CASE OF LHERMITTE v. BELGIUM
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
András Sajó;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano
5. The applicant was born in 1966. She is currently detained in Forest Prison. 6. On 28 February 2007 the applicant called the emergency services to say that she had killed her five children and had tried to commit suicide. 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 five children with their throats slit. 7. In an order of 17 June 2008 the Indictments Division (Chambre des mises en accusation) of the Brussels Court of Appeal committed the applicant to stand trial for the following offence: “in Nivelles, on 28 February 2007, having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] with premeditation.” 8. The following details were mentioned in the indictment of 16 October 2008. 9. On the applicant’s admission to the intensive-care unit on the day of the incident, the doctor treating her had 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 S., who lived in the same house as the applicant, her husband and their five children and supported them financially. 10. 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. 11. The investigating judge also ordered a psychiatric assessment. A panel of three psychiatrists examined the applicant and drew up a lengthy 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.” 12. The applicant’s trial took place in the Assize Court of the province of Walloon Brabant from 8 to 19 December 2008. 13. During the trial Dr V., the applicant’s psychiatrist, mentioned two letters which the applicant had sent him a few days before the events but which had not previously been included in the file. The President of the Assize Court accordingly instructed the three psychiatrists who had already been involved at the investigation stage to draw up an additional report in the light of the new evidence. 14. On 14 December 2008 the three psychiatrists submitted their unanimous report, concluding as follows: “The letter of 13 February [2007] suggests all the signs of melancholic major depression. ... These melancholic features are grounds for hospital admission or observation where necessary. ... These documents thus demonstrate beyond doubt that [the applicant] no longer felt able to control her actions ... she developed a transient dissociative state of depersonalisation, causing her to perform acts of extreme violence. Only operational thought remains; reflective consciousness is completely lacking. ... Conclusion: at the time of the events, the accused was suffering from a severe mental disturbance making her incapable of controlling her actions, and is currently suffering from a severe mental disturbance warranting long-term treatment.” 15. At the end of the oral proceedings, the jury was called to answer the following five questions put to it by the President of the Assize Court: “1st question (principal question as to guilt) Is the accused Geneviève Lhermitte, present before this court, guilty of having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] in Nivelles on 28 February 2007? 2nd question (subsidiary to the 1st question, to be answered by the jury only if it has answered the 1st question in the affirmative) Is it established that the intentional homicide referred to in the first question was premeditated? 3rd question (principal alternative as to the commission of an act classified as a serious crime, to be answered by the jury only if it has answered the 1st question in the negative) Is it established that the accused Geneviève Lhermitte, present before this court, committed the act classified as a serious crime of having knowingly and intentionally killed [Y.M.], [N.M.], [My.M.], [Mi.M.] and [Me.M.] in Nivelles on 28 February 2007? 4th question (subsidiary to the 3rd question, to be answered by the jury only if it has answered the 3rd question in the affirmative) Is it established that the act classified as a serious crime referred to in the 3rd question was premeditated? 5th question (principal question as to social protection, concerning the accused’s current mental state, to be answered by the jury only if it has answered the 1st question in the affirmative or the 3rd question in the affirmative) Is it established that the accused Geneviève Lhermitte, present before this court, is suffering either from a mental disorder or from a severe mental disturbance or defect making her incapable of controlling her actions?” 16. The jury answered “yes” to the first two questions and “no” to the last question. 17. In a judgment of 19 December 2008 the Assize Court, composed of three judges and the jury, endorsed the guilty verdict reached by the jury and sentenced the applicant to life imprisonment. The judgment included reasons for the sentence. The court took into account the particularly heinous nature of the offences, holding: “The accused’s heavy family responsibilities and her painful feelings of isolation and dependence may account for a legitimate desire for greater personal freedom. Her mental fragility, depression and character no doubt made it more difficult to handle this desire and, through dialogue, to seek possible improvements within the limits of her specific circumstances, taking into consideration all those close to her. However, neither those factors, nor even a wish to escape from what she considered a dead-end situation through suicide, nor a lack of appropriate help, can provide a sufficient explanation for the acts of extreme violence which she resolved to commit, and carried out in cold blood. ... In the specific circumstances relating both to the accused’s character and to her living environment, the genuine difficulties experienced by her do not constitute mitigating factors, having regard to the extremely serious nature of the offences committed.” As an ancillary penalty, the applicant was stripped of all titles, ranks and functions she held and was permanently deprived of certain rights in accordance with Articles 19 and 31 of the Criminal Code as in force at the material time. Lastly, the judgment was to be printed and publicly displayed in the municipality where the offence had been committed, in accordance with Article 18 of the Criminal Code. 18. On 8 January 2009 the applicant appealed on points of law, raising the same complaints as those submitted before the Court. 19. On 6 May 2009 the Court of Cassation dismissed the applicant’s appeal. With regard to the jury’s guilty verdict, it observed that the Assize Court had had to rule on a plurality of serious crimes (concours matériel de crimes) within the meaning of Article 62 of the Criminal Code and not a single act constituting several different offences (délit collectif) within the meaning of Article 65, which required a unity of intent, and that the parties had agreed to the wording of the questions put to the jury. The Court of Cassation pointed out that Article 6 of the Convention did not require the court to be made up solely of professional judges, lawyers or experts and that the applicant had not adduced any specific evidence to justify her fear that the jury might not be impartial. Furthermore, the wording of the jury’s guilty verdict in the form of a simple “yes/no” answer was prescribed by Article 348 of the Code of Criminal Procedure. With regard to the applicant’s criminal responsibility, the Court of Cassation held that the Assize Court’s judgment had indicated why the conditions for the application of the Social Protection Act were not satisfied: “In noting the accused’s cold-blooded manner and her determination to carry out her crimes, the [Assize Court] judgment indicates the reason why the Assize Court did not accept that the perpetrator had been suffering from any mental disturbance making her incapable of controlling her actions at the time of the events.” As regards the reasons for the sentence, the Court of Cassation held that there was no statutory provision prohibiting the Assize Court precluded any mitigation of the perpetrator’s guilt; nor was there any statutory provision establishing that a decree of divorce in civil proceedings constituted res judicata in respect of criminal proceedings. Furthermore, the conclusions of the Assize Court judgment to which the applicant had objected had not punished her for refusing to admit her own guilt but had indicated the reasons why the Assize Court had not accepted that there were any mitigating circumstances. In addition, regarding the ancillary penalties, the Court of Cassation pointed out that deprivation of functions and permanent withdrawal of certain civic rights were mandatory ancillary penalties (Articles 19 and 31 of the Criminal Code) for anyone sentenced to life imprisonment and therefore did not require any reasons. It further held that public display of a criminal conviction did not attain the minimum level of severity required by Article 3 of the Convention. Lastly, the fact that no appeal lay against the jury’s verdict (Article 350 of the Code of Criminal Procedure) resulted from a provision which the Assize Court had not applied in the judgment itself and which was therefore extraneous to the judgment.