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Case law

ECtHR, Van Wesenbeeck v. Belgium

May 2017 - Belgium

right to information

On 10 May 2006 the Crown Prosecutor of Hasselt agreed to a proactive investigation against the applicant and a number of other suspects, on suspicion of drug trafficking, participation in an international criminal organisation and money laundering, among other offences. The investigation involved special observation and infiltration methods and separate and confidential case file was constituted. Two reports containing details of the evidence gathered through the use of those special measures were added to the ordinary criminal case file. On 18 September 2008 the Crown Prosecutor requested the investigating judge of the Court of First Instance of Hasselt to open a judicial investigation. The judge then headed a “conventional” investigation. The observation and infiltration continued until 14 June 2009, when a number of suspects, including the applicant, were arrested and remanded in custody. Relying on Article 6 (1), the applicant complained about the lack of access to the confidential file. Under Article 6(3) (d), he complained that he had been unable to examine the undercover officers, or to have them examined.
The Court observed that the defence’s inability to consult a separate, confidential file, containing authorisations and reports on special investigation methods, was compatible with the requirements of Article 6 § 1. The confidential file had been necessary to protect the anonymity and therefore the safety of the undercover officers and to ensure that the methods used were kept secret. Secondly, the Belgian legislature had limited the evidence in the confidential file to documents that were likely to compromise the identity and safety of the individuals concerned and the very use of the special methods. The Court concluded that the restriction of defence rights had been justified and sufficiently compensated for by the supervisory role of the Indictments Division. There had therefore been no violation of Article 6 § 1 of the Convention.
With regards to the refusal of the Belgian courts to grant the applicant’s request to call the undercover officers for examination by the defence, the Court examined whether or not there were adequate compensatory elements to counterbalance such restrictions of procedural safeguards during the trial. The Court found that the applicant had been able to challenge the evidence gathered through the intervention of the undercover officers and that there were adequate procedural safeguards to counterbalance the difficulties caused to the defence. Therefore, there had been no violation of Article 6 (1) and 3 (d) of the
Convention.

You can read the full judgment here.

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