CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 juin 1971

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BELGIUM (MERITS)   (Application no. 2832/66; 2835/66; 2899/66)             JUDGMENT       STRASBOURG   18 June 1971 In the De Wilde, Ooms and Versyp cases, The European Court of Human Rights, taking its decision in plenary session in accordance with Rule 48 of its Rules and composed of the following Judges:   Sir   Humphrey WALDOCK , President ,   MM.   H. ROLIN ,   R. CASSIN , Å.E.V. HOLMBÄCK , A. VERDROSS , E. RODENBOURG , A.N.C. ROSS , T. WOLD , G. BALLADORE PALLIERI , H. MOSLER , M. ZEKIA , A. FAVRE , J. CREMONA , S. BILGE , G. WIARDA , S. SIGURJÓNSSON , and also Mr. M.-A. EISSEN , Registrar , and Mr. J.F. SMYTH , Deputy Registrar , Decides as follows: PROCEDURE 1. The De Wilde, Ooms and Versyp cases were referred to the Court by the Government of the Kingdom of Belgium ("the Government"). The cases have their origin in applications lodged in 1966 with the European Commission of Human Rights ("the Commission"), under Article 25 (art. 25) of the Convention, by Belgian nationals - Jacques De Wilde, Franz Ooms and Edgard Versyp - and concerning certain aspects of Belgian legislation on vagrancy and its application to these three persons. In 1967 the Commission ordered the joinder of the said applications insofar as they had been declared admissible and, on 19th July 1969, it adopted in their respect the report provided for in Article 31 (art. 31) of the Convention. The report was transmitted to the Committee of Ministers of the Council of Europe on 24th September 1969. The Government’s application, which referred to Articles 45, 47 and 48 (art. 45, art. 47, art. 48) of the Convention, was lodged with the Registry of the Court on 24th October 1969 within the period of three months laid down in Articles 32 (1) and 47 (art. 32-1, art. 47). 2. On 28th October 1969, the Registrar obtained from the Secretary of the Commission twenty-five copies of its report. 3. On 10th November 1969, the President of the Court drew by lot, in the presence of the Registrar, the names of six of the seven Judges called upon to sit as members of the Chamber, Mr. Henri Rolin, the elected Judge of Belgian nationality, being an ex officio member under Article 43 (art. 43) of the Convention. The six Judges so chosen were MM. Å. Holmbäck, A. Verdross, G. Balladore Pallieri, A. Favre, J. Cremona and S. Sigurjónsson. The President also drew by lot the names of three substitute Judges, namely MM. A. Bilge, E. Rodenbourg and G. Maridakis in this order. Mr. Å. Holmbäck assumed the office of President of the Chamber in accordance with Rule 21, paragraph 7, of the Rules of Court. 4. The President of the Chamber ascertained, through the Registrar, the views of the Agent of the Government and of the President of the Commission on the procedure to be followed. By an Order of 23rd November 1969, he decided that the Government should file a memorial within a time-limit expiring on 15th February 1970 and that the Delegates of the Commission should have the right to reply in writing by 9th April 1970 as fixed by an Order of 12th February 1970. The respective memorials of the Government and the Commission reached the Registry on 9th February and 9th April 1970. 5. As authorised by the President of the Chamber in an Order of 18th April 1970, the Government filed a second memorial on 10th June 1970. On 1st July 1970, the Secretary of the Commission informed the Registrar that the Delegates did not wish to file a rejoinder. 6. On 10th January and 3rd March 1970, the President of the Chamber had instructed the Registrar to invite the Commission and the Government to produce a number of documents, which were placed on the file in February, April and May 1970. 7. At a meeting in Strasbourg on 28th May 1970, the Chamber decided, by virtue of Rule 48, "to relinquish jurisdiction forthwith in favour of the plenary Court" for the reason that the Commission had raised in the submissions of its memorial "certain questions on which it (was) desirable that the Court should be able to rule in plenary session". Sir Humphrey Waldock assumed the office of President of the Court for the consideration of the present cases under Rule 21, paragraph 7, taken in conjunction with Rule 48, paragraph 3. 8. On 28th and 29th September 1970, the Court held a meeting in Paris to prepare the oral part of the procedure. On this occasion it decided to request the Commission and the Government to provide it with further documents and information which were received on 30th October and 16th November 1970, respectively. Some other documents were filed by the Agent of the Government on 15th and 17th March 1971. 9. After having consulted the Agent of the Government and the Delegates of the Commission, the President decided, by Order of 1st October 1970, that the oral hearings should open on 16th November 1970. 10. The oral hearings began on the morning of 16th November 1970 in the Human Rights Building at Strasbourg. They continued during the two following days. There appeared before the Court: - for the Government:   Mr. J. DE MEYER , Professor     at Louvain University, Assessor to the Council of State,     Agent and Counsel ; - for the Commission:   Mr. M. SØRENSEN ,     Principal Delegate , and   Mr. W.F. DE GAAY FORTMAN ,   Delegate . On the afternoon of 17th November, Mr. Sørensen informed the Court that the Delegates of the Commission intended to be assisted on a particular point by Me X. Magnée, avocat at the Brussels Bar. The Agent of the Belgian Government having expressed objections, the Court took note, by a judgment of 18th November, of the intention of the Delegates to avail themselves of the right conferred on them by Rule 29, paragraph 1, in fine. The Court heard the addresses and submissions of Mr. Sørensen and Mr. De Meyer as well as their replies to the questions put by several Judges. It also heard, on the afternoon of 18th November, a short statement by Me Magnée of the point mentioned by the Principal Delegate. The hearings were declared provisionally closed on 18th November. 11. Judge G. Maridakis, who had attended the oral hearings, could not take part in the consideration of the present cases after 31st December 1970, as the withdrawal of Greece from the Council of Europe became effective from that date. 12. After having made final the closure of the proceedings and deliberated in private, the Court gives the present judgment. AS TO THE FACTS 13. The purpose of the Government’s application is to submit the De Wilde, Ooms and Versyp cases for judgment by the Court. On several points the Government therein expresses its disagreement with the opinion stated by the Commission in its report. 14. The facts of the three cases, as they appear from the said report, the memorials of the Government and of the Commission, the other documents produced and the addresses of the representatives appearing before the Court, may be summarised as follows: A. De Wilde case 15. Jacques De Wilde, a Belgian citizen, born on 11th December 1928 at Charleroi, spent a large part of his childhood in orphanages. On coming of age, he enlisted in the French army (Foreign Legion) in which he served for seven and a half years. As a holder of books for a fifty per cent war disablement pension and a military retirement pension, he draws from the French authorities a sum which in 1966 amounted to 3,217 BF every quarter. He has work, from time to time at any rate, as an agricultural labourer. 16. The applicant reported on 18th April 1966 at 11.00 a.m. to the police station at Charleroi and declared that he had unsuccessfully looked for work and that he had neither a roof over his head nor money as the French Consulate at Charleroi had refused him an advance on the next instalment of his pension due on 6th May. He also stated that he had "never" up to then "been dealt with as a vagrant". On the same day at 12 noon, Mr. Meyskens, deputy superintendent of police, considered that De Wilde was in a state of vagrancy and put him at the disposal of the public prosecutor at Charleroi; at the same time, he asked the competent authorities to supply him with information about De Wilde. A few hours later, after being deprived of his liberty since 11.45 a.m., De Wilde attempted to escape. He was immediately caught by a policeman and he disputed the right of the police to "keep him under arrest for twenty four hours". He threatened to commit suicide. The information note, dated 19th April 1966, showed that between 17th April 1951 and 19th November 1965 the applicant had had thirteen convictions by courts of summary jurisdiction or police courts and that, contrary to his allegations, he had been placed at the Government’s disposal five times as a vagrant. 17. On April 19th, at about 10 a.m., the police court at Charleroi, after satisfying itself as to "the identity, age, physical and mental state and manner of life" of De Wilde, decided, at a public hearing and after giving him an opportunity to reply, that the circumstances which caused De Wilde to be brought before the court had been established. In pursuance of Section 13 of the Act of 27th November 1891 "for the suppression of vagrancy and begging" ("the 1891 Act") the court placed the applicant "at the disposal of the Government to be detained in a vagrancy centre for two years" and directed "the public prosecution to execute the order". 18. After being first detained at the institution at Wortel and then from 22nd April 1966 at that of Merksplas, De Wilde was sent on 17th May 1966 to the medico-surgical centre at St. Gilles-Brussels from where he was returned to Merksplas on 9th June 1966. On 28th June 1966, he was transferred to the disciplinary prison at Turnhout for refusal to work (Section 7, sub-section 2, of the 1891 Act), and on 2nd August 1966 to that of Huy to appear before the criminal court which, on 19th August, sentenced him to three months’ imprisonment for theft from a dwelling house. He was returned to Turnhout shortly afterwards. 19. On 31st May and 6th June 1966, that is, about a month and a half after his arrest and four weeks after sending his first letter to the Commission (3rd May 1966), the applicant wrote to the Minister of Justice invoking Articles 3 and 4 (art. 3, art. 4) of the Convention. He underlined the fact that on 6th May he had received 3,217 BF in respect of his pension and showed surprise that he had not yet been released. He also complained of being forced to work for the hourly wage of 1.75 BF. He added that he had refused to work in protest against the behaviour of the head of the block at Merksplas who had wrongfully claimed to be entitled to "take" from him 5% of his pension. Finally, he complained of the disciplinary measures taken on such refusal - punishment in a cell and confinement without privileges - and of hindrance to correspondence. On 7th June 1966, the Ministry of Justice requested the governor of the prison at St. Gilles to inform De Wilde "that his request for release" of 31st May would "be examined in due course". The applicant took up his complaints again on 13th June and later on 12th July 1966. In this last letter, he enquired of the Minister why he had been transferred to the prison at Turnhout. He also pointed out that there was no work available at this institution which would enable him to earn his "release savings". On 15th July, the Ministry had him notified that his release before the prescribed period had expired could "be considered" "provided that his conduct at work (was) satisfactory" and "adequate arrangements for rehabilitation (had) been made". De Wilde wrote again to the Minister on 8th August 1966. Due to his pension, he argued, he had "sufficient money"; in any case, "the results of (his) work" already amounted to more than 4,000 BF. As regards his rehabilitation, he stated that his detention made it "impossible"; it prevented him from corresponding freely with employers and the welfare officer had failed to help him. Nevertheless, on 12th August 1966, the Ministry considered that his application "(could) not at present be granted". On 13th August 1966, the applicant wrote once again to the Minister claiming he could find board and lodging and work on a farm. 20. On 25th and 26th October 1966, the Ministry of Justice decided that, at the expiry of the sentence he had received on 19th August, the applicant could be released once his rehabilitation seemed ensured by the Social Rehabilitation Office of Charleroi (Section 15 of the 1891 Act). De Wilde regained his freedom at Charleroi on 16th November 1966. His detention had lasted a little less than seven months, of which three months were spent serving the prison sentence. 21. According to a report of the Prisons’ Administration, the applicant received only one disciplinary punishment between the beginning of his detention (19th April 1966) and the date of his application to the Commission (17th June 1966): for refusal to work at Merksplas, he was not permitted to go to the cinema or receive visits in the general visiting room until his transfer to Turnhout. 22. In his application lodged with the Commission on 17th June 1966 (No. 2832/66) De Wilde invoked Articles 3 and 4 (art. 3, art. 4) of the Convention. He complained in the first place of his "arbitrary detention" ordered in the absence of any offence on his part, without a conviction and in spite of his having financial resources. He also protested against the "slavery" and "servitude" which, in his view, resulted from being obliged to work in return for an absurdly low wage and under pain of disciplinary sanctions. The Commission declared the application admissible on 7th April 1967; prior to this, the Commission had ordered the joinder of the case with the applications of Franz Ooms and Edgard Versyp. B. Ooms case 23. On 21st December 1965 at 6.15 a.m., Franz Ooms, a Belgian citizen born on 12th April 1934 at Gilly, reported to Mr. Renier, deputy superintendent of police at Namur, in order "to be treated as a vagrant unless one of the social services (could find him) employment where (he could) be provided with board and lodging while waiting for regular work". He explained that of late he had been living with his mother at Jumet but that she could no longer provide for his upkeep; that he had lost a job as a scaffolding fitter at Marcinelle and, in spite of his efforts, had failed to find another job for over a month; that he no longer had any means of subsistence and that he had been "convicted" in 1959 for vagrancy by the police court at Jumet. 24. On the same day at about 10 a.m., the police court at Namur, after satisfying itself as to "the identity, age, physical and mental state and manner of life" of Franz Ooms, considered at a public hearing and after giving him an opportunity to reply that the circumstances which had caused him to be brought before the court had been established. In pursuance of Section 16 of the 1891 Act, the court placed him "at the disposal of the Government to be detained in an assistance home" and directed "the public prosecution to execute this order". 25. Ooms was detained partly at Wortel and partly at Merksplas. He also spent some weeks at the prison medico-surgical centre at St. Gilles-Brussels (June 1966). 26. On 12th April 1966, that is less than four months after his arrest and about five weeks before applying to the Commission (20th May 1966), the applicant petitioned the Minister of Justice for his release. He alleged he was suffering from tuberculosis and that his family had agreed to take him back with them and place him in a sanatorium. On 5th May, the Ministry, after receiving the unfavourable opinion of the doctor and of the director of the institution at Merksplas, considered the request to be premature. Franz Ooms again made a petition for release on 6th June, this time to the Prime Minister. He pleaded that as "he had been ill since his detention" he had been unable to earn by his own work the 2,000 BF needed to make up his release savings, and repeated that his mother was willing to have him with her and to take care of him. The Ministry of Justice, to whom the Prime Minister’s office had transmitted the request, also considered it to be premature; on 14th June, it requested the governor of St. Gilles prison to inform the applicant accordingly. On 25th June 1966, the welfare department of the Salvation Army at Brussels certified that Franz Ooms would "be given work and lodging in (their) establishments immediately on his release". The applicant sent this declaration to the director of the welfare settlement at Wortel on 1st July, but without result. His mother, Mme. Ooms, confirmed her son’s declarations by letter of 15th July 1966 to the same director. In his reply of 22nd July, the director asked her to produce a certificate of employment, pointing out that "at the time of his possible discharge", the applicant had to have, besides a resting place, "a definite job by which he (could) ensure his upkeep". Mme. Ooms also wrote to the Minister of Justice on 16th July, asking for a "pardon for (her) son". On 3rd August 1966, the Ministry informed her that he would be freed when "he (had) earned, by his prison work, the sum of money prescribed in the regulations as the release savings of vagrants interned for an indefinite period at the disposal of the Government". In a report of 31st August 1966 drawn up for the Ministry of Justice, the director of the Wortel settlement pointed out that Franz Ooms had already received several criminal convictions, that this was his fourth detention for vagrancy, that his conduct could not be described as exemplary, and that his earnings amounted to only 400 BF. According to a medical certificate appended to the report, physical examinations of the applicant had revealed nothing wrong. As a result, on 6th September 1966, the Ministry instructed the director to inform the detainee "that his complaints had been found groundless". On 26th September 1966, Ooms again petitioned the Prime Minister. To justify this step, he cited the negative attitude of the Department of Justice. He stated that he was the victim of "monstrous injustices" which he attributed to his being a Walloon. He alleged, in particular, that on 23rd March 1966, at Merksplas, he had been punished with three days in the cells and a month’s confinement without privileges for refusing to sleep in a foul-smelling dormitory where the light was kept on all night, that he had been locked up naked and later "lightly clad" in a freezing cell which had brought on an attack of pneumonia and of tuberculosis for which he had had to spend three months in the sanatorium at the Merksplas institution. He also protested against the dismissal of the many petitions for release presented both by himself and by his mother. He finally declared his agreement to the opening of an enquiry for the purpose of verifying the truth of his allegations and he stated that he was ready to take action, if necessary, before a "national authority" within the meaning of Article 13 (art. 13) of the Convention. Two days later, the Prime Minister’s office informed the applicant that his letter had been transmitted to the Department of Justice. Ooms was released ex officio at Charleroi on 21st December 1966, one year to the day after being put at the disposal of the Government (Section 18, first sentence, of the 1891 Act). 27. In his application lodged with the Commission on 20th May 1966 (No. 2835/66), the applicant mentioned that he was in the sanatorium of the Merksplas institution but that his mother had agreed to have him hospitalised in a "civil" clinic. He added that his illness completely prevented him from working and thereby earning the 2,000 BF for his release savings; in any case, he would need at least a year to earn such a sum, at the rate of 1.75 BF per hour. He was therefore surprised that the Ministry of Justice had considered his request for release to be premature. Ooms, who had meanwhile been transferred to the prison at St. Gilles-Brussels, supplemented his original application on 15th June 1966. He declared that he had for the moment been cured of his pulmonary disease caused by ill-treatment and undernourishment, but his illness had left "traces" which made it impossible for him to perform "any heavy work". He also stressed that his mother, who was in receipt of a pension, wanted him home with her. In these circumstances he considered he was entitled to be released, and he complained of the Belgian authorities’ refusal to recognise this right. Invoking Article 6, paragraph (3) (b) and (c) (art. 6-3-b, art. 6-3-c), of the Convention he further maintained that on his arrest he had asked in vain for free legal aid; this fact was contested before the Court by the Government’s Agent. That part of the application where Franz Ooms complained – apparently in subsequent letters - of ill-treatment and of a violation of his liberty of conscience and religion (Articles 3 and 9 of the Convention) (art. 3, art. 9) was declared inadmissible on 11th February 1967 as manifestly ill-founded (Appendix II to the Commission’s report). On 7th April 1967, the Commission declared the remaining part of his application admissible, after having ordered its joinder with the applications of Jacques De Wilde and Edgard Versyp. C. Versyp case 28. Edgard Versyp, a Belgian citizen born in Bruges on 26th April 1911, works, at least from time to time, as a draughtsman; he seems to have had his residence at Schaarbeek. On 3rd November 1965, at 9 p.m., he appeared before Mr. Meura, deputy superintendent of police at Brussels; he carried a letter from the Social Rehabilitation Office requesting that he be given a night’s shelter. He stated he had no fixed abode, no work or resources, and "(begged) to be sent to a welfare settlement"; he pointed out that he had "previously (been) in Merksplas" and did not wish for "any other solution". After spending the night in the municipal lock-up, where he had already been the night before, he was taken in charge by the Social Rehabilitation Office on 4th November at 9 a.m. On the same day, this office certified that so far as its services were concerned there was no objection to Versyp "being but in the charge of the prosecuting officer with a view to his possible placement in a state welfare settlement": he was "well-known to both (the) after-prison care and vagrancy sections" at the office and attempts so far to rehabilitate him had failed due to "his apathy, idleness and weakness for drink"; in any case, he refused "any other welfare action", except his detention. As a result, Versyp was immediately put at the disposal of the public prosecutor’s office. 29. A few hours later, the police court in Brussels, having satisfied itself as to "the identity, age, physical and mental state and manner of life" of the applicant, considered, at a public hearing and after giving Edgard Versyp an opportunity to reply, that the circumstances which had caused him to be brought before the court had been established. In pursuance of Section 13 of the 1891 Act, the court placed him "at the disposal of the Government to be detained in a vagrancy centre for two years". It entrusted the execution of this order to the public prosecutor, who on that same day, 4th November 1965, required the director of the vagrancy centre of Merksplas to receive Versyp into his institution. 30. Versyp was detained at different times at Wortel, Merksplas and Turnhout. 31. On 7th February 1966, that is more than three months after his arrest and more than six months before applying to the Commission (16th August 1966), he wrote from Wortel to the Minister of Justice requesting his transfer to the solitary confinement division in Merksplas. His request was not transmitted to Brussels due to the imminent visit of the inspector-general who granted his request the next day. On 10th May 1966, the applicant requested his transfer form Merksplas to the prison at St. Gilles-Brussels where, he thought, the Head of the Social Rehabilitation Service could succeed in getting him "work outside" to allow him "to live as an honest citizen". He stated that living "with other vagrants in Wortel and Merksplas" had "shattered" his morale and that he had neglected his work as he had had to receive treatment in hospital twice; he promised, however, to attend to "(his) business outside more efficiently in order to avoid a similar situation recurring". In a report of 16th May, the director of the Merksplas institution pointed out that Versyp, who had nine criminal convictions and had been detained four times for vagrancy, had spent the greater part of his detention in solitary confinement and could not adapt himself to communal life; the director therefore suggested his transfer to a solitary confinement prison (op zijn vraag naar een celgevangenis), in accordance with his request. As a result, he was sent on 23rd May to Turnhout Prison and not to that of St. Gilles; on 6th June, he complained of this to the Ministry of Justice, which ordered his return to Wortel. On 22nd August 1966, Versyp begged the Ministry to grant him the opportunity of rehabilitating himself "in society according to (his) aptitudes through the good offices of the Brussels’ Social Service". On 6th September, the authorities of the Wortel settlement informed him, on the instructions of the Ministry, that his case would be examined when the amount of his release savings showed that he was capable of doing a suitable job of work. On 26th September, the applicant protested to the Ministry against this reply. According to him, he had been prevented "by devious means" from earning anything both at Wortel and Turnhout in order "that (he) could then be held for an even longer period". Thus, at Wortel they wanted to make him do work for which he was not fit - potato picking - and refused to give him other work which he was able to do. Furthermore, they had purported to forbid him to correspond with the Commission but without success as he had invoked the regulations and informed the public prosecutor’s office. In short, he felt himself exposed to hostility which made him want to leave Wortel for Merksplas, or better still, for St. Gilles prison where, he claimed, the Social Rehabilitation Service would find him a suitable job and accommodation "in a hostel in Brussels". The Ministry of Justice filed this letter without further action; on 28th September 1966, the director of the state welfare settlement at Wortel was requested so to inform the applicant. Versyp was released on 10th August 1967, by virtue of a ministerial decision of 3rd August (Section 15 of the 1891 Act) and after one year, nine months and six days of detention. On 1st August the authorities of the Wortel settlement had given a favourable opinion on the new request for release which he had made some time before; they noted, amongst other things, that he would more easily find a job at that time than at the expiry of the term fixed in 1965 by the Brussels magistrate, that is in the month of November. 32. In the application which he lodged with the Commission on 16th August 1966 (No. 2899/66) and supplemented on 6th September 1966, the applicant invoked Articles 4, 5 and 6 (3) (c) (art. 4, art. 5, art. 6-3-c) of the Convention. He complained in the first place of his detention: he emphasised that he had a fixed abode at Brussels-Schaarbeek and had never begged and so he was surprised at having been placed in a vagrancy centre. He further alleged that he had had no opportunity of defending himself before the Brussels police court on 4th November 1965 as the hearing had lasted "scarcely two minutes" and he had not been granted free legal aid. He also complained of various features of the regime to which he was subjected. In order to prevent him accumulating the 2,000 BF required to constitute release savings, he had been left, he alleged, for several months without sufficient work. In a general way, he added, the directors of the various institutions acted in concert in order to prolong the detention of vagrants as much as possible; the Government, for its part, "encouraged" vagrancy which gave it a labour force almost without cost (1.75 BF per hour at manual work) and huge profits. Finally, Versyp maintained that his numerous letters addressed to the competent authorities, such as, for example, the inspector of prisons, the public prosecutor’s office (July 1966) and the Minister of Justice (June and August 1966), invariably returned "to the director" who filed them without further action; these letters were not the object of any decision or, like his request for a transfer to Brussels, met with a refusal. One of them, that addressed on 7th February 1966 to the Minister of Justice by registered post, had even been opened by the director of the Wortel settlement who had not sent it. On 7th April 1967, the Commission declared the application admissible; it had previously ordered its joinder with the applications of Jacques De Wilde and Franz Ooms. D. Factors common to the three cases 33. According to Article 347 of the Belgian Criminal Code of 1867 "vagrants are persons who have no fixed abode, no means of subsistence and no regular trade or profession". These three conditions are cumulative: they must be fulfilled at the same time with regard to the same person. 34. Vagrancy was formerly a misdemeanour (Criminal Code of 1810) or a petty offence (Act of 6th March 1866), but no longer of itself constitutes a criminal offence since the entry into force of the 1891 Act: only "aggravated" vagrancy as defined in Articles 342 to 345 of the present Criminal Code is a criminal offence and these articles were not applied in respect of any of the three applicants. "Simple" vagrancy is dealt with under the 1891 Act. 35. According to Section 8 of the said Act "every person picked up as a vagrant shall be arrested and brought before the police court" - composed of one judge, a magistrate. The public prosecutor or the court may nonetheless decide that he be provisionally released (Section 11). "The person arrested shall be brought before the magistrate within twenty-four hours and in his ordinary court, or at a hearing applied for by the public prosecutor for the following day". If that person so requests "he (shall be) granted a three days’ adjournment in order to prepare his defence" (Section 3 of the Act of 1st May 1849); neither De Wilde, nor Ooms nor Versyp made use of this right. 36. Where, after having ascertained "the identity, age, physical and mental state and manner of life" of the person brought before him (Section 12), the magistrate considers that such person is a vagrant, Section 13 or Section 16 of the 1891 Act becomes applicable. Section 13 deals with "able-bodied persons who, instead of working for their livelihood, exploit charity as professional beggars", and with "persons who through idleness, drunkenness or immorality live in a state of vagrancy"; Section 16 with "persons found begging or picked up as vagrants when none of the circumstances specified in Section 13 ... apply". In the first case the court shall place the vagrant "at the disposal of the Government to be detained in a vagrancy centre, for not less than two and not more than seven years"; in the second case, the court may "place (him) at the disposal of the Government to be detained in an assistance home" for an indeterminate period which in no case can exceed a year (see paragraph 40 below). Section 13 was applied to Jacques De Wilde and Edgard Versyp and Section 16 to Franz Ooms. The distinction between the "reformatory institutions" referred to as "vagrancy centres" and "assistance homes" or "welfare settlements" (Sections 1 and 2 of the Act) has become a purely theoretical one; it has been replaced by a system of individual treatment of the persons detained. Detention in a vagrancy centre is entered on a person’s criminal record; furthermore, vagrants "placed at the disposal of the Government" suffer certain electoral incapacities (Articles 7 and 9 of the Electoral Code). 37. Magistrates form part of the judiciary and have the status of an officer vested with judicial power, with the guarantees of independence which this status implies (Articles 99 and 100 of the Constitution). The Court of Cassation, however, considers that the decisions given by them in accordance with Sections 13 and 16 of the 1891 Act are administrative acts and not judgments within the meaning of Section 15, sub-section 1, of the Act of 4th August 1832. They are not therefore subject to challenge or to appeal nor - except when they are ultra vires (see paragraph 159 of the Commission’s report) – to cassation proceedings. The decisions of the highest court in Belgium are uniform on this point. As to the Conseil d’État, it has so far had to deal with only two appeals for the annulment of detention orders for vagrancy. In a judgment of 21st December 1951 in the Vleminckx case, the Conseil d’État did not find it necessary to examine whether the Brussels police court’s decision taken on 14th July 1950 in pursuance of Section 13 of the 1891 Act emanated from an authority which was "acting as an administrative authority within the meaning of Section 9 of the Act of 23rd December 1946"; the appeal lodged by Mr. Vleminckx on 31st July 1950 had been dismissed because: "the decision appealed against (was) a preliminary decision which (had been) followed by the Government’s decision to detain the appellant in a vagrancy centre ...; the appellant (could) not establish that he (had) any interest in the annulment of a decision which merely (allowed) the Government to detain him, while the actual decision by which he was interned (had not) been appealed against". As against this, on 7th June 1967, that is two months after the Commission had declared admissible the applications of Jacques De Wilde, Franz Ooms and Edgard Versyp, the Conseil d’État gave a judgment annulling the decision by which on 16th February 1965 the Ghent police court had placed a Mr. Du Bois at the disposal of the Government in pursuance of Section 16 of the 1891 Act. Before examining the merits, the Conseil d’État examined the admissibility - contested by the Minister of Justice - of the appeal lodged by Mr. Du Bois on 14th April 1965. In the light of the legislative texts in force, of the preparatory work thereto and of "the consistent case-law of the ordinary courts", the Conseil d’État considered that the placing of a vagrant at the disposal of the Government does not result from "the finding of a criminal offence" but amounts to "an administrative security measure" and that the decision ordering it is therefore "of a purely administrative nature" "so that no form of appeal is open to the person concerned ... before the ordinary courts". It added that "such an administrative decision by the magistrate" could not be considered as "a preliminary measure enabling the Government to take the effective decision on the matter of detention but is itself the effective decision placing the person concerned in a different legal position and is therefore of itself capable of constituting a grievance"; in any event, "the person concerned is immediately deprived of his liberty without any further decision by the Government". Section 20, sub-section 2, of the Act of 23rd December 1946 constituting the Conseil d’État provides that where both this body and "an ordinary court rule that they are either competent or incompetent to entertain the same proceedings, the conflict of jurisdiction is settled, on the motion of the most diligent party, by the Court of Cassation" in plenary session. No such conflict appears to have come before the highest court of Belgium in vagrancy matters up to the present time. The Belgian Government has had the reform of the 1891 Act under consideration for some time. According to the information given to the Court on 17th November 1970, the Bill which it is preparing to submit to Parliament provides in particular that an appeal against the magistrates’ decisions may be made to the court of first instance. 38. "Able-bodied persons detained in a vagrancy centre or assistance home" are "required to perform the work prescribed in the institution" (Section 6 of the 1891 Act). Persons who, like Jacques De Wilde, and Edgard Versyp, refuse to comply with this requirement without good reason, in the opinion of the authorities, are liable to disciplinary measures. "Infirmity, illness or punishment may lead to a suspension, termination or stopping of work" (Articles 64 and 95, read in conjunction, of the Royal Decree of 21st May 1965 laying down general prison regulations). "Unless stopped for disciplinary reasons", detained vagrants are entitled to "a daily wage" known as "allowances". Sums are retained "for administrative expenses" - "for the benefit of the State" – and "to form the release savings" which shall be "granted ... partly in cash and partly in clothing and tools". The Minister of Justice fixes the amount of the said release savings and, having regard to the various categories of detained persons and of work, the wages and the sums to be retained (Sections 6 and 17 of the 1891 Act; Articles 66 and 95, read in conjunction, of the Royal Decree of 21st May 1965). At the time of the detention of the three applicants, the amount of the release savings which had to be thus accumulated - sums of money which a vagrant may receive from other sources not being taken into account - was fixed at 2,000 BF, at least for the "inmates" of welfare settlements (ministerial circular of 24th April 1964). The minimum hourly allowance "actually paid" to detainees - save any deductions made for "wastage and poor work" - was 1,75 BF up to 1st November 1966, on which date it was increased by 25 centimes (ministerial circulars of 17th March 1964 and 10th October 1966). The allowance was not capable of assignment or liable to seizure in execution and was divided into two equal parts: "the reserved portion" which was credited to the person concerned and enabled him to form his release savings and the free portion which he received immediately (Articles 67 and 95, read in conjunction, of the Royal Decree of 21st May 1965). 39. According to Articles 20 to 24 and 95 of the Royal Decree of 21st May 1965, the correspondence of detained vagrants - who, in this as well as in other respects, are assimilated to convicted persons - may be subjected to censorship except any correspondence with the counsel of their own choice, the director of the institution, the inspector-general and the director-general of the prison administration, the secretary-general of the Ministry of Justice, the judicial authorities, the ministers, the chairmen of the legislative Chambers, the King, etc. Their correspondence with the Commission is not mentioned in this Decree but the Minister of Justice informed the governors of prisons and Social Protection Institutions, including those at Merksplas and Wortel, that "a letter addressed to this organ by a detainee is not to be censored but should be forwarded, duly stamped for abroad by the sender ..., to the Legal Department ... which shall undertake to transmit it to its destination" (circular of 7th September 1957 as it was in force at the time of the detention of the applicants; see also paragraph 31 above). 40. "Persons detained in an assistance home" - as Franz Ooms - may not "in any case be kept against their will for more than one year" (Section 18, first sentence, of the 1891 Act). They regain their freedom, as of right, before the expiry of this period "when their release savings (have reached) the amount ... fixed by the Minister of Justice", who shall, moreover, release them if he considers their detention "to be no longer necessary" (Sections 17 and 18, second sentence, of the 1891 Act). As regards vagrants detained in a vagrancy centre - such as Jacques De Wilde and Edgard Versyp - they leave the centre either at the expiry of the period varying from two to seven years "fixed by the court" or at an earlier date if the Minister of Justice considers "that there is no reason to continue their detention" (Section 15 of the 1891 Act); the accumulation of the release savings and any other means which the detainee might have do not suffice for this purpose. It seems that no detained vagrant has to date lodged an appeal with the Conseil d’État, under Article 9 of the Act of 23rd December 1946, for the annulment of a ministerial decision which had rejected his application for release. 41. Before the Commission and Sub-Commission, the three applicants invoked Articles 4, 5 (1), 5 (3), 5 (4), 6 (1), 6 (3) (b) and (c), 7, 8 and 13 (art. 4, art. 5-1, art. 5-3, art. 5-4, art. 6-1, art. 6-3-b, art. 6-3-c, art. 7, art. 8, art. 13) of the Convention. Two of them, De Wilde and Versyp, also alleged that Article 3 (art. 3) had not been observed. 42. In its report of 19th July 1969, the Commission expressed the opinion: - that there was a violation of Articles 4 (art. 4) (nine votes to two), 5 (4) (art. 5-4) (nine votes to two) and 8 (art. 8) (ten votes to one); - that there was no violation of Articles 3 (art. 3) (unanimous) and 5 (1) (art. 5-1) (ten votes to one); - that Articles 5 (3) (art. 5-3) (unanimous), 6 (1) (art. 6-1) (ten votes to one), 6 (3) (art. 6-3) (ten votes to one) and 7 (art. 7) (unanimous) were inapplicable. The Commission was further of the opinion that "it (was) no longer necessary to consider Article 13 (art. 13)" (unanimous). The report contains several individual opinions, some concurring, others dissenting. 43. After the cases were brought before the Court the applicants repeated, and sometimes developed, in a memorandum which the Commission appended to its memorial, the greater part of their earlier arguments. They indicated their agreement or otherwise, according to the case, with the opinion of the Commission, to which De Wilde and Versyp "bowed" as regards Article 3 (art. 3) of the Convention. AS TO THE LAW I. ON THE QUESTIONS OF JURISDICTION AND ADMISSIBILITY RAISED IN THE PRESENT CASES 44. In its memorials of February and June 1970, the Government requested the Court, principally, "to declare that the applications introduced against Belgium by Jacques De Wilde on 17th June 1966, Franz Ooms on 20th May 1966 and Edgard Versyp on 16th August 1966, were not admissible as the applicants had failed to exhaust the domestic remedies and that therefore they should have been rejected by the European Commission of Human Rights under Article 26 and Article 27 (3) (art. 26, art. 27-3) of the Convention". The Commission, for its part, requested the Court in its memorial of April 1970: "(1) In the first place: - to hold inadmissible the Belgian Government’s request that it be declared that the Commission should have rejected the three applications under Articles 26 and 27, paragraph (3) (art. 26, art. 27-3), of the Convention, on the ground that the Court has no jurisdiction to pronounce on decisions by the Commission concerning the admissibility of applications; (2) alternatively: - to declare the said request inadmissible on the ground that the Belgian Government is debarred from making such a request to the Court since it did not raise the objection of non-exhaustion of domestic remedies before the Commission at the stage where the admissibility of the applications was under consideration; (3) in the further alternative: - to declare the said request ill-founded since, at the time when the three applications were submitted to the Commission, there was no effective remedy in Belgian law against decisions by magistrates in vagrancy cases". 45. At the oral hearings, the Agent of the Government submitted that it should please the Court: - "to find that it is fully competent to decide on the admissibility of the applications in the cases now before it and in particular to verify whether the applicants have or have not exhausted the domestic remedies"; - "to find that the applications ... are inadmissible since the applicants failed to observe the provisions of Article 26 (art. 26) of the Convention". The failure to observe Article 26 (art. 26) is alleged to have consisted not only in the non-exhaustion of domestic remedies but also, in the case of Edgard Versyp, in a failure to observe the six-month time-limit. The Delegates of the Commission maintained without change the submissions on this point contained in their memorial of April 1970. 46. The Court is thus asked to consider, before any examination of the merits: (1) whether it has jurisdiction to examine the contentions of the Government based on the alleged failure to comply with Article 26 (art. 26) of the Convention, either as regards the exhaustion of domestic remedies or as regards the six-month time-limit; (2) if so, whether the Government must be held to be precluded from raising the inadmissibility of the applications, either on the ground of non-exhaustion of domestic remedies or, alternatively, in the case of Versyp, on the ground of his being out of time; (3) if the Government is not held to be precluded, whether its contentions in regard to inadmissibility are well-founded. A. As to the jurisdiction of the court to examine the submissions of non-exhaustion of domestic remedies and of delay made by the government against the applications accepted by the commission 47. In order to judge whether it has jurisdiction to examine the submissions of the Government ob