Law practice and fraud for many years. Twelve-year duration of criminal proceedings constitutes an infringement of the reasonable duration of the proceedings

JUDGMENT 

Abboud v. Belgium 02.07.2019 (no.29119/13)

see here 

SUMMARY

Violation of reasonable time for criminal proceedings. 12 years for criminal cases exceeded the reasonable time.

The applicant worked as a translator. Taking advantage of this situation and without having the capacity of a lawyer, he has been conducting legal acts for many years, providing legal assistance to asylum seekers. The proceedings in the domestic courts over the criminal offense it committed lasted more than 12 years. The applicant had raised all the necessary legal remedies.

The ECtHR held that there had been a breach of Article 6 & 1 as to the reasonable length of the proceedings on the ground that the complexity of the case and the applicant’s conduct did not in itself justify the length of the proceedings, because the main reason for that was the manner in which which the authorities handled the case.

PROVISION

Article 6 par. 1

PRINCIPAL FACTS 

The applicant, Jean Abboud, is a Belgian national who was born in 1960 and lives in Brussels.
The case concerned the length of proceedings in which Mr Abboud had been tried, among other
charges, for unlawfully passing himself off as a lawyer.

Until the end of 2002 Mr Abboud worked as a certified court translator and interpreter. In this
capacity, he provided services, particularly in the context of hearings for asylum seekers who had
been granted legal aid.

At the end of 2002 a dispute arose between Mr Abboud and the legal aid office of the
French-speaking Bar Council of Brussels with regard to fee notes and invoices submitted by him.
Then, in October 2003, a complaint was lodged against the applicant for fraud, unlawfully passing
himself off as a lawyer and making false accusations.

In 2011 Mr Abboud was committed to stand trial before the first-instance criminal court. The
applicant argued, unsuccessfully, that the prosecution case should be declared inadmissible for
failure to comply with the reasonable time requirement.

In 2014 the first-instance court sentenced Mr Abboud to two years’ imprisonment and a fine of
11,000 euros (EUR); half of each penalty was suspended. In 2016 the court of appeal held that the
prosecution was time-barred. With regard to the civil aspects, the court of appeal held that the facts
concerning the charge of unlawfully passing himself off as a lawyer were established and upheld the
judgment. Mr Abboud was ordered to pay a symbolic fine of one euro, plus statutory interest, and
costs in the civil proceedings (EUR 165 at first instance and EUR 165 on appeal).

Relying in particular on Article 6 § 1 (right to a fair hearing within a reasonable time) of the European
Convention on Human Rights, Mr Abboud complained about the length of the proceedings.

THE DECISION OF THE COURT…

The Court notes from the outset that this procedure is a criminal procedure in which the injured party has also brought a civil action. Accordingly, the duration of the proceedings relates mainly to the exercise of public authority, even if it concerns, in part, civil action. In these circumstances, it is necessary to consider the length of the proceedings as such, without distinguishing between criminal and civil aspects.

The period examined began on 7 January 2004 with the applicant’s first interrogation by the police. Following two appearances issued on 26 October 2007 and 25 March 2008, the date on which the case file was notified to the public prosecutor’s office, the investigation was charged on 31 March 2009 seeking the applicant to be referred before the criminal court, and the case was settled  the hearing on 26 January 2010 in accordance with the Rules of Procedure. It was subsequently postponed on the applicant’s request for further questioning. The order for reference was definitively adopted by the Chamber on 13 January 2011 but challenged by the applicant before the Court of Appeal, which ruled on 14 December 2012. In fact, the criminal court ruled for the first time in April 2013, subsequently. against the contrary opinion on 5 March 2014. The proceedings expired on 17 February 2016 by the decision of the Court of Appeal. It lasted over 12 years, for two phases, each involving two or three cases.

The Court recalls its case-law according to which the reasonableness of the length of proceedings must be assessed according to the circumstances of the case and having regard to the following criteria: the complexity of the case and the conduct of the applicant and the authorities competent authorities. In addition, only delays attributable to the State may lead to a finding of non-compliance with the reasonable period of time

As the Government pointed out, the investigation of the case certainly entailed a certain complexity in relation to the multiple charges against the applicant and the length of the period of the offense, but the Court considers that this is not enough to explain why the proceedings against the applicant were of such length.

With regard to the applicant’s conduct, the Government criticized him for having made intensive and systematic use of the remedies which had the effect of slowing down the procedure, without, moreover, having optimized the remedies which would have allowed him to accelerate. The Court agrees that these elements, attributable in part to the applicant, contributed to the length of the proceedings against him. They do not, however, explain, according to the Court, the entire duration.

With regard to the conduct of the authorities, the Court reiterates that Article 6 § 1 obliges the Contracting States to organize their judicial system in such a way that their courts and tribunals can fulfill each of its requirements, in particular the reasonable time requirement. However, it notes in particular that the phase of investigation has experienced periods of slowdown or even stagnation: the investigating judge, seized on May 5, 2004, completed his investigation on May 25, 2008; the public prosecutor took his indictment on March 31, 2009; the case was set for the hearing before the council chamber of 26 January 2010 for the settlement of the proceedings.

On the basis of all the factors considered, the Court concludes that the complexity of the investigation and the applicant’s conduct do not in themselves explain the length of the proceedings; the major cause of this lies in the way the authorities handled the case.

Accordingly, there has been a violation of Article 6 § 1 of the Convention

Just satisfaction: The Court held that the finding of a violation constituted in itself sufficient just
satisfaction for the non-pecuniary damage sustained by Mr Abboud. It further awarded him
800 euros (EUR) for costs and expenses(echrcaselaw.com).


ECHRCaseLaw

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