By Sofie Depauw, PhD Researcher at Ghent University, Institute for International Research on Criminal Policy (IRCP).

With its judgment in the case of Van Wesenbeeck v. Belgium, the Chamber of the European Court of Human Rights has taken a stance with regard to the scope of defence rights in case of observation and infiltration methods. More specifically, the Court judged that, despite the lack of access to the confidential case file and the applicant’s inability to examine undercover officers, the right to a fair trial had not been violated. According to the Court, the supervisory role of the Indictments Division constituted a sufficient procedural guarantee to compensate for both interferences. Whereas it remains to be seen whether this judgment will hold, as the case can still be referred to the Grand Chamber, it is however interesting to take a closer look at the Court’s considerations in this regard and the dissenting opinion relating to the right to examine witnesses.

The facts

The case dates back to 2010, when the Indictments Division of the Antwerp Court of Appeal decided on the regularity of evidence gathered and the completeness of the criminal case file in a case of, amongst others, drug trafficking, participation in an international criminal organisation and money laundering. One of the suspects, Van Wesenbeeck, had been the subject of a proactive investigation after a preliminary authorisation from the Crown Prosecutor of Hasselt, from May 2006 till September 2008, during which observation and infiltration methods were applied. Two reports, which described evidentiary elements obtained through the use of the proactive investigative measures, were added to the case file (which became accessible later on). From September 2008 until June 2009, the methods were once again applied, albeit in the context of a ‘conventional’ judicial investigation under the responsibility of an investigating judge, and in combination with other investigative measures such as telephone tapping. After adding the documents to the case file which the Indictments Division indicated (relating to the existence of indications that led to the opening of a proactive investigation and the proportionality and subsidiarity of the particular investigative methods), the case file was considered complete and not consisting of any irregularities or violations of legal or conventional provisions. The case file however was still limited to some extent, as it did not contain any information on the identity of the undercover officers nor on the methods used. These documents remained confidential, which the applicant contested. However, his objections were declined, and the applicant was convicted to ten years of imprisonment and a fine of 137 500 euros.

The Court’s judgment

The Court was asked to decide on whether the lack of access to the confidential file violated the right to a fair hearing (art. 6 § 1), and whether the inability to examine the undercover officers, or to have them examined, violated the right to examine witnesses (art. 6 § 3 (d)). Both complaints were dismissed.

With regard to the right of access, the Court successively considers the necessity of the decision to keep a confidential file which was not accessible to the applicant, and the existence of sufficient procedural safeguards in this respect. The decision was recognised to be in conformity with the necessity requirement, as the existence of the confidential file was motivated by the concern to protect the anonymity and thus the safety of the infiltrating officers and the methods they applied, and the elements kept confidential were limited to that extent. All other information was thus included in the  (accessible) case file. Moreover, the Court considered that an important procedural guarantee was constituted by the judicial control exercised by the Indictments Division. More specifically, the Division can independently and impartially decide on whether the case file is complete and whether it is necessary to keep information from the confidential file inaccessible to the defence. This control was considered an important guarantee by the Court. The applicant’s attempt to invoke the impossibility to verify whether there had been incitement/entrapment by the infiltrated police officers in case of non-access, was rejected as well.

With regard to the right to examine witnesses, the Court successively considers the reasons to deny the applicant the possibility to examine the undercover officers (1), the importance of the officers’ statements as evidence (2) and the procedural guarantees to counterbalance the  difficulties to the defence caused by this decision (3). First of all, the Court referred to the national authorities’ judgment in that the search for the truth nor the right to a fair trial required the interrogation of the infiltrating agents. Even though it could be acknowledged that an interrogation as such might have been useful, the grounds invoked by the Belgian government (protection of the infiltrating officer and his family and possibility to use this agent in future operations) were considered sufficiently serious and based on objective and concrete grounds. Secondly, the Court believes that the statements can be considered of sufficient weight to cause difficulties for the defence. Thirdly, however, the Court found that there were sufficient counterbalancing elements to compensate for the difficulties of the inability to interrogate the agents. More specifically, the Court attached great importance to the judicial control exercised by the Indictments Division, which could take into account and investigate all concerns raised by the applicant, even though neither Van Wesenbeeck, nor the Indictments Division (which could only consult the confidential file) could interrogate the officers themselves. Moreover, since the applicant could access and compare the reports drawn up by both infiltrating officers, other witnesses could be examined and questioned about the infiltrating officers and their methods and all evidence has been scrutinised by the national court, the Court believed that all evidentiary elements raised by the anonymous infiltrating officers could sufficiently be counterbalanced by the defence by providing other evidentiary elements.

Judges Karakas, Laffranque and Turkovic however dissented with the Court’s decision on the last element. More specifically, they believe that there was a violation of the right to examine witnesses in that there were insufficient compensatory elements to counterbalance the impossibility to examine the infiltrating police officers. According to the Schatschaschwili judgment,

“The Court would stress that, while Article 6 § 3 (d) of the Convention concerns the cross-examination of prosecution witnesses at the trial itself, the way in which the prosecution witnesses’ questioning at the investigation stage was conducted attains considerable importance for, and is likely to prejudice, the fairness of the trial itself where key witnesses cannot be heard by the trial court and the evidence as obtained at the investigation stage is therefore introduced directly into the trial”.

In the light of this judgment, the dissenting judges found that the impossibility for the applicant to examine the witnesses or have them examined, led to the violation of article 6 §3 (d)).

Commentary

As the dissenting Judges Karakas, Laffrangue and Turkovic indicate, deciding on whether sufficient compensatory safeguards are put in place in order to conclude that the rights of the defence have not been violated, can be regarded in two ways.

On the one hand, the Court has said in the Schatschaschwili judgment that the way in which prosecution witnesses are questioned can prejudice the fairness of the trial. Moreover, the Court has said in this judgment that, in case of the witnesses’ absence, “a significant safeguard is the possibility offered to the defence to put its own questions to the witness indirectly, for instance in writing, in the course of the trial”. Such safeguard was however not at all provided by the Belgian legislator.

On the other hand, in the Bátěk judgment, which even serves as a reference in the judgment of the majority, the Court considered that there was no violation of the right to a fair trial as the defence had been able to challenge the reliability of the evidence of the undercover police officer by putting questions to her directly and commenting on her testimony. The reference of the majority to the Bátěk judgment to confirm its own decision seems odd, especially since the defence did have the possibility to question the witness in this case.

In conclusion, this is a remarkable judgment that can either be considered as a new balance of defence rights and law enforcements’ possibilities achieved by the Court in applying infiltration and observation methods, or as a one-time deviation of the general principle that the defence should have the possibility to examine the witnesses (or have them examined) by (indirect) interrogation.