CASE OF BODDAERT v. BELGIUM

1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 10 June 1991,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated in
an application (no. 12919/87) against the Kingdom of Belgium lodged
with the Commission under Article 25 (art. 25) by a Belgian
national, Mr Jean-Claude Boddaert, on 13 February 1986.
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 as to whether the
facts of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer
who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr J. De Meyer, the elected judge of Belgian nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of
the Court (Rule 21 para. 3 (b)).
On 28 June 1991, in the presence of the Registrar, the
President drew by lot the names of the other seven members, namely
Mr J. Cremona, Mrs D. Bindschedler-Robert, Mr N. Valticos,
Mr S.K. Martens, Mr I. Foighel, Mr R. Pekkanen and Mr A.N. Loizou
(Article 43 in fine of the Convention and Rule 21 para. 4)
Subsequently, Mr F. Matscher and Mr A.B. Baka, substitute
judges, replaced Mr Cremona, whose term of office had expired, and
Mrs Bindschedler-Robert, who had resigned, and both of whose
successors had taken up their duties before the hearing (Rules 2
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Belgian Government ("the Government"), the Delegate of the
Commission and the applicant's lawyer on the need for a written
procedure (Rule 37 para. 1). In accordance with the order made in
consequence, the Registrar received the applicant's memorial
on 4 November 1991 and the Government's memorial on 7 November. On
29 November the Secretary to the Commission informed the Registrar
that the Delegate would submit his observations at the hearing.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on
26 November 1991 that the oral proceedings should open on
6. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
Mr J. Lathouwers, Legal Officer,
Ministry of Justice, Deputy Agent,
Mr P. Lemmens, avocat, Counsel;
Mr P. Van Damme, avocat, Counsel.
The Court heard addresses by Mr Lemmens for the Government,
Mr Rozakis for the Commission and Mr Van Damme for the applicant, as
well as replies to its questions.
7. As Mr Ryssdal was unable to attend the final deliberations
on 22 September 1992, he was replaced by Mr R. Bernhardt, substitute
A. The preliminary inquiry and the investigation
8. Mr Jean-Claude Boddaert was born at Ougrée (Belgium). At
the time of the most recent information supplied to the Court, he
was in detention in Lantin Prison.
9. On 1 July 1980 a murder was committed outside the bar "Le
Troquet", which he ran. The resulting trial in the Liège Assize
Court, at which he testified as a witness, ended on 18 March 1982
with the conviction of a certain Demain.
10. On 18 July 1980 the gendarmerie discovered in one of the
cellars of the building rented by the applicant the body of one
Jehin, whose death had occurred on 17 July. Suspicion fell
immediately on Mr Boddaert and on Mr Piron, who was arrested on
19 July. On the same day a warrant was issued for the arrest of the
applicant, who had fled to Spain the day before, for fear of being
However, on 22 July Mr Boddaert contacted the Belgian
police in order to give his version of events and to "negotiate" his
return. He was handed over to the Belgian authorities on 30 July.
The investigation had been opened on 18 July 1980.
11. From July to December 1980 the investigating judge and the
investigators effected a large number of procedural steps,
interviewed numerous witnesses and questioned on several occasions
Mr Boddaert and Mr Piron, who each accused the other of Jehin's
murder. The crime was said to have been perpetrated in the course
of an argument concerning debts owed by Jehin to the applicant which
had taken place at the latter's bar in the absence of any witnesses.
12. The report of the autopsy and that of the ballistics expert
were filed on 25 November and 15 December 1980; the psychiatric
reports on the applicant and his co-accused, Mr Piron, were
submitted on 23 and 28 September 1981.
On 10 March 1981 the investigating judge had requested the
Liège gendarmerie to transmit to him the results of inquiries into
the character of Boddaert and Piron, because he "[was] carrying out
the last interviews and the file could shortly be completed".
In a report of 19 January 1982 the ballistics expert and
the pathologist concluded that the applicant's description of events
corresponded more closely to the medical findings than that of his
13. On 2 February 1982 the Liège indictment division (chambre
des mises en accusation) ordered Mr Boddaert's release and
14. On 11 May 1982 the investigating judge asked the special
investigation branch ("BSR") of the Seraing gendarmerie to reopen
the file, working together with their Liège colleagues, and in
particular "to examine whether Jehin's murder [was] not connected
with the receiving of stolen goods and thefts which [might] have
been organised from the applicant's bar, 'Le Troquet'". This was
apparently the only investigative measure carried out between
2 February 1982 and 28 June 1983. The B.S.R. communicated the
information requested in a report of 2 June 1982.
15. In August, October and November 1982 several complaints
were laid against Mr Piron for assault, wounding and threatening
behaviour. In April 1983 he was questioned in connection with death
threats that he had allegedly made against Mr Bustin, the last
witness to have seen Jehin alive and whom he accused of denouncing
him for that murder. He was also interviewed in respect of damage
that he was said to have caused to eight boats, one of which
belonged to Mr Bustin. Proceedings were instituted in the Liège
Criminal Court, but were adjourned by that court sine die on account
of fresh charges brought against Mr Piron.
On 1 June 1983 Piron was again remanded in custody and
charged with having, on the night of 30 to 31 May 1983, murdered a
certain Thérèse Hemeleers, who had been found dead in his flat.
From that date Mr Piron was the subject of two
investigations conducted jointly; one concerned Jehin's murder, the
other the offences committed in 1982 and 1983.
16. On 28 June 1983 the crown prosecutor instructed the
investigating judge to make further inquiries in the Jehin case.
The latter submitted reports on these inquiries on 14, 20 and
24 February and 12 (two reports), 15 and 19 March 1984.
The investigating judge requested and, on 26 December 1983,
received from a neuropsychiatrist a number of clarifications on the
report which he had drawn up on Piron's responsibility.
17. The investigation marked time from 19 March 1984 to
10 May 1985, when the crown prosecutor expressed the opinion that
Mr Boddaert and Mr Piron should be committed for trial in the assize
18. In the meantime, on 9 November 1984, the crown prosecutor
had asked the investigating judge responsible for the Hemeleers case
to make a number of additional inquiries, which took until
On 12 November 1984 the investigating judge in question
sent to his colleague dealing with the applicant's case a note
"While finalising the file with a view to communicating
it, I found in it a photocopy of a document (memorial) in
the case [of the applicant and his co-accused] the original
of which has long since been passed to the accused ...
I considered it necessary to seize the documents because
I thought they might provide indications particularly of a
psychological nature for the investigation of the case in
question [Hemeleers]; on re-reading it I am of the opinion
that this memorial is not indispensable to shed light on my
19. A hearing was to have been held before the chambre du
conseil on 24 May 1985, but it was postponed at the defence's
request until 14 and then 21 June 1985.
20. On 24 June the chambre du conseil of the Liège First-
Instance Court decided to communicate the file to the principal
public prosecutor at the Liège Court of Appeal "so that the case
[might] be referred by him to the indictment division". It ordered
in addition that the applicant and his co-accused be arrested and
detained in a remand centre to be designated by the assize court;
this order was put into effect the day before the assize court's
session (see paragraph 25 below). The chambre du conseil had first
dismissed a submission from Mr Boddaert based on the failure to
comply with the reasonable time requirement laid down in Article 6
para. 1 (art. 6-1) of the Convention. It held as follows:
"... although there has been detailed and extensive
evidence against the two accused since the investigation
began, the case is rendered particularly complex by the
fact that the accused give very different versions of the
facts and accuse each other, all of which has created a
need for investigative measures to elicit the truth,
measures which were taken in 1983 and 1984;
... as soon as the main part of the file had been
completed, the accused were released, and this has given
them an opportunity, unusual in view of the seriousness of
the charges against them, to rehabilitate themselves and
present themselves in a favourable light before the trial
court which will, if necessary, be called upon to punish
... the accused are therefore not justified in
complaining of the lapse of time since the events in issue
because in the circumstances of the case this delay may in
... for the rest it will be for the trial court to decide
whether the witnesses' memories are sufficiently accurate
and clear for it to find that the charges have been proved
and pass sentence accordingly;"
On 25 June 1985 the two accused filed objections to this
21. On 2 July 1985 the principal public prosecutor lodged
submissions with the Liège indictment division calling for the
accused's committal for trial. The submissions concluded as
"... it was necessary, in view of the blatant
contradictions between the two 'versions' and the dubious
character of the persons concerned, to exercise the
greatest vigilance before closing the file on this case;
... for example, Piron's behaviour following his release
gave legitimate cause for concern and for fearing further
revelations in this case, which was still undoubtedly very
... it has been alleged that there were times when the
investigation and the work of the prosecuting authorities
which should have ensued came to a total halt ..., no
mention being made of the case's infinite complexity, which
was due both to the nature of the case itself and to the
... Boddaert ... had been involved in a murder ... in
front of his premises committed by Pierre Demain, a few
days before the offence of which he is accused, on
... the two persons concerned had just left his premises
and he himself did everything possible to confuse the issue
and mislead the police and judicial authorities as regards
the incident itself and its origins; the motive for this
murder, on which Boddaert's subsequent attitude was
equivocal, still remains a mystery;
... this case reached its conclusion, Pierre Demain being
in detention, in the Liège Assize Court on 18 March 1982;
... having been released on 2 March 1982, Piron was soon
... in August, October and November 1982, he was involved
in incidents of violent and threatening behaviour, cases
which have been joined to the case concerning the murder"
- that of Thérèse Hemeleers - "committed on the night of
30-31 May 1983, for which he was sent for trial before the
... in April 1983, the police wanted him for questioning
in connection with threats made by him to Bustin, the owner
of the 'Lion d'Or', rue Grétry, the very person whom he
accused of denouncing him in the 'Troquet case';
... on the night of 5 to 6 April 1983, he engaged in
threatening behaviour towards a fellow tenant of the
building which he occupied, breaking the windows of his
... this conduct on the part of Piron and especially his
attitude in April 1983 towards Bustin, the owner of the
'Lion d'Or', one of the last witnesses to have seen Jehin
alive, made it plain that the investigations of which he
was the subject should not be concluded immediately, since
there were still "areas of uncertainty" in the case,
particularly as he, like Boddaert, was no longer in
... finally, on the night of 30 to 31 May 1983, a casual
female acquaintance, Thérèse Hemeleers, was killed in
Piron's flat; ... having been arrested, he has recently
been committed for trial before the assize court on a
... it seemed clear that developments in the 'second'
case might affect the 'first', and that the investigating
judges were of necessity bound to compare among other
things the psychiatric reports;
... the investigating judge, Mr Regibeau, having seized
certain documents in connection with the 'second case', in
fact relinquished it on 12 November last, as being relevant
to the 'first case', the investigation of which was being
conducted by the investigating judge Colemonts; this
document was included in the file on the first case ...;
... furthermore, in the interests of the proper
administration of justice and pursuant to Article 62 of the
Criminal Code, which states that the heaviest penalty shall
be imposed when several crimes have been committed, it is
important that these two cases should be taken at the same
B. Committal for trial in the assize court
22. The hearing before the indictment division of the Liège
Court of Appeal which had been set down for 18 July 1985 was
postponed, at the defence's request, until 22 August. As it had
been indicated that the pleadings would be lengthy, the hearing was
adjourned and resumed on 3 September 1985.
23. On 6 September 1985 the indictment division committed the
applicant and Mr Piron for trial in the assize court. It declared
the objections filed on 25 June (see paragraph 20 above)
inadmissible and ruled, in respect of the allegation that a
reasonable time had been exceeded, that it was not for the judicial
investigating authority to determine whether that requirement "has
been or could be complied with".
Relying on Article 6 para. 1 (art. 6-1) of the Convention,
the applicant filed an appeal on points of law, which the Court of
Cassation dismissed on 13 November 1985 on the ground that Article 6
para. 1 (art. 6-1) of the Convention applied to the trial courts and
not to the judicial organs responsible for the investigation.
C. The trial in the assize court
24. The indictment in the Jehin case, drawn up by the principal
public prosecutor at the Liège Court of Appeal on 1 February 1986,
was served on Mr Boddaert on 7 February.
25. On 11 February the President of the assize court ordered
the joinder of the Jehin and Hemeleers cases and decided that the
proceedings relating to the two murders should be "dealt with at the
same hearing and be the subject of a single judgment".
On 3 March 1986, the first day of the trial, the applicant
- who had been in custody since the previous day by virtue of the
detention order of 24 June 1985 (see paragraph 20 above) - requested
the assize court, first, to stay the proceedings until the European
Commission of Human Rights had expressed its opinion on his
application and, secondly, to revoke the order of 11 February 1986
as it was prejudicial to the rights of the defence and was liable to
prolong the trial and the detention.
26. Sitting without a jury on 4 March 1986, the assize court
dismissed Mr Boddaert's submissions on the following grounds:
"... the question whether the time taken to bring a case
to trial is 'reasonable' must be determined in the light of
the circumstances of each case ...;
... this assessment is only possible once the whole case
has been argued and examined, the witnesses and the experts
have been heard and all the inquiries necessary to
establish the truth carried out;
... the court whose responsibility it is to make this
assessment is the same as that which has to determine the
merits of the accusation; ... under Belgian law in this
instance it is the jury, sitting in private in the absence
of the court; ... in order to make a finding as to the
accused's guilt the jury will assess the weight of
statements and testimony, their consistency, their accuracy
and the extent to which they can still be relied upon in
view of the time which has elapsed since the date of the
event in issue; ... in any case the accused must always be
accorded the benefit of the doubt;"
As regards the joinder of the cases, the assize court noted
"... the close connection referred to in Articles 226 and
227 of the Code of Criminal Procedure is established where
there is, between two or more offences, a link the nature
of which is such that, in the interests of the proper
administration of justice, they must be tried together and
... Piron is charged inter alia with two offences coming
within the statutory category of serious crime, committed
within the space of less than three years;
... the charges against Piron are interdependent and
related (nature of the offences, same accused, defence
adopted by him) and this justifies upholding the joinder
27. On 14 March 1986 the applicant asked the assize court to
put to the jury a question concerning compliance with the reasonable
time requirement; this request was rejected by a decision of the
same day on the ground that the question was included in that
concerning the accused's guilt.
On the same day the assize court found Mr Boddaert and
Mr Piron guilty, the former of the murder of Jehin, as perpetrator
or joint perpetrator, the latter of the murder of Jehin, as
perpetrator or joint perpetrator, and of the murder of Thérèse
Hemeleers, as perpetrator. It sentenced them respectively to ten
years' imprisonment and to death.
28. Mr Boddaert and Mr Piron appealed to the Court of Cassation
against the judgments of 4 and 14 March 1986 (see paragraphs 26-27
above). The applicant stressed, in the first place, that "no
Belgian court [had] agreed, or [had] been placed in a position of
being able, to assess whether or not a reasonable time had been
exceeded" although six years had elapsed between the date of the
offences and the verdict. He further alleged that the reasoning of
the two judgments, delivered within ten days of each other, was
29. The Court of Cassation dismissed the appeal on
On the submission based on the alleged failure to comply
with the "reasonable time" requirement, it noted:
It is for the trial courts to determine, in the light of
the circumstances of each case, whether the case is heard
within a reasonable time and, if not, to decide what
Neither Article 6 para. 1 (art. 6-1) of the Convention
for the Protection of Human Rights and Fundamental Freedoms
nor any other provision either of the Convention or of
national law specifies what consequences a trial court
should attach to a finding by it that a reasonable time has
been exceeded; the Convention does not provide that in the
event of a reasonable time being exceeded the sanction is
to be the inadmissibility of the prosecution case, such
inadmissibility being based on an express finding of the
excessive length of the proceedings;
Such consequences must be considered with reference to
the evidence, on the one hand, and to the sanction, on the
other; the excessive length of proceedings may indeed
result in the loss of evidence to the extent that the court
can no longer decide that the offences have been proved;
the exceeding of a reasonable time may also entail
detrimental consequences for the defendant or the accused;
... it is for the jury alone to assess whether the
evidence adduced before it is sufficient to allow it to
form a conviction as to the defendant's guilt ...; then, if
the jury's replies to the questions concerning the
defendant's guilt are in the affirmative and the defendant
contends that the failure to comply with the reasonable
time requirement has entailed for him damage of a personal
or a pecuniary nature, it is for the court together with
the jury to determine what consequences if any, as regards
assessment of sentence, should ensue from such failure, if
In this instance in his submissions filed in the course
of the investigation of the case, before the President put
the questions deriving from the indictment or the hearing,
the appellant maintained that a reasonable time had been
exceeded, but concluded therefrom solely that there was a
By answering these submissions with the considerations
set out in the grounds of the appeal, the judgment
establishes the legal basis for its decision;
The appellant's submission cannot succeed;
II. The appeal by Jean-Claude Boddaert
It follows from the reply given in respect of
Nicolas Piron's appeal in so far as it was directed against
the interlocutory judgment of 4 March 1986 that the
The Court of Cassation added that by sentencing Mr Boddaert
to ten years' imprisonment the assize court had decided "implicitly
but clearly, that [his] allegations concerning the excessive length
of the proceedings were unfounded, either inasmuch as a reasonable
time had not been exceeded or, if it had been, because it was not
necessary to take this into consideration in assessing sentence".
PROCEEDINGS BEFORE THE COMMISSION
30. In his application to the Commission of 13 February 1986
(no. 12919/87), Mr Boddaert alleged primarily that the criminal
proceedings brought against him had exceeded a reasonable time
within the meaning of Article 6 para. 1 (art. 6-1) of the
Convention. He also complained that he had not had adequate time
and facilities for the preparation of his defence for the purposes
of Article 6 para. 3 (b) (art. 6-3-b).
31. On 2 July 1990 the Commission declared the complaint based
on Article 6 para. 3 (b) (art. 6-3-b) inadmissible; on the other
hand, it found that relating to Article 6 para. 1 (art. 6-1) to be
In its report of 17 April 1991 (made under Article 31)
(art. 31), it expressed the opinion, by nine votes to two, that
there had been a violation of Article 6 para. 1 (art. 6-1). The
full text of its opinion and the dissenting opinion contained in the
report is reproduced as an annex to this judgment*.
* Note by the Registrar: For practical reasons this annex will
appear only with the printed version of the judgment (volume 235-D
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT
32. At the hearing the Government confirmed the submissions set
out in their memorial, in which they asked the Court to hold "that
there has been no violation of Article 6 para. 1 (art. 6-1) of the
ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
33. Mr Boddaert relied on Article 6 para. 1 (art. 6-1) of the
Convention, according to which:
"In the determination ... of any criminal charge against
him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ..."
He did not criticise the overall length of the criminal
proceedings brought against him; he acknowledged that the
investigation organs - chambre du conseil of the Liège
First-Instance Court and indictment division of the Liège Court of
Appeal - and the trial court - the assize court - had acted with
normal diligence. On the other hand, he complained of a period of
thirty-nine months - from 2 February 1982 to 10 May 1985 - during
which the investigation conducted by the investigating judge was
dormant and indeed was twice entirely suspended (2 June 1982
- 28 June 1983 and 12 March 1984 - 10 May 1985).
34. The Commission agreed with this view in substance, but, in
the Government's opinion, although the proceedings were relatively
lengthy, they could not be considered excessively so, having regard
to the particular circumstances of the case.
A. Period to be taken into consideration
35. The period to be taken into consideration began on
19 July 1980, the date on which the warrant was issued for the
applicant's arrest (see paragraph 10 above). Following a brief
interruption owing to Mr Boddaert's flight to Spain (see
paragraph 10 above), it ended on 22 October 1986, when the Court of
Cassation delivered its judgment (see paragraph 29 above). It thus
lasted six years, two months and twenty-two days.
B. Reasonableness of the length of the proceedings
36. The reasonableness of the length of proceedings is to be
determined with reference to the criteria laid down in the Court's
case-law and in the light of the circumstances of the case, which in
this instance call for an overall assessment.
37. The Court notes at the outset that the present case
originated in a murder following shortly after another murder
committed in the same place (see paragraphs 9-10 above). A number
of persons coming from the same circle were implicated; they
The inquiry was a difficult one. Initially this was
because of the lack of witnesses and because Mr Boddaert and
Mr Piron accused each other of having committed the crime of which
they were both suspected. Although on 19 January 1982 the joint
report of the pathologist and the ballistics expert provided
information capable of helping to identify the person who had struck
the fatal blow (see paragraph 12 above), "areas of uncertainty"
remained. The investigation, which was pursued without interruption
until 2 February 1982 (see paragraph 13 above), failed to shed light
on the motives for the murder and to establish the personalities of
the accused. It did however reveal the existence of possible links
with other offences (see paragraph 14 above).
38. In addition to this the conduct of Mr Piron, who had been
released on 2 March 1982 (see paragraph 13 above), has to be taken
into account. In August 1982 and April 1983 the latter committed a
number of offences - at least one of them connected with the Jehin
case - in respect of which proceedings were instituted in the Liège
Criminal Court (see paragraph 15 above). At this point the
investigating judge chose to shelve the investigation in case there
were any further developments; there were not, but on 1 June 1983
Mr Piron was accused of the murder of Thérèse Hemeleers (see
paragraph 15 above). The authorities considered that that murder