THE FACTS

The facts of the case as submitted by the applicant may be summarised

as follows:

The applicant is a Belgian citizen, born in 1926 and at present

resident in Istanbul, Turkey.

From his statements and documents submitted by the applicant it appears

that, on .. July 1959, he was arrested in accordance with a warrant of

arrest issued by the Judges' Chamber of the Court of First Instance

(Raadkamer der Rechtbank van Eerste Aanleg) in Antwerp on .. April 1959

and remanded in custody. He was suspected of having committed various

offenses of fraud, breach of trust and inflicting bodily harm. On ..

September 1959 a psychiatrist allegedly examined the applicant and

found, on the basis of this examination and the applicant's case file,

that he was mentally deranged. According to the applicant, this

examination lasted twenty minutes only. Subsequently, the order for his

detention on remand was allegedly confirmed on .. September and ..

October 1959.

The applicant stated that on .. November 1959 he was conditionally

released from detention. At the same time an order was made by the

above Judges' Chamber that the applicant should again be examined by

a psychiatrist as to his criminal responsibility. According to the

applicant this order was never executed owing to the fact that, on ..

February 1960, he had moved to Germany where he remained until 1968.

However, on .. June 1960 the Judges' Chamber of the Court of First

Instance in Antwerp took a decision in the absence of the applicant to

the effect that he had committed certain of the above offenses while

being mentally deranged and thus incapable of being responsible for his

acts, but that he constituted a danger to public safety. For these

reasons the Court ordered, in accordance with the relevant provisions

of the Act of 9 April 1930 relating to Social Protection in respect of

Abnormal Persons and Habitual Criminals, that the applicant should be

detained during a period of five years in a mental institution. On ..

June 1960 the Criminal Court of First Instance took a similar decision

with regard to further charges of fraud and certain offenses committed

in connection with the issuance of cheques. It again ordered the

applicant's detention in a mental institution for a period of five

years but decided that this period should run concurrent with the

period fixed by the decision of .. June 1960.

It appears that in 1967 the German authorities informed the applicant

that he could no longer stay in the Federal Republic, the validity of

his passport having expired. He states that he intended to move to

London but before he could put his plan into effect the German

authorities deported him to Belgium where he was arrested on ..

September 1968 and transferred to Antwerp. He was detained in the

psychiatric division of Antwerp prison where the above decisions of ..

and .. June 1960 were communicated to him.

On .. October  1968 the applicant assisted by Mr. L., a lawyer

practising in Antwerp, appeared before the Board for the Protection of

Society (Commissie tot bescherming van de matschappij) which rules that

the applicant should be detained at M. in execution of the above

decisions of .. and .. June 1960.

The applicant lodged with the Court of Cassation (Hof van Verbreking)

pleas of nullity against that ruling and against the decisions of ..

and .. June 1960 but the Court declared them inadmissible on ..

December 1968. As regards the Board's ruling it stated that, as it

simply determined the place at which the applicant should be detained

in execution of the above court decisions and was not concerned with

maintaining the detention as such, it was not possible to challenge in

cassation proceedings this ruling. As regard the decisions of .. and

.. June 1960 the Court stated that, insofar as the applicant had failed

to appeal against these decisions, pursuant to Article 8 of the Act of

9 April 1930, he had not exhausted the remedies available to him under

Belgian law.

The applicant considered that he was wrongfully detained. He alleged

that he was not mentally deranged and emphasised, in particular, the

fact that for years he had lived in Germany and even built up and run

a business in that country. He therefore made an application to the

Board for the Protection of Society at Antwerp Prison for his release.

The Board heard the applicant on .. March 1969. It appears that it also

procured a further psychiatric opinion on the applicant's mental state.

However, on .. March 1969 it took a decision rejecting his application

for release.

The applicant then addressed himself to the Council of States (Raad van

State) requesting that his case should be examined by the Council. By

letter of .. April 1969 from the Council's President's Office he was

informed that the Council of State had no competence to examine the

decisions of the Boards for the Protection of Society which had been

established under the Act of 1 July 1964 and simply replaced the Boards

set up under the previous Act of 9 April 1930.

The applicant also lodged with the Court of Cassation a plea of nullity

against the said Board's decision of .. March 1969. He alleged, first,

that the provisions of the Act of 1 July 1964 which replaced the Act

of 9 April 1930 had been applied without taking into consideration the

fact that the applicant's detention had been ordered before the 1964

Act had entered into force. Secondly, he alleged that the Commission

had ignored the fact that his mental state had improved and that

consequently the condition for his release on probation (reclassering)

had been satisfied. He finally alleged that the 1964 Act had been

violated by virtue of the fact that two members of the Board had simply

adopted the "vote" (stem) of the Procureur of the King (Procureur des

Konings).

On .. June 1969 the Court of Cassation rejected the plea in the absence

of the applicant or his lawyer and after hearing the conclusions of the

Solicitor General (Advocaat-generaal). With regard to the applicant's

first allegation the Court held that it was ill-founded and explained

that the system of the Act of 1 July 1964 was applicable to such

detention orders which had not been fully executed at the time of the

entry into force of that Act. Consequently, from that date onwards the

determination of the actual length of detention was a matter falling

exclusively within the competence of the Board for the Protection of

Society. The Court further held that the applicant's second allegation

was inadmissible since the Board was the sovereign judge as to any

improvement of a prisoner's state of mind and the possibility of his

release on probation. The Court finally decided that the applicant's

third allegation was also inadmissible as it lacked sufficient clarity.

The applicant complained that he was wrongfully detained in a mental

institution. He alleged that the psychiatrist who had examined him in

1969 had not found any trace of mental illness but that the Board had

ignored that finding. He further seemed to allege that his detention

was unlawful in that the 1960 detention orders were executed in

accordance with the Act of 1 July 1964 which had not been in force at

the time when the orders were made. According to the applicant, there

was no provision in the 1964 Act which states that the 1930 Act should

be replaced. This had only been accomplished by Ministerial Ordinance

34/64 so that he was presently detained at M. simply on the basis of

an administrative ordinance rather than a law enacted by the

legislature. Moreover, the 1960 detention orders had lost their force

by reason of the lapse of time.

The applicant finally referred to the Delcourt Case and complained

that, as in that case, his pleas of nullity had been dealt with by the

Court of Cassation in his absence but in the presence of the

Procureur-General.

He invoked Articles 25, 26 and 27 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The Commission examined the application on 13 and 24 July 1970. It

noted the following additional facts:

On 13 October 1969 the applicant had last written to the Commission

from M. and on 1 April 1970 the Commission's Secretary informed him

that, as his case would soon be examined by the Commission, he should

confirm his intention to maintain his application and submit any

further information that he wished to be put before the Commission. The

applicant did not reply to that letter.

On 22 June 1970 the Secretary wrote a further letter to the applicant

at M. requesting him once more to state his intention to maintain the

application and, in particular, to submit a copy of the decision of the

Board for the Protection of Society, dated .. March 1969. This letter

was returned with the statement on the letter:  "Parti pour: c/o J. G.,

A.F. Ltd., G. Lane, H., Middlesex, Great Britain".

On the basis of this information the Secretary on 29 June 1970 sent by

registered mail a copy of his letter of 22 June to the above address

in England. This letter was accepted by one S.A. but there had been no

reply from the applicant by July 1970.

In the circumstances the Commission decided to adjourn until its

October session the further examination of the application and, in the

meanwhile, to instruct the Secretary to try to re-establish contact

with the applicant and obtain from him further information on the

circumstances of his detention and subsequent release.

In pursuance of the Commission's decision of 24 July 1970, the

Secretary wrote again to the applicant informing him of the above

decision and requesting from him further information on the

circumstances of his detention at, and subsequent release from, the

mental institution at M..

The applicant finally replied by letter of 28 August 1970 from Istanbul

stating, however, the address in England as indicated by the Belgian

authorities. He stated that he wished to maintain his application

before the Commission but that he could not comply with the

Commission's request for the submission of further decisions and, in

particular, of the Board's decision of .. March 1969 as he never

received the decision concerned. He contends that he tried to clarify

matters in Belgium with the assistance of two lawyers but without

success: his efforts in this connection were allegedly defeated by one

Mr. van L., who is apparently the Procureur at the Board for the

Protection of Society in Antwerp.

The applicant further stated that he was released on .. October 1969

on the condition that he should leave Belgium for England and never

return. He contended that he never received the decision ordering his

release, although the competent authorities had promised to send him

a copy thereof to his address in England.

The applicant finally states that, under Belgian law, he is still 100%

insane and that he suffered severe damage during his detention in a

mental institution.

He requested the Commission to grant him justice and set aside the

decision declaring him to be mentally deranged.

On 7 October 1970 the Commission continued its examination of the

applicant's complaints. It decided to communicate the application, in

accordance with Rule 45, 3 (b) of the Commission's Rules of Procedure,

to the Belgian Government and to invite the Government to submit its

observations in writing on the admissibility of the application.

In the meanwhile, the Commission adjourned again the further

examination of the case.

The Government's observations, dated 28 December 1970, were submitted

to the Commission on 11 January 1971. On 13 January 1971 they were sent

to the applicant's address in England which was the only address known

to the Secretary and the applicant was invited to submit, with a period

of two weeks, i.e. before 26 January 1971, his written observations in

reply.

Receipt of the Secretary's letter of 13 January 1971 containing the

Government's observations on admissibility was acknowledged on 18

January 1971 by a person at H., Middlesex, England. However, there was

never a reply from the applicant.

On 9 February 1971, the Commission's Secretary telephoned to the JDAF

Company at H. He spoke to a Mr. Y. who informed him that the applicant

had been with the company only for a very short time two years ago and

that, since that time, there had been no communication from him except

a postcard from Istanbul, Turkey.

SUBMISSIONS OF THE BELGIAN GOVERNMENT

In the observations of 28 December 1970 the Belgian Government first

submitted further details regarding the facts of the case. They confirm

that two decisions were taken against the applicant by reason of

various criminal offenses committed by him.

The first was an order by default (Ordonnance par défaut) by the

Judges' Chamber of the Court of First Instance at Antwerp, dated ..

June 1960 and committing the applicant to detention during the period

of five years. During these proceedings the applicant had been remanded

in custody from .. April to .. May 1959 and again from .. July to ..

November 1959. The offenses concerned were eleven acts of breach of

trust and one act of severe bodily harm which the applicant inflicted

on .. July 1959 on an acquaintance while he was in the office of the

psychiatrist T. who had been asked to examine him in connection with

the other charges against him.

The second decision was a judgment by default of the Ninth Chamber of

the Criminal Court at Antwerp, dated .. June 1960 and again committing

the applicant to detention during a period of five years but declaring

that this detention was absorbed by the order pronounced by the Judges'

Chamber on .. June 1960. During these proceedings the applicant had

never been in detention on remand although he had been arrested on ..

August 1958 and released the next day after his interrogation by the

Investigating Judge. The offenses concerned were eight acts of breach

of trust and two acts of obtaining money by means of worthless cheques.

The Government states that it had been impossible to rearrest the

applicant after his provisional release on .. November 1959. In fact,

it had not been possible to communicate to the applicant either a

warrant to appear in court, issued on .. March 1960, or any subsequent

sub-poena, or the two decisions concerned. Consequently, the

applicant's name had been included on .. June 1960 in the Central

Bulletin.

It appeared from two petitions for pardon, lodged by the applicant on

.. September and .. November 1960 by which he requested the quashing

of the orders for detention in order to obtain an extension of his

passport by the Belgian Consulate in D. that the applicant was at that

time in H. where, according to him, he intended to begin a new life.

For reasons unknown to the Belgian authorities the applicant was

expelled from Germany on .. September 1968 and delivered to the

Government authorities at the Belgo-German border at C. The Government

authorities telephoned the King's Counsel (Procureur du Roi) at Antwerp

on whose orders the applicant at once was transferred to the

psychiatric division of Antwerp Prison and placed under the

jurisdiction of the Board for the Protection of Society. At the same

time, the above decisions of June 1960 were communicated to him. The

applicant made a plea of nullity against the decisions which was

dismissed by the Court of Cassation on .. December 1968.

The Government further states that, on .. October 1968, the Board for

the Protection of Society decided that the applicant should be

transferred to M.. and that a plea of nullity against the decision was

dismissed by the Court of Cassation on .. December 1968. On .. March

1969 his detention at M.. was confirmed by the said Board and a plea

of nullity against that decision was again rejected by the Court of

Cassation. Then, on .. September 1969 the Board ordered the applicant's

transfer to T.. and on .. December 1969 it made an order for the

applicant's provisional release granting his request to leave Belgium

and establish himself in London. This approval was given on the

condition that he should inform the Board of his residence in England

but according to the Government, the applicant, who was released on ..

December 1969 never gave this information.

The Belgian Government then also makes some observations regarding the

applicant's mental condition. They explain that he had been examined

by a psychiatrist, Dr. R., who had been charged with the case after Dr.

T. had resigned as a result of the incident in his office on .. July

1959. Dr. R. had come to the conclusion that the applicant showed signs

of insanity, although he was physically and intellectually sufficiently

well. The applicant was a disintegrated person who, as a result of his

hallucinations, made attempts at his reintegration. He had no sense of

guilt with regard to the offenses committed by him and considered

himself as being hindered in his development by a particular person

whom he planned to kill. Consequently, he constituted a clear danger

for that person and such an attitude was a sign of mental illness.

The Government then deals with the question of the admissibility of the

application and submits that the applicant had not satisfied the

requirements under Article 26 of the Convention.

First they point out that the applicant had failed to exhaust the

remedies which were at his disposal under Belgian law. In fact, the

applicant had the possibility of making an objection (opposition)

against the Judges' Chamber's decision, either immediately after having

taken cognisance of that decision or within ten days after it had been

communicated to him. In this connection the Government explains that,

under Article 187 of the Code of Criminal Procedure, the person

concerned must simply have cognisance of the decision by default as

such but not of the terms of the act of its notification, nor was it

necessary that he should have received a copy of the act of

notification or of the decision itself.

In the present case, it resulted clearly from the petitions for pardon

made by the applicant on .. September 1960 and .. November 1960 that

he had cognisance of the decisions against him at least by 20 November

1960 and he should have made his objection within 10 days from that

date.

But even assuming that this was not accepted, Article 187 of the Code

of Criminal Procedure further provided for an extraordinary objection

to be made within 10 days after the notification of the decision.

Applying this rule, the Government observes that the decision had been

notified to the applicant on 4 September 1968 and that consequently he

had until 14 September 1968 to make an extraordinary objection which

he failed to do so.

Furthermore, as regards the judgment of the Criminal Court of Antwerp

dated .. June 1960 the Government refers to Article 199 of the Code of

Criminal Procedure which provides for an appeal (appel) against the

judgments in criminal matters. However, the applicant had challenged

both decisions against him by means of a plea of nullity (pourvoi en

cassation) which had been declared inadmissible on .. December 1968.

The Belgian Government next submits that the applicant also failed to

observe the six months' time-limit laid down in Article 26 of the

Convention. In this connection the Government refers again to the fact

that, on .. September 1960 the applicant had made a petition for

pardon, and concludes that from that date onward the applicant had been

aware of the measures taken against him. As he had made neither an

objection nor an appeal against the decisions concerned, these had

acquired the force of res judicata by .. October 1960 at the latest.

However, the applicant had not seized the Commission before .. April

1969 that is more than six months after the final national decision.

The Government submits that, for these reasons, the application is

inadmissible.

The Government further submits, in the alternative and reserving the

right to make further observations in this respect, that the

application is also ill-founded.

Firstly, the applicant's detention was not inconsistent with Article

5, paragraph (1) of the Convention. The detention order was based on

the Act of 9 April 1930. It had not been possible before .. September

1968 to enforce that order because the applicant had absconded. As the

detention constituted, in the present case, a security measure and not

a penalty, it was not subject to the rules of prescription. Under the

Royal Decree of 28 August 1964 relating to the Social Protection in

respect of Abnormal Persons and Habitual Criminals, the new Act

replaced the 1930 Act and also governed any detention order prior to

1 September 1964.

Secondly, contrary to the applicant's allegations, the Board for the

Protection of Society had maintained his detention solely by reason of

his personality. Under Article 18 of the 1964 Act the Board had, of

course, the power to release him.

Finally, the Government submits that the applicant's further

allegations were in no way substantiated by the facts of the case.

DECISION OF THE COMMISSION

The Commission notes that there has been no communication from the

applicant since 28 August 1970. The Commission further notes that the

applicant has failed to keep it informed of his whereabouts and that

the address indicated by him in his correspondence was not his correct

address with the consequence that it was not possible to communicate

with him at that address. The Commission finally notes that its

Secretary has made various efforts to establish contact with the

applicant, but without success.

In these circumstances, the Commission considers that the applicant has

failed to show any interest in the maintenance of his application

before the Commission;  and there appear to be no reasons of a general

character affecting the observance of the Convention which would

necessitate a further examination of his complaints.

For these reasons, the Commission DECIDES TO STRIKE THIS APPLICATION

OFF ITS LIST OF CASES