;

... On the basis of such considerations, the judgment,

which decided that 'the [appellant] unsuccessfully alleged

in his submissions that Bosch Hernandez's statements were

improbable in numerous respects and contained

discrepancies', answered the submissions indicated in this

point of the appeal;

...

That the contested judgment did not base its decision on

an element of fact which had been mentioned by the decisions

of the investigating authorities or the trial court below

does not in itself lead to the conclusion that there has

been a violation of the statutory provisions relied on in

the appeal;

In so far as the judgment under appeal convicted the

appellant on the basis of the statements of a co-defendant

and the fact that the appellant had signed a promissory

note, it gave an adequate statement of the reasons on which

it was based and a justification in law for reaching its

decision;

..."

II. Relevant domestic law and practice

21. Under Article 154 of the Code of Criminal Procedure,

"Petty offences (contraventions) shall be proved by

official reports or, where there are no such reports, or in

support thereof, by evidence taken from witnesses.

On pain of nullity, witness evidence in addition to or

contradicting the contents of official reports or reports of

police officers empowered by law to make findings in respect

of lesser offences and petty offences, unless it is alleged

that they have been tampered with or forged, shall not be

admissible. As regards reports made by other officials and

officers whose reports are not regarded by the law as

authoritative in the absence of such an allegation, they may

be contested by written or oral evidence, if the court

considers it appropriate to admit such evidence."

This provision applies also to lesser offences (délits

correctionnels), under Article 189 of the Code.

22. "Official reports duly drawn up are evidence of the material

facts stated by the reporting officers acting within their

capacities, and in particular of the reality of the declarations

which they state have been made to them", but "this probative force

does not extend to the honesty of the declaration or the accuracy of

the facts stated to them" (Court of Cassation (Cass.),

22 January 1980, De Rijcke, Pasicrisie (Pas.), 1980, I, p. 575).

23. The above-mentioned Articles 154 and 189 "are merely

declaratory" (Cass., 18 September 1950, De Bock et De Broe, Pas.,

1951, I, p. 3). "[They are] not an exhaustive list of the means

whereby offences may be proved" and "[do] not prevent the trial

court, in cases where statute does not prescribe ... a particular

method of proof, reaching its conviction on the basis of all the

evidence in the case which has been duly admitted and which the

parties have been able to contradict" (Cass., 17 August 1978,

Segers, Pas., 1978, I, p. 1259; see also Cass., 7 May 1934, Sevrin

c. Thill, Pas., 1934, I, p. 269, and the aforementioned De Bock et

De Broe judgment). The court may thus also "have regard to items of

evidence other than official reports, other reports and the

testimony of witness" (see the above-mentioned De Bock et De Broe

judgment).

24. The court may base its conviction on presumptions, that is

to say, on what Article 1349 of the Civil Code defines as

"assumptions about an unknown fact which statute or the court makes

on the basis of a known fact", but under Article 1353 of the Code it

"can only admit presumptions which are serious, precise and

concurring".

Such presumptions may legally be admitted as evidence of an

offence and "the court need not state its reasons for considering

that the presumptions on which it bases its conviction are serious,

precise and concurring" (Cass., 25 March 1981, Gueben c. Godefroid,

Pas., 1981, I, p. 805): it has unfettered discretion to assess

whether the items of evidence mentioned by it are of such nature

(Cass., 6 May 1946, De Broyer, Pas., 1946, I, p. 171).

25. The court decides, again at its discretion, on "the

necessity or appropriateness of an investigative measure or

additional steps" (Cass., 11 March 1957, Sors et Mniszek, Pas.,

1957, I, p. 826; see also Cass., 15 April 1981, De Buck, Pas., 1981,

I, p. 919, and Cass., 6 March 1973, Neyrinck, Pas., 1973, I,

p. 624), inter alia as to the calling of witnesses (Cass.,

13 June 1907, Jolly, Pas., 1907, I, p. 273; see also the

aforementioned Neyrinck judgment).

It "is empowered to determine with unfettered discretion

whether, having regard to the evidence already received, further

witnesses for the prosecution or the defence must be heard in order

for it to form its conviction" (Cass., 26 November 1962, Thomas,

Pas., 1963, I, p. 395; see also the aforementioned De Buck

judgment). "If it refuses such a request on the grounds that it

considers the measure requested to be unnecessary for founding its

conviction, it does not violate the rights of the defence" (see the

above-mentioned Neyrinck judgment).

This rule applies on appeal as well as at first instance

(Cass., 4 March 1912, Bonus, Pas., 1912, I, p. 141; Cass.,

23 December 1912, Deckers, Pas., 1913, I, p. 42; Cass., 8 July 1940,

De Smedt c. Bultinck et consorts, Pas., 1940, I, p. 188).

26. Finally, unless statute prescribes "a particular method of

proof" (see the above-mentioned De Rijcke and Segers judgments), the

trial court "assesses in unfettered discretion the probative value

of the evidence in the case": this is a "general rule with respect

to the taking of evidence in criminal cases" (see the above-

mentioned Neyrinck judgment).

27. Under Article 211 bis of the Code of Criminal Procedure, an

appellate court may not replace an acquittal by a conviction or

impose a more severe sentence on a defendant, unless its members are

unanimous in reaching that decision.

PROCEEDINGS BEFORE THE COMMISSION

28. Mr Vidal applied to the Commission on 7 July 1986. He

complained of breaches of paragraphs 1, 2 and 3 (d) of Article 6

(art. 6-1, art. 6-2, art. 6-3-d) of the Convention, inasmuch as he

had been unable to have defence witnesses called and questioned and

had been convicted on the basis of unreliable testimony.

29. On 14 May 1990 the Commission found the latter complaint

inadmissible; on the other hand, it declared the application

(no. 12351/86) admissible as regards the former.

In its report of 14 January 1991 (Article 31) (art. 31) it

expressed the opinion, by twelve votes to one, that there had been a

violation of paragraph 1 of Article 6, in conjunction with

paragraph 3 (d) (art. 6-1, art. 6-3-d). The full text of its

opinion is reproduced as an annex to this judgment*.

_______________

* Note by the Registrar: For practical reasons this annex will

appear only with the printed version of the judgment (volume 235-B

of Series A of the Publications of the Court), but a copy of the

Commission's report is available from the registry.

_______________

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 3 (d)

(art. 6-1, art. 6-3-d)

30. Mr Vidal claimed that there had been a violation of

paragraph 1 in conjunction with paragraph 3 (d) of Article 6

(art. 6-1, art. 6-3-d), according to which:

"1. In the determination ... of any criminal charge against

him, everyone is entitled to a fair ... hearing ... by [a]

... tribunal ...

...

3. Everyone charged with a criminal offence has the

following minimum rights:

...

(d) to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him;

..."

He claimed that by failing to call the four defence

witnesses he had requested (see paragraph 19 above) the Brussels

Court of Appeal had deprived him of his only means of establishing

his innocence. Its failure to respect the equality of arms had been

more blatant in that it had based its decision solely on the

untrustworthy statements of Mr Bosch Hernandez, who had testified

before the Namur Criminal Court and the Liège Court of Appeal (see

paragraphs 14-15 above) but not before itself.

31. The Government maintained that in the present case there

were no "exceptional circumstances" which might prompt the Court to

conclude, in accordance with its own case-law (see the Bricmont v.

Belgium judgment of 7 July 1989, Series A no. 158, p. 31, para. 89),

that the failure to hear the witnesses in question had been

incompatible with Article 6 (art. 6). The Brussels Court of Appeal

had found that there were a number of items of evidence which, taken

together, were in its opinion sufficient to dispel any doubt as to

the applicant's guilt. After examining the matter it had considered

that the investigative measure requested was not necessary for

establishing the truth. Moreover, its decision had been a unanimous

one, as required by Article 211 bis of the Code of Criminal

Procedure (see paragraph 27 above), which constituted a safeguard

for the defence.

32. The Court notes that the Namur Criminal Court had acquitted

the applicant on 9 August 1984 after hearing as witnesses, apart

from himself and his co-defendant Bosch Hernandez, two prison

officers and three police officers (see paragraph 14 above). On

26 October 1984 the Liège Court of Appeal had, however, sentenced

the applicant to three years' imprisonment, suspended, on the sole

basis of the case-file and the allegations of Mr Bosch Hernandez

(see paragraph 15 above).

Once his appeal to the Court of Cassation had succeeded,

Mr Vidal requested the Brussels Court of Appeal, the court to which

the case had been remitted, to call four persons who had been

detained at Namur Prison at the time of the alleged offences,

Mr Scohy, Mr Bodart, Mr Dauphin and Mr Dausin, as defence witnesses.

This request appeared on page 26 of his counsel's submissions of

19 November 1985. On pages 3-4 and 21-23 his counsel explained in

some detail why the evidence of Mr Scohy appeared to him to be

likely to fill in certain deficiencies in the investigation (see

paragraph 19 above). He did not specify what purposes would be

served by the calling of Mr Bodart, Mr Dauphin and Mr Dausin as

witnesses, but given the context it could scarcely be doubted that

he wished them to be questioned about the rumours Mr Scohy had

spoken of to Mr Derriks on 29 August 1983 (see paragraph 11 above).

The Court of Appeal disregarded the point. On

11 December 1985, basing its decision on the earlier statements by

Mr Bosch Hernandez, who was no longer involved in the case, and the

promissory note signed by the applicant, it sentenced him to four

years' imprisonment, not suspended, in view of the "extremely

serious" nature of the offences (see paragraphs 18-19 above). On

12 February 1986 the Court of Cassation dismissed the applicant's

second appeal, based inter alia on Article 6 (art. 6) (see

paragraph 20 above).

33. As a general rule, it is for the national courts to assess

the evidence before them as well as the relevance of the evidence

which defendants seek to adduce (see, inter alia, the Barberà,

Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A

no. 146, p. 31, para. 68). More specifically, Article 6 para. 3 (d)

(art. 6-3-d) leaves it to them, again as a general rule, to assess

whether it is appropriate to call witnesses, in the "autonomous"

sense given to that word in the Convention system (see, as the most

recent authority, the Asch v. Austria judgment of 26 April 1991,

Series A no. 203, p. 10, para. 25); it "does not require the

attendance and examination of every witness on the accused's behalf:

its essential aim, as is indicated by the words 'under the same

conditions', is a full 'equality of arms' in the matter" (see the

Engel and Others v. the Netherlands judgment of 8 June 1976,

Series A no. 22, pp. 38-39, para. 91, and the above-mentioned

Bricmont v. Belgium judgment, Series A no. 158, p. 31, para. 89).

The Brussels Court of Appeal did not hear any witness, whether for

the prosecution or for the defence, before giving judgment.

The concept of "equality of arms" does not, however, exhaust

the content of paragraph 3 (d) of Article 6 (art. 6-3-d), nor that

of paragraph 1 (art. 6-1), of which this phrase represents one

application among many others (see, inter alia, the Delcourt v.

Belgium judgment of 17 January 1970, Series A no. 11, p. 15,

para. 28, and the Isgrò v. Italy judgment of 21 February 1991,

Series A no. 194-A, pp. 11-12, para. 31). The task of the European

Court is to ascertain whether the proceedings in issue, considered

as a whole, were fair as required by paragraph 1 (art. 6-1)

(see, inter alia, the Delta v. France judgment of 19 December 1990,

Series A no. 191, p. 15, para. 35).

34. The applicant had originally been acquitted after several

witnesses had been heard. When the appellate judges substituted a

conviction, they had no fresh evidence; apart from the oral

statements of the two defendants (at Liège) or the sole remaining

defendant (at Brussels), they based their decision entirely on the

documents in the case-file. Moreover, the Brussels Court of Appeal

gave no reasons for its rejection, which was merely implicit, of the

submissions requesting it to call Mr Scohy, Mr Bodart, Mr Dauphin

and Mr Dausin as witnesses.

To be sure, it is not the function of the Court to express

an opinion on the relevance of the evidence thus offered and

rejected, nor more generally on Mr Vidal's guilt or innocence, but

the complete silence of the judgment of 11 December 1985 on the

point in question is not consistent with the concept of a fair trial

which is the basis of Article 6 (art. 6). This is all the more the

case as the Brussels Court of Appeal increased the sentence which

had been passed on 26 October 1984, by substituting four years for

three years and not suspending the sentence as the Liège Court of

Appeal had done.

35. In short, the rights of the defence were restricted to such

an extent in the present case that the applicant did not have a fair

trial. There has consequently been a violation of Article 6

(art. 6).

II. APPLICATION OF ARTICLE 50 (art. 50)

36. Under Article 50 (art. 50),

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial

reparation to be made for the consequences of this decision

or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

Mr Vidal claimed compensation for damage and reimbursement

of costs and expenses. However, he invited the Court to hold that

the question of the application of Article 50 (art. 50) was not

ready for decision, in view of the possibilities which Belgian

internal law might offer for remedying the consequences of the

violation of Article 6 (art. 6), and also the possibility of an

attempt to reach a friendly settlement.

The Government disputed the applicant's claims, while the

Delegate of the Commission expressed no opinion.

37. In these circumstances the Court considers that it should

reserve the question and fix the subsequent procedure, bearing in

mind the possibility of an agreement reached between the respondent

State and the applicant (Rule 54 paras.1 and 4 of the Rules of

Court).

FOR THESE REASONS, THE COURT

1. Holds by eight votes to one that there has been a violation

of Article 6 (art. 6);

2. Holds unanimously that the question of the application of

Article 50 (art. 50) is not ready for decision;

accordingly,

(a) reserves it in whole;

(b) invites the Government and the applicant to submit to it

in writing within three months their observations on the

question and in particular to communicate to it any

agreement which they may reach;

(c) reserves the subsequent procedure and delegates to the

President of the Court power to fix the same if need be.

Done in English and in French and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 22 April 1992.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the dissenting

opinion of Mr Thór Vilhjálmsson is annexed to this judgment.

Initialled: R.R.

Initialled :M.-A.E.

DISSENTING OPINION OF JUDGE THOR VILHJALMSSON

To my regret, I am not able to agree with the Court's

finding of a violation of Article 6 (art. 6) of the Convention in

this case.

The Court has once more been called upon to consider its

role under the Convention as regards the question whether, in the

circumstances, the rules on fair trial, as well as the rules on

presentation of evidence, were respected. The taking and assessment

of evidence fall primarily within the sphere of national

legislatures and courts. In the Bricmont case our Court stated as

follows: "It is normally for the national courts to decide whether

it is necessary or advisable to call a witness. There are

exceptional circumstances which could prompt the Court to conclude

that the failure to hear a person as a witness was incompatible with

Article 6 (art. 6) ..." (judgment of 7 July 1989, Series A no. 158,

p. 31, para. 89).

When the case of the applicant was remitted to the Brussels

Court of Appeal, his defence counsel requested that four named

persons, including Mr Scohy, should be called as witnesses. The

reasons given by counsel in support of his request are set out in

paragraph 19 of the present judgment. Mr Scohy had reported to the

Deputy Director of the Namur prison that there were rumours

circulating among the inmates in a certain wing of the prison that

the applicant had in fact not supplied a revolver to a prisoner.

Counsel argued that it was necessary for Mr Scohy to appear before

the court. The purpose of calling the three other persons to give

evidence is less clear.

In my opinion, it is not the proper role of our Court to

assess whether it was necessary to call the above-mentioned persons

to give evidence. I do not think that it is of relevance in this

connection that the Brussels court gave no reasons for not hearing

the four men or that it increased the sentence imposed on the

applicant. I find no violation of Article 6 (art. 6) in this case.