Mensenrechtenhof doet uitspraak over oud-Navo topman Willy Claes (en)

 

The European Court of Human Rights has today notified in writing a judgment in the case [1] of Claes and Others v. Belgium (application nos. 46825/99, 47132/99, 47502/99, 49010/99, 49104/99, 49195/99 and 49716/99).

The Court held unanimously that there had been:

no violation of Article 6 (right to a fair trial) of the European Convention on Human Rights in respect of Mr Claes and Mr Coëme;

a violation of Article 6 § 1 of the Convention in respect of Mr Dassault, Mr Wallyn, Mr Puelinckx, Mr Hermanus and Mr Delanghe on account of the Court of Cassation's jurisdiction being extended by virtue of the rule on connected offences;

no violation of Article 6 § 2 (presumption of innocence) in respect of Mr Puelinckx.

The Court held that unless it granted the applicants' request for a retrial or for the proceedings to be reopened, Belgium was to pay Mr Puelinckx, Mr Wallyn and Mr Delanghe 7,500 euros (EUR) for non-pecuniary damage and EUR 8,000 for costs and expenses.

(The judgment is available only in French.)

• 1. 

  Principal facts

The applicants are six Belgian nationals and one French national who were prosecuted for offences concerning the award of public procurement contracts in the "Agusta-Dassault affair".

They are Willy Claes, the former Secretary General of NATO and a former minister, who was born in 1938 and lives in Hasselt (Belgium); Guy Coëme, a former minister and member of the Belgian House of Representatives, who was born in 1946 and lives in Waremme (Belgium); Alfons Puelinckx, who was born in 1937 and lives in Grimbergen (Belgium); Luc Wallyn, who was born in 1938 and lives in Brussels; Auguste Merry Hermanus, who was born in 1944 and lives in Brussels; Johan Delanghe who was born in 1945 and lives in Koksijde (Belgium); and Serge Dassault who was born in 1925 and lives in Paris.

Criminal proceedings were brought against Mr Coëme for corruption in respect of a contract to supply helicopters to the Belgian Army. It was alleged that in 1988 he had given preference to a tender by an Italian company, in exchange for a payment to the Socialist Party. Mr Claes likewise faced a charge of corruption, it being alleged in his case that in 1989 he had facilitated the award of a contract for electronic counter-measure systems intended to equip Belgian Air Force jets in exchange for the payment of a commission to the Socialist Party and the Socialistische Partij.

The other applicants were also summoned to appear before the Court of Cassation on the grounds that the offences were connected.

In a judgment of 23 December 1998 the Court of Cassation convicted Mr Claes for having twice given preference to a tender in order to gain a financial benefit for a party of which he was one of the main leaders. It gave him a three-year suspended prison sentence and Mr Coëme a two-year suspended prison sentence. The Court of Cassation also handed down a two-year suspended sentence to Mr Puelinckx. Mr Wallyn, Mr Hermanue and Mr Delanghe each received two-year sentences, which were suspended to the extent that they exceeded the period they had spent in pre-trial detention. The Court of Cassation imposed an 18-month suspended sentence on Mr Dassault and ordered the confiscation of 51,331,981 Belgian francs (BEF) and 10,000,000 French francs (FRF).

• 2. 

  Procedure and composition of the Court

The applications were lodged with the European Court of Human Rights on 5 March, 8 March, 20 January, 19 June, 23 June, 24 June and 6 April 1999 respectively. The Court decided to join the cases and declared them partly admissible on 11 December 2003.

Judgment was given by a Chamber of 7 judges, composed as follows:

Christos Rozakis (Greek), President,

Loukis Loucaides (Cypriot),

Françoise Tulkens (Belgian),

Peer Lorenzen (Danish),

Nina Vajić (Croatian),

Anatoli Kovler (Russian),

Elisabeth Steiner (Austrian), judges,

and also Soren Nielsen, Section Registrar.

• 3. 

  Summary of the judgment [2]

Complaints

The applicants' complaints concerned Belgian criminal proceedings in which the Court of Cassation had sat as the trial court in accordance with Article 103 of the Constitution on the ground that two of the applicants, Mr Claes and Mr Coëme, were government ministers at the time the alleged offences took place. The applicants submitted, in particular, that owing to the absence of a statutory provision implementing Article 103 of the Constitution the Court of Cassation had not determined the criminal charges against them on the basis of sufficiently accessible and foreseeable legal rules in accordance with a previously established procedure.

All the applicants apart from Mr Claes and Mr Coëme complained that, owing to the decision to join the proceedings on the ground that the cases were connected, they had had to answer the charges in the Court of Cassation, despite the fact that they had never held ministerial office.

Mr Puelinckx also complained of the conduct of the media, which he claimed had been able to publish images that conveyed the impression that he was guilty, owing to negligence on the part of prison escort staff while he was being transferred.

The applicants relied on Article 6 § 1 (right to a fair trial), Article 6 § 2 (presumption of innocence) and Article 14 (prohibition of discrimination). Mr Delanghe also alleged a violation of Article 6 § 3 (b) (right to adequate time and facilities for the preparation of the defence).

Decision of the Court

Articles 6 and 14 of the Convention

Mr Claes and Mr Coëme

The Court noted that most of the issues now before it had previously been raised in connection with the procedure followed in the "Inusop case", in respect of which an application had been lodged and a judgment delivered in the case of Coëme and Others. Those issues had been resolved by the competent authorities, and in particular the Court of Cassation in 1996, in decisions that had created a judicial precedent. Accordingly, Mr Claes and Mr Coëme had been able, at least through their lawyer or with the help of his professional advice, to take advantage of the clarification of the law by the courts throughout the Inusop trial.

In those circumstances, there was nothing to show that the applicants had been at a disadvantage vis-a-vis the public prosecutor owing to their ignorance of the procedure, or that they had not enjoyed equality of arms.

The Court did not find any appearance of a violation of Article 6 § 2 either and accordingly held that there had been no violation of Article 6 of the Convention.

The other five applicants

The Court reiterated that in its Coëme and Others judgment it had found that although Article 103 of the Constitution allowed ministers to be tried by the Court of Cassation in exceptional circumstances, there was no provision that enabled that provision to be used to allow it to try persons for connected offences if they had never held ministerial office.

In the absence of any statutory provision governing connected offences, the Court found that the Court of Cassation did not in the case before it constitute a tribunal "established by law" within the meaning of Article 6 with jurisdiction to try the other five applicants. It therefore held that there had been a violation of Article 6 § 1 of the Convention. In the light of that conclusion, the Court considered it unnecessary to examine the complaints under Articles 6 and 14 taken together.

Article 6 § 2 of the Convention

The Court noted that Mr Puelinckx had not complained of any direct failure by the public authorities to comply with the presumption of innocence. His argument was that the principle had been infringed indirectly in that the authorities had through their actions encouraged a hostile campaign in the press, in particular by allowing him to been seen wearing handcuffs or surrounded by gendarmes, as testified by the film he had lodged with the Court.

The images that had been filmed of Mr Puelinckx's transfer did not reveal any objective evidence of misconduct on the part of the prison escort staff or of their having facilitated the taking of potentially damaging pictures or assisted a hostile press campaign. The Court further found that it had not been established that the press had had any influence whatsoever on the judicial outcome of the proceedings.

In those circumstances, the Court held that there had been no violation of Article 6 § 2.

Judges Rozakis and Vajić expressed partly concurring opinions, which are annexed to the judgment.

***

The Court's judgments are accessible on its Internet site ( http://www.echr.coe.int ).

Registry of the European Court of Human Rights

F - 67075 Strasbourg Cedex

Press contacts: Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)

Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)

Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)

Fax: +00 33 (0)3 88 41 27 91

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments. More detailed information about the Court and its activities can be found on its Internet site.

[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] This summary by the judgment does not bind the Court.