CASE OF LHERMITTE v. BELGIUM
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Aleš Pejchal;András Sajó;Angelika Nußberger;Armen Harutyunyan;Branko Lubarda;Guido Raimondi;Helen Keller;Helena Jäderblom;Jon Fridrik Kjølbro;Julia Laffranque;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström;Vincent A. De Gaetano;Yonko Grozev;Gabriele Kucsko-Stadlmayer;Georges Ravarani
9. The applicant was born in 1966. She is currently detained in Forest-Berkendael Prison. 10. On 22 September 1990 the applicant married B.M., whom she divorced after the events to which the application relates. According to her explanations, since 1983 B.M. had been living with Dr M.S., a man fifteen years his elder, who had taken him in following B.M.’s arrival from Morocco, providing him with a home and paying for his studies. 11. The applicant and her husband had five children. In 1992, shortly after the birth of her first child, the applicant began suffering from depression and stopped working as a French and history teacher, only returning for a few months in 1993. Dr M.S. certified her unfit for work on account of depression and asthenia. Subsequently, her insurance company’s medical adviser confirmed that she was unfit for work on account of depression. In October 1996 a report by a court-appointed psychiatrist, which was later endorsed by the Employment Tribunal, diagnosed her as suffering from “recurrent endogenous anxiety and depression, with a slightly destabilised basic personality”, rendering her more than 66% unfit for work. The expert concluded as follows: “... social contact feeds a sense of persecution and interpretative paranoia. The patient is socially withdrawn and has a tendency to retreat into herself. When faced with anxiety-inducing situations, the patient regresses emotionally, retreats into herself and takes refuge in passive-receptive and hypochondriac behaviour. On account of her intrinsic sensitivity, her anxiety may be combined with reactive depression. To conclude, we are confronted with a fragile, sensitive and anxious personality, with feelings of abandonment and phobic and obsessional components, who is likely, in situations of anxiety, to regress emotionally, to withdraw into herself and to develop various manifestations of anxiety, persecution and depression.” 12. The applicant and B.M. lived in a house which had been bought in their name but paid for by Dr M.S. The applicant’s husband worked part-time as Dr M.S.’s administrative assistant. 13. On 25 June 2004, on the recommendation of Dr M.S., who was her general practitioner, the applicant consulted a psychiatrist, D.V., who prescribed an antidepressant, sleeping tablets and anti-anxiety medication. Dr D.V., who had suggested that the applicant undergo psychiatric monitoring, saw her again on 4 February 2005, among other occasions, and wrote to M.S. recommending that he prescribe her a new antidepressant, as well as sleeping tablets and anti-anxiety medication. The applicant consulted D.V. once a month between February 2005 and the summer of 2006. The latter noted that the applicant appeared to be “always very tense and suffering from nervous exhaustion, constituting all the hallmarks of rumination” and that she showed “symptoms of social withdrawal and abnormal exhaustion during household tasks”. In the spring of 2006 the applicant reported to D.V. that she felt isolated from her own family. From September 2006 she saw him every three weeks. In December 2006 D.V. successively prescribed the applicant two types of sleeping tablets. On 12 January 2007 she linked her exhaustion to the fact that she could not bear Dr M.S.’s presence, and on that occasion D.V. noted “a feeling of dependence” on M.S. financially, “a feeling of insecurity” and “a feeling towards that person [M.S.] which was one of intrusion, of having an unwelcome person under her roof, and also a great deal of ambivalence”. 14. Dr D.V. saw the applicant again on 30 January and 9 and 13 February 2007. On the last-mentioned date the applicant wrote him a letter, which read: “Doctor, I don’t feel very well when I wake up, I have trouble getting out of bed and I have stomach cramps. I have to get up though because I have diarrhoea every morning. I have this big knot. The whole of my left arm is frozen. I feel so sad, deeply sad. I can no longer manage a coffee in the morning. I feel very weak and lacking energy. I am afraid all the time. I am afraid of myself. I am afraid of the future. When I walk down the street, I am afraid. I don’t have the courage. I don’t know where to find the courage and I am tired of it all. I don’t want to believe in a better future. I am at a dead end. I have been to a shop. I went to see if they had a very sharp meat knife. I don’t know how I am going to tell my husband all this, that I don’t feel well and that I have always kept it hidden that I felt so bad about myself and in my head and that I was taking medication. Please do something for me. I am being crushed by a mass of bad feelings. I have never felt so vulnerable. I feel unwell during the night. I often wake up and think. Ms Lhermitte ...” 15. In February 2007 the applicant mentioned sharp knives to D.V. on one or two occasions. D.V. interpreted this as “an impulse phobia”. He saw her again on Friday 23 February 2007, noting that the applicant remained “extremely preoccupied as well, in the absence of her husband who [had] gone to Morocco again, and [found] herself having to deal alone with her uneasy feelings towards [M.S.]”. 16. Early in the morning of 27 February 2007, the day before the incident, the applicant went to Dr D.V.’s practice and delivered a second letter which she had just written. The letter read as follows: “Dr [V.], you don’t have much time. I have not felt well these last few days. I’m having dark thoughts. They are suicidal thoughts which are going to carry me away and I will take my children with me. It’s a daily struggle. My friend [V.G.] is supporting me. There is no solution to my problem. I feel walled up. I feel like a prisoner. I no longer have the strength. I don’t think my husband will save me because whichever way you look at it, he is in a favourable position. He is coming home tomorrow evening but I can’t tell him of all my pain and distress. The family situation cannot be turned around. I have already had suicidal thoughts in the past. I imagine scenarios which are both true and realistic and I know I am capable. This is not a game. Sorry to take up your time! Ms Lhermitte ...” 17. Later that day, in the early afternoon, the applicant telephoned Dr D.V.’s practice to check that her letter had actually been received. 18. The applicant’s letters addressed to Dr D.V. dated 13 and 27 February 2007 were not included in the file on the criminal investigation. D.V. later indicated that they had not formed part of the applicant’s medical records. 19. On 28 February 2007 the applicant left a final letter, together with a bag of jewellery, in the letterbox of her friend and confidante V.G. The letter read as follows: “My dear friend [V.], I have cut off my phone and I am now starting to write this letter. I hope you will not be shocked by what I’m going to write. You must show it to [Dr D.V.] who will be at Érasme [hospital] on Friday morning at 9. He will be able to help you and explain what you explained to me so kindly when you came to my house. I don’t have the courage to get things moving and I am completely frozen and paralysed with fear because there is no solution to my problem. You have always opened your door to me and my children and have been a ray of sunshine in our life, and I will thank you forever. I have decided to go a long way away with the children forever. One day, you’ll see, we’ll meet again but I don’t regret this final solution. Please let my sister Mireille ... and my other sister Catherine ... know. Please forgive me. I beg my sisters to forgive me if I have hurt them. I can no longer bear this situation, because my husband is blind and deaf and despite that, he is happy in this situation. [M.S.] is a bastard who has ruined my life and robbed me of my privacy with my husband and children. I left the hell of my parents’ home only to fall into another hell. ...” 20. The applicant ended her letter by asking her friend to share her jewellery with her two sisters. She also left a voicemail message on V.G.’s mobile phone – in a voice which the investigating officers later described as “trembling” and “hesitant” – telling V.G. that she had left a letter and a present in her letterbox and asking to be “forgiven”, before saying “goodbye”. 21. Afterwards, using two knives which she had stolen from a department store, the applicant killed her five children one by one before attempting suicide. 22. After writing the message “call the police” on a sheet of paper stuck to her front door, she telephoned the emergency services to say that she had killed her five children and to report her suicide attempt. When the police, the ambulance crew and the medical services arrived at the scene, they found the applicant, who was injured, and the bodies of the five children with their throats slit. 23. When the applicant was admitted to the intensive-care unit on the day of the incident, the doctor treating her noted “depressive, self-destructive thoughts against a background of psychotropic, anti-anxiety and antidepressant medication”. During her initial police interview, the applicant had explained that she had acted in a fit of despair caused by her family’s dependence on Dr M.S. 24. On 1 March 2007 an investigating judge at the Nivelles Court of First Instance charged the applicant with the intentional and premeditated homicide of her five children. The applicant was also placed in pre-trial detention. 25. Forensic medical reports produced between 12 March and 31 December 2007 concluded that the five homicides had been committed in a relatively short time – about ten minutes in each case – and that, in view of the speed at which the events had occurred, they were the result of a preconceived plan. In addition, toxicological analyses carried out on blood samples taken from the applicant confirmed that she had only been taking a combination of anti-anxiety medication and sleeping tablets, the plasma levels detected being described as subtherapeutic – in other words, very low. 26. The investigating judge ordered several psychological reports. Two psychologists examined the applicant and submitted their respective reports on 30 October and 8 November 2007. They both concluded that the applicant was suffering from inner fragility requiring massive, rigid defences to preserve a perfect facade. She had developed a maternal omnipotence and a lack of psychological distance between the children and herself. Thus, by killing her children – love-objects in whom she had over-invested – the applicant was killing herself both as a person and as a mother. 27. A psychiatric assessment was also ordered by the investigating judge, who appointed a panel of three psychiatrists, Drs G., B. and M. The panel of experts examined the applicant and drew up a report dated 30 October 2007, in which they concluded: “We consider that [the applicant] was in a severe state of anxiety and depression which encouraged her to act as she did and profoundly impaired her judgment, without destroying it altogether. ... The accused was not suffering at the time of the events, and is not currently suffering, from a mental disorder or a severe mental disturbance or defect making her incapable of controlling her actions.” 28. In an order of 17 June 2008 the Indictments Division (chambre des mises en accusation) of the Brussels Court of Appeal, upholding an order made by the investigating judge on 19 May 2008, committed the applicant to stand trial in the Assize Court for the following offence: “... in Nivelles, on 28 February 2007, having knowingly, intentionally and with premeditation, killed the following persons: - [Y.M.], born on 13 August 1992; - [N.M.], born on 13 February 1995; - [My.M.], born on 20 April 1997; - [Mi.M.], born on 20 May 1999; - and [Me.M.], born on 9 August 2003.” 29. The indictment of 19 October 2008, drawn up by the Principal Public Prosecutor, ran to fifty-one pages and gave an account of the precise sequence of events, the steps taken and evidence obtained during the investigation, and the forensic medical reports; a substantial part of it also focused on the applicant’s personal history and family life and the motives and reasons that had prompted her to carry out the killings, particularly in the light of the expert assessments of her psychological and mental state. 30. The applicant’s trial took place in the Assize Court of the province of Walloon Brabant from 8 to 19 December 2008. At the start of the trial the indictment was read out by the Advocate-General representing the prosecution, and the nature of the offence forming the basis of the charge and any circumstances that might aggravate or mitigate the sentence were likewise indicated. 31. While giving testimony during the trial in the Assize Court, Dr D.V. mentioned the existence of the two letters dated 13 and 27 February 2007 which the applicant had addressed to him. He produced them in court, thus disclosing them for the first time in the proceedings. In view of this new evidence, the President of the Assize Court duly instructed the panel of three psychiatrists, G., B. and M., who had already been involved at the investigation stage and had already confirmed their findings orally before the Assize Court, to produce a further report. 32. On 14 December 2008 the panel of three psychiatrists adopted a report in which they expressed a unanimous opinion. They began by noting by way of introduction: “[The first question, concerning the applicant’s ability to control her actions at the time of the events and at present] is regularly the most difficult and controversial because of the ‘all or nothing’ nature of the answer that has to be given regarding inability to control one’s actions, so much so that some psychiatrists have for that reason declined to produce expert reports in criminal cases. A total loss of control over one’s actions is absolutely clear only in certain cases, such as delusional psychosis (‘dementia’). In other cases, it is more debatable and the personal conviction of the experts will be influenced by the presence of certain indicators. Their conclusions, in concise form, must give precise answers to the questions set out in the instructions. These answers reflect the experts’ personal conviction after carrying out the various written procedures. They are only ever an informed opinion, and not an absolute scientific truth.” The experts went on to make the following findings in particular: “The letter of 13 February [2007] suggests all the signs of melancholic major depression. ... These melancholic states are grounds for emergency hospital admission, or observation, where necessary. ... In the second letter, although in terms of content she unequivocally expresses her anxiety in relation to a suicide where ‘I will take my children with me, because there is no longer any future’, in terms of meaning she is clearly asking for help, apparently foreseeing her inability to control her future actions. ... These documents thus demonstrate beyond doubt that Ms Lhermitte no longer felt capable of controlling her actions ... it has always been clear that there was mental disturbance ... new evidence [warrants] the firm conviction that at the time of the events, Ms Lhermitte was incapable of controlling her actions on account of a severe mental disturbance. ... Ms Lhermitte developed a severe state of anxiety and depression ... [and] a transient dissociative state of depersonalisation, causing her to perform acts of extreme violence. Only operational thought remains; reflective consciousness is momentarily lost. ... Currently ... she remains fragile and there is still a chance, particularly because mourning is impossible, that she will experience a further episode of mental disturbance making her incapable of controlling her actions: the possibility remains that she may attempt suicide ...