HEIRS OF J. DIERCKX AGAINST BELGIUM
Doc ref: 11966/86 • ECHR ID: 001-49422
Document date: September 11, 1995
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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
26 September 1985 by the heirs of J. Dierckx against Belgium
(Application No. 11966/86);
Whereas on 2 May 1990 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 8 December 1988, the applicants complained of the
failure of the Belgian state to execute a judgment of 9 June 1980
ordering it to pay compensation to them and of their inability to
compel the state to execute the said judgment;
Whereas in its report adopted on 6 March 1990 the Commission
expressed the opinion, unanimously, that there had been a violation
of Article 1 of Protocol No. 1 (P1-1), and, with twelve votes to
seven, that there had been a violation of Article 13 (art. 13) of
the Convention;
Whereas, at the 457th meeting of the Ministers' Deputies held
on 13 May 1991, 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 13 (art. 13) of the Convention and of
Article 1 of Protocol No. 1 (P1-1);
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 applicants, proposals
supplemented by a letter of the President of the Commission dated
12 September 1991;
Whereas, at the 464th meeting of the Deputies held on
18 October 1991, 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 applicants as just
satisfaction 112 250 Belgian francs for costs and expenses
and 1 Belgian franc for non-pecuniary damage, namely a total
sum of 112 251 Belgian francs;
Whereas the Committee of Ministers invited the Government of
Belgium to inform it of the measures taken following its decisions
of 13 May and 18 October 1991, having regard to Belgium's
obligation under Article 32, paragraph 4 (art. 32-4), of the
Convention to abide by them;
Having regard to Interim Resolution DH (94) 36, adopted at the
514th meeting of the Ministers' Deputies held on 9 June 1994,
whereby the Committee of Ministers decided to make public the
decision taken at its 457th meeting, as well as the report of the
Commission;
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 2 April 1992 the Government of Belgium paid the applicant the
total sum of 112 251 Belgian francs as just satisfaction,
Declares, having taken note of the measures taken by the
Government of Belgium and in particular of the fact that the
seizure system provided for in article 1412bis of the Act of
30 June 1994 has begun to function, that it has exercised its
functions under Article 32 (art. 32) of the Convention in this
case.
Appendix to Final Resolution DH (95) 105
Information provided by the Government of Belgium
during the examination of the case of Heirs of J. Dierckx
by the Committee of Ministers
Since the entry into force in January 1995 of Article 1412bis
(Act of 30 June 1994, published in the official journal on
21 July 1994) certain possessions belonging to legal persons set up
under public law (for example to the state, regions, communities,
provinces, municipalities or organs of public interest) may be
seized:
The possessions concerned are the following:
1. possessions which the above-mentioned legal persons have
declared capable of seizure. The modalities for registering these
declarations have been fixed by a Royal Decree of 5 April 1995,
published in the official journal on 19 May 1995 and having entered
into force on the same day. According to this decree the
declarations should in principle be entered in a register or in
some other form which permits easy access. At the time of the
adoption of the resolution in the Dierckx case certain registers
had already been set up;
2. failing such a declaration, or when the proceeds from the
sale of the registered possessions does not suffice to pay the
creditor, those possessions which are manifestly not necessary for
these legal persons in order for them to fulfil their mission or to
assure the continuity of the public service.
The legal persons set up under public law whose possessions
are seized may oppose (faire opposition) the measure within one
month of their being notified of the seizure.
These legal persons may also enable the creditor who has
requested the seizure to exercise his rights on other possessions.
Such an offer is binding on the creditor if the possessions are
located on Belgian territory and if their sale is likely to provide
full payment. If the creditor claims that the conditions for
replacing the possession seized are not met, he may bring the
question before a judge.
If an appeal is lodged, the creditor is summoned to appear
before the competent judge (juge de saisies). The judgment may not
authorise provisional execution before it becomes final and cannot
be opposed. The deadline for appeal is one month as from the date
of notification of the judgment.
In the light of the measures taken, the Belgian Government
considers that there is no risk of repetition of the violation
found by the Committee of Ministers in the present case.