Resolution CM/ResDH(2008) 37 [1]

Execution of the judgment of the European Court of Human Rights

Van Rossem against Belgium

(Application No. 41872/98, judgment of 9 December 2004 , final on 9 March 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 referred to as “the Convention” and “the Court”);

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

Recalling that the violation of the Convention found by the Court in this case concerns an infringement of the applicant ' s right to respect for his home due to searches carried out in 1990 in his home and on the premises of several companies of which he was a director (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with Belgium ' s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

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 by the Court in its 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

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2008)37

Information about the measures to comply with the judgment in the case of Van Rossem against Belgium

Introductory case summary

The case concerns an infringement of the applicant ' s right to respect for his home due to searches carried out in 1990 in his home and on the premises of several companies of which he was a director (violation of Article 8).

The European Court found that the searches, although carried out in accordance with the law and pursuing a legitimate aim, could not be considered as necessary in a democratic society. In this respect, the European Court drew particular attention to the fact that the imprecise wording of the search warrants did not set sufficient limits to the “massive character” of the searches. Moreover, whilst the applicant may be supposed to have been aware of the “context” of the searches, he was not in fact present during any of them and was thus unable to ascertain that the searches were limited to the matters of which he was suspected. Hence, he was not in a position to denounce possible abuses. Furthermore, no list of the objects seized in the companies ' premises was drawn up.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

The European Court held that it was not necessary to award just satisfaction to the applicant, since he had submitted no such request within the time-limits laid down, even though the European Court had drawn his attention to that point.

b) Individual measures

Many of the documents seized were included in the case file. Some of them were returned to the applicant or the legal entity which was the target of the seizure. The accountancy documents of the Publimax company (one of the companies of which the applicant was director) were returned to the “trustee” ( curateur ). Only the uncollected documents were destroyed.

On 20 January 2006, the Belgian authorities wrote to the applicant ' s lawyer to ask whether he had further demands with a view to the restitution in integrum following the European Court ' s judgment. No follow-up was given to this request by the applicant.

II. General measures

It may be noted from the judgment of the European Court that the origin of the violation is not the law itself, but its implementation in the applicant ' s case.

Thus, as early as 20 December 2004 the College of Prosecutors General was asked to send the judgment out to King ' s Prosecutors and investigating magistrates, in order to guarantee its immediate implementation in practice. Pursuant this request the judgment was sent out to the King ' s Prosecutors at the offices of Antwerp , Brussels , Ghent , Liège and Mons as well as to investigating judges.

Furthermore, the Van Rossem judgment was published and commented (“ Mensenrechtenhof en huiszoeking: een gespannen huwelijk” , Fr. Schuermans, T. Strafr. , 2005, 200 and seq; “ Perquisitions et droits de la défense: une remise en question des pratiques par la Cour européenne des droits de l ' homme ?”, Rev. Dr. Pén. , 2005, 903 et seq.);

The Government considers that, given the direct effect given to the Convention in Belgian Law, the measures adopted will prevent new, similar violations.

III. Conclusions of the respondent state

The government considers that the measures taken have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent new, 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 25 June 2008 at the 1028th meeting of the Ministers’ Deputies