Monitoring the hearings for the prosecution of Aliamadou Ahmed held on the 5^th of March 2021

Introduction

The hearings concerning the prosecution of Aliamadou Ahmed took place on the 5^th of March 2021 at the Tribunal of first instance of Brussels (criminal section (chamber n°67)). The procedure was established according to the rules and principles governing accelerate proceedings.

The case concerns an alleged instance of domestic violence.

The accused is charged under Article 398 and 399 of the Belgian Criminal Code which, respectively, criminalises the conduct of willfully inflicting beatings or injuries to another individual, as well as established an aggravating circumstance for that offence the consequence that those beatings or injuries led to a personal incapacity for work for the victim.

It should be stressed out that all of the information exposed here was collected through in-person attendance at the hearings.

1. Summary of the facts underlying the offence:

On the evening of the 21^st February 2021, the police of Tubize received an emergency call from a neighbour about a dispute taking place at the domicile of Mr. Aliamadou. Once they arrived there, they found his girlfriend (Stephanie R., with whom he has a child of two months old) in a state of shock with multiple bruises and contusions over her arms, torso, and neck. Those injuries were later authenticated by a doctor at the hospital where the police brought the victim. Later on, Stephanie had to request a week off from her job because of her wounds.

In her testimony to police, Stephanie claims that Mr. Aliamadou was drunk when he came back from visiting his ex-spouse leading to an argument between them. The dispute escalated to the point that the accused threatened her with a knife to make her leave his apartment. She refuses to obey and he started beaten her up till the arrival of the police. Before the bench, she claimed that Mr. Aliamadou is usually behaving well except when he is drinking, which takes place exclusively during the weekends.

For his part, Mr. Aliamadou claims that earlier that day he went to visit his ex-spouse, with whom he shares custody over their two children, and once he was back home a dispute started due to this visit. He claims that Stephanie was hysterical and because he was tired after working full time the whole week before and being a little tipsy, he could not handle it. Their dispute worsens to the point that he attempted to make her leave by threatening her with a knife which did not work. As a result, he tried to physically push her out of his house which she resisted, leading to her being harmed.

Since the police arrived when the offence was still taking place (flagrante delicto) and the relative straightforwardness of the situation, the public ministry decided to prosecute this case under the rules set up for accelerated procedures (Article 216quater of the Belgian Criminal Instruction Code (Code d’instruction criminelle)). Accordingly, Mr. Aliamadou was noticed to appear by a police report to the hearing held on the 5^th of March before the Tribunal of first instance of Brussels (correctional section, 67^th chamber). No preventive measures of restraint were adopted.

2. Summary of the course of the hearing:

As the 67^th chamber is specifically competent to handle accelerate procedures, multiple hearings were organised successively in the courtroom.

After opening formally the discussion on the case at stake, the judge invited the accused to explain before the bench his version of the incident. Then, she allowed the victim to react to what has been said. It should be underlined that the victim expressed the will to withdrawn her complaint at this stage. However, such a request would carry no effects given the inquisitorial nature of criminal proceedings under Belgian law. Indeed, the withdrawal of a complaint can only extinguish the action launched by the public ministry for certain specific crimes but not the one at stake presently.

Following this informal dialogue actively monitored by the judge, the prosecutor took the floor to develop her concerns about the situation at hand. Those related mostly to past condemnations of Mr. Aliamadou for driving under the influence, which she argued as indication that he might have an addiction to drinking, as well as his condemnation for acts of domestic violence committed against his ex-spouse. At the end of her pleading, she suggested the most appropriate penalty in her opinion (2 years of imprisonment with one year on probation, one of those probational conditions being for the accused to undertake a detox program). Then, the judge allowed the accused and the victim to react to the prosecutor’s proposal. Furthermore, she explained the various penalties available to the accused (work sentence, probational suspension of the condemnation, etc.), the pro and cons of each measure as well as the fact that he needed to request them to the bench for her to be able to grant it. Indeed, Belgian law requires the person prosecuted to request his/her preferred penalty which otherwise cannot be taken under consideration by the judge.

3. Case at stake and considerations related to the right to a fair trial

No violations of the right to a fair trial have been identified.

By its very nature, an accelerated procedure might be problematic in light of the right of the defence. This is especially true regarding the requirement for the accused to have adequate time and facilities to prepare his/her defence (as enshrined within Article 6§3(b) ECHR). However, the issue of adequacy of the time and facilities left to the accused needs to be assessed in light of the circumstances of each particular case, especially taking into account the complexity of the case and stage of the proceedings (Gregacevic v. Croatia, 10^th October 2012, §51).

In the case at stake, the facts underlying the offence took place on the 21^st  February 2021 and the hearings were held on the 5^th of March 2021 (less than two weeks in between). Thus, the accused had little time to prepare his defence and/or to seek legal advice. Yet, the recourse to this accelerated procedure was justified given the relative straightforwardness of the issue under examination as well as the fact that the police intervened almost immediately on the scene of the offense giving it almost the character of “flagrante delicto”.

Regarding the lack of legal representation of Mr. Aliamadou, it must be stressed out that he was invited to appoint a lawyer by the trial’s notice (a mandatory requirement under Belgian criminal procedural law) but willingly chose not to do so. Moreover, when one looks at the motives underlying the right of access to a lawyer (as developed by the ECtHR in Beuze v. Belgium, 9^th November 2018, §125-130 (namely prevention of a miscarriage of justice, equality of arms between the prosecution and the accused, right to be informed about his/her rights, etc.), the attitude of the judge facing a non legally represented accused needs to be highlighted. She took the time to explain what provocation as a defence could entail (as he was arguing about that in substance), why the withdrawal of the complaint would carry no effects, and the available penalties he could request as well as the pro and cons of each. Indeed, she was very cautious in guaranteeing the procedural fairness of the trial for the accused.

Interestingly, the rationale underlying the establishment of accelerated proceedings is grounded in the general issue relating to the (excessive) length of proceedings in Belgium. Indeed, Belgium has been repeatedly condemned in Strasbourg for its failure to respect the right to trial “within a reasonable time” (see for example Panju v. Belgium, 28^th October 2014). While this objective is certainly legitimate, it cannot come as a sacrifice of other fundamental safeguards to the right to a fair trial. However, by limiting those proceedings to clear and simple cases such as the one at hand, Belgium does not breach the rights of the accused.