INTERIM RESOLUTION DH (96) 676

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 15 November 1996

at the 576th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 54 of the Conven ­ tion 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 transmitted the same day to the Committee of Ministers ;

Recalling that the case originated in an application (No. 10208/82) against Belgium, lodged with the European Commission of Human Rights on 19 November 1982 under Article 25 of the Convention by Mr Pauwels Willy, a Belgian national, and that the Commission declared admissible the complaint based on article 5, paragraph 3, of the Convention in regard to the role played by the Judge Advocate or one of his deputies ;

Recalling that the case was brought before the Court by the Commission on 13 March 1987 ;

Whereas in its judgment of 26 May 1988 the Court unanimously :

– held that there has been a violation of Article 5, paragraph 3, of the Convention ;

– held that the respondant state was to reimburse the applicant, within three months,  150 000 Belgian francs in respect of costs and expenses ;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 of the Convention ;

Having invited the Government of Belgium 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 Article 53 of the Convention to abide by it ;

Whereas during the examination of the case by the Committee of Ministers the Government of Belgium gave the Committee information about the measures taken in consequence of the judgment, which information appears in the appendix to this resolution ;

Having satisfied itself that the Government of Belgium paid the applicant the sum provided for in the judgment of 26 May 1988,

Declares, after having taken note of the information supplied by the Government of Belgium, that it has for the time being exercised its functions under Article 54 of the Convention in this case ;

Decides to resume consideration of this case with the view to adopting the final resolution, within two years, as soon as the draft bill reforming the military Courts is definitively adopted.

Appendix to Interim Resolution DH (96) 676

Information provided by the Government of Belgium

during the examination of the case of Pauwels

by the Committee of Ministers

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

Furthermore, considering the withdrawal of the Belgian forces stationed in Germany, the increase in numbers of sorties by Belgian troops abroad, the demilitarisation of the gendarmerie and the reorganisation of the jurisdiction of the military tribunals, a more general bill including a reform of the military tribunals has been deemed necessary. This bill has been approved by the Counsel of Ministers and has been examined by the Conseil d'Etat which gave its opinion on 3 July 1996 in which it refers to several cases, in particular the Pauwels case, and invites the Government to modify certain provisions which are not deemed to be in compliance with the European Convention of Human Rights.

As a result, the Government of Belgium is of the opinion that the Committee of Ministers should resume consideration of this case within two years, as soon as the draft bill is definitively adopted.