JOINT SEPARATE OPINION OF JUDGES BALLADORE PALLIERI AND VERDROSS

(Translation)

We regret that on several points we are not able to agree with the judgment.

First, we cannot go so far as the judgment in declaring at paragraph 69: "Having thus the character of a vagrant the applicants could ... be made the subject of a detention". In our opinion, the Court is not, in the first place, competent to declare that a person is a vagrant any more than to declare that a person is a criminal or of unsound mind. It can only find that this or that criterion has been established in internal law in accordance with a lawful procedure conforming to the requirements of the Convention in a way which renders legitimate certain measures taken by the State. Apart from this, since in the Court ’ s opinion the applicants were not in a position to have supervised within the meaning of Article 5 (4) (art. 5-4) of the Convention the lawfulness of their alleged character of a vagrant, it had to be concluded that there were perhaps very strong reasons to hold that they were vagrants and that it was permitted to undertake and pursue the appropriate procedure, but that the state of vagrancy could not yet be considered to exist according to the Convention. The same principle as that in Article 6 (2) (art. 6-2) of the Convention is applicable here ("Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law"). According to the Court, the state of vagrancy was not lawfully established because of the violation of Article 5 (4) (art. 5-4) of the Convention; it was therefore still to be presumed that they were not vagrants.

The judgment finds, on the contrary, that the state of vagrancy could be taken as established (a conclusion of which it takes account, moreover, in paragraphs 89 and 92) and it accepts that the Belgian Government took the measures allowed by the Convention against vagrants. In these circumstances, it seems rather difficult to understand how the conclusion can be reached that there has been a violation of the Convention by the Belgian State .

On the other hand, if, while admitting that in the present cases one was actually dealing with vagrants for whom the measures (deprivation of liberty) provided for by the Convention were allowed, one nonetheless adds that the Belgian Act, due to its undeniable imperfections, does not offer sufficient guarantees to ensure the observance of the Convention in all cases, it is easy to object that it is not at all the Court ’ s function to judge in abstracto the worth of the legislation of a Contracting State. The jurisdiction of the Court is conditioned by the presence of a victim (Articles 5 (5) and 48 (b) of the Convention) (art. 5-5, art. 48-b) and the Court ’ s task is to put right the wrong suffered by the person concerned. Without a victim, no condemnation of a State by the Court is possible.

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As regards more particularly the proceedings mentioned in Article 5 (4) (art. 5-4) of the Convention, there are several points on which we are in agreement with the Court. First of all, the Court states, quite rightly in our opinion, that the Convention requires only the supervision by a judicial organ of the measures taken by the police, irrespective of whether this control is exercised ex officio or at the request of the interested party. We also agree with the Court in accepting that the Belgian magistrate, invested with jurisdiction to decide in vagrancy matters, is a court independent of the executive and enjoying the guarantees afforded to the judges by Articles 99 and 100 of the Belgian Constitution. Similarly, we can also accept that the magistrate necessarily decides on the lawfulness of the detention which the prosecuting authority requests him to sanction. Lastly, the same is true of the finding that the procedure before the said magistrate allows certain rights of the defence and presents certain judicial features, such as the hearing taking place and the decision being given in public. Nevertheless, the Court finishes by deciding that all this is not sufficient.

In the opinion of the Court the forms of the procedure need not necessarily be identical in each of the cases where the Convention requires the intervention of a court. Once again, we agree with the Court: one cannot, for example, consider the procedure for the detention of a person of unsound mind to be satisfactory if it did not include medical examinations fully guaranteeing objectivity and competence. But, in the present cases, the Court says that the deprivation of liberty complained of by the applicants resembles very closely that imposed in criminal cases and that therefore the procedure to be followed should not provide guarantees markedly inferior to those existing in criminal matters in the member States of the Council of Europe. This comparison seems scarcely exact to us. Shelter in an assistance home or in a vagrancy centre is not quite the same as being locked in prison; the consequences are not shameful to the same degree; release can be requested and obtained at any time, which is not the case where a prison sentence is being served. On the other hand, it must be emphasised that the decision of the magistrate in vagrancy matters deals simply with the existence of certain factual conditions which are quite easily established and which do not require either a lengthy investigation or long hearings. A rather simplified procedure therefore normally suffices.

To conclude, detention for vagrancy is a particular measure of security, sometimes requested by the interested persons themselves and very different from detention in a criminal case. It is perhaps otherwise in the only case where the placing at the disposal of the Government is not of a temporary and transitory nature but is decided for a whole determinate period which, according to Belgian law, can go up to seven years. In that case it can reasonably be asked whether this is not a sort of conviction and sentence, and even quite a serious one, to which the ordinary guarantees of criminal procedure should apply. The Court however has not made an abstraction of this case, which concerned only some of the applicants; moreover, De Wilde and Versyp, who were both placed at the disposal of the Government for two years, were released before, and one of them well before, the expiry of the term which thus does not seem to be as rigorous as a criminal sentence. With all reservations as to the compatibility in general of the Belgian law with the Convention, we do not believe that in the present cases there are sufficient elements to support the conclusion that there has been a violation on this point by the Belgian Government of the applicants ’ right protected by Article 5 (4) (art. 5-4) of the Convention.

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We cannot follow the Court on yet another point. Even if the decision of the magistrate does not constitute the result of proceedings before a court, within the meaning of Article 5 (4) (art. 5-4) of the Convention, the Court has not taken into account, as it should have done, the possibility of appealing to the Conseil d ’ État . It is true that, although the applicants failed to appeal to the Conseil d ’ État , the Court has unanimously declared the submission of non-exhaustion of domestic remedies to be ill-founded for the reason that the applicants can not be blamed for not having attempted an appeal which, according to established case-law, was inadmissible. This, however, does not mean that such an appeal could not have been possible. The Du Bois case, which was already pending at the time of the detention of the applicants, reversed the former case-law and the Conseil d ’ État decided that the orders of the magistrates in vagrancy matters were subject to appeal to it. An appeal by the applicants which would very likely have been the subject of a decision by the Conseil d ’ État subsequent to the Du Bois judgment would have been dealt with in the same way and would have been declared admissible and then judged. From the uncertainty of the situation existing at the time, while in spite of the previous case-law to the contrary a new attempt to appeal to the Conseil d ’ État had already been made and had finally been crowned with success, no argument can be drawn either to deny that, according to the communis opinio, there had then been exhaustion of domestic remedies or to deny that, this notwithstanding, the real possibility of an appeal existed. The applicants can ask to be excused for not having entered an appeal which at that time seemed ill-founded but they cannot seriously complain that an appeal did not exist which in fact existed.

It must also be added that the Court has acknowledged (paragraph 82) that the Convention is directly applicable in Belgium so that any alleged violation of the Convention could have been submitted for examination by the superior administrative court once the latter had, as in the Du Bois case, declared itself competent to examine the magistrate ’ s orders. The Court finally does not omit to emphasise that nothing allows it to be affirmed a priori that the Conseil d ’ État would not have decided speedily.

Even if the magistrate does not constitute the court mentioned in Article 5 (4) (art. 5-4) of the Convention, the appeal to the Conseil d ’ État , which was admissible at the time of the proceedings, is enough to prevent it being declared that there has been a violation of this provision of the Convention by the Belgian Government.