SEPARATE OPINION OF JUDGE ZEKIA

I respectfully agree with the views e xpressed in the judgment of the Court, As to the Law, Part I on admissibility and Part II on the merits of the case, except the concluding declaratory part of the judgment embodied in the second part disentitling the applicants to damages altogether.

The Court, after finding the applicants ’ claims f or damages admissible, declared that the claims for damages were not well-founded.

In its original judgment of 18 June 1971 , the Court reserved for the applicants the right, should the occasion arise, to apply for just satisfaction on the issue relating to the breach of Article 5 (4) (art. 5-4) of the Convention.

The applicants applied to the authorities in Belgium and later to the Commission for compensation as envisaged in the original judgment. Their application was turned down by the Belgian authorities and eventually reached this Court, through the Commission, for consideration. It is true the way the applicants framed their claim for damages was not an acceptable one. Once this Court declared in an unreserved final form that there was no breach of Article 5 (1) (e) (art. 5-1-e), any claim for damages relating to their detention and the duration of such detention or the nature of their detention - whether under Section 13 of 16 of the Belgian 1891 Act – becomes untenable. Their claim for damages, therefore, calculated on the basis of detention - per diem or otherwise - was rightly rejected.

What is left is the inconvenience ca used to the applicants in their endeavour to vindicate their right to a judicial decision as to the legality of their detention. Article 5 (4) (art. 5-4) makes it incumbent on the High Contracting Parties to the Convention to render available a court to deal summarily with cases of detainees under Article 5 (1) (art. 5-1) who dispute the legality of their detention, with a view to obtaining their release if such detention is found unlawful.

The Court found that there was no judicial forum answering the requirements of Article 5 (4) (art. 5-4) at the time the applicants were detained. They petitioned the Commission; their complaints were investigated and found to be admissible and in the reported opinion of the Commission the respondent State was found in contravention of Article 5 (4) (art. 5-4) of the Convention.

The case of the applicants was brought before the Court which i n turn confirmed that there was violation of Article 5 (4) (art. 5-4) by the respondent State.

Petitions to the Commission were file d by the applicants in the year 1966 and the judgment of this Court touching their complaints was delivered in the middle of 1971.

It was a right recognised to the va grant applicants to dispute the lawfulness of their detention before a court of law in their own country which could deal with their recourse in a summary way. This right was denied to them. They had to petition the Commission of Human Rights and incur all expenses and inconvenience in presenting their case before the commissioners and later had to pursue their claims through the Commission before this Court. The applicants were entitled to know from a judicial authority in the country they lived, within a short time of the order for their detention, whether they were rightly or wrongly detained under the order of the police magistrate. Instead they had to travel a long way and wait for years to obtain a judicial decision as to whether they were rightly kept in detention. Instead of knowing within a matter of days whether they were rightly or wrongly detained they had to pursue a long cumbersome procedure before two international bodies of jurists in order to get the answer.

They are surely entitled to be re imbursed for the extra expenses incurred before the Commission and this Court. It is true that we do not exactly know whether they did incur any expense or if they did what was the amount incurred but this, I suggest, could easily be referred to the Registry of this Court to be ascertained and dealt with. In my view, the applicants ought not to be deprived of their costs in vindicating their rights in the way they did. Unless they acted in bad faith, or their petition was devoid of any merits, or their application could be described as frivolous or vexatious or an abuse of the process of the Court, I cannot see how they could be deprived of their costs. On the contrary the very fact that the Commission of Human Rights ruled that their petitions were admissible and in their reported opinion found that there was a contravention of Article 5 (4) (art. 5-4), strongly supports the view that the applicants acted in good faith and their case was not devoid of merit. In other words, they honestly believed that they were not lawfully detained and they had a case for judicial consideration.

Since our Court is competent to give j ust satisfaction to a victim of a violation of the provisions in the Convention, I entertain no doubt that we possessed the power to award costs to the applicants if we thought the circumstances of the case warranted such course.