European Court of Human Rights

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Belgium recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision from the Court as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 (art. 6).

(a) the applicants’ memorial and supplementary observations, on 18 February, 1 June and 2 August 1988; and

(b) the Government’s memorial, on 20 June 1988.

In a letter of 6 July 1988, the Secretary to the Commission indicated that the Delegate would submit his observations at the hearing.

There appeared before the Court:

- for the Government

       Mr C. Debrulle, Deputy Secretary,

                            Ministry of Justice,                                                      Agent, 

       Mr L. Matray, former Chairman

                            of the Liège Bar,                                                      Counsel;

- for the Commission

       Mr H. Vandenberghe,                                                         Delegate;

- the applicants.

       The Court heard addresses by Mr Matray for the Government, by Mr Vandenberghe for the Commission, and by Mr Bricmont for the applicants, as well as their replies to questions put by the Court.

AS TO THE FACTS

I.   BACKGROUND TO THE CASE

Evidence had been taken from the Prince during the judicial investigation, but he had not received the necessary authorisation to appear at the trial.

II.   THE PROCEEDINGS

A. The judicial investigation

1. Opening of the investigation

Mr Gruner (who subsequently died) was the manager of the relevant Anstalten, which were formed and had their registered address at the office of his employer, Mr Merkt, the Prince’s lawyer in Geneva. Mr Casse was very actively involved with the Sansovino estate in Cannes as a chartered surveyor.

On 18 July 1979, the investigating judge questioned the Prince, and on 23 October 1979 he held a confrontation - authorised by a royal decree of 2 July (see paragraph 40 below) - between the Prince and Mr Bricmont.

2. The order of 3 June 1980 made by the chambre du conseil of the Brussels tribunal de première instance

The chambre du conseil accepted that there were extenuating circumstances in respect of the offences to which criminal penalties attached and committed the accused for trial by the tribunal de première instance. It endorsed the following charges against Mr Bricmont: nine counts of forgery and uttering forged documents, twelve of deception, five of misappropriation of assets, one of handling and one of breach of professional confidentiality; and the following against Mrs Bricmont: three counts of forgery and uttering, four of deception, one of misappropriation of assets, one of theft and one of handling.

These counts included:

(a) count A1, against Mr Bricmont, of forgery and uttering, in respect of the sale to the Filminter Anstalt of the shares of Florazur, a company incorporated under Swiss law;

(b) count A3, against Mr Bricmont, of forgery and uttering, in respect of the sale on 13 December 1973 of the Volpone Anstalt to the Agamecon Anstalt;

(c) count A8, against both accused, of forgery and uttering, in respect of a deed of gift dated 19 May 1976 (see paragraph 64 below);

(d) count A9, against Mrs Bricmont, of forgery and uttering, in respect of a contract creating a trust (contrat de fiducie) of 1 October 1976;

(e) count A10, against Mr Bricmont, of forgery and uttering, in respect of the discharge from agency dated 18 January 1977 (see paragraph 13 above); and

(f) count C4, alleging that Mr and Mrs Bricmont misappropriated 50 Florazur shares to the detriment of the Prince.

3. The Brussels Court of Appeal’s judgment of 6 November 1980

4. The Court of Cassation’s judgment of 7 January 1981

On 14 November 1980, they each filed pleadings which contained the following passage:

"The appellants realise that the Belgian judiciary in general will continue to refuse them a fair trial because the original complainant was formerly Regent of the Kingdom and because, secondarily, his associate Mr Mossoux, who joined the complaint in the proceedings before the chambre du conseil, has power over certain socialist personalities who in turn control a number of partisan appointments and promotions in the judiciary."

B. The trial

1. The judgment of 15 February 1982 of the Brussels tribunal de première instance

(a) the deficiencies in the investigation, the main examples being: the failure to have the accounts audited; the failure to take evidence from Mr Gruner, who had died in the meantime (see paragraph 18 above); the failure to make any inquiries about Mr and Mrs Bricmont’s characters; the failure to take evidence from Mrs Bricmont and to arrange a confrontation with the Prince in respect of various charges; the investigating judge’s refusal, without giving reasons, to grant the Bricmonts’ application for production of the painting "Storm over Cannes" ("Orage sur Cannes") (see paragraph 68 below); the fact that the persons best placed to provide information had been neither summoned nor examined as witnesses, despite Mr and Mrs Bricmont’s formal request; the failure to arrange a confrontation in respect of all the charges between the applicants and the civil parties, which the court had not been able to remedy - despite its wish and the applicants’ requests - because the civil parties (who produced, to justify their failure to attend, medical certificates, which in the Prince’s case had twice been confirmed by a court-appointed medical expert) had not appeared in person at any of the hearings;

(b) the irregularity of the Prince’s examination on 9 November 1977 and 28 April 1978 (see paragraph 17 above) owing to the fact that, as a civil party giving evidence, he was not covered by Articles 510 and 511 of the Code of Criminal Procedure, and the investigating judge accordingly had jurisdiction to question him. The court stated that although it was not empowered to quash those steps taken in the investigation which might be null and void, it had to have regard to the irregularities complained of by Mr Bricmont and refrain from basing its decision on any irregular proceeding;

(c) the fact that Mr and Mrs Bricmont had no access to the files until committed for trial as they were not in custody, and the investigating judge’s absence from the hearings, which was difficult to justify;

(d) the failure of the Prince and Mr Mossoux to appear before the court; and

(e) the lack of credibility of each of the parties to the case.

2. The judgment of 9 March 1983 of the Brussels Court of Appeal

At the hearing on 17 November 1982 the applicants filed pleadings in which, relying on the impugned judgment, they submitted that the investigation had been null and void.

It held in the first place that neither Mr Gilson de Rouvreux’s placing of various lawyers’ letters in the file nor the fact that the file contained a letter of 3 May 1977 from Mr Bricmont to Mr Merkt was a ground for declaring the proceedings null and void. No breach of professional confidentiality had been established against these two lawyers, and the investigating judge had seized the aforementioned letter lawfully. The Court of Appeal did not explicitly rule on an application in the alternative by the Bricmonts to have Mr Merkt heard as a witness on oath.

The court considered it regrettable that evidence had been taken from the Prince in an unusual manner, "probably out of consideration for the civil party, consideration which [was] not legally justified and which, moreover, appear[ed] to have given rise to other abnormal but not unlawful circumstances". It held, however, that the examinations were not such as to render the proceedings null and void and that the disputed statements had only the weight of mere information. It did not expressly rule on the applicants’ submissions that the refusal of the investigating judge and the chambre du conseil to arrange a confrontation with the Prince or to examine him at all had breached Article 6 (art. 6) of the Convention.

Nor, in the Court of Appeal’s view, were the proceedings vitiated by the breaches of professional confidentiality alleged against the prosecution at first instance on account of the October 1977 press conference, among other things (see paragraph 19 above). Admittedly, the investigating judge alone had authority to hold a press conference during a judicial investigation, but a breach of professional confidentiality could only entail nullity of proceedings in whole or in part if it had given rise to the judicial investigation or was the only thing which had made it possible to discover the guilty person or prove his guilt. On the other hand, a breach of professional confidentiality by a member of the judiciary or any other person bound by the confidentiality of the investigation in a broad sense could not flaw proceedings in which the evidence had been obtained lawfully; to decide otherwise would compound the effects of a personal failing on the part of the representative of the State by wholly unjustifiable and possibly substantial damage either to law and order or to the victim or victims.

Mr and Mrs Bricmont had relied on two other grounds of nullity to impugn the committal order of 3 June 1980: the failure to deal with their pleadings and the conduct of the investigating judge, who, they said, had merely made a "mini-report" at the first hearing by the chambre du conseil. The Court of Appeal ruled that on the facts the first complaint was unfounded. It also dismissed the second complaint, as it did not find that there had been any infringement of the rights of the defence or of the principle that judicial proceedings must be adversarial, in view of the fact that the presiding judge of the chambre du conseil had not felt it necessary to recall the investigating judge as he was leaving the room after making his report.

The applicants had further claimed that the Court of Appeal could not in law judge their case fairly owing to an incident which had occurred on 7 January 1981, following which they had been summoned to appear before the Brussels tribunal de première instance for contempt of court (see paragraphs 24 and 26 above). The Court of Appeal held on this point that if this claim were well-founded in law, "it would be sufficient for any person desirous of evading any judicial proceedings", whether civil or criminal, "to ensure impunity by committing a contempt of court directed at the Belgian judiciary in general".

The Court of Appeal did not explicitly reply to the Bricmonts’ application for discovery of the gouache "Storm over Cannes" (see paragraph 69 below).

(a) A1, A3, A8 and A10, against Mr Bricmont;

(b) A9, against Mrs Bricmont; and

(c) C4, against both defendants.

As a consequence, the Court of Appeal sentenced Mr Bricmont to five years’ imprisonment, Mrs Bricmont to fifteen months suspended for three years and both of them to a fine of 2,000 Belgian francs. In its ruling on the civil claim, it ordered Mr and Mrs Bricmont to pay to the Prince provisional compensation of 3 million francs and to return certain company shares to him.

As to Mr Bricmont’s proceedings against the Prince, the Court of Appeal acquitted the latter, holding that he was not guilty of false accusation; and it accordingly declared that it had no jurisdiction to entertain Mr Bricmont’s civil claim for damages.

3. The Court of Cassation’s judgment of 18 January 1984

They criticised the Court of Appeal for, inter alia, not having dealt either with the complaint that the investigation was null and void owing to the fundamental deficiencies in it - which the tribunal de première instance had in their view summed up perfectly (see paragraph 28 above), even if it had not drawn all the legal inferences from them - or with their submissions concerning the presence in the criminal file of various confidential letters, including the one of 3 May 1977 (see paragraph 32 above).

They also claimed that the Court of Appeal had not given reasons for its decision as required by law, as it had failed to find that the publicity given to the case by the Crown Prosecutor at the October 1977 press conference (see paragraph 19 above) and when making submissions in relation to another case infringed their defence rights and their right to a fair trial.

Mr Bricmont added that the Court of Appeal had likewise not given reasons as required by law for its ruling that counts A1 and A3 were not time-barred or for its decision that count C4 had been substantiated (see paragraph 22 above).

Mrs Bricmont complained that she had not been asked to submit a defence to the charge of uttering which the Court of Appeal had found to be made out against her.

It declared the appeal inadmissible in so far as it again (see paragraph 24 above) related to the order made on 3 June 1980 by the chambre du conseil of the Brussels tribunal de première instance, on the ground that in criminal cases a party could not appeal to the Court of Cassation twice against the same decision.

In so far as the appeal was directed against the Court of Appeal’s judgment of 9 March 1983, the Court of Cassation ruled, firstly, on the plea that the investigation was null and void. When listing, on appeal, the irregularities noted in the judgment at first instance, the applicants had confined themselves to illustrating their complaint that the court below, having failed to draw all the inferences from the situation they had described, had infringed Article 6 (art. 6) of the Convention because it was impossible for the Court of Appeal to "separate the investigative measures which could be accepted from those which [had to] be ruled inadmissible, as they [were] intertwined with one another to the point of forming an incoherent whole". In the Court of Cassation’s view, the Court of Appeal had, when closely scrutinising each of the charges, implicitly but definitely decided that the investigation was not incoherent as alleged.

The Court of Cassation went on to hold that in the impugned judgment - and it cited the reasons given - the Court of Appeal had dealt with the argument relating to the confidentiality of the letter of 3 May 1977.

As regards the argument concerning the publicity given to the case by the Crown Prosecutor, the Court of Cassation held that it could not infer any violation of the rights of the defence or of Article 6 § 1 (art. 6-1) of the Convention from the mere fact that the prosecution had allegedly breached professional confidentiality.

Moreover, in order to assess whether a case had been heard fairly, the trial had to be looked at as a whole; in view of the fact that Mr and Mrs Bricmont had had the opportunity during the proceedings before the trial courts to challenge freely the evidence adduced against them by the prosecution, they could not claim to be victims of an infringement of the rights of the defence or of their right to a fair trial within the meaning of the Convention.

As to the pleas based on the failure to give reasons for the convictions on counts A1, A3 and C4 (see paragraph 22 above), the Court of Cassation rejected them as lacking any legitimate interest: the sentence passed on Mr Bricmont was justified by the other charges which had been proved against him. Nor did the court find any infringement of Mrs Bricmont’s defence rights in regard to count A9.

Lastly, the Court of Cassation held that the appeal on points of law which Mr Bricmont had also lodged as a civil party (see paragraph 33 in fine above) was inadmissible, as Mr Bricmont had apparently not had notice of it served on the Prince as the party being directly cited.

III.  THE DISPUTED ASPECTS OF THE PROCEEDINGS

A. The examinations of the Prince and the confrontation with him

"There has been a misunderstanding; it is not true that it was Mr Bricmont who added a nought to the figure intended for him. I was the one who altered the amount at his request. I wrote fifty million instead of five million.

You have put before me annexe no. 3 to document 195 in the ‘Investigation’ bundle; that is the document in question.

It was Mr Bricmont, then, who was appointed executor of the will at his own request."

At the request of the Brussels Crown Prosecutor, the Bruges Crown Prosecutor appointed a medical expert on 12 September 1981 to verify that the Prince’s health was as described. Dr Floré, the expert appointed, stated in his report of 18 September (passage translated from the Dutch):

"He is an old man, fairly tall and rather undernourished. He gives an impression of frailty and vulnerability.

When questioned, he stated that he suffered from asthma, chronic bronchitis, osteo-arthritis and a hiatus hernia which compelled him to sleep in a sitting position. He also said that he easily became impatient in any situation that was at all stressful and that he then tended to react like someone who was panicking. The news of the medical expert’s visit had in itself sufficed to cause a reaction of this kind. Similarly, in such a situation, he had attacks of tachycardia, lost his ability to react appropriately and was completely at a loss.

When he had to travel he had himself driven by car, as he himself had given up driving some six years earlier.

He walks slowly and hesitantly, limping slightly and leaning on a stick in his right hand.

He speaks in a confidential, emotional, friendly manner which is occasionally slightly naïve and childlike, with a weak, hoarse voice, and coughs from time to time.

He is lucid but has difficulty concentrating for any length of time, occasionally repeats himself and often has to search for words. If in this way he loses the thread of the conversation, he becomes nervous, goes red, loses his self-assurance and seeks support from his listener.

In short, he is an old man growing weak, who is living for the time being in a protective environment, in a fragile, delicate state of balance. It is clear that the slightest stress overtaxes him. At the end of a conversation he is visibly tired.

For these reasons I conclude that his physical and psychological resistance has become insufficient for him to be heard as a witness at the hearing and accordingly precludes him from being so heard."

"... as the Count of Flanders was not questioned as a witness, since he was a complainant, or moreover by the judge who would have had jurisdiction if he had been examined as a witness, the disputed statements have only the weight of mere information, just as if the Count of Flanders had provided the same explanations in a formal letter to the investigating judge or orally to a police officer, or again exactly as if the investigating judge had taken evidence from him without administering an oath, which he is entitled to do and which is to be recommended in respect of a civil party."

B. The examination of the witnesses

"During the judicial investigation into [Mr Bricmont] ... no evidence was taken from the two persons who, together with [Mr and Mrs Bricmont] and the complainant, were the vital witnesses of the main facts which were to be set out in the prosecution’s application of 2 November 1979 for committal for trial, namely Mr Pierre Gruner, a non-lawyer colleague of Mr René Merkt of the Geneva Bar, and Mr Casse, a chartered surveyor and consultant to the courts in Cannes;

All applications to the chambre du conseil by [Mr and Mrs Bricmont] for additional investigative measures were rejected, as the prosecution was opposed to any examination of the witnesses Gruner and Casse;

Mr Gruner has died, and his death makes it much more difficult to establish the truth and, consequently, for [Mr and Mrs Bricmont] to defend themselves;

[Mr and Mrs Bricmont] today run a considerable risk of being deprived of the vital evidence of Mr Gabriel Casse if he is not very soon examined under letters rogatory, as he is elderly and has just overcome serious health problems;

 ...

Mr Gabriel Casse must be asked to confirm the terms of his statement of 16 February 1981 before a judicial authority who will also put to him any questions necessary for establishing the truth and who will at the same time be able to report to the office of the Brussels Crown Prosecutor on Mr Casse’s professional and personal reputation;

The said statement of 16 February 1981 has a direct bearing on the merits of the charge of forgery ("faux intellectuel") allegedly founded on the receipt signed by the Prince of Belgium on 2 December 1972, a charge on which the subsequent charges depend;

 ...

It is necessary as a matter of urgency to remedy this shortcoming in the investigation consisting in refusing Mr and Mrs Bricmont’s request for an examination of the two witnesses who, because of the extent of their exclusive personal knowledge of vital facts, could have shown the complainant’s accusations to be baseless ...;

The application is based on Article 6 § 3 (d) (art. 6-3-d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms;

 ... ."

In the applicants’ submission, an examination of Mr Casse would have enabled them to clear themselves of the three main charges against them found to be established, namely counts A1, A9 and C4 (see paragraph 22 above).

When examined by the Cannes police on 20 June 1981, Mr Casse answered the first question and confirmed his statement of 16 February 1981.

C. The financial investigation and inspection of the accounts

On 28 September 1977, the investigating judge in Geneva duly made an order to this effect. Mr Bricmont’s letter of 3 May 1977 to Mr Merkt (see paragraph 32 above) was seized on this occasion.

On 30 September 1977, the investigating judge in Brussels sent a similar telegram to his colleague at the tribunal de grande instance in Grasse. In another telegram on 19 October 1977, he asked his colleague in Paris to request the Banque de Paris et des Pays-Bas and the Banque Nationale de Paris to provide a statement of all the transactions on accounts opened in the names of the applicants or of a particular company. On 9 January 1978, he issued further letters rogatory for dispatch to the investigating judge in Geneva, asking the latter to have documents seized and inquiries made at the Banque de Paris et des Pays-Bas in Geneva in connection with an allegedly forged document dated 18 February 1974 which certified the payment to the Prince of the purchase price of some furniture.

These various searches did not reveal the whereabouts of the books of the Anstalten.

D. The application for production of the gouache "Storm over Cannes"

"I, the undersigned Count of Flanders, Prince Charles of Belgium, hereby give Mr Georges Bricmont of the Brussels Bar, failing whom Mrs Bricmont, power to dispose of the companies and Anstalten that I own or control."

He claimed that the Count of Flanders thereby recognised the existence of "gifts from hand to hand", and that by the operation of Article 938 of the Civil Code the charges of misappropriation of shares of or documents of title to companies or Anstalten were therefore deprived of a vital element. In a letter of 8 September 1978 Mr Bricmont told the investigating judge that the gift had in reality been made principally to his wife.

On 3 January 1979, Mr Bernard recorded that in a locked cabinet in the administrative office there were four pictures signed by the Count of Flanders and dedicated to Mr and Mrs Bricmont, including a gouache "Storm over Cannes" dated 21 January 1976.

"... it would be advisable for you to submit it to the Prince, who will be able to tell you if he indeed wrote it. If so, he will also be able to tell you whether he is giving up, in the present case, his false insinuations about imaginary uses of documents signed in blank.

Attached is a report of 3 January 1979 by a bailiff, Mr Bernard of Cannes, who established after discussion with Mr Denape that the four pictures in question are deposited in my office at Château Sansovino. They are in a metal cabinet which, like the office, is locked. I have the keys of the cupboard and of the office, but do not have any access to them. Access has been forbidden me only by Mr Denape without any court decision but with threats of physical restraint by the caretakers and Mr Busuttil if I attempt to enter and regain possession of the articles belonging to me. Mr Denape’s behaviour is all the more unwarranted as nobody disputes my ownership of the articles in question.

I accordingly urge you to send letters rogatory to the Alpes Maritimes département in order to secure the return to me or, failing that, the seizure of the aforementioned personal articles which I consider vital to my defence and which are in the house at Sansovino. In particular: letters, notes, photos and pictures.

It is not necessary to have the locks of the furniture and premises of the house forced since Mr Denape and I each have some of the keys.

It will be sufficient for the French police responsible for executing the letters rogatory to ask Mr Denape and myself to accompany them to the premises in order to open the building and the furniture for them and indicate to them the items whose return I am seeking both for your information and for the needs of my defence."

In its judgment of 9 March 1983 (see paragraphs 31-33 above) the Brussels Court of Appeal did not give an express ruling on this point. It did, however, refer to the pleadings of the civil party, the Count of Flanders, which stated that the application was a "diversionary attack".

PROCEEDINGS BEFORE THE COMMISSION

(a) there had been a breach of Article 6 § 1 (art. 6-1) in that the applicants were, in the proceedings, in a less favourable position than the Prince (by ten votes to one) and of Article 6 § 3 (d) (art. 6-3-d) owing to the failure to hear Mr Merkt (by six votes to five);

(b) the failure to produce the gouache and the lack of a special examination of the accounts had not violated Article 6 § 3 (b) (art. 6-3-b), and the failure to hear Mr Gruner and Mr Casse had not contravened Article 6 § 3 (d) (art. 6-3-d) (unanimously);

(c) no separate issue arose under Article 6 § 1 (art. 6-1) in respect of the failure to hear Mr Gruner, Mr Casse and Mr Merkt or in respect of the failure to produce the gouache and the lack of a special examination of the accounts (unanimously).

As the Delegate of the Commission noted, however, it is clear from the record that those conditions are not satisfied in the instant case. There is therefore estoppel.

II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (b) AND (d) (art. 6-1, art. 6-3-b, art. 6-3-d) OF THE CONVENTION

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

2. ...

3. Everyone charged with a criminal offence has the following minimum rights:

(a) ...

(b) to have adequate time and facilities for the preparation of his defence;

(c) ...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) ... ."

They complained of deficiencies in the judicial investigation: the Prince’s position in the proceedings, the failure to take evidence from Mr Gruner, Mr Casse and Mr Merkt, the failure to have the accounts audited and the fact that the gouache "Storm over Cannes" was not produced, had, they alleged, created an imbalance between themselves and the Prince to the latter’s advantage and had infringed their right to a fair hearing of their case.

The Government submitted that there was no violation, while the Commission partly accepted the applicants’ contentions.

1.  The manner in which evidence was taken from the party seeking damages and the failure to arrange a confrontation between him and the applicants on all the charges

(a) The manner in which evidence was taken from the party seeking damages

The Government disputed that, claiming that the procedure for taking evidence from the Prince, although unusual, was in no way unlawful, and was in any case subsequently abandoned.

Special regulations governing the taking of evidence from, and the questioning of, high-ranking persons of State are to be found in the domestic legal systems of several Council of Europe member States. There are objective reasons for having them and they do not as such conflict with Article 6 (art. 6) of the Convention.

(b) The failure to arrange a confrontation between the party seeking damages and the applicants on all the charges

The Government, on the other hand, said that no comprehensive confrontation had been arranged because the Prince knew nothing about the management of his property, his health was poor and Mr Bricmont had had an opportunity to put questions to him on 23 October 1979. Moreover, the Court of Appeal had not used the Prince’s statements to support its judgment convicting the applicants, since it found the facts established on the strength of numerous documents in the file.

No confrontation was ever arranged between the Prince and Mrs Bricmont. The one between her husband and the Prince on 23 October 1979 dealt only with count A8 relating to the deed of gift of 19 May 1976, and with the matter of the forged will, a charge which was ultimately not proceeded with (see paragraph 41 above).

Given the secrecy of the judicial investigation, Mr Bricmont did not at that time have access to the criminal file, and this in practice prevented him from questioning the Prince on all the charges.

Admittedly, the appeal judges also had before them other "evidence gathered during the judicial investigation", which the Prince had "accurately cited" or "noted" in his submissions. Furthermore, the applicants were able to submit their observations freely during the investigation and the trial. The judgment of 9 March 1983 frequently referred to these, emphasising that the applicants had not given any convincing explanation or produced any written accounts.

It appears from the judgment of 9 March 1983 that in holding counts A1, A3 and A10 to have been proved, the Court of Appeal relied on the accusations of the party seeking damages, without Mr Bricmont ever having had an opportunity, afforded by an examination or a confrontation, to have evidence taken from the complainant, in his presence, on all the charges; there was a confrontation only in respect of count A8 (see paragraph 79 above).

2. The applicants’ other complaints

(a) The failure to examine witnesses

The Government replied that no such examinations had been sought by the applicants, or that they would have been of no relevance, as the case might be.

It is normally for the national courts to decide whether it is necessary or advisable to call a witness. There are exceptional circumstances which could prompt the Court to conclude that the failure to hear a person as a witness was incompatible with Article 6 (art. 6) but in the instant case it does not have sufficient grounds to form the view that such circumstances exist (see paragraphs 56 and 58 above). Accordingly, the Court cannot find that there was a breach of paragraphs 1 and 3 (d) of Article 6 (art. 6-1, art. 6-3-d) taken together.

(b) The failure to have the accounts audited

The Government replied that the investigating judge showed particular diligence in obtaining book-keeping records; that the applicants had attempted by every means to avoid giving explanations concerning the movement of funds; and that, by the applicants’ own admission, the relevant transactions were completed without any bank records being made.

(c) The fact that the gouache was not produced

The Government maintained that the applicants had shown by their behaviour that it was pointless for the gouache to be produced.

III.   THE APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

The applicants’ claims under this provision were for compensation and for reimbursement of costs and expenses.

The Government took the view that it was impossible to express any view on these claims "before knowing the Court’s finding". As a result the Delegate of the Commission also reserved his position.

1. Damage

(a) Pecuniary damage

(b) Non-pecuniary damage

2. Costs and expenses

(a) Costs referable to the domestic proceedings

As regards the proceedings in Belgium, he claimed the sum of 1,354,473.50 BF, itemised as follows: lawyer’s fees (1,224,949 BF), court costs (70,367.50 BF), fine (2,000 BF) and costs of typing, including for the proceedings before the Commission, (50,000 BF), and photocopying (7,157 BF).

(b) Costs referable to the Strasbourg proceedings

FOR THESE REASONS, THE COURT

1. Declares unanimously that the Government are estopped from relying on the rule that domestic remedies must be exhausted;

2. Holds by five votes to two that there has been a breach of Article 6 (art. 6) as regards the failure to arrange a confrontation between the party seeking civil damages and Mr Bricmont on three of the five charges on which he was convicted;

3. Holds unanimously that there has been no breach of Article 6 (art. 6) as regards the failure to arrange a confrontation between the party seeking damages and Mrs Bricmont;

4. Holds by five votes to two that there has been no breach of Article 6 (art. 6) as regards the failure to have the accounts audited;

5. Holds unanimously that there has been no violation of Article 6 (art. 6) in respect of any of the other points raised by the applicants;

6. Holds unanimously that Belgium is to pay Mr Bricmont the sum of 274,335.95 BF (two hundred and seventy-four thousand three hundred and thirty-five Belgian francs and ninety-five centimes);

7. Dismisses unanimously the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 7 July 1989.

Rolv RYSSDAL

President

For the Registrar

Herbert PETZOLD

Deputy Registrar

In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) partly dissenting opinion of Mr Matscher and Mr De Meyer;

(b) partly dissenting opinion of Mr Pinheiro Farinha and Mr Russo.

R.R.

H.P.

PARTLY DISSENTING OPINION OF JUDGES MATSCHER AND DE MEYER

(Translation)

In our view there was no infringement of the rights of the defence in this case. In particular the fact that no confrontation was arranged between the Prince and Mr Bricmont on three of the five charges which the appeal court found to have been established did not constitute such an infringement.

The national courts did not proceed solely on the basis of the Prince’s statements, in whatever form and in whatever capacity they were made and whatever their probatory force. It was essentially in the light of other evidence in the extensive file of the case that the first-instance court and the appeal court examined, in detail, the individual charges, having regard to the numerous explanations provided, both in writing and orally, in the course of the different proceedings, each of which involved several hearings. Careful study of the grounds of the judgments of 15 February 1982 and 9 March 1983, which were set out at length, makes this quite clear. These two courts arrived at different conclusions. The first-instance court dismissed the charges, while the appeal court found some of them established.