The applicant in this case was a Belgian national, who was prosecuted in 2010 for a number of offences related to social security fraud. In December 2010, the Ghent Criminal Court convicted and imposed a custodial sentence and fine.
While the appeal was pending, a financial newspaper published comments attributed to the public prosecutor, identifying the applicant by name and portraying him in highly negative terms. The Ghent Court of Appeal acquitted the applicant of one charge, holding that the prosecutor’s media comments had irretrievably prejudiced his right to a fair trial, but convicted him of other offences. The judgment was later quashed by the Court of Cassation and the case remitted.
In 2016, the Brussels Court of Appeal convicted the applicant of all counts. On a further appeal, the Court of Cassation in 2017 partially quashed the judgment in relation to the calculation of the fine. One of the judges sitting on the appeal, had previously presided over the first instance criminal court that convicted the applicant in 2010.
The European Court of Human Rights, held that the participation of the Judge in the Court of Cassation proceedings raised objectively justified doubts as to the court’s impartiality. The judge had played a significant role both at first instance and later in the Court of Cassation in the same case. The Court noted that domestic law prohibited the concurrent exercise of different judicial functions in the same case and there was no internal mechanism in the Court of Cassation to prevent such a situation or to alert the parties. In these circumstances, the applicants right to an impartial tribunal had been breached, amounting to a violation of the Convention.
The Court additionally found a violation of Article 6(2) arising from the prosecutor’s statement to the press during the appeal proceedings. It emphasised that the presumption of innocent applies throughout criminal proceedings, including on appeal, and that prosecutors must exercise a particular caution when speaking publicly about pending cases. By describing the applicant as “crooked fraudster who knew the tricks of the trade” the prosecutor went beyond providing factual information and expressed a personal opinion implying guilt. Taken as a whole, the remarks were capable of leading the public to believe that the applicant was guilty before the proceedings had concluded. The Court held that these statements infringed the applicants right to be presumed innocent.
The Court unanimously found violations of Article 6 (1) and 6 (2) of the Convention, breaching the applicants right to impartiality and right to be presumed innocent.