CASE OF LAMY v. BELGIUM
Violation of Art. 5-4;No violation of Art. 5-2 and 5-3;Not necessary to examine Art. 6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
C. Russo;J.A. Carrillo Salcedo
8. Mr José Lamy is a Belgian citizen who was born in 1932; he lives at Verviers and is a company director. On 29 November 1982, a private limited company ("société de personnes à responsabilité limitée - "SPRL Lamy") of which he was the manager and which built industrial premises filed a declaration of insolvency with the registry of the Verviers Commercial Court, and the court adjudged the company bankrupt on the same day. 9. On 18 February 1983, an investigating judge of the Verviers tribunal de première instance (regional court of first instance) questioned Mr Lamy and issued a warrant for his arrest. The warrant set out several grounds: the seriousness of the offences and of the adverse effects on public order and safety; the scale of the bankrupt company’s liabilities (more than 500 million BF); the needs of the investigation; the accused’s deliberate and unmistakable attempts to deprive the creditors of their security; his expenditure; and the risk of his absconding abroad. On the back of the warrant the charges listed against the applicant were: "I. That, being the majority partner in SPRL Lamy at Ensival-Verviers, which was adjudged bankrupt by the Verviers Commercial Court on 29.11.1982, and himself a trader adjudged personally bankrupt by the same court on 30.12.1982, he did at Verviers, Pepinster or elsewhere in the district or Kingdom, within the limitation period, commit: (a) ... fraudulent bankruptcy by, among other things: 1. misappropriating or concealing assets worth over 10,000,000 F; and 2. withholding his books or other accounting documents or fraudulently removing, deleting or altering their content; (b) ... ordinary bankruptcy by, among other things: 1. incurring excessive personal and household expenditure; 2. not giving notice of cessation of payments within the time-limit prescribed in Article 440 of the Commercial Code; 3. failing, in the late notice, to give the explanations and accurate information required by Article 441 of the Commercial Code; 4. paying or favouring some creditors to the detriment of the creditors as a whole, after cessation of payments. II. That as principal, joint principal or accessory, at Verviers or elsewhere in the Kingdom between 1.1.1980 and this day, he did on several occasions fraudulently or maliciously: (a) forge notarised and public documents, private documents and bank or commercial documents by means of false signatures, or by forging or altering documents or signatures, or by fabricating or inserting terms, provisions, obligations or discharges in documents, or by adding or altering clauses, statements or facts which it was the purpose of the documents to set out and record, in that he inter alia: (i) submitted a false balance sheet on 29.11.1982; (ii) kept a separate set of false accounts of his business with Algeria and Libya among others; (b) use these documents knowing them to be false; (c) fraudulently misappropriate or, to the the detriment of another, part with bills of exchange, money, merchandise, promissory notes, receipts or documents which he had been given on condition he returned them or used them for specific purposes, in particular: (i) 789,000 F due in VAT and, (ii) over 10,000,000 F to the detriment of SPRL Lamy (sale of civil-engineering equipment); (d) obtain, in order to appropriate property of another, funds, movables, obligations, receipts or discharges, by using assumed names or false status or making other false pretences to induce belief in the existence of fictitious businesses, powers or credit, engender hope or apprehension of success, or otherwise deceive in order more particularly to: (i) obtain 1,801,429 F from the VAT authority to the detriment of SPRL Lamy. III. That at Verviers or elsewhere in the Kingdom between 14 January 1974 and this day, being a trader, he did carry on a professional activity for which he was not registered in the Business Register." After receiving a copy of the warrant, Mr Lamy was taken into custody at the remand prison at Verviers. 10. On 22 February 1983, the applicant, assisted by his lawyer, appeared before the chambre du conseil of the Verviers tribunal de première instance. His counsel filed pleadings in which he disputed in particular that there were "serious and exceptional circumstances" within the meaning of section 2 of the Act of 10 April 1874 (see paragraph 23 below). He also handed over a file concerning, inter alia, the proceedings relating to the applicant’s personal bankruptcy (see paragraph 17 below). 11. After hearing the investigating judge, Assistant Crown Counsel and the defence, the chambre du conseil upheld the arrest warrant. It accepted the reasons given in the warrant and held that the interests of public safety required that the applicant should continue to be held in custody. 12. On 23 February 1983, Mr Lamy challenged the chambre du conseil’s order in the Indictments Chamber of the Liège Court of Appeal. He argued that no reasons were given for the order, the circumstances noted by the chambre du conseil were not such as to justify his detention, and the warrant of 18 February was unlawful as it did not bear any signature and was wrongly dated (18 March 1983). The prosecution filed pleadings on 28 February 1983. 13. On 10 March 1983, the Indictments Chamber set aside the order on grounds of failure to reply to the applicant’s submissions. At the same time, however, it decided that the arrest warrant should remain in force. As regards whether there was sufficient evidence of guilt and of serious and exceptional circumstances relating to public safety, the Indictments Chamber founded its judgment on the following reasons: "It is to be noted that even in his own account of the state of the firm’s affairs, given in the form of submissions, the accused conceded that the balance sheet of 29 November 1982 was inaccurate, although he denied any fraudulent intent and stated that after verification of sums owed to the firm its liabilities came to 220 million francs, against which he set primarily the expected outcome of a hypothetical action against a third party, whose value he said could ‘reasonably’ be put at 300 million francs; Account must be taken of his admissions concerning the irregular transactions referred to in report 317 of the Verviers police and in the record of his examination by the investigating judge on 18 February 1983, corroborated by the admissions of the co-accused Jungbluth, in police report 292, although the accused now denies their extent; The foregoing provides sufficient evidence of guilt to justify the impugned arrest warrant, given the extremely large sums involved, the needs of the investigation, which the accused disputed to no avail, and the risk of his attempting to evade justice despite his protestations of good faith and the good intentions he professes - all considerations which are set out in the warrant appealed against, which are serious and exceptional, and which required his arrest in the interests of public safety." As to the alleged unlawfulness of the warrant, the Indictments Chamber noted, in the first place, that the copy given to the applicant mentioned that the original identified the investigating judge and was signed by him. The court added: "It [could] not be seriously questioned ... that the copy given to the [applicant] bore the date 18 March 1983 instead of 18 February 1983 purely as a result of a clerical error of no consequence". The court concluded that these circumstances in no way made the arrest arbitrary and could not have prejudiced the rights of the defence. 14. Mr Lamy appealed on points of law to the Court of Cassation on 11 March 1983, putting forward three grounds. Firstly, he maintained that mandatory formal requirements had not been complied with, as the arrest warrant was unsigned and the attached order committing him to prison bore the date 18 March 1983. Additionally, he considered the reasoning of the Indictments Chamber’s judgment to be unclear and contradictory. Lastly, he stated that the Indictments Chamber had relied on reports 292 and 317 of the Verviers police - documents that had not been communicated to the accused; in this connection he relied on Article 6 paras. 1 and 3 (art. 6-1, art. 6-3) of the Convention. 15. The Court of Cassation dismissed the appeal on 4 May 1983. As regards the first ground of appeal, it noted that the formalities provided for in the Code of Criminal Procedure for serving an arrest warrant were not mandatory and that failure to comply with them did not entail nullity. It reiterated the Indictments Chamber’s remarks as to the lack of a signature and the error in the date and concluded that there had been no infringement of the rights of the defence or of the principle of personal liberty. With respect to the second ground of appeal, the Court of Cassation held that the reasons given for the judgment appealed against were neither unclear nor contradictory, as the judgment was based not only on the applicant’s admissions concerning the irregular transactions referred to in reports 292 and 317 but also on the extremely large sums involved, the needs of the investigation and the risk that the accused might try to evade justice. The Indictments Chamber inferred from this that there were serious and exceptional circumstances affecting public safety. As to the third ground, the Court of Cassation held that Article 6 (art. 6) of the Convention was concerned with the exercise of the rights of the defence in trial courts and not with procedure followed in the matter of detention on remand. Furthermore, the 1874 Act precluded communication of the file to the accused or his counsel at this stage in the proceedings; this was apparent from section 4, taken together with the final paragraph of section 5. The Indictments Chamber had accordingly not been able to "conclude from the non-communication of the file that there had been any infringement of the rights of the defence". 16. The chambre du conseil made reasoned orders extending Mr Lamy’s detention on remand month by month (section 5, second paragraph, of the 1874 Act - see paragraph 23 below). The applicant regained his freedom on 18 August 1983 as the vacation court, exercising the jurisdiction of the Indictments Chamber, took the view that the needs of the investigation no longer precluded his release. 17. On 24 December 1982, on an application by the trustees in bankruptcy for SPRL Lamy, the Verviers Commercial Court adjudged the applicant personally bankrupt. An application by Mr Lamy to have that judgment set aside was dismissed by the Commercial Court on 24 March 1983, but on appeal the Liège Court of Appeal, in a judgment delivered on 24 April 1985, quashed the judgment of 24 March 1983 and declared the judgment of 24 December 1982 to be null and void. 18. On 28 March 1986, the chambre du conseil of the Verviers tribunal de première instance committed Mr Lamy and five co-defendants for trial at the Criminal Court. 19. An application by Mr Lamy to have that order set aside was declared inadmissible by the Indictments Chamber in a judgment given on 10 December 1986. 20. Mr Lamy’s appeal on points of law against that judgment was dismissed by the Court of Cassation on 4 February 1987. 21. Throughout the proceedings relating to the committal for trial, the applicant pleaded various grounds of nullity. He argued in particular that his counsel had not been able to inspect the file when the arrest warrant was first confirmed by the chambre du conseil and had subsequently had only forty-eight hours’ notice of each appearance, which was not sufficient for preparing the defence. 22. On 12 November 1987, the Verviers Criminal Court convicted the defendant and sentenced him to three years’ imprisonment, suspended for five years in respect of that part of the sentence which exceeded the time already spent in custody on remand, and imposed two fines of 60,000 BF. Unlike his co-defendants, Mr Lamy did not appeal. 23. Detention on remand is governed by an Act of 20 April 1874, as amended or supplemented by, inter alia, Acts of 23 August 1919 and 13 March 1973. The main provisions relevant in the instant case are set out below: "After the examination, the investigating judge may issue an arrest warrant where the offence is punishable by three months’ imprisonment or a heavier penalty. If the accused is resident in Belgium, the investigating judge may issue such a warrant only in serious and exceptional circumstances, where necessary in the interests of public safety. ..." "In the eventuality provided for in paragraph 2 of section 1, the warrant shall state the serious and exceptional circumstances affecting public safety which justify arrest and shall specify the special features of the case or of the accused’s personality." "Immediately after the first interview with the investigating judge, the accused shall be allowed to communicate freely with his counsel. ..." "The arrest warrant shall expire unless, within the five days following the examination, the chambre du conseil renews it on the basis of the investigating judge’s report and after hearing submissions by Crown Counsel and the accused. If the accused, who shall be asked specifically about his wishes in the matter, desires the assistance of a lawyer, that fact shall be mentioned in the record of his examination by the investigating judge. In that event, the presiding judge of the chambre du conseil dealing with the case shall cause the place, date and time of the hearing to be entered in a special register at the registry at least forty-eight hours beforehand. The registrar shall notify these details by registered letter to the lawyer nominated." "If, within one month after the examination by the investigating judge, the chambre du conseil has not given a ruling on the remand, the accused shall be released unless, in a unanimous reasoned decision, after hearing submissions by Crown Counsel and the accused or his lawyer, the chambre du conseil rules that serious and exceptional circumstances affecting public safety necessitate the accused’s further remand. Such a decision shall state the relevant circumstances and the special features of the case or of the accused’s personality. The same shall apply each month thereafter if the chambre du conseil has not ruled on the remand by the end of the month. Prior to a hearing by the chambre du conseil or the Indictments Chamber, the file shall be made available to the accused’s lawyer at the registry for two days. The registrar shall notify the lawyer accordingly by registered letter." "The accused and the prosecution may appeal to the Indictments Chamber against decisions of the chambre du conseil in the cases provided for in sections 4, 5...." "Such an appeal shall be entered within the twenty-four hours following the day of the decision in the case of the prosecution and following the day on which the decision was served on him in the case of the accused. Service shall be effected within twenty-four hours. The relevant document shall advise the accused of his right of appeal and of the time-limit for exercising that right. Notice of appeal shall be lodged with the registry of the Criminal Court and recorded in the register of criminal appeals. Crown Counsel shall forward the documents to Principal Crown Counsel. Notifications to the accused’s lawyer shall be made by the Registrar. The Indictments Chamber shall give a ruling straightaway after hearing submissions by the prosecution and the accused or his lawyer. ..." 24. It should be noted that section 4 does not contain any provision corresponding to the last paragraph of section 5, which was inserted by the Act of 23 August 1919.