You can request a hearing from the jury

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The applicant alleged a violation of Article 6, Paragraph 1 of the ECHR (right to a fair trial) due to the lack of justification for the determination of her criminal responsibility and for her conviction in the jury's judgment.

On the alleged violation of Art. 6 Para. 1 ECHR

General principles

(66) The GH reiterates that the Convention does not require juries to give reasons for their decision and that Article 6 of the ECHR does not prohibit the case of a defendant from being heard before a lay jury [...]. The lack of reasons in a judgment due to the fact that the applicant's guilt was determined by a lay jury does not in itself run counter to the Convention.

(67) Nevertheless, the requirement of a fair trial requires the accused - and certainly the public - to be able to understand the judgment that has been delivered. This is an effective protective measure against arbitrariness. [...]

(68) [...] Art. 6 ECHR requires an assessment of whether sufficient guarantees were provided to exclude any risk of arbitrariness and to enable the accused to understand the reasons for his or her conviction. Such procedural guarantees may include, for example, instructions to or instructions from the jury regarding the legal questions that arise or the evidence presented, as well as precise and unambiguous questions to the jury by the presiding judge in order to set a framework within which the judgment moves , and to adequately compensate for the fact that the jury's answers are not justified. [...]

(72) From the judgment in Taxquet / B it can be deduced that it must be possible, from a joint investigation of the prosecution and the questions to the jury, to determine which of the evidence and factual circumstances discussed in the hearing ultimately prompted the jury to do so to answer positively the questions concerning the accused. This must make it possible to distinguish between the co-defendants; understand why a particular allegation was made instead of another; determine why the jury concluded that certain co-defendants had less responsibility and received less punishment; and understand why aggravating factors have been considered. In other words, the questions need to be both precise and individualized.

Application of these principles to the present case

(75) [...] Before the GH the question arises whether and how the act was committed - both were established and confessed by the applicant. Nor is it about the legal classification of the offenses or the severity of the punishment. The question to be decided in the present case is whether the applicant was able to understand the reasons for which the jury - despite the unanimous statement to the contrary by the psychiatric experts who presented their new opinion at the end of the proceedings before the jury - found that she was responsible for her actions at the relevant time.

(76) The GH notes that the indictment was read out in full at the beginning of the proceedings and that the nature of the offense on which the indictment was based and any circumstances that could potentially mitigate or aggravate the sentence were also stated. The applicant's case was then the subject of an adversarial debate in the course of which every piece of evidence was examined and the accused, represented by a lawyer, had the opportunity to call witnesses and comment on the statements made. The questions put to the twelve members of the jury by the president [of the jury] at the end of the ten-day trial were read out and copies were given to the parties.

(77) With regard to the combined effect of the indictment and the questions to the jury in the present case, the GH first notes that the 51-page indictment is a description of the precise sequence of events, the steps taken and evidence obtained during the investigation, as well as the forensic medical reports offered. A significant part also focused on the applicants 'personal history and family life and - especially in light of the experts' assessments of their mental state - on the reasons that led them to carry out the killings. However, the indictment had limited effect on the understanding of the judgment to be reached by the jury, as it was brought before the trial, whereas the trial is the decisive part of proceedings before the jury. Furthermore, as to the factual findings in the indictment and their value for understanding the verdict, the GH can only speculate as to whether they influenced the deliberations and the final decision reached by the jury. In particular, Art. 6 ECHR does not require an understanding of the reasons which prompted the judicial investigative organs to bring the case to the jury for hearing, but rather those which convinced the members of the jury after the hearing at which they were present to agree to theirs To reach a decision on the question of guilt.

(78) As regards the five questions put to the jury in the present case, the jury gave positive answers to the first two and negative to the fifth. The first question was the fundamental question regarding the applicant's guilt, the second concerned the aggravating circumstance of intent and the fifth [...] related to their current mental state; the other questions were only subsidiary and ultimately irrelevant.

(79) The GH first noted that the applicant's lawyer did not raise any objection when he learned of the President's questions to the jury and did not attempt to have them changed or to suggest others. In addition, a positive answer to the first question, which concerned the applicant's guilt, necessarily implied that the jury found that she was responsible for her actions at the relevant time. The applicant cannot therefore claim that it was unable to understand the jury's position on this issue.

(80) Indeed, the jury did not provide any reasons for its finding in this regard [...]. However, the GH reiterates that compliance with fair trial requirements must be assessed against the trial as a whole, by examining whether the trial, given all the circumstances of the case, made it possible for the accused to understand why he was found guilty . In the present case, such an examination could reveal a number of factors which could have dispelled any doubts on the part of the applicant regarding the conviction of the jury with regard to its criminal liability at the time of the events. The GH observes that the investigations - as the prosecution shows, which were largely devoted to these questions - concentrated from their early stages on the personal history and character of the applicants as well as their mental state at the time of the killings. In addition, there was not only an adversarial procedure in which the defendant and her lawyer were present, but the emergence of new evidence, namely the letters disclosed by the applicant's psychiatrist, led the President to order a further psychiatric report. The psychiatric assessors then changed their minds and presented their new findings. It is clear that the question of the applicant's criminal responsibility was actually a central focus of the negotiation in the present case.

(81) Furthermore, the jury's verdict also contains reasons which could help the applicants to understand why the jury considered them to be criminally responsible. Therefore, while the jury noted the applicants' mental health problems and the possible factors that caused her to act as she did, it made explicit mention of her determination to commit the murders and the cold-bloodedness with which she carried out them; that was a logical conclusion, given the jury's responses to these questions. The Cour de Cassation also did not interpret the judgment differently, since it held that consideration of the applicants' cold blooded demeanor and determination to carry out their crimes would have explained why the jury would have found them at the time of the events was criminally responsible.

(82) The fact that the judgment was drafted by professional judges who did not attend the deliberations on the question of guilt cannot call into question the value and impact of the explanations offered to the applicants. These statements were delivered without delay, as the verdict came at the end of the jury session on December 19, 2008. Furthermore, the professional judges who formally drafted the judgment in question were able to obtain the observations of the twelve jury members named in the judgment, as they sat next to them during the deliberations on the punishment. Ultimately, the professional judges themselves were present during the trial and therefore had to be able to put these observations into context.

(83) The fact remains that the applicants found the lack of concrete explanations for the difference of opinion between the jury (which they found to be criminally responsible) and the three psychiatric experts (who had unanimously stated in their last report that the applicants. " had suffered from a severe mental disorder at the time of the events which made it impossible for her to control her actions «) criticized. However, the GH reiterates that both the admissibility of evidence and its assessment are matters to be primarily governed by national law and that, as a general rule, it is for the national courts to assess the evidence before them. It is the duty of the GH to ensure compliance with the obligations assumed by the contracting parties under the Convention. In particular, it is not his job to deal with factual or legal errors allegedly committed by a national court, insofar as they could not have violated rights and freedoms protected by the Convention. Rather, he has to investigate whether the trial as a whole, including the way in which evidence was obtained, was fair. In addition to the fact that the experts themselves downplayed the effect of their findings by stating that their answers reflected their personal convictions while acknowledging that "they were only an expert opinion, not an absolute scientific truth," the GH said already established that statements by psychiatric experts before a jury are only part of the evidence presented to the jury. Consequently, the fact that the jury did not provide the reasons that led them to take a point of view that differed from the final report by the psychiatric experts in favor of the applicants could not prevent the latter from understanding the decision with which she was found criminally responsible.

(84) In conclusion, taking all these circumstances into account, the GH considers that the applicant was given sufficient guarantees to enable it to understand the guilty verdict against it.

(85) There was therefore no violation of Article 6, Paragraph 1 of the ECHR (10: 7 votes; differing special opinion of the judges Raimondi, Lazarova Trajkovska, Laffranque, Sicilianos, Lubarda, Grozev and Harutyunyan).

Judicature cited by the GH:

Bernard / F v. April 23, 1998 = ÖJZ 1999, 236

Taxquet / B v. November 16, 2010 (GK) = NLMR 2010, 350

Agnelet / F v. 10.1.2013 = NLMR 2013, 20

Note:

The present document on the judgment of the ECHR of November 29, 2016, Bsw. 34238/09, comes from the magazine "Newsletter Menschenrechte" (NL 2016, 519) or the corresponding database of the Austrian Institute for Human Rights, Salzburg, and was made available by this to the Supreme Court for inclusion in the judicial decision-making documentation in the RIS.

The judgment in the original English wording (pdf format):

www.menschenrechte.ac.at/orig/16_6/Lhermitte.pdf

The original of the judgment is also available on the website of the European Court of Human Rights (www.echr.coe.int/hudoc).