SECOND SECTION
 
 
 
 
 
 
 
CASE OF LHERMITTE v. BELGIUM
 
(Application no. 34238/09)
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
26 May 2015
 
THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 29/11/2016
 
This judgment may be subject to editorial revision. In the case of Lhermitte v. Belgium,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Işıl Karakaş, President,
 András Sajó,
 Nebojša Vučinić,
 Helen Keller,
 Paul Lemmens,
 Robert Spano,
 Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 31 March 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 34238/09) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Belgian national, Ms Geneviève Lhermitte (“the applicant”), on 5 June 2009. 2. The applicant was represented by Mr X. Magnée, a lawyer practising in Brussels. The Belgian Government (“the Government”) were represented by their Agent, Mr M. Tysebaert, Senior Adviser, Federal Justice Department. 3. The applicant alleged, in particular, that there had been a violation of her right to a fair trial on account of the lack of reasons in the jury’s verdict and in the Assize Court’s judgment sentencing her to life imprisonment. 4. On 29 May 2012 notice of the application was given to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
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 from finding that the factual circumstances of the case 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. II. RELEVANT DOMESTIC LAW AND PRACTICE
20. The relevant domestic law and practice are outlined in Taxquet v. Belgium ([GC], no. 926/05, §§ 22-42, ECHR 2010). 21. With regard to persons sentenced to life imprisonment, the Criminal Code, as in force at the material time, provided:
Article 18
“A judgment imposing a sentence of life imprisonment or imprisonment for twenty to thirty years for serious crimes or political offences shall be printed in extract form and publicly displayed in the municipality where the offence has been committed and the municipality where the judgment has been delivered.”
Article 19
“All judgments imposing a sentence of life imprisonment for serious crimes or political offences, fixed-term imprisonment for serious crimes or imprisonment for twenty to thirty years or fifteen to twenty years for political offences shall deprive the convicted persons of any titles, ranks and public functions, employment and positions they may hold.”
Article 31
“All judgments imposing a sentence of life imprisonment for serious crimes or political offences or imprisonment for at least ten to fifteen years for serious crimes shall permanently disqualify the convicted persons from:
(1) holding public functions, employment or positions;
(2) standing for election;
(3) bearing any decoration or title of nobility;
(4) serving as a juror, expert or attesting or certifying witness to transactions; giving evidence in court proceedings other than straightforward information;
(5) being appointed as a guardian, auxiliary guardian or partial guardian, except of their own children; and acting as a court-appointed adviser, a court-appointed administrator of the property of a person who is presumed absent or a provisional administrator; and
(6) manufacturing, altering, repairing, transferring, keeping, carrying, transporting, importing, exporting or transiting weapons or ammunition, or serving in the armed forces.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION (REASONS FOR THE GUILTY VERDICT AND SENTENCE)
22. The applicant alleged that because the jury’s verdict as to her guilt and the Assize Court’s judgment as to her sentence had not contained reasons, she had not had a fair trial, in breach of Article 6 § 1 of the Convention, the relevant part of which provides:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
23. The Government contested that argument. A. Admissibility
24. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
25. The applicant submitted that the jury’s verdict and the Assize Court’s judgment had not included the reasons for finding her guilty and fixing her sentence. Firstly, the Assize Court, on the basis of the committal order and the indictment, had dealt with one overall accusation, grouping the five homicides together indiscriminately as a single charge and a single offence, as though there had been a unity of intent. Consequently, only two questions had been put to the jury about the applicant’s guilt. The questions had been succinctly worded and ambiguous, and had not enabled the applicant to understand the jury’s verdict. Secondly, the jury had – without any explanation – disregarded the seven reports and statements under oath by the three court-appointed psychiatric experts and two psychologists, who had unanimously concluded that the applicant had been suffering from a severe mental disturbance making her incapable of controlling her actions at the material time. The applicant, however, had consistently argued that she had not been criminally responsible at the time of the events; accordingly, she was unable to understand why the experts’ unanimous conclusions had not been endorsed by the jury. The lack of reasoning also prevented the applicant from scrutinising the lawfulness of the jury’s verdict and the Assize Court’s judgment. The reasons given by the Assize Court in fixing the applicant’s sentence were contradictory, and the Assize Court had not given a sufficient explanation for its finding that there were no mitigating circumstances. Furthermore, in determining the applicant’s sentence it had omitted to take into account her divorce from the father of her five children. Lastly, the Assize Court had given undue consideration to the defence strategy chosen by the applicant. 26. The Government submitted that the indictment contained a detailed sequence of the police and judicial investigations and the conclusions of the various psychological and psychiatric expert reports. They argued that the main issue considered at the trial had been the applicant’s capacity to control her own actions. This was a difficult and highly controversial subject because the psychiatric experts were inevitably required to give an “all or nothing” answer. Hence, the experts’ reports simply reflected their personal conviction and amounted purely to an informed opinion, rather than a scientific truth which the jury should accept. The Government submitted that in the sentencing judgment the Assize Court had explained the reasons why it had not found that the applicant had been suffering from a mental disturbance making her incapable of controlling her actions. The applicant had therefore been able to understand the verdict and the reasons for her conviction. The procedure followed had, moreover, afforded sufficient safeguards against arbitrariness. 2. The Court’s assessment
(a)  Applicable principles
27.

Article of the Convention at issue: Article 6
Outcome: no_violation