SEPARATE OPINION OF JUDGE WOLD

As to the jurisdiction

I have come to the conclusion that the Court has no jurisdiction regarding admissibility. In regard to individual petitions, the task of the Commission is one of sifting and screening. One feared to get too many unjustified petitions. It was necessary at an early stage to select the applications which the European supervisory organs should deal with. The preparatory works show that all conditions for admissibility - exhaustion of remedies, compatibility with the provisions of the Convention and not manifestly ill-founded – were considered from the same angle, namely to prevent a flood of cases. The whole responsibility with regard to admissibility - also including exhaustion of local remedies - was laid upon the Commission. The member States seemed to be fully satisfied that this function should be the task of the Commission and the Commission alone.

The Court is not a court of appeal in relation to the Commission. The Commission shall, according to Article 19 (art. 19), ensure observance of the engagements undertaken by the Contracting States. The Court has the same duty. But the task is divided between these two organs. The majority of the Court admits that "... the Commission either does or does not accept the applications. Its decisions to reject applications which it considers to be inadmissible are without appeal as are, moreover, also those by which applications are accepted; they are taken in complete independence ...". But if this is so, how can then the Court through "interpretation or application" of Article 26 (art. 26) set aside the Commission ’ s final decision laying down that all internal remedies are exhausted? The majority contend that as the Court ’ s jurisdiction according to Article 45 (art. 45) shall extend to "all cases concerning the interpretation and application ... which the High Contracting Parties or the Commission shall refer to it", it is "impossible to see how questions concerning the interpretation and application of Article 26 (art. 26) ... should fall outside its jurisdiction". But the Court ’ s jurisdiction is limited to cases referred to it by the Commission or a State. The question of exhaustion of internal remedies is not part of the case as this question is already finally decided by the Commission, exercising a judicial function against which no appeal lies. The interpretation and application of Article 26 (art. 26) do not therefore fall within the jurisdiction of the Court.

The Court has competence to decide its own jurisdiction, but it is not competent to make decisions regarding the jurisdiction of the Commission.

A decision of non-admissibility on the ground that the local remedies have not been exhausted is a final judicial decision. The application of the individual cannot go further. In this respect the Commission ’ s jurisdiction is absolute without any interference by the Court, although the decision will always depend on an interpretation and application of Article 26 (art. 26). But exactly the same is the fact when the Commission finds that the application is admissible on the ground that the internal remedies have been exhausted. That is also a final judicial decision.

The Contracting States must accept the negative decision by the Commission: why should they have a right to challenge the positive one? It is an identical jurisdiction which the Commission exercises in both cases. The individual has to abide by a decision of non-admissibility. The opposite decision gives him a justified expectation that his claim will now be dealt with by the European international organs. If the Court nevertheless exercises its own jurisdiction in regard to admissibility and decides against the Commission ’ s decision, the inequality between the applicant and the State in proceedings before the Court will be more aggravated, which can only harm the cause of Human Rights. The provisions in Articles 28 to 31 (art. 28, art. 29, art. 30, art. 31) clearly show that the meaning of the Convention is that the Contracting States shall also abide by a decision of admissibility. The Commission acts immediately upon its finding that the application, in whole or in part, is admissible. There is no means by which the decision laying down that all internal remedies have been exhausted can be controlled or tried by any other organ. The Commission ’ s further dealing with the application is consequently in full compliance with the Convention when the Commission accepts the petition (Article 28) (art. 28), and undertakes to ascertain the facts, to examine the petition and carry out - if need be - an investigation. It shall try to secure a friendly settlement and if a friendly settlement is not reached, the Commission shall draw up its report on the facts and state its opinion "as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention". The Commission performs a conscientious, strenuous and very extensive work - and we are confronted with a report which is prepared in full legal compliance with the provisions of the Convention and consequently according to Article 44 (art. 44), the Commission - as well as a State - has "the right to bring a case before the Court". When the Commission, or a State, exercises this right and decides to bring a case before the Court, the Court cannot decline to deal with it or decide that it will not go into the merits of the case.

As regards especially the exhaustion of internal remedies, it should be noted that the Commission, regularly and in several meetings, discusses thoroughly the question of admissibility in default of which it is not possible to bring the case duly before the Court. A State may easily waive any objections regarding exhaustion of remedies. Furthermore, a State will have every opportunity to remedy a decision during the time the application has been under consideration by the Commission, and the question of exhaustion discussed at length. This is usually the situation in every application which is dealt with by the Commission. It seems unreasonable that, under these circumstances, a State shall have the right to pursue this question of local remedies further and take it up before the Court. In this connection to speak about the rule of exhaustion as marking out the limits "within which the Contracting States have agreed to answer for wrongs alleged against them before the organs of the Convention", and that "the Court has to ensure (its) observance ... just as of the individual rights and freedoms ...", carries really no weight. As to the interests of a State in regard to exhaustion of remedies, the State itself has every opportunity to look after them before the Commission, which also protects these interests.

Articles 44, 45 and 48 (art. 44, art. 45, art. 48) speak about "a case" or "cases" brought before the Court by the Commission or by a State. The Court ’ s jurisdiction, as mentioned above, is laid down in Article 45 (art. 45) as extending to all cases the Commission - or a State - has referred to the Court. One may ask what the Convention means by using the denomination case. The answer is simple. The case is the "report on the facts" and the Commission ’ s opinion "whether the facts found disclose a breach by the State concerned of its obligations under the Convention" (Article 31) (art. 31). It is in respect of this report that the Court has jurisdiction to interpret and apply the Convention. In other words it is the merits which the Court shall try. Nothing less, nothing more!

The report shall be transmitted to the Committee of Ministers (Article 31 (2)) (art. 31-2) and, if the case is not referred to the Court, the Ministers shall make the decision. The Committee of Ministers is competent to "decide ... whether there has been a violation of the Convention" (Article 32 (1)) (art. 32-1), the Court has jurisdiction to examine "cases concerning the interpretation and application of the Convention" (Article 45) (art. 45). But there is in actual fact no difference between the competence of the Committee of Ministers and the competence of the Court. It is generally understood that the Ministers shall not deal with the question of admissibility, they shall only decide whether there has been a violation. But is it not just the same competence the Court exercises? The Ministers shall of course also "interpret and apply" the Convention in the same way as the Court. The fact that the Ministers do not deal with the question of admissibility bears out the contention that the Court has not this competence either. The Ministers and the Court stand in a supplementary position to each other. There is no reason to believe that their jurisdiction in regard to exhaustion of internal remedies should not be the same.

Finally, if the Court takes upon itself jurisdiction in regard to admissibility, the consequence will be that the Commission ’ s report may not be dealt with by any responsible organ, and no final decision taken whether a violation has taken place or not. And that in spite of the fact that the report may very well contain the considered opinion of the members of the Commission that grave violations of the Convention have taken place! This result is really detrimental to the cause of Human Rights and it does not seem consistent with sound common sense.

Regarding the alleged violation of paragraph (1) of Article 5 (art. 5-1)

In this regard I concur with the conclusions of the Court. I find it, however, sufficient to state that I am in full agreement with the opinion of the Commission in regard to paragraph (1) (e) of Article 5 (art. 5-1-e) (paragraph 186 of the Commission ’ s report). It is not for the Court or the Commission to decide whether a municipal law was correctly applied, it is sufficient that the procedure prescribed by the municipal law is applied correctly.

As to the alleged violation of paragraph (4) of Article 5 (art. 5-4)

Here I concur with the conclusion of the Court but I cannot adhere to the Court ’ s reasoning in regard to the question whether Article 5 (4) (art. 5-4) requires that two authorities should deal with a case. The Court ’ s reasoning in respect to the text of the Convention and also the Court ’ s statement that the supervision required by Article 5 (4) (art. 5-4) is incorporated in the magistrate ’ s decision are, in my view, not adequate on this point regarding the question of a person deprived of his liberty being entitled, even at a later stage, to bring proceedings before a court. The opinion of the Commission was divided. The European Court does not, however, in my view, need to decide this question. With this reservation I concur with the Court ’ s conclusion on this point.

As regards the alleged violation of Article 4 (art. 4)

In this respect I also concur with the conclusions of the Court but in my view the work imposed upon the vagrants, De Wilde, Ooms and Versyp, was an incorporated consequence of the magistrate ’ s decision of detention and cannot be considered an independent separate violation of the Convention. On these grounds I vote for the conclusion that no violation of Article 4 (art. 4) has taken place.

As to the alleged violation of Article 8 (art. 8)

Here I have a dissenting opinion. I cannot see that it was necessary for the public authorities to interfere with the correspondence of the detained vagrants. The authorities had no reason to believe that they had to censor the correspondence, either for the purpose of preventing disorder or crime, or for the protection of health and morals, or for the protection of the rights and freedoms of others. The vagrants had committed no crime and even if the authorities, in their interference with the vagrants ’ private correspondence, were within their jurisdiction according to Belgian law they were most certainly overstepping Article 8 (art. 8) of the Convention.

In regard to Article 8 (art. 8) of the Convention I therefore find that a violation has taken place.