COLLECTIVE SEPARATE OPINION OF JUDGES HOLMBÄCK, RODENBOURG, ROSS, FAVRE AND BILGE

(Translation)

The Court has decided, by a majority of nine votes to seven, that there has been a violation of Article 5 (4) (art. 5-4) in that the applicants could not take proceedings before a court against the decisions ordering their detention.

In our opinion this decision is not well-founded. The following are the reasons for our opposition to this part of the judgment.

1. The system of protection of Human Rights set up by the Convention comprises two types of applications:

(a) interstate applications, that is those by which a State refers to the Commission any breach of the provisions of the Convention by another State (Article 24 of the Convention) (art. 24); and

(b) individual applications, that is by persons claiming to be victims of the violation by a State of the rights set forth in the Convention (Article 25 of the Convention) (art. 25).

The difference in character between the two types of applications has been demonstrated in particular by the decision of the Commission on the admissibility of the applications by Denmark , Norway , Sweden and the Netherlands against Greece , of 31st May 1968 . The Commission observed

"that, under Article 24 (art. 24) of the Convention, any High Contracting Party may refer to the Commission ‘ any alleged breach of the provisions of the Convention by another High Contracting Party ’ ( ‘ tout manquement aux dispositions de la présente Convention qu ’ elle croira pouvoir être imputé Ã une autre Partie Contractante ’ ); whereas it is true that, under Article 25 (art. 25), only such individuals may seize the Commission as claim to be ‘ victims ’ of a violation of the Convention; whereas, however, the condition of a ‘ victim ’ is not mentioned in Article 24 (art. 24); whereas, consequently, a High Contracting Party, when alleging a violation of the Convention under Article 24 (art. 24), is not obliged to show the existence of a victim of such violation either as a particular incident or, for example, as forming part of an administrative practice". (Yearbook 1968, p. 776)

Then again, the Commission ’ s precedents are well-defined in the decision of 8th January 1960 , X against Ireland , in which the Commission considered that

"it is clear from Article 25 (1) (art. 25-1) of the Convention that the Commission can properly receive an application from a person, non-governmental organisation or group of individuals only if such persons ... claim to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention; ... it follows that the Commission can examine the compatibility of domestic legislation with the Convention only with respect to its application to a person ... and only insofar as its application is alleged to constitute a violation of the Convention in regard to the applicant person, ... and whereas, therefore, in a case submitted by an individual under Article 25 (art. 25), the Commission is not competent to examine in abstracto the question of the conformity of domestic legislation with the provisions of the Convention". (Yearbook 3, pp. 218-220)

In perfect harmony with the Commission, the Court decided in the De Becker case (Judgment of 27th March 1962, p. 26) that

"the Court is not called upon, under Articles 19 and 25 (art. 19, art. 25) of the Convention, to give a decision on an abstract problem relating to the compatibility of (the national) Act with the provisions of the Convention, but on the specific case of the application of such an Act to the applicant and to the extent to which the latter would, as a result, be prevented from exercising one of the rights guaranteed by the Convention". ( See also Digest of Case Law , No. 299; "Les Droits de l ’ Homme", European Colloquy of 1965: Ganshof van der Meersch, pp. 208 et seqq., Scheuner, p. 363; Vasak: La Convention européenne, No. 190; Monconduit: La Commission européenne, p. 188)

Thus, the Court has to examine not whether Belgian legislation, analysed in abstracto, satisfies the requirements of the Convention, but solely whether the applicants have been "victims" of a violation of the provisions of the Convention guaranteeing their rights in the specific circumstances in which they found themselves and having regard to their conduct, acts and omissions. In such cases there can be no violation of the Convention unless it is proved that the rights of the applicants have been violated, not nominally, but in a concrete way by a decision or measure of the administrative or judicial authority.

2. The underlying concept of the judgment is that the procedure instituted by Belgian legislation is too summary; consequently, it does not guarantee to the vagrants sufficient protection of their rights and does not meet the requirements of Article 5 (4) (art. 5-4) of the Convention.

The consequence which the Convention draws from the violation of Article 5 (art. 5) is that the victim of an unlawful detention has an enforceable right to compensation (Article 5 (5)) (art. 5-5). It is for the State to make reparation, if possible, for the consequences of the decision or measure attacked; all the same, the judgment must inform it as to the nature and extent of the damage. If internal law allows of only partial reparations "the Court shall, if necessary, afford just satisfaction to the injured party" (Article 50 of the Convention) (art. 50).

Yet the judgment, which has limited itself to an abstract criticism of the Belgian legal system, does not say what are the legal effects of the unlawful detention of the applicants.

3. Article 5 (4) (art. 5-4) of the Convention provides that "everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings ..." before "a court ...". The Convention clearly specifies proceedings (un recours ) before a court (un tribunal). There is no doubt that it is the magistrate who orders the detention. Nor was there in the Belgian legal system as applied up to the Du Bois judgment of 7th June 1967 - a judgment subsequent to the ratification of the Convention - any real possibility of taking proceedings before a court. But it is obvious that Article 5 (4) (art. 5-4) of the Convention was conceived in contemplation of the case where detention is ordered by the police authorities, which measure must be submitted to judicial supervision (Commission ’ s report, para. 176). As, under Belgian law, the detention is ordered by a judge, judicial supervision of the lawfulness of detention is incorporated in the decision and this is done ex officio.

The hearings have clarified this point. The Commission ’ s report shows (para. 176) that, in the opinion of MM. Sørensen and Castberg, members of the Commission, the requirements of Article 5 (4) (art. 5-4) are satisfied as soon as the lawfulness of the deprivation of liberty is examined by a court exercising judicial jurisdiction, even if there has not been a previous judicial decision; in such a case, the word "proceedings" (" recours ") had no independent meaning. At the hearing of 18th November 1970 , Mr. Sørensen, the Principal Delegate of the Commission, explained that the majority of the Commission had not shared his opinion because Belgian legislation did not provide a further supervision of the lawfulness of the detention. However, the 1891 Act provides at Sections 15 and 18 that the Minister of Justice shall release detained persons, whose detention he considers to be no longer necessary. T he Commission did not take into account that, during their detention, the applicants had had the right to request their release, on the ground that their detention was no longer justified, and to complain of the nature, which in their opinion had become unlawful, of their detention, as well as, moreover, of any violation of their rights by the administrative authorities by addressing themselves to the Minister of Justice and by way of an appeal against a negative decision of this authority to the Conseil d ’ État . Although the applicants addressed many requests to the Minister of Justice, none of them appealed to the Conseil d ’ État which did not therefore pronounce itself on the lawfulness of their continued detention.

It must finally be pointed out that, under Article 60 (art. 60) of the Convention, the provisions of the Convention may not be construed in a way that limits the rights ensured under national legislation. Hence, as the Belgian legislation goes further than Article 5 (4) (art. 5-4) in that it institutes a compulsory supervision of the lawfulness of detention - while the Convention provides only the possibility of taking proceedings - it takes precedence over the text of Article 5 (4) (art. 5-4) on this point, and this precisely by virtue of Article 60 (art. 60) of the Convention.

4. The Commission, although acknowledging that the magistrate is a judicial organ (report, paras. 89-90), conside red that Belgian legislation did not observe Article 5 (4) (art. 5-4) of the Convention because the decision the magistrate takes is of an administrative nature. And the judgment of our Court states that the procedure in question is affected by the administrative nature of the decision to be given (para. 79).

The Convention, however, does not here distinguish between an administrative and a judicial decision. In any event, the boundary line between the two functions cannot be traced according to specific criteria. Many administrative acts involve a jurisdictional function (see Carré de Malberg , Théorie générale de l ’ État , I, p. 762). Many judicial acts contain an administrative element: in passing judgment, the judge sitting in a criminal court fulfils a judicial function, which consists in ascertaining whether the conduct of the accused comes under the provisions of the law and in assessing the degree of guilt; in addition, he determines the sentence by a decision which forms part of the administrative function.

The 1891 legislator expressly considered the magistrate to be a judicial authority (Section 2). In fact the function of a magistrate in vagrancy matters involves a decision of an administrative nature, which is preceded by a judicial activity consisting of the examination of the legal conditions which justify the detention and of the decision which closes this examination.

5. The criticism which the judgment levels at Belgian legislation is that it has not instituted satisfactory guarantees for the protection of the rights of vagrants. It is appropriate to examine whether the applicants have had the opportunity to defend themselves and whether the decisions taken in their regard are vitiated by arbitrariness.

The decision which the magistrate is called upon to take is the detention, that is a measure of deprivation of liberty. Contrary to what was said in the Neumeister judgment (p. 44, para. 24), that the term court "in no way relates to the procedure to be followed", it has to be accepted that where the authority can order deprivation of liberty, a procedure must be followed which gives the person concerned every possibility of defending himself.

Now "in these cases the proceedings before the magistrate are in public and ... the parties have an opportunity to be heard. The judge is required to hear the defence of the person brought before him who has the right to be assisted by a lawyer; he can apply to the judge for investigation to be made and in particular for witnesses to be heard; when the judge grants such an application the witnesses are heard in the presence of the person concerned who may make his observations on the evidence given. The judge must give reasons for his decision ". (report, para. 190, individual opinion of Mr. Welter, member of the Commission)

The judgment states (para. 79) that the only provision relevant to the right of defence appears in Section 3 of the Act of 1st May 1849 which affords an adjournment of three days to the person concerned if he so requests. It must however be added that, by virtue of Section 11 of the 1891 Act, the public prosecutor is empowered to release the arrested person pending the hearing (report, footnote 1 to para. 164); this is to allow for a preparation of the defence.

It is quite true that the legal procedure is summary. However, if there were no national rule of procedure applicable, it would not necessarily follow that the decision of detention would be unlawful. What is essential is that the principles of law underlying Articles 5 and 6 (art. 5, art. 6) of the Convention be respected and, particularly, that the vagrants be given the opportunity to state all the circumstances relating to their condition, that they can bring forward all their means of defence and, if necessary, that they have the benefit of free legal aid. And these principles are incorporated in Belgian national law; they are in perfect accord with Belgian legislation. At a hearing of the Commission on 6th April 1967, Me Magnée, counsel for the applicants, admitted expressly that the assistance of a lawyer is granted to the vagrant within the three-day period if he so requests.

It is clearly established then that the three applicants abandoned the exercise of the rights granted to them for their defence. We shall see further on under point 6 how very understandable it was that they behaved in this way.

Under Section 12 of the 1891 Act "the magistrate shall ascertain the identity, age, physical and mental state and manner of life of the persons brought before the police court". It is not open to the Court to presume that any of the magistrates who dealt with these cases did not act in all conscience and mindful of all the rights of the persons concerned.

6. It is not contested that, at the time of the orders of detention, the three applicants were vagrants. The magistrate was, therefore, bound to order their detention. He had to decide whether the vagrant was to be sent to an assistance home (Section 16 of the 1891 Act) or to a vagrancy centre (Section 13). Detention in an assistance home is ordered for one year at most. Detention in a vagrancy centre is for at least two years. Ooms was detained in an assistance home, De Wilde and Versyp in a vagrancy centre.

The case of Ooms is a simple one. Ooms, who had many convictions in criminal cases and had been detained four times as a vagrant, presented himself at the police station to be dealt with as a vagrant, unless a social service found him a job. His request was acceded to; he was placed in an assistance home.

Does the application of Section 13 of the 1891 Act rather than Section 16 in the cases of De Wilde and Versyp indirectly amount to a violation of Article 5 (4) (art. 5-4) of the Convention which implies that the judgment must be delivered in circumstances which guarantee a proper administration of justice?

Regarding Article 5 (1) (art. 5-1) of the Convention the Commission stated (report, para. 186): "It is not for the Commission to decide whether the municipal law was correctly applied by the competent authorities in the present cases, provided that an examination of the proceedings does not show that the authorities acted arbitrarily". The same holds good for Article 5 (4) (art. 5-4) and for the role of the Court.

Section 13 of the 1891 Act provides for placement in a vagrancy centre of "able-bodied persons who, instead of working for their livelihood, exploit charity as professional beggars and persons who through idleness, drunkenness or immorality live in a state of vagrancy".

The detention of vagrants is a security measure which, while training the individual to work and possibly overcoming his urge for drink, aims at removing the dangers he represents for society.

The Brussels magistrate, before whom Versyp was brought – Versyp insisted on his return to the welfare settlements, as he had been in Merksplas before - was, at the time of the interrogation, in possession of a report of the Brussels Social Rehabilitation Office (dated 4th November 1965), stating in particular: "all our attempts at rehabilitation have failed on account of his apathy, idleness and weakness for drink". Furthermore, his criminal record discloses 24 convictions for larceny and attempted larceny, indecent assault, drunkenness, travelling without a ticket, assault and receiving stolen property; and, in addition, three previous detentions for vagrancy. The magistrate ’ s order refers expressly to Versyp ’ s examination and to his file, which contains, inter alia, the aforementioned report from the Social Rehabilitation Office. The detention note (of 4th November 1965 ) indicates the motives for the detention, "apathy, idleness and weakness for drink".

When De Wilde presented himself at the Charleroi police station after spending some nights at the railway station, he declared that he had never been placed as a vagrant. The magistrate asked for an information note (it is dated 19th April 1966) which shows thirteen convictions for various offences, of which six involved sentences of imprisonment for larceny, and, in addition, five previous detentions for vagrancy. The magistrate ’ s order refers to the examination and file which includes the aforementioned information note. It is worthy of note that De Wilde, released on 16th November 1966, was again detained for vagrancy, during the proceedings, from 11th January 1967 to 15th May 1967.

Is it possible to consider that the measure taken by the two magistrates at Brussels and Charleroi was arbitrary? An act is arbitrary when it violates in a serious and obvious way a legal rule or again when it is devoid of all serious justification. The least one can say is that it has not been proved that the magistrates at Brussels and Charleroi clearly violated Section 13 of the 1891 Act when, in placing Versyp and De Wilde in a vagrancy centre, they took into consideration the moral and social disorder which characterised the behaviour of these two vagrants.

Even the applicants ’ counsel, who had stated "very incidentally" that Versyp was contesting the application of Section 13 of the 1891 Act in his regard, did not, as the Commission stated (report, para. 51, footnote 1), take up the complaint again either at the hearing before the Commission on 8th February 1968 or in the final conclusions submitted during that hearing. Moreover, the Commission did not go into this complaint in its memorial to the Court, nor did the applicants ’ counsel do so in his observations appended to the Commission ’ s memorial.

7. To conclude : the three applicants were vagrants . They were detained for vagrancy. The order of detention was made by a court and with the formalities of a public hearing in the presence of the parties during and after which the persons appearing had the opportunity to avail themselves of all means of defence. They did not make use of this right. The clearly established facts show that the measures taken in their regard were not arbitrary and that it is doubtful whether other magistrates or even a court of appeal could have come to decisions appreciably different from those which were taken.

It is impossible to deduce from the facts that the applicants were victims of a violation by the Belgian authorities of the rights which the Convention guarantees to them.