Resolution CM/ ResDH (2011)43 [1]

Execution of the judgment of the European Court of Human Rights

Capeau against Belgium

(Application No. 42914/98, judgment of 13 January 2005, final on 6 June 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the presumption of the applicant ’ s innocence in that the refusal in 1997 of his request for redress in respect of unduly served detention on remand was grounded on a legal provision of 1973 requiring persons involved in proceedings which had been discontinued, to prove their innocence in order to obtain redress (violation of Article 6, paragraph 2) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing, similar violations;

DECLARES, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH (2011)43

Information on the measures taken to comply with the judgment in the case of

Capeau against Belgium

Introductory case summary

The case concerns a violation of the presumption of innocence in respect of the applicant (violation of Article 6, paragraph 2). In 1994, the applicant was remanded in custody for nearly a month in the context of an arson enquiry. The investigation was dropped and the applicant applied for reparation for prejudice sustained as a result of his detention on remand. His application was refused by the Ministry of Justice on 12 May 1997 and then at appeal by the Appeals Board on Unduly Served Detention ( Commission d ’ appel en matière de détention préventive inopérante ) on 1 December 1997, on the ground that the applicant had not adduced proof of his innocence as required by Article 28, paragraph 1b, of an Act of 13 March 1973 (§§ 15 and 16 of the judgment).

The European Court concluded that this requirement, though founded on a provision of law, gave rise to doubt as to the applicant ’ s innocence. It considered that to reverse the burden of proof in compensation proceedings brought in respect of an investigation which had been dropped, was incompatible with the presumption of innocence ((§ 25).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

The Court awarded no just satisfaction.

b) Individual measures

The applicant made no request in respect of just satisfaction before the European Court , nor any request regarding individual measures before the Committee of Ministers.

II. General measures

The reasoning of the appeals Board criticised by the European Court derived from Article 28, paragraph 1b of the Act of 13 March 1973 on compensation for unwarranted detention on remand which required appellants “to establish their innocence by adducing factual evidence or submitting legal argument to that effect” in case of proceedings which have been discontinued.

Counting from the European Court ’ s judgment, the bodies concerned by proceedings for compensation for unwarranted detention on remand (the Ministry of Justice and first instance and the Appeals Board at appeal) no longer applied this requirement. The Belgian authorities provided copies of two decisions adopted by the Appeals Board on 22 March 2002 (261F) and 17 May 2005 (265F) in which the Board, referring to Article 6, paragraph 2, of the Convention, set aside the question of whether the appellants had adduced factual or legal elements to demonstrate their innocence, considering that in a conflict between a rule deriving from a treaty with direct effect in the Belgian legal order and a less favourable internal rule, the most favourable should prevail.

In addition, Article 8 of an Act adopted on 30 December 2009, which entered into force on 25 January 2010, deleted the requirement quoted above from Article 28, paragraph 1b of the 1973 Act.

III. Conclusions of the respondent state

The government considers that no individual measure is required, that the measures adopted will prevent similar violations and that Belgium has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies