SEPARATE OPINION OF JUDGE DE MEYER

(Translation)

Like the other members of the Chamber, I consider that the applicant ' s fundamental rights were violated in that, looked at as a whole, the nine successive placements in a remand prison could not be regarded as the detention of a minor by lawful order for the purpose of educational supervision and could not, moreover, be justified in any other way, even though each placement looked at individually could be regarded as legitimate.

But I am not sure that the applicant ' s fundamental rights were violated in that he was not able to take proceedings by which the lawfulness of his detention could have been decided speedily by a court and his release ordered if the detention was not lawful.

I recognise that in the instant case such judicial review was not fully incorporated in the disputed decisions themselves. It has not been shown that the applicant ' s lawyers were present at the hearings in chambers which preceded each of the provisional prison placements or that they had prior access to the file on each of those occasions.

I also accept that such judicial review was not adequately provided by the remedies available to the applicant, namely ordinary appeal (appel), an application to have a decision set aside (opposition) and appeal on points of law (recours en cassation). As it operated in the instant case, this review did not take place speedily in any of the cases in which the applicant attempted to have it carried out; furthermore, it resulted each time in a mere declaration that the appeal was inadmissible because devoid of purpose, as the detention complained of had ended several weeks or months earlier.

But the orders for provisional placement in prison could at all times be varied or revoked by the court dealing with the case. This is what happened in the present case on several occasions. The order made by the Juvenile Court of Appeal on 22 February 1980 and those made by the Juvenile Court on 30 June 1980, 22 August 1980 (rectified on 26 August 1980), 16 September 1980 and 3 November 1980 expressly varied the placement orders to which they related, while those made by the Juvenile Court of Appeal on 31 January 1980 and 11 March 1980 varied them by implication. As a result, the seven periods of detention in question were shortened by 4, 1, 0, 1, 1, 1 and 8 days respectively.

The machinery for reviewing the disputed decisions therefore did function to some extent.

Furthermore, two of the orders making a variation - those of 31 January and 11 March 1980 - refer to "particulars", "letters" or "visits" from the applicant ' s lawyer or lawyers. Similarly, the second order that the applicant should be placed in Lantin Prison - the one of 12 February 1980 - and the order of 29 February 1980 giving the applicant into the care of his father each mention a letter "from the juvenile ' s lawyer" or "from one of the juvenile ' s lawyers". Again, an order of the Juvenile Court of Appeal on 30 June 1980, in which the court held that it could not discharge the placement order of 17 June 1980 as no appeal had been lodged against it, mentions "comments received, this 30 June 1980, from the juvenile ' s lawyers, Ms. Demol and Mr. Crespin".

It thus appears that the applicant did, at least from January 1980, have the assistance of lawyers whose involvement in the proceedings was expressly noted, on several occasions, in the orders of the courts which had to determine what interim measures to take in his regard.

Lastly, it was stated before the Court by Ms. Demol on 22 September 1987 that she appeared for the applicant at the hearings in chambers which preceded the making of some of the orders for interim measures other than the placements in Lantin Prison.

It therefore seems that the applicant ' s lawyers were indeed able to play a useful part in the proceedings and that they in fact did so, effectively and diligently.

Admittedly, their presence during the applicant ' s court appearances and prior access by them to the file were essential on each occasion on which there was a possibility of placing the applicant in prison. But the same does not seem to apply on the occasions when it was a matter of terminating his detention, as a strict application of both or either of those requirements at such a juncture could have unnecessarily delayed the applicant ' s release.

That being so and having regard, firstly, to the potential and actual effects of the continuous review of the interim measures ordered by the relevant courts and, secondly, to the part the applicant ' s lawyers could and in fact did play in those proceedings, I consider on balance that in the instant case the applicant did have the speedy judicial review to which he was entitled.

[*]  Note by the Registrar: The case is numbered 22/1986/120/169.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.