Resolution ResDH(2005)24 concerning the judgment of the European Court of Human Rights of 30 July 1998 in the case of Aerts against Belgium

(Adopted by the Committee of Ministers on 25 April 2005 at the 922nd meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the P rotection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Aerts case delivered on 30 July1998 and transmitted the same day to the Committee of Ministers under former Article 54;

Recalling that the case originated in an application (No. 25357/94) against Belgium , lodged with the European Commission of Human Rights on 8 August 1994 under former Article 25 of the Convention by Mr Michel Aerts , a Belgian national, and that the Commission declared admissible the complaints related to the lawfulness and conditions of the applicant ' s detention in the psychiatric wing of an ordinary prison for seven months pending his transfer to a social protection centre, the applicant ' s right of access to a tribunal with the power to determine the lawfulness of that detention and his right to legal aid;

Recalling that the case was brought before the Court by the applicant on 7 July 1997 and by the Commission on 9 July 1997 ;

Whereas in its judgment of 30 July 1998 the Court:

- held, unanimously, that there had been a violation of Article 5, paragraph 1, of the Convention on account of the applicant ' s unlawful detention, for seven months, in 1993, in the psychiatric wing of an ordinary prison instead of a Social P rotection Centre as requested by the Mental Health Board ;

- held, unanimously, that that had been no violation of Article 5, paragraph 4, of the Convention as regards the applicant ' s access to a tribunal to complain about the lawfulness of his detention;

- held, unanimously, that there had been a violation of Article 6, paragraph 1, of the Convention on account of the applicant ' s lack of access to the Cour de Cassation , to have the lawfulness of his detention examined, as a result of the refusal by the Legal Aid Board of the Cour de Cassation to grant the applicant legal aid in 1994;

- held, by seven votes to two, that that had been no violation of Article 3 of the Convention as regards the conditions of the applicant ' s detention in the psychiatric wing of the prison;

- held, by eight votes to one, that the government of the respondent state was to pay the applicant, within three months, 50 000 Belgian francs in respect of non-pecuniary damage; 400,000 Belgian francs for costs and expenses, minus 10,166 French francs to be converted into Belgian francs at the rate applicable on 30 July 1998; and that simple interest at an annual rate of 7% would be payable on those sums from the expiry of the above-mentioned three months until settlement;

- dismissed, unanimously, the remainder of the claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention as amended by P rotocol No. 11, these Rules are applicable by decision of the Committee of Ministers to cases under former Article 54;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 30 July 1998, having regard to Belgium ' s obligation under former Article 53 of the Convention to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken to prevent new violations of the same kind as those found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 17 September 1998, within the time-limit set, the government of the respondent state paid the applicant the sums provided in the judgment of 30 July 1998,

Declares, after having examined the information supplied by the Government of Belgium , that it has exercised its functions under former Article 54 of the Convention in this case.

Appendix to Resolution ResDH(2005)24

Information provided by the Government of Belgium during the examination of the Aerts case

by the Committee of Ministers

As regards in particular the violation of Article 6 , the Aerts judgment of 30 July 98 was immediately brought to the attention of the P rincipal State P rosecutor at the Cour de Cassation and of the president of the legal aid office of the Cour de Cassation . The legal aid office accordingly amended its practice in September 1998 and the system of legal aid at the the Cour de Cassation was subsequently amended by P arliament in November 1998 (Law No. 98/3417) with a view to placing destitute people or those with insufficient means on an equal footing with people with sufficient means.

In its inadmissibility decision of 9 July 2002 in the case of Debeffe against Belgium (Application No. 64612/01), the European Court of Human Rights found that the present system offers individuals substantial guarantees against arbitrary decisions. The legal aid office at the Cour de Cassation is presided by a judge of this court, assisted by the court registrar. Except in specific cases in which an application does not meet the conditions of admissibility, a lawyer at the Cour de Cassation , designated by the Chairman of the Court Bar, examines the application and submits a reasoned opinion to the president of the legal aid office. In non-urgent cases, the legal aid office holds a hearing two weeks after receipt of the opinion. The parties to the dispute, who have been informed of the opinion, are invited to attend this hearing. If they attend the hearing, both they and the state prosecutor ' s office are heard, but they are the last to speak. The legal aid office announces its decision at a public hearing, giving its reasons, often solely by reference to the opinion of the designated lawyer. The opinion is appended to the decision (for detailed information about the new system, see the aforementioned inadmissibility decision.

As regards the excessive waiting times for transferring prisoners with mental disorders, which were at the origin of the violation of Article 5, paragraph 1 , in this case, ad hoc measures to increase the number of places available in social protection centres were already being introduced prior to the judgement, in response to the recommendations made by the Committee for the P revention of Torture and Inhuman or Degrading Treatment (C P T) during its visit in September 1997. In July 1999, the waiting list for transfers to the Tournai social protection centre had already been cleared a year previously; as regards transfers to the P aifve social protection centre, the waiting time was two months at the most and the number of persons waiting to be transferred was between 5 and 10.

The judgment has also been published in the Revue du droit public et des sciences administratives T3/1998 (September 1998), pages 223 to 250 (with an analysis and comments by De Schutter, O. and Van Drooghenbroeck, S. “Confinement of mentally ill patients, legal aid and human rights budgetary policy: the Aerts judgment and the European Court of Human Rights ) ; in the Journal des Tribunaux – droit européen , 1998, pages 161 to 163 (excerpts from the judgment); and in the Journal des Tribunaux , 1999, page 31 (short summary by Lambert, P .).

The Belgian authorities believe that, given the nature of the violations, no specific individual measures need be taken other than to pay the applicant just satisfaction, that the general measures taken will prevent further violations similar to those found in the instant case and that Belgium has therefore fulfilled its obligations under forme r Article 53 of the Convention.