SEPARATE OPINION OF JUDGE ZEKIA

The main issues involved in the present case may be summarised as follows:

1. Has this Court jurisdiction to examine, after the ruling made by the Commission in favour of the admissibility of the petitions lodged by the applicants, submissions relating to (a) the non-exhaustion of domestic remedies, (b) the non-observance of the six months ’ time-limit, occurring in Article 26 (art. 26) of the Convention?

2. If this Court possesses such jurisdiction, to decide:

(a) whether domestic remedies had been exhausted, and

(b) whether the six months ’ limit was observed with the object and meaning of Article 26 (art. 26) of the Convention.

3. Whether the Belgian State has failed to meet its obligation under Article 5 (4) (art. 5-4) of the Convention by not providing the judicial machinery envisaged by the said Article for the benefit and protection of persons detained under the Belgian Vagrancy Act of 1891 in conjunction with Article 5 (1) (e) (art. 5-1-e) of the Convention.

4. Whether as a consequence of the alleged failure to provide an appropriate judicial machinery as per Article 5 (4) (art. 5-4) or for other reasons, Belgium violated Articles 3, 4 (2) and (3), 5 (1), 6 (1) (3b) (3c), 7 and 13 (art. 3, art. 4-2, art. 4-3, art. 5-1, art. 6-1, art. 6-3-b, art. 6-3-c, art. 7, art. 13) of the said Convention.

Although I respectfully agree with the majority decision and the conclusions arrived at in respect of the major issues, yet as my line of reasoning differs to some extent in a number of points from that of the majority, I thought it appropriate to give very briefly a concurrent opinion.

I am not dealing with the factual aspect of the case. I am content for this purpose to refer to the part of the main judgment dealing with the facts of the case.

As to issue No. 1

My answer to the questions framed in issue No. 1 is in the affirmative. The Court has jurisdiction to examine (a) whether the domestic remedies have been exhausted and (b) whether the six months ’ time-limit has been observed. Both (a) and (b) are preconditions laid down under Articles 26 and 27 (art. 26, art. 27) for the exercise of jurisdiction by the Commission and as they constitute component parts of the Convention both fall within the ambit of Article 45 (art. 45) shall extend to all cases concerning the interpretation and application of the present Convention which the High Contracting Parties or the Commission shall refer to it in accordance with Article 48 (art. 48)". Article 49 (art. 49) leaves the last word to the Court in deciding its own jurisdiction.

I do not consider, however, that the holding of this view in any way amounts to a transgression of the domain of the Commission, admittedly an independent body within the structure of the European Convention. A ruling on the inadmissibility of an application by the Commission is final for all intents and purposes with all its implications. On the other hand, a ruling on the admissibility of such application does not and ought not to have the far-reaching effect and result that all matters touching the prerequisites for the acceptance of a petition have been decided upon once and for all and can not be questioned by any authority whatsoever including the Committee of Ministers and the Court. Had the case been so, the Court would have been handicapped in the exercise of its jurisdiction and precluded from arriving at conclusions which might appear to be inconsistent with the way in which the Commission dealt with one or more of the preconditions attached to the admissibility of a petition under Articles 26 and 27 (art. 26, art. 27).

This could not have been the intention of the Parties to the Convention. Moreover, the exhaustion of domestic remedies, prior to any right of a recourse to an international tribunal, is a vital precondition recognised by international law and governments are as a rule particularly jealous for the observance of such conditions.

The ruling on the admissibility of a petition by the Commission, strictly speaking, is not in issue before the Court. Such a ruling in the affirmative was made and as a result it set in motion the Commission who investigated the applicants ’ complaints under Articles 28 and 29 (art. 28, art. 29), and made its report under Article 31 (art. 31). In other words the ruling in question fulfilled the object it was intended to achieve.

As to issue No. 2

I agree with the Commission ’ s decision that domestic remedies in the accompanying circumstances of the case were exhausted. The same applies as to whether Versyp ’ s petition was made in time. I am of the opinion that all these applicants, throughout the material time, could not reasonably anticipate any remedy for which they could institute proceedings prior to the " Du Bois" judgment.

As to issue No. 3 relating to the alleged violation of Article 5 (4) (art. 5-4) of the Convention

The Belgian Government strongly argued that the requirement of the Convention under Article 5 (4) (art. 5-4) has been satisfied by the fact that the detention of the applicants in a vagrancy centre or assistance home was ordered by a magistrate. Article 5 (4) (art. 5-4) reads: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful".

Article 5 (4) (art. 5-4) postulates the detention of a person effected by some authority and that such person disputes the lawfulness of his detention and wishes to take proceedings in a court in order to obtain a judicial decision on the lawfulness or otherwise of his detention with a view to his release from such detention if he succeeds in his recourse or appeal.

Could the functions of the magistrate whose primary duty is to implement the Vagrancy Act of 1891, and in pursuance of that Act, to investigate "the identity, age, physical and mental state and manner of life" of the person involved and if satisfied to send such person suspected as vagrant in pursuance of Sections 13 and 16 of the said Act to a vagrancy centre or to an assistance home, conform or correspond with the functions of a court whose primary duty would be to ascertain, according to Article 5 (4) (art. 5-4), whether the vagrant in question is lawfully detained or not.

Even if we admit that the magistrate constitutes a court for deciding the lawfulness of the detention, he has not before him a case of detention the lawfulness of which is sub judice. Detention originates from his own order. He cannot be the judge of his own act. He is not there to decide either as to the lawfulness of the arrest and detention by the policemen who brought the applicant before him with a view to investigating whether a state of vagrancy existed and if it did which of the courses under Sections 13 and 16 of the Vagrancy Act of 1891 is to be adopted.

The applicants are not the persons who instituted proceedings before the magistrate. Apart from the unsuitability and inadequacy of its procedural rules, if the magistrate could be considered as the court under Article 5 (4) (art. 5-4), then his decision is expected to be a judicial one, that is a decision in a declaratory form that the detention of the applicants is lawful or unlawful. The Conseil d ’ État , however, in the Du Bois case, in connection with the nature of the order of the magistrate, authoritatively stated that placing a vagrant at the disposal of the Government is not the result of a criminal offence but "an administrative security measure ... of a purely administrative nature".

It is obvious from what has been said that the magistrate in applying Sections 13 and 16 of the Vagrancy Act of 1891 was performing administrative and not judicial functions, as one would have expected a court to discharge its duties under Article 5 (4) (art. 5-4).

Even if we accept, for argument ’ s sake, the magistrate constituting a police court with a competence to decide speedily lawfulness of detention for the purpose of Article 5 (4) (art. 5-4), could it be said that a detainee during the period of his continued detention can apply anew to the said magistrate to decide about the legality of such detention? An order of detention might be lawful at its inception but it cannot be said that irrespective of any supervening events it continues to be lawful throughout the duration of his detention.

Can it be said that, after the decision of the Conseil d ’ État in the Du Bois case, the way to seeking a remedy by a vagrant detainee is wide open and therefore if there was a gap in the Belgian judicial system in connection with Article 5 (4) (art. 5-4) this no longer existed? I have my doubts about this. As a rule, High Judicial or Administrative Tribunals, in all countries, are not suited for the delivery of speedy decisions contemplated in the Article (art. 5) in question. The decision on the lawfulness of a detention might depend not only on the legal aspect but also on the consideration of the factual aspect of a case. The High Courts, administrative or otherwise, as a rule are not inclined to go deeply into the factual aspects of the case.

But this is a matter for the future. If the constitution and the procedural rules of the Conseil d ’ État , as well as the time at their disposal, allow them to deal speedily with recourses coming from the inmates of the vagrancy centres or assistance homes so much the better for this class of detainees.

I am therefore of the opinion that the Belgian State failed, within the material period, to discharge its obligations under Article 5 (4) (art. 5-4) of the Convention.

As to issues in No. 4

Failure on the part of the Government to make available, for the applicants under detention, a court in which they could institute proceedings for obtaining a decision on the lawfulness of their detention, in my view, does not necessarily amount to a violation of Articles 3 to 6 (art. 3, art. 4, art. 5, art. 6) of the Convention. These Articles (art. 3, art. 4, art. 5, art. 6), although inter-related with Article 5 (4) (art. 5-4), are not interdependent. Because there was no court available for the applicants to decide whether they were rightly or wrongly kept in detention it does not necessarily follow that they were unlawfully detained. On the material, documentary or otherwise, put before us, I cannot say that the detention of the applicants under the relevant Belgian Act and procedure was unlawful. Allegations of contraventions of other Articles of the Convention, independently of Article 5 (4) (art. 5-4), have not been substantiated. In this connection I respectfully associate myself with the views expressed in the main judgment.

The consideration for a remedy, due to violation of Article 5 (4) (art. 5-4), is up to the national authority to decide as per Article 13 (art. 13), which reads:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

I have, however, to make certain reservations. This Court having been called upon to decide on allegations of contraventions of certain Articles of the Convention has to pronounce judgment on the evidence available. In doing so, however, one can not lose sight of the fact that the proper forum for deciding the legality of the detention under Article 5 (1) (e) (art. 5-1-e) is the national court where applicants could go and adduce before it the evidence they possess. Strictly speaking, applicants are not parties before our Court.

I entertain, therefore, doubts as to what extent our Court can pronounce final and binding judgments on matters primarily falling within the jurisdiction of the national courts, access to which might be rendered possible in the future.