Resolution ResDH (2001)67 Concerning the judgment of the European Court of Human Rights of 26 May 1988 in the case of Pauwels against Belgium

(Adopted by the Committee of Ministers on 26 June 2001 at the 757 th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection 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 Pauwels case delivered on 26 May 1988 and in which the Court held that there had been a violation of Article 5, paragraph 3, of the Convention, on account of the combined investigation and prosecution functions of military judges;

Having regard to interim Resolution DH (96) 676 adopted by the Committee of Ministers on 15 November 1996, at its 576th meeting in which it indicated that it had provisionally exercised its functions under former Article 54 of the Convention in the light of the information provided at that date by the government of the respondent state concerning the payment of just satisfaction and general measures taken;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention which are applicable by analogy to cases referred under former Article 54 of the Convention;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 26 May 1988, 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 preventing new violations of the same kind as that found in the present judgment (this information appears in the appendix to this Resolution),

Declares, after having taken note of 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 (2001)67

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

by the Committee of Ministers

The broad legislative reform regarding the armed forces, necessarily including a provision ensuring the conformity of Belgian legislation with the requirements of impartiality in military criminal proceedings, resulting from this case, is still on the Agenda, but has not yet been completed. The Government of Belgium, while undertaking to communicate to the Committee of Ministers a copy of the law immediately after its adoption, considers, for the reasons specified below, that it is not necessary to wait for the adoption of this Bill to close the Pauwels case.

The Government of Belgium recalls first that measures have already been adopted in order to prevent the repetition of the violation found in the current case, by way of internal circulars dated 29 March 1983, 11 March 1985 and 28 October 1991. These circulars prevent a military magistrate who has exercised investigative functions from exercising prosecuting functions in the same case.

Since the last circular of 28 October 1991, neither the Belgian courts nor the European Court of Human Rights have had to examine cases regarding the combination of investigation and prosecution functions by a military judge in the same case.

Furthermore, the Government of Belgium is of the opinion that, given the direct effect given to the Convention and the case-law of the European Court in domestic law (see for example the recent judgment of the Cour de cassation of 16 March 1999 following the judgment of the European Court in the case of Van Geyseghem of 21 January 1999), should a case regarding the combination of investigation and prosecution functions be referred to the Belgian courts, the courts would not fail to apply the case-law of the European Court in the Pauwels case.

The Government of Belgium considers that there is no longer a risk of repetition of the violation found in the present case and that, therefore, it has fulfilled its obligations under the former Article 53 of Convention.