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BERNAERTS AGAINST BELGIUM

Doc ref: 15964/90 • ECHR ID: 001-49421

Document date: September 11, 1995

Inbound citations: 3
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Cited paragraphs: 0
•
Outbound citations: 0

BERNAERTS AGAINST BELGIUM

Doc ref: 15964/90 • ECHR ID: 001-49421

Document date: September 11, 1995

Cited paragraphs only

The Committee of Ministers, under the terms of Article 32

(art. 32) of the Convention for the Protection of Human Rights and

Fundamental Freedoms (hereinafter referred to as "the Convention"),

Having regard to the report drawn up by the European

Commission of Human Rights in accordance with Article 31 (art. 31)

of the Convention relating to the application lodged on

16 December 1989 by Mr Daniel Bernaerts against Belgium

(Application No. 15964/90);

Whereas on 31 August 1993 the Commission transmitted the said

report to the Committee of Ministers and whereas the period of

three months provided for in Article 32, paragraph 1 (art. 32-1),

of the Convention has elapsed without the case having been brought

before the European Court of Human Rights in pursuance of

Article 48 (art. 48) of the Convention;

Whereas in his application, declared admissible by the

Commission on 14 October 1992, the applicant complained that he did

not have access to the file submitted to the investigating courts

during the proceedings for confirmation of the arrest warrant;

Whereas in its report adopted on 30 June 1993, the Commission

expressed, unanimously, the opinion that there had been a violation

of Article 5, paragraph 4 (art. 5-4), of the Convention;

Whereas, at the 505th meeting of the Ministers' Deputies held

on 7 January 1994, the Committee of Ministers, agreeing with the

opinion expressed by the Commission, held, having voted in

accordance with the provisions of Article 32, paragraph 1

(art. 32-1), of the Convention, that there had been in this case a

violation of Article 5, paragraph 4 (art. 5-4), of the Convention;

Whereas the Committee of Ministers examined the proposals made

by the Commission when transmitting its report as regards just

satisfaction to be awarded to the applicant, proposals supplemented

by a letter of the President of the Commission dated

9 December 1994;

Whereas, at the 524th meeting of the Deputies held on

11 January 1995, the Committee of Ministers decided, in accordance

with Article 32, paragraph 2 (art. 32-2), of the Convention, that

the Government of Belgium was to pay the applicant as just

satisfaction, within three months, 60 000 Belgian francs in respect

of non-pecuniary damage and 100 000 Belgian francs in respect of

costs and expenses, namely a total sum of 160 000 Belgian francs;

Whereas the Committee of Ministers invited the Government of

Belgium to inform it of the measures taken following its decisions

of 7 January 1994 and 11 January 1995, having regard to Belgium's

obligation under Article 32, paragraph 4 (art. 32-4), of the

Convention to abide by them;

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

Committee's decisions, which information appears in the appendix to

this resolution;

Whereas the Committee of Ministers satisfied itself that

on 28 August 1995 it was confirmed that the Government of Belgium

paid the applicant the total sum of 160 000 Belgian francs as just

satisfaction,

Declares, having taken note of the measures taken by the

Government of Belgium, that it has exercised its functions under

Article 32 (art. 32) of the Convention in this case;

Authorises the publication of the report adopted by the

Commission in this case.

Appendix to Resolution DH (95) 104

Information provided by the Government of Belgium

during the examination of the case of Bernaerts

by the Committee of Ministers

In a judgment of 10 May 1989 the Court of Cassation modified

its earlier restrictive case-law under the Act of 20 April 1874 on

remand in custody as regards the accused's right of access to the

file. In this judgment the Court of Cassation adopted the view

that Article 5, paragraph 4 (art. 5-4), of the Convention requires

"proceedings which give the counsel of the remand prisoner the

opportunity to inspect the documents relating to the confirmation

of the arrest warrant with a view to a first appearance before the

chambre de Conseil."

The Act of 20 April 1874 has subsequently been amended by a

new Act of 20 July 1990 on remand on custody, which came into force

on 1 December 1990. Article 21, paragraph 3 of this law provides

that "the file shall be at the disposal of the accused or his

counsel on the last weekday before the appearance at proceedings

for the confirmation of the arrest warrant".

In the light of the above changes, the Government is of the

opinion that there is no risk of repetition of a violation of the

Convention similar to that found in the present case.

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