Da Luz Domingues Ferreira v Belgium - 50049/99 [2009] ECHR 2216 (3 December 2009)

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The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment, transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns a breach of the right to a fair trail on account of the refusal by a court of appeal to reopen proceedings which had taken place in the absence of the accused, although there were unequivocal elements showing that the accused wished to use his right to appear in court (violation of article6, paragraph 1 of the Convention) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee's Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

The case concerns a violation of the right to a fair trial (violation of Article 6, paragraph 1) on account of an appeal court's refusal to reopen proceedings which had taken place in the absence of the accused despite clear indications that the accused wished to avail himself of his right to appear in court.

The applicant was convicted in February 1994 of incitement to immorality, procuring, drug trafficking, threatening behaviour and theft, and sentenced to four years' imprisonment, increased to six years by the Liège Court of Appeal in June 1994. He was then denied the right to apply to have his conviction set aside.

The European Court held that the finding of a violation constituted in itself sufficient just satisfaction for the alleged damage. In reply to a request of the applicant, the Court indicated that it was not competent to ask the Belgian state to undertake that the applicant would not have to serve the six-year sentence imposed by the Liège appeal court.

At the stage of the execution of the European Court's judgment, the applicant requested and obtained the reopening of the proceedings at issue (judgment of the Cour de cassation of 09/04/2008), under the new law on reopening of judicial proceedings which entered into force on 01/12/2007 (see also the Göktepe case, Final Resolution CM/ResDH(2009)65). The case has been sent back to the Mons Court of Appeal, to be ruled upon anew.

The European Court noted that the applicant had twice applied to have his conviction set aside (in August 1994 and September 1998) and that in both cases his application was declared inadmissible, in the first instance because he had not respected the formalities, and in the second case for failure to respect the time limit. The Court acknowledged the importance of respecting rules for lodging appeal but considered that in a case such as this the rules, or their application, should not prevent an applicant from making use of an available remedy.

In order to avoid similar cases, the European Court's judgment was published without delay on the internet sites of the Ministry of Justice and the Cour de cassation so that the European Court's conclusions could be taken into account in practice.

Subsequently, on 18 June 2008, the College of Prosecutors General sent out a circular letter (No. COL 5/2008), giving an “order on the notification of his or her rights to a person convicted in absentia, detained or not, located within the Kingdom or abroad”.

According to this order, when the public prosecution requests bailiffs (huissiers), prison directors or any other person given such power by law, to notify a decision of conviction in absentia, it shall now instruct them to include, in the notification document, all the necessary elements to request that the conviction be set aside, as prescribed by law. A similar instruction shall be given in cases where an arrest warrant is given, or to the prison director if the person convicted in absentia is detained.

If the convicted person lives abroad, a notification along the same lines is also possible, as normally the notification is made by letter. If need be, the notification may also be made through the appropriate foreign judicial authorities.

As a uniform procedure is necessary, one single document indicating the person's rights shall be used everywhere. The use of this document is mandatory for huissiers and prison directors without dissertation.

Now, a standard document (appended to the order) shall be used to notify every decision or judgment delivered in absentia.

Finally, information on the procedure to follow to request that a conviction in absentia be set aside and on the rights of the person concerned will also be included in the European arrest warrant, in the section “legal guarantees”.

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Belgium has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

1 Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies

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You are here: BAILII >> Databases >> European Court of Human Rights >> Da Luz Domingues Ferreira v Belgium - 50049/99 [2009] ECHR 2216 (3 December 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/2216.html Cite as: [2009] ECHR 2216