CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 avril 1971

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   The facts of the case as submitted by the applicant may be summarised as follows:   The applicant is a Belgian citizen, born in 1926 and at present resident in Istanbul, Turkey.   From his statements and documents submitted by the applicant it appears that, on .. July 1959, he was arrested in accordance with a warrant of arrest issued by the Judges' Chamber of the Court of First Instance (Raadkamer der Rechtbank van Eerste Aanleg) in Antwerp on .. April 1959 and remanded in custody. He was suspected of having committed various offenses of fraud, breach of trust and inflicting bodily harm. On .. September 1959 a psychiatrist allegedly examined the applicant and found, on the basis of this examination and the applicant's case file, that he was mentally deranged. According to the applicant, this examination lasted twenty minutes only. Subsequently, the order for his detention on remand was allegedly confirmed on .. September and .. October 1959.   The applicant stated that on .. November 1959 he was conditionally released from detention. At the same time an order was made by the above Judges' Chamber that the applicant should again be examined by a psychiatrist as to his criminal responsibility. According to the applicant this order was never executed owing to the fact that, on .. February 1960, he had moved to Germany where he remained until 1968. However, on .. June 1960 the Judges' Chamber of the Court of First Instance in Antwerp took a decision in the absence of the applicant to the effect that he had committed certain of the above offenses while being mentally deranged and thus incapable of being responsible for his acts, but that he constituted a danger to public safety. For these reasons the Court ordered, in accordance with the relevant provisions of the Act of 9 April 1930 relating to Social Protection in respect of Abnormal Persons and Habitual Criminals, that the applicant should be detained during a period of five years in a mental institution. On .. June 1960 the Criminal Court of First Instance took a similar decision with regard to further charges of fraud and certain offenses committed in connection with the issuance of cheques. It again ordered the applicant's detention in a mental institution for a period of five years but decided that this period should run concurrent with the period fixed by the decision of .. June 1960.   It appears that in 1967 the German authorities informed the applicant that he could no longer stay in the Federal Republic, the validity of his passport having expired. He states that he intended to move to London but before he could put his plan into effect the German authorities deported him to Belgium where he was arrested on .. September 1968 and transferred to Antwerp. He was detained in the psychiatric division of Antwerp prison where the above decisions of .. and .. June 1960 were communicated to him.   On .. October   1968 the applicant assisted by Mr. L., a lawyer practising in Antwerp, appeared before the Board for the Protection of Society (Commissie tot bescherming van de matschappij) which rules that the applicant should be detained at M. in execution of the above decisions of .. and .. June 1960.   The applicant lodged with the Court of Cassation (Hof van Verbreking) pleas of nullity against that ruling and against the decisions of .. and .. June 1960 but the Court declared them inadmissible on .. December 1968. As regards the Board's ruling it stated that, as it simply determined the place at which the applicant should be detained in execution of the above court decisions and was not concerned with maintaining the detention as such, it was not possible to challenge in cassation proceedings this ruling. As regard the decisions of .. and .. June 1960 the Court stated that, insofar as the applicant had failed to appeal against these decisions, pursuant to Article 8 of the Act of 9 April 1930, he had not exhausted the remedies available to him under Belgian law.   The applicant considered that he was wrongfully detained. He alleged that he was not mentally deranged and emphasised, in particular, the fact that for years he had lived in Germany and even built up and run a business in that country. He therefore made an application to the Board for the Protection of Society at Antwerp Prison for his release. The Board heard the applicant on .. March 1969. It appears that it also procured a further psychiatric opinion on the applicant's mental state. However, on .. March 1969 it took a decision rejecting his application for release.   The applicant then addressed himself to the Council of States (Raad van State) requesting that his case should be examined by the Council. By letter of .. April 1969 from the Council's President's Office he was informed that the Council of State had no competence to examine the decisions of the Boards for the Protection of Society which had been established under the Act of 1 July 1964 and simply replaced the Boards set up under the previous Act of 9 April 1930.   The applicant also lodged with the Court of Cassation a plea of nullity against the said Board's decision of .. March 1969. He alleged, first, that the provisions of the Act of 1 July 1964 which replaced the Act of 9 April 1930 had been applied without taking into consideration the fact that the applicant's detention had been ordered before the 1964 Act had entered into force. Secondly, he alleged that the Commission had ignored the fact that his mental state had improved and that consequently the condition for his release on probation (reclassering) had been satisfied. He finally alleged that the 1964 Act had been violated by virtue of the fact that two members of the Board had simply adopted the "vote" (stem) of the Procureur of the King (Procureur des Konings).   On .. June 1969 the Court of Cassation rejected the plea in the absence of the applicant or his lawyer and after hearing the conclusions of the Solicitor General (Advocaat-generaal). With regard to the applicant's first allegation the Court held that it was ill-founded and explained that the system of the Act of 1 July 1964 was applicable to such detention orders which had not been fully executed at the time of the entry into force of that Act. Consequently, from that date onwards the determination of the actual length of detention was a matter falling exclusively within the competence of the Board for the Protection of Society. The Court further held that the applicant's second allegation was inadmissible since the Board was the sovereign judge as to any improvement of a prisoner's state of mind and the possibility of his release on probation. The Court finally decided that the applicant's third allegation was also inadmissible as it lacked sufficient clarity.   The applicant complained that he was wrongfully detained in a mental institution. He alleged that the psychiatrist who had examined him in 1969 had not found any trace of mental illness but that the Board had ignored that finding. He further seemed to allege that his detention was unlawful in that the 1960 detention orders were executed in accordance with the Act of 1 July 1964 which had not been in force at the time when the orders were made. According to the applicant, there was no provision in the 1964 Act which states that the 1930 Act should be replaced. This had only been accomplished by Ministerial Ordinance 34/64 so that he was presently detained at M. simply on the basis of an administrative ordinance rather than a law enacted by the legislature. Moreover, the 1960 detention orders had lost their force by reason of the lapse of time.   The applicant finally referred to the Delcourt Case and complained that, as in that case, his pleas of nullity had been dealt with by the Court of Cassation in his absence but in the presence of the Procureur-General.   He invoked Articles 25, 26 and 27 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION   The Commission examined the application on 13 and 24 July 1970. It noted the following additional facts:   On 13 October 1969 the applicant had last written to the Commission from M. and on 1 April 1970 the Commission's Secretary informed him that, as his case would soon be examined by the Commission, he should confirm his intention to maintain his application and submit any further information that he wished to be put before the Commission. The applicant did not reply to that letter.   On 22 June 1970 the Secretary wrote a further letter to the applicant at M. requesting him once more to state his intention to maintain the application and, in particular, to submit a copy of the decision of the Board for the Protection of Society, dated .. March 1969. This letter was returned with the statement on the letter:   "Parti pour: c/o J. G., A.F. Ltd., G. Lane, H., Middlesex, Great Britain".   On the basis of this information the Secretary on 29 June 1970 sent by registered mail a copy of his letter of 22 June to the above address in England. This letter was accepted by one S.A. but there had been no reply from the applicant by July 1970.   In the circumstances the Commission decided to adjourn until its October session the further examination of the application and, in the meanwhile, to instruct the Secretary to try to re-establish contact with the applicant and obtain from him further information on the circumstances of his detention and subsequent release.   In pursuance of the Commission's decision of 24 July 1970, the Secretary wrote again to the applicant informing him of the above decision and requesting from him further information on the circumstances of his detention at, and subsequent release from, the mental institution at M..   The applicant finally replied by letter of 28 August 1970 from Istanbul stating, however, the address in England as indicated by the Belgian authorities. He stated that he wished to maintain his application before the Commission but that he could not comply with the Commission's request for the submission of further decisions and, in particular, of the Board's decision of .. March 1969 as he never received the decision concerned. He contends that he tried to clarify matters in Belgium with the assistance of two lawyers but without success: his efforts in this connection were allegedly defeated by one Mr. van L., who is apparently the Procureur at the Board for the Protection of Society in Antwerp.   The applicant further stated that he was released on .. October 1969 on the condition that he should leave Belgium for England and never return. He contended that he never received the decision ordering his release, although the competent authorities had promised to send him a copy thereof to his address in England.   The applicant finally states that, under Belgian law, he is still 100% insane and that he suffered severe damage during his detention in a mental institution.   He requested the Commission to grant him justice and set aside the decision declaring him to be mentally deranged.   On 7 October 1970 the Commission continued its examination of the applicant's complaints. It decided to communicate the application, in accordance with Rule 45, 3 (b) of the Commission's Rules of Procedure, to the Belgian Government and to invite the Government to submit its observations in writing on the admissibility of the application.   In the meanwhile, the Commission adjourned again the further examination of the case.   The Government's observations, dated 28 December 1970, were submitted to the Commission on 11 January 1971. On 13 January 1971 they were sent to the applicant's address in England which was the only address known to the Secretary and the applicant was invited to submit, with a period of two weeks, i.e. before 26 January 1971, his written observations in reply.   Receipt of the Secretary's letter of 13 January 1971 containing the Government's observations on admissibility was acknowledged on 18 January 1971 by a person at H., Middlesex, England. However, there was never a reply from the applicant.   On 9 February 1971, the Commission's Secretary telephoned to the JDAF Company at H. He spoke to a Mr. Y. who informed him that the applicant had been with the company only for a very short time two years ago and that, since that time, there had been no communication from him except a postcard from Istanbul, Turkey.   SUBMISSIONS OF THE BELGIAN GOVERNMENT   In the observations of 28 December 1970 the Belgian Government first submitted further details regarding the facts of the case. They confirm that two decisions were taken against the applicant by reason of various criminal offenses committed by him.   The first was an order by default (Ordonnance par défaut) by the Judges' Chamber of the Court of First Instance at Antwerp, dated .. June 1960 and committing the applicant to detention during the period of five years. During these proceedings the applicant had been remanded in custody from .. April to .. May 1959 and again from .. July to .. November 1959. The offenses concerned were eleven acts of breach of trust and one act of severe bodily harm which the applicant inflicted on .. July 1959 on an acquaintance while he was in the office of the psychiatrist T. who had been asked to examine him in connection with the other charges against him.   The second decision was a judgment by default of the Ninth Chamber of the Criminal Court at Antwerp, dated .. June 1960 and again committing the applicant to detention during a period of five years but declaring that this detention was absorbed by the order pronounced by the Judges' Chamber on .. June 1960. During these proceedings the applicant had never been in detention on remand although he had been arrested on .. August 1958 and released the next day after his interrogation by the Investigating Judge. The offenses concerned were eight acts of breach of trust and two acts of obtaining money by means of worthless cheques.   The Government states that it had been impossible to rearrest the applicant after his provisional release on .. November 1959. In fact, it had not been possible to communicate to the applicant either a warrant to appear in court, issued on .. March 1960, or any subsequent sub-poena, or the two decisions concerned. Consequently, the applicant's name had been included on .. June 1960 in the Central Bulletin.   It appeared from two petitions for pardon, lodged by the applicant on .. September and .. November 1960 by which he requested the quashing of the orders for detention in order to obtain an extension of his passport by the Belgian Consulate in D. that the applicant was at that time in H. where, according to him, he intended to begin a new life.   For reasons unknown to the Belgian authorities the applicant was expelled from Germany on .. September 1968 and delivered to the Government authorities at the Belgo-German border at C. The Government authorities telephoned the King's Counsel (Procureur du Roi) at Antwerp on whose orders the applicant at once was transferred to the psychiatric division of Antwerp Prison and placed under the jurisdiction of the Board for the Protection of Society. At the same time, the above decisions of June 1960 were communicated to him. The applicant made a plea of nullity against the decisions which was dismissed by the Court of Cassation on .. December 1968.   The Government further states that, on .. October 1968, the Board for the Protection of Society decided that the applicant should be transferred to M.. and that a plea of nullity against the decision was dismissed by the Court of Cassation on .. December 1968. On .. March 1969 his detention at M.. was confirmed by the said Board and a plea of nullity against that decision was again rejected by the Court of Cassation. Then, on .. September 1969 the Board ordered the applicant's transfer to T.. and on .. December 1969 it made an order for the applicant's provisional release granting his request to leave Belgium and establish himself in London. This approval was given on the condition that he should inform the Board of his residence in England but according to the Government, the applicant, who was released on .. December 1969 never gave this information.   The Belgian Government then also makes some observations regarding the applicant's mental condition. They explain that he had been examined by a psychiatrist, Dr. R., who had been charged with the case after Dr. T. had resigned as a result of the incident in his office on .. July 1959. Dr. R. had come to the conclusion that the applicant showed signs of insanity, although he was physically and intellectually sufficiently well. The applicant was a disintegrated person who, as a result of his hallucinations, made attempts at his reintegration. He had no sense of guilt with regard to the offenses committed by him and considered himself as being hindered in his development by a particular person whom he planned to kill. Consequently, he constituted a clear danger for that person and such an attitude was a sign of mental illness.   The Government then deals with the question of the admissibility of the application and submits that the applicant had not satisfied the requirements under Article 26 of the Convention.   First they point out that the applicant had failed to exhaust the remedies which were at his disposal under Belgian law. In fact, the applicant had the possibility of making an objection (opposition) against the Judges' Chamber's decision, either immediately after having taken cognisance of that decision or within ten days after it had been communicated to him. In this connection the Government explains that, under Article 187 of the Code of Criminal Procedure, the person concerned must simply have cognisance of the decision by default as such but not of the terms of the act of its notification, nor was it necessary that he should have received a copy of the act of notification or of the decision itself.   In the present case, it resulted clearly from the petitions for pardon made by the applicant on .. September 1960 and .. November 1960 that he had cognisance of the decisions against him at least by 20 November 1960 and he should have made his objection within 10 days from that date.   But even assuming that this was not accepted, Article 187 of the Code of Criminal Procedure further provided for an extraordinary objection to be made within 10 days after the notification of the decision. Applying this rule, the Government observes that the decision had been notified to the applicant on 4 September 1968 and that consequently he had until 14 September 1968 to make an extraordinary objection which he failed to do so.   Furthermore, as regards the judgment of the Criminal Court of Antwerp dated .. June 1960 the Government refers to Article 199 of the Code of Criminal Procedure which provides for an appeal (appel) against the judgments in criminal matters. However, the applicant had challenged both decisions against him by means of a plea of nullity (pourvoi en cassation) which had been declared inadmissible on .. December 1968.   The Belgian Government next submits that the applicant also failed to observe the six months' time-limit laid down in Article 26 of the Convention. In this connection the Government refers again to the fact that, on .. September 1960 the applicant had made a petition for pardon, and concludes that from that date onward the applicant had been aware of the measures taken against him. As he had made neither an objection nor an appeal against the decisions concerned, these had acquired the force of res judicata by .. October 1960 at the latest. However, the applicant had not seized the Commission before .. April 1969 that is more than six months after the final national decision.   The Government submits that, for these reasons, the application is inadmissible.   The Government further submits, in the alternative and reserving the right to make further observations in this respect, that the application is also ill-founded.   Firstly, the applicant's detention was not inconsistent with Article 5, paragraph (1) of the Convention. The detention order was based on the Act of 9 April 1930. It had not been possible before .. September 1968 to enforce that order because the applicant had absconded. As the detention constituted, in the present case, a security measure and not a penalty, it was not subject to the rules of prescription. Under the Royal Decree of 28 August 1964 relating to the Social Protection in respect of Abnormal Persons and Habitual Criminals, the new Act replaced the 1930 Act and also governed any detention order prior to 1 September 1964.   Secondly, contrary to the applicant's allegations, the Board for the Protection of Society had maintained his detention solely by reason of his personality. Under Article 18 of the 1964 Act the Board had, of course, the power to release him.   Finally, the Government submits that the applicant's further allegations were in no way substantiated by the facts of the case.   DECISION OF THE COMMISSION   The Commission notes that there has been no communication from the applicant since 28 August 1970. The Commission further notes that the applicant has failed to keep it informed of his whereabouts and that the address indicated by him in his correspondence was not his correct address with the consequence that it was not possible to communicate with him at that address. The Commission finally notes that its Secretary has made various efforts to establish contact with the applicant, but without success.   In these circumstances, the Commission considers that the applicant has failed to show any interest in the maintenance of his application before the Commission;   and there appear to be no reasons of a general character affecting the observance of the Convention which would necessitate a further examination of his complaints.   For these reasons, the Commission DECIDES TO STRIKE THIS APPLICATION OFF ITS LIST OF CASES