Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11230/84

by L. S.

against Belgium

The European Commission of Human Rights sitting in private on

4 March 1987, the following members being present:

MM C.A NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

F. MARTINEZ

Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Art. 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 November 1984

by L. S. against Belgium and registered on 9 November 1984

under file No. 11230/84;

Having regard to:

- the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

- the Commission's decision of 2 December 1985 to bring the

application to the notice of the respondent Government and

invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

18 March 1986 and the observations in reply submitted by the

applicant on 6 June 1986;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as they have been submitted by the

parties may be summarised as follows.

The applicant is a Belgian citizen, born in 1931 and an

administrator by profession. He resides at Overijse, Belgium.

In the proceedings before the Commission he is represented by

Mr. Stroobants, a lawyer practising at Brussels.

On 1 February 1974, the applicant, as owner of the renovated

castle "Coloma" at Sint-Pieters-Leeuw, Belgium, granted a lease of

this building to a representative of the Brussels Buildings

Directorate, acting in the name of the Belgian Government, Buildings

Department (Regie der Gebouwen).

It appears that the Government duly paid rent but that the

castle was not inhabited, as a result of which it deteriorated

rapidly.

On 11 April 1978, the applicant summoned the Buildings

Department to appear before the Justice of the Peace (Vrederechter) of

Halle, claiming compensation for global damage to the building as well

as for damage done to certain movables in the castle.

On 20 June 1978, the judge appointed an expert to evaluate the

damages.

On 6 February 1980, the judge provisionally ordered the

Belgian State to pay the applicant BF 1,000,000.-- in damages, with

interest from 11 April 1978. The Belgian State, thereupon, paid the

applicant BF 1,206,466.-- on 6 November 1980.

On 22 June 1983, the judge ordered the Belgian State to pay

the applicant an additional BF 1,847,500.-- in compensation for the

damage to movables with interest from the date of the summons, as well

as, provisionally, BF 100,000.-- for legal costs.

The judgment was declared to be enforceable notwithstanding

appeal and without security.

At the request of the Belgian State in order to save costs the

judgment was not served on the Belgian state but a declaration was

made by a senior civil servant on behalf of the Minister of Public

Works (Minister van Openbare Werken), on 6 October 1983 that he

accepted the aforesaid judgment and that its terms would be complied

with.

It appears that the Buildings Department paid the applicant

BF 2,373,810.- on 27 December 1985 and BF 146,188.- on 10 January 1986.

COMPLAINTS

The applicant complains that the Belgian Government refused to

execute a judgment, which is enforceable notwithstanding any appeal,

pronounced against them by one of their own courts, concerning property

owned by the applicant.

In addition, the applicant complains of the absence in Belgium

of an effective means of obliging the State to pay compensation which

it has been ordered to pay, as the property of the Belgian State is

unseizable.

The applicant has invoked Art. 1 of the Protocol No. 1 to the

Convention as well as Art. 13 of the Convention.

&_PROCEEDINGS BEFORE THE COMMISSION&S

The application was introduced on 6 November 1984 and

registered on 9 November 1984.

The Commission decided on 2 December 1985 to give notice of

the application to the respondent Government and to invite them to

submit written observations on the admissibility and merits before

7 March 1986. The Government were asked, in particular, whether they

intended to comply with the judgment pronounced against them on

22 June 1983.

The Government's observations were submitted on 18 March 1986,

the applicant's observations in reply on 6 June 1986.

&_SUBMISSIONS OF THE PARTIES&_

A. The Government&S

The Government submit that the delay in the execution of the

judgment in the present case has its origins in the institutional

reform which is at present being carried out in Belgium, as it was in

the case of Sequaris, in which the Commission adopted a Report

(Sequaris v. Belgium, Comm. Rep. 13.7.83, D.R. 32, p. 242).

The following clarification should be added. Under the system

organised by the Act of April 1971 (creating the Buildings Department),

and under the various budgetary acts and the administrative rules

which apply to the relations between the Buildings Department and the

different ministries, the Department concludes the contracts of lease

(as was done on 17 February 1974 with the applicant) and pays rent to

private owners, subject to reimbursement by the ministries concerned

(in the present case the Ministry of Dutch Culture). However, the

latter are directly responsible for the tenant's additional dues as

well as for damages which result from the use (or, as in the present

case, the non-use) of the premises.

Exceptionally, the Buildings Department accepted to ensure

the provisional execution of the judgment of 6 February 1980 (as

advance payment) subject to reimbursement by the Ministry of Dutch

Culture. Following the Special Act of 9 August 1980 (Institutional

Reforms) and the transfer of functions it organises, it is the Flemish

Community which has reimbursed the Department the sums advanced by the

latter.

The Department, however, refused to advance the compensation

for the dilapidations which were awarded to the applicant by the final

judgment of 22 June 1983, insofar as the Flemish Community, refusing

to be answerable for the regulations previously set up between the

Department and the ministries, did not accept responsibility for the

dilapidations found.

The situation developed following the Act of 5 March 1984,

concerning outstanding accounts and charges of the communities,

regions and national economic sectors. Under Section 1 of the above

Act, the Flemish Community stated that it was prepared on 26 February

1985 to pay the compensation awarded by the judgment of 22 June 1983,

whilst nevertheless insisting that the Department ensured the

provisional execution of the judgment and whilst refusing to pay the

interests due to the delay which, in its view, had been caused by the

Department's failure to execute the judgment. Thus, the legal

uncertainties which surround the new institutions have caused the

delay in executing the judgment at issue.

However, in order that the dispute between public institutions

does not prejudice the rights of private persons, the Buildings

Department decided to pay the sums, interest included, as established

by the judgment of 22 June 1983 and on 27 December 1985 transferred

the sum of BF 2,373,810.-, and on 10 January 1986 the sum of

BF 146,188.- to the applicant, without prejudice to the settlement

that has to be reached as to the payment on the national level.

With regard to the admissibility, the Government submit that

the applicant failed to respect the six months' time-limit running from

the date of the final decision. This decision was given by the

Justice of the Peace of Halle on 22 June 1983, whereas the

application was introduced on 6 November 1984 and registered on

9 November 1984.

Moreover, the Government submit that, because of the execution

of the judgment by the Buildings Department and the payments carried

out on 27 December 1985 and 10 January 1986, the applicant has lost

his quality of victim within the meaning of Article 25 of the

Convention and, consequently, the application should be considered

ill-founded.

B. The applicant

The applicant submits that it is of no interest to Belgian

citizens that the Belgian Government has created a certain political

situation and certain political bodies which contest each other's

competence to the detriment of the Belgian citizen.

Moreover, the Belgian Government only reacted to the

situation after the applicant incurred the costs of introducing a

complaint with the Commission. The applicant would therefore wish to

receive compensation for these costs from the Belgian Government.

With regard to admissibility, the applicant points out that

the six months' time-limit cannot be said to have run from 22 June 1983,

the date of the relevant judgment. Only when he realised that the

Belgian Government was not going to execute the judgment, the

applicant decided to introduce a complaint with the Commission. In

this respect, the applicant further submits that in view of the

slowness of the Belgian administration in general a time lapse of

several months is not unusual before a payment is possibly made.

THE LAW

The applicant has complained that the Belgian Government

refused to execute a judgment pronounced against them and about the

absence of an effective means in Belgium of obtaining such execution.

He has invoked Article 1 of Protocol No. 1 (P1-1) to the Convention and

Article 13 (Art. 13) of the Convention.

Article 1 of Protocol No. 1 (P1-1) to the Convention provides,

inter alia:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject

to the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it deems

necessary to control the use of property in accordance with

the general interest or to secure the payment of taxes or

other contributions or penalties."

Article 13 (Art. 13) of the Convention provides:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

The Government have submitted that the application should be

rejected for non-observance of the six months' time-limit prescribed

by Article 26 (Art. 26) of the Convention.

The Commission finds, however, that the failure by the Belgian

authorities to execute the final judgment of 22 June 1983 constituted

a continuing situation, which still existed when the application was

introduced. Consequently, the application cannot be said to have been

introduced out of time.

The Government have further submitted that, since the Belgian

authorities meanwhile did execute the judgment concerned, the

applicant can no longer claim to be a victim within the meaning of

Article 25 (Art. 25) of the Convention.

It is not disputed between the parties that on

27 December 1985 and 10 January 1986 the sums to which the applicant

was entitled under the judgment of 22 June 1983 were in fact paid to

him; and the applicant now merely claims compensation for the costs

incurred in bringing his application before the Commission.

The Convention does not provide for the reimbursement of costs

incurred in bringing cases before the Commission which finally are

declared inadmissible (save to the limited extent to which the

Commission's Rules of Procedure allow for the grant of free legal

aid). However, the Commission regards as most unfortunate the fact

that, in cases such as the present, individuals may be required to

incur considerable personal expense whilst awaiting settlement of

their legitimate claims.

Nevertheless, the Commission, noting that the Belgian

Government has now complied with the judgment given in favour of the

applicant on 22 June 1983, finds that he may no longer claim to be a

victim within the meaning of Article 25 (Art. 25) of the Convention.

It follows that the application must be rejected as being manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBILE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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L. S. v. BELGIUM

L. S. v. BELGIUM