Admitting a wrong to avoid having to repair it? (That’s not how it works, says the Court in Hakimi v. Belgium)

Obviously, all governments hate it  when an important criminal who after a long investigation and trial has been convicted, finds a violation of his article 6 rights that necessitates a retrial. The Belgian government thought they had found a way around this, but it didn’t work.

In September 2006, the Brussels Court of Appeal convicted Mr. Hakimi to an 8 year prison sentence for his participation in the activities of a terrorist group. As the appeal judgment was rendered in his absence, the remedy of ‘opposition’ was available, within a period of 15 days. Yet the judgment did not mention this period, nor did the deputy governor of St. Gilles prison who served the judgment on the applicant in French and without an interpreter (during his trial, Mr. Hakimi, a Moroccan national, had been assisted by an interpreter). Hakimi lodged his opposition after a month and a half, and saw it rejected for being out of time. This is a violation of his right of access to court. The European Court has found as much in another judgment against Belgium, delivered in 2007 . Belgian legislation and practice have meanwhile been adapted.

Hence there was little or no doubt that Mr. Hakimi would win his case in Strasbourg, and would therefore be entitled to  request the reopening of his trial. Belgium introduced this remedy in 2007. In criminal cases, a reopening of the trial can be requested to the Court of Cassation when a violation of the ECHR or its protocols has been found in a final judgment of the European Court of Human Rights. The Court of Cassation will order the reopening when it finds that either the judgment itself violates the Convention or the violation is the result of procedural errors or shortcomings that are so serious as to raise serious doubt about the outcome of the procedure.

After the communication of the Hakimi application to the Strasbourg Court, the Belgian government first tried to reach a friendly settlement. Then it applied to the Court with a unilateral declaration asking for the case to be struck from the list in exchange for a recognition of the violation of article 6§1  and the payment of 10000 EUR.

Hakimi rejected the proposed friendly settlement and argued against the striking of the case from the list with the argument that he did not want to lose the opportunity to request a reopening of his case in the Belgian courts. Since it is not clear whether a decision striking the case from the list after a friendly settlement or unilateral declaration can count as a ‘final judgment’ of the Court – at first sight it is not the case, the Belgian law clearly says ‘judgment’ -, he would risk losing that opportunity if the European Court did not issue a judgment on the merits.

The Belgian government, whose ploy had been seen through, offered a meager defense: the Court of Cassation might still rule that a unilateral recognition of a violation is equivalent to a judgment finding a violation. It even suggested that the European Court might help by calling its decision a judgment in this one case. Belgium moreover proposed that the Court try this out, while keeping open the option of adding the case back to the list if the Court of Cassation ruled otherwise.

The Court did not buy it. It found a violation, in line with its previous case-law, and stated explicitly that the most appropriate remedy would be a reopening of the procedure. Having rejected the offer of 10 000 EUR, and claiming moral damages over 300 000 EUR, the applicant was not awarded any financial compensation.

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