SIMONS v. BELGIUM
Inadmissible
1. The applicant, Ms Carine Simons, is a Belgian national who was born in 1967 and lives in Ougree. She was represented before the Court by Mr M. Neve, Mrs S. Berbuto and Mrs E. Berthe, lawyers practising in Liège. The Belgian Government (“the Government”) were represented by their Agent, Mr Marc Tysebaert, General Counsel, Federal Public Department of Justice. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 13 March 2010 the Liège police were informed that a man had been stabbed with a knife. At the scene, the applicant told the police officers that the victim was her partner and that she herself had inflicted the wounds. The officers found a trail of blood leading to her home, where they discovered other traces of blood and a blood-stained kitchen knife. 4. The applicant was arrested that same day at 4 p.m. She was interviewed by investigators between 11.59 p.m. and 2.32 a.m. as a “suspect”. She was not assisted by a lawyer and – she alleged – was not informed beforehand of her right to remain silent, but her rights as provided in the “Franchimont Act” of 12 March 1998 were read to her prior to the interview. She was thus informed that her statements could be used in evidence, that she was entitled to ask for a verbatim record to be made of any questions put to her, together with her answers, and to request any supplementary investigative act or interview, that she could use any documents in her possession, provided the questioning was not delayed, and that, during or after her interview, she could have documents included in the case file or deposited in the registry. The applicant confessed to being the perpetrator of the stabbing and, in response to the investigators’ questions, gave a detailed account of the incident, explaining in particular that it had followed an argument, of which she described the context and circumstances. 5. The next day, from 11.08 a.m. to 11.34 a.m., the applicant was questioned by an investigating judge. She was not assisted by a lawyer and – she alleged – was not informed of her right to remain silent. She confirmed the statements she had made to the police. The investigating judge then informed her that she was being charged with attempted murder, with intent, and that she had the “right to choose a lawyer”. He issued a detention order with the following reasoning: “... the offence is punishable by a one-year prison sentence, in respect of a lesser indictable offence, or by an even harsher sentence; ... the maximum duration of the sentence exceeding a 15-year term of imprisonment; ... the documentary evidence in the file, the findings of the reporting officers, the witness statements, and the statement and confessions of the person charged, constitute serious indications of guilt; ... the extreme seriousness of the facts, representing a danger for public safety and entailing bodily harm, requires that a detention order be issued against the person charged; ...” 6. The applicant appeared, assisted by her lawyer, on 18 March 2010, before the Committals Division (chambre du conseil) of the Liège Court of First Instance, which found the detention order to be lawful and properly served, and remanded her in custody for one month. On 14 April 2010, after a further appearance by the applicant, the Committals Division ordered the extension of that measure. It did so once again on 12 May 2010. 7. The applicant appealed to the Indictments Division of the Liège Court of Appeal against the order of 12 May 2010. Referring to the Salduz v. Turkey judgment ([GC] (no. 36391/02, ECHR 2008), the Dayanan v. Turkey judgment (no. 7377/03, ECHR 2009) and the Bouglame v. Belgium decision (no. 16147/08, 2 March 2010), her counsel argued that the fact that the applicant had not been assisted by a lawyer during her police interview or her examination by a judge constituted a breach of the right to a fair trial as enshrined in Article 6 §§ 1 and 3 (c) of the Convention, and also of Article 5 § 1 of the Convention, under which any deprivation of liberty had to be “in accordance with a procedure prescribed by law”. Counsel thus submitted that the records of the interview and examination should be removed from the case-file and that the applicant should be released. 8. In his submissions of 3 June 2010, the Principal Public Prosecutor at the Liège Court of Appeal called on the Indictments Division to dismiss those arguments. He observed, in particular, as follows: “... in a judgment of 5 May 2010 (P.10.0257.F/1) ..., the Court of Cassation noted that, having regard to all the statutory safeguards generally afforded to the person charged so as to ensure respect for the defence rights, from the time of the decision to prosecute, it could not be concluded automatically that it was definitely impossible for a person to have a fair trial when the assistance of a lawyer was lacking during the first twenty-four hours of deprivation of liberty. ... on a number of occasions the Court of Cassation has observed that neither Article 5 § 1 nor Article 6 §§ 1 and 3 of the Convention ..., as interpreted by the Court ..., obliges investigating divisions to discharge a detention order with immediate effect on that ground alone (Cass. 29 December 2009, P.09.1826.F/1, Cass. 13 January 2010, P.09.1908.F/1 and Cass. 12 May 2010, P.10.0772.F/1). ... in a judgment of 31 March 2010, confirming its case-law ... the Court of Cassation further indicated that Articles 28 quinquies and 57, paragraph 1, of the Code of Criminal Procedure, concerning the secrecy of the preliminary and judicial investigations, precluded the presence of a lawyer at that stage (P.10.0501.F/1). ... at no stage of the proceedings did the defendant ask to be assisted by a lawyer ... ... furthermore, the decision [Bouglame v. Belgium] ... sums up the lessons of the Salduz judgment but finds that the application is inadmissible, as the proceedings have to be considered as a whole ...”. 9. In a judgment of 3 June 2010 the Indictments Division agreed with the Principal Public Prosecutor on that point, finding that “[his] submissions ... fully address[ed] the arguments for the defence as to the absence of a lawyer during the defendant’s questioning”. It nevertheless ordered the applicant’s release on the ground that public safety no longer required that she be detained. 10. According to the information provided by the parties, the judicial investigation is still pending and the case is not yet ready for trial. 11. In the above-cited Bouglame case, where the applicant had complained of being prevented from having contact with his lawyer before his examination by the investigating judge, the Court found that the refusal to allow contact had been “explained by the applicable law as it [stood], namely section 16(2) of the Law of 20 July 1990 [on pre-trial detention], which [did] not provide for assistance by counsel during questioning by the investigating judge or prior thereto”. 12. Sections 16 and 20 of the Law of 20 July 1990 on pre-trial detention read as follows: “§ 1. In cases of absolute necessity for public safety alone, and if the act is punishable by a one-year prison sentence, in respect of a lesser indictable offence, or by an even harsher sentence, the investigating judge may make a detention order ... § 2. Unless the person charged is a fugitive or is evading arrest, the investigating judge shall, before making a detention order, question the person [on the acts constituting the charges and potentially justifying a detention order] and hear his or her observations. Failure to question the person charged shall entail his or her release. The investigating judge shall also inform the person charged of the possibility of an order being made for his or her detention and shall hear his or her observations on that matter. Failure to satisfy these conditions shall entail the person’s release. ...” “§ 1. Immediately after the first examination, the person charged may communicate freely with counsel. ...”. 13. The Court of Cassation has, on a number of occasions, been called upon to examine – both in disputes concerning pre-trial detention and in appeals on points of law against appellate judgments on the merits – legal argument alleging a violation of Article 6 §§ 1 or 3 (c) of the Convention on the ground that the suspect had not received assistance from a lawyer during his or her police custody or while being questioned by the police or investigating judge. For a long time that court took the view that, although Belgian law did not provide for the presence of a lawyer to assist a suspect when he or she was deprived of liberty, this did not automatically entail a violation of the right to a fair trial. In the court’s opinion, the restriction had to be assessed in the light of all the statutory safeguards generally afforded to the accused so as to ensure respect for his or her defence rights from the time of the decision to prosecute: formalities for the suspect’s examination under Article 47 bis of the Code of Criminal Procedure; the brevity of the statutory police custody period (24 hours); the immediate remittance to the person charged, when served with a detention order, of all the documents referred to in sections 16(7) and 18(2) of the Law of 20 July 1990; the right of the person charged to communicate immediately with counsel in accordance with section 20(1) and (5) of that law; access to the case file prior to his or her appearance before the investigating judge, as provided for by section 21(3) of that law; the presence of counsel for the charged person during the recapitulation interview provided for in section 22(3) of that law; and the rights granted, in particular, by Articles 61 ter, 61 quater, 61 quinquies, 136 and 235 bis of the Code of Criminal Procedure. The court found that this series of safeguards prevented the absence of counsel during the first twenty-four hours of deprivation of liberty from irretrievably compromising the fair handling of the case (see, for example, the judgments of 5 May and 22 June 2010, P.10.0257.F/1 and P.10.0872.N/1). However, in a judgment of 15 December 2010 (P.10.0744.F/1), the Court of Cassation quashed, for a violation of Article 6 of the Convention, a trial court decision that relied on self-incriminating statements given to the police during police custody without any possibility of assistance by a lawyer. It found, in particular, as follows: “... The right to a fair trial, as enshrined in Article 6 § 1 of the Convention ..., implies that the person arrested or held at the disposal of the courts should have the effective assistance of a lawyer In so far as it allows such access to a lawyer only after the first examination by the investigating judge, section 20, first paragraph, of the Law of 20 July 1990 on pre-trial detention must be regarded as incompatible with Article 6 of the Convention. The fairness of a criminal trial should be assessed in the light of the proceedings as a whole, ascertaining whether the defence rights have been upheld, examining whether the person charged has had the possibility of challenging the authenticity of the evidence and of opposing its use, verifying whether the circumstances in which evidence for the prosecution has been obtained cast doubt on its credibility or accuracy, and assessing the influence of any unlawfully obtained evidence on the outcome of the criminal proceedings. ...” 14. The Court of Cassation has further found that Articles 5 § 1, 6 § 1 and 5 § 3 (c) of the Convention do not oblige investigating divisions to discharge a detention order with immediate effect on the sole ground that prior to his or her examination by the investigating judge the person charged had been interviewed by the police and had given a confession to them without being allowed access to counsel from the very first questioning (see, for example, the judgments of 29 December 2009, 13 January 2010 and 23 June 2010, P.09.1826.F/1, P.09.1908.F/1 and P.10.1009.F/1). 15. The relevant domestic law was changed by the Law of 13 August 2011 amending the Code of Criminal Procedure and the Law of 20 July 1990 on pre-trial detention, in order to grant rights, including the right to consult and be assisted by a lawyer, to any person who is questioned or deprived of liberty. Section 2 of that law provides that before the first interview of a person concerning offences with which he or she might be charged, the person has “the right ... to a confidential consultation with a lawyer of his or her choosing or a lawyer appointed to assist him or her, provided that the potential charges concern an offence that could justify a detention order, with the exception of the offences referred to in section 138, 6o, 6o bis and 6o ter”. Section 4 adds a section 2 bis to the Law of 20 July 1990 on pre-trial detention, reading as follows: “§ 1. Anyone who is deprived of liberty pursuant to sections 1 or 2 hereof, or in accordance with a warrant under section 3, shall be entitled, from that time onwards and prior to the first subsequent interview by the police or, failing that, by the Crown Prosecutor or investigating judge, to have a confidential consultation with a lawyer of his choosing. If he has not chosen a lawyer or if that lawyer is unavailable, contact shall be made with the duty service organised by the Bar Council of French-speaking and German-speaking Lawyers, and the Flemish Bar Council or, failing that, by the chairman of the Bar or his representative. ... § 2. The person concerned shall be entitled to receive assistance from a lawyer during the interviews that take place within the time-limit provided for in the preliminary section and sections 1º, 2, 12 or 15 bis. ...”