CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 février 1980

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BELGIUM   (Application no. 6903/75)             JUDGMENT       STRASBOURG   27 February 1980   In the Deweer case, The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:   Mr.   H. MOSLER , President ,   Mr.   M. ZEKIA ,   Mr.   R. RYSSDAL ,   Mr.   W. GANSHOF VAN DER MEERSCH ,   Mr.   P.-H. TEITGEN ,   Mr.   F. GÖLCÜKLÜ ,   Mr.   J. PINHEIRO FARINHA , and also Mr. M.-A. EISSEN , Registrar , and Mr. H. PETZOLD , Deputy Registrar , Having deliberated in private on 28 and 29 September 1979 and on 4 and 5 February 1980, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The Deweer case was referred to the Court by the European Commission of Human Rights ("the Commission"). The case originated in an application against the Kingdom of Belgium lodged with the Commission on 6 February 1975 under Article 25 (art. 25) of the Convention by a Belgian national, Mr. Julius Deweer. 2. The Commission’s request, to which was attached the report provided for under Article 31 (art. 31) of the Convention, was filed with the registry of the Court on 14 December 1978, within the period of three months laid down by Articles 32 par. 1 and 47 (art. 32-1, art. 47). The request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration made by the Kingdom of Belgium recognising the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the Commission’s request is to obtain a decision from the Court as to whether or not the facts of the case disclose a breach by the respondent State of its obligations under Article 6 (art. 6) of the Convention and Article 1 of Protocol No. 1 (P1-1). 3. The Chamber of seven judges to be constituted included, as ex officio members, Mr. W. Ganshof van der Meersch, the elected judge of Belgian nationality (Article 43 of the Convention) (art. 43), and Mr. G. Balladore Pallieri, the President of the Court (Rule 21 par. 3 (b) of the Rules of Court). On 26 January 1979, in the presence of the Registrar, the President of the Court drew by lot the names of the five other members, namely Mr. R. Ryssdal, Mrs. D. Bindschedler-Robert, Mr. P.-H. Teitgen, Mr. F. Gölcüklü and Mr. J. Pinheiro Farinha (Article 43 in fine of the Convention and Rule 21 par. 4) (art. 43). Subsequently, Mrs. Bindschedler-Robert was exempted from sitting (17 May 1979) and Mr. Balladore Pallieri was prevented from taking part in the consideration of the case (25 September 1979); they were replaced by the first two substitute judges, Mr. Mosler and Mr. Zekia (Rules 22 par. 1 and 24 par. 1 and 4). Mr. Balladore Pallieri and then, as from 25 September 1979, Mr. Mosler assumed the office of President of the Chamber (Rule 21 par. 5). 4. Acting through the Registrar, the President of the Chamber ascertained the views of the Agent of the Belgian Government ("the Government") and the Delegates of the Commission regarding the procedure to be followed. On 6 June 1979, having particular regard to their concurring statements, the President decided that it was not necessary for memorials to be filed; in addition, he directed that the oral hearings should open on 27 September 1979. On 13 September, the President instructed the Registrar to request the Commission to produce certain documents to the Court; these documents were filed by the Commission on 19 September. 5. The hearings took place in public at the Human Rights Building, Strasbourg, on 27 September. Immediately prior to their opening, the Chamber had held a short preparatory meeting. There appeared before the Court: - for the Government:   Mr. J. NISET, Legal Adviser       at the Ministry of Justice,   Agent ,   Mr. J. DE MEYER, Professor       at the University of Louvain,   Counsel ,   Mr. R. GEURTS, Inspector       at the Ministry of Economic Affairs,   Adviser ; - for the Commission:   Mr. Gaukur JÖRUNDSSON,   Principal Delegate ,   Mr. S. TRECHSEL,   Delegate ,   Mr. J.-M. VAN HILLE, the applicant’s counsel       before the Commission, assisting the Delegates (Rule 29       par. 1, second sentence, of the Rules of Court). The Court heard addresses by Mr. De Meyer for the Government and by Mr. Gaukur Jörundsson, Mr. Trechsel and Mr. van Hille for the Commission, as well as their replies to questions put by the Court. 6. On 1 October 1979, acting on the instructions of the Chamber and the President, the Registrar made a written request to the Commission for an item of information and two documents. The following day, the matters requested were supplied to the Registrar by the Secretary to the Commission. AS TO THE FACTS A. The particular circumstances of the case 7. The applicant, a Belgian national, had been a retail butcher in Louvain since 1935. He died on 14 January 1978, but one month later his widow and three daughters advised the Commission that they considered themselves to have a material and moral interest in seeing completed the proceedings he had instituted. 8. On 18 September 1974, his shop, where he employed several persons, was the subject of a visit by Mr. Vanderleyden, an official in the Economic Inspectorate General. This official found an infringement of the Ministerial Decree of 9 August 1974 "fixing the selling price to the consumer of beef and pig meat" ("the Decree of 9 August 1974"), in that Mr. Deweer had not reduced his prices of pork by 6.5 per cent as required by Article 2 par. 4 and his "retail margin" for that meat was 5.95 BF in excess of the maximum - 22 BF per kilogram - permitted under Article 3 par. 1 (see paragraph 18 below). When questioned in this connection, the applicant made the following statement, according to the report drawn up the same day by the inspector (translation from the Dutch original): "... As is shown by the price-markings recorded by you, for beef I have applied the reduction provided for in the Ministerial Decree of 9 August 1974 and my margin is less than 22 F. As concerns pig meat, I have not applied the reduction and my margin is in excess of 22 F. This is because my calculations were for category 2 pig meat instead of category 1 pig meat. This was a mistake on my part. I acted in good faith and, in your presence, I immediately reduced the prices in order not to exceed the margin of 22 F." He added the following note, signed, like the report, by Mr. Vanderleyden and himself: "... I buy my meat on the hoof and ... the costs listed below were not included by you in your calculations: (1) 1.50 F commission per live kg; (2) transport costs of 100 F per animal, that is 1 F per kg; (3) slaughter costs: 100 F per animal; (4) slaughter tax: 105.20 per animal; (5) transport costs for each carcase: 100 F per animal." The inspector did not supply a copy of the report to Mr. Deweer. He set out the foregoing facts in a formal statement, known as a "pro-justitia", dated 18 September 1974; the Economic Inspectorate General transmitted this formal statement on 26 September to the procureur du Roi attached to the Louvain Court of First Instance. 9. On 30 September, the Louvain procureur du Roi ordered the provisional closure of the applicant’s shop within forty-eight hours from notification of the decision. The decision cited the gravity of the facts, whilst noting that there was no need to request a sentence of imprisonment; it referred to the interview report of 18 September and to sections 1 par. 1, 2, 5 to 7, 9 and 11 of the Economic Regulation and Prices Act of 22 January 1945 (see paragraphs 12 to 16 below). The closure was to come to an end either on the day after the payment of a sum of 10,000 BF by way of friendly settlement (minnelijke schikking) or, at the latest, on the date on which judgment was passed on the offence; Mr. Deweer had eight days in which to indicate whether he accepted the offer of settlement. The same day the procureur du Roi wrote Mr. Deweer the following letter (translation from the Dutch original): "... You are hereby informed of the decision provisionally closing your business in pursuance of section 11 par. 2 of the Act of 22 January 1945. Your attention is particularly drawn to the heavy penalties imposed by the Act for failure to comply with this decision. The amount of the friendly settlement proposed is fixed at 10,000 F. I should be obliged if, within eight days, you would transfer this sum to Post Office Account no. ... and advise me whether you accept the offer of settlement. The closure of your business will be terminated the day after you make the required payment.   ..." 10. On 1 October, a deputy superintendent of police delivered this letter to the applicant together with a copy of the decision to which it referred. Mr. Deweer replied on 3 October by registered letter in the following terms (translation from the Dutch original): "Dear Sir,   ... Kindly note that I am today paying the sum proposed in your letter of 30 September 1974 by way of friendly settlement; consequently, the criminal proceedings become barred once and for all (section 11 par. 1 of the Act of 22 January 1945) and the closure of my establishment will no longer be put into effect. Kindly note, however, that I reserve all my rights to take action against the Belgian State before the civil courts, in particular for the restitution of this sum plus damages. In point of fact: - I have not as yet received any copy of the report which is the basis of the penalties imposed in my respect; - as far as I can recollect, the findings of those drawing up the report did not take account of the factors which are essential for calculating the prices; - an application for a declaration of annulment of the Decree of 9 August 1974 will be lodged before the Conseil d’État which has already annulled four similar Decrees (see the judgment of 5 July 1973); - a closure can only come into effect forty-eight hours after notification of the conviction (section 11 par. 2 of the Act refers to section 9 par. 5 which speaks exclusively of convictions). I have therefore paid the amount of the friendly settlement for the sole purpose of limiting the damage suffered by me; for the prejudice resulting from the closure of my establishment as from today until the eventual hearing of the case before the criminal court might be far in excess of 10,000 F and the civil court might then draw certain conclusions from the fact I had not mitigated my loss.   ..." 11. Following this payment, which had in fact already been made on 2 October, the applicant did not have his shop closed. He did not bring any action before the civil courts for restitution of money paid over without cause and for damages; nor did he apply to the Conseil d’État for a declaration of annulment of the Decree of 9 August 1974. B. The legislation in issue 12. At the relevant time, State intervention in the sphere of prices was governed in Belgium by the Economic Regulation and Prices Act ("the 1945/1971 Act"). This Act derived from the Legislative Decree of 22 January 1945 "on repression of offences against rules relating to the country’s supplies", as several times amended, in the last instance by an Act of 30 July 1971 which had modified the original title. Section 2 par. 1, 2 and 4, read in conjunction with section 1 par. 1, empowered the Minister responsible for economic affairs to fix by Decree, for the whole or part of the territory of the Kingdom, price-ceilings to be respected in transactions of sale, offer for sale or purchase of products, materials, foodstuffs, goods or animals, as well as the maximum profit to be made by any vendor or intermediary. The investigation and the finding of offences against the 1945/1971 Act were normally the responsibility of officials from the Economic Inspectorate General, acting on behalf of the Minister, and formed the subject of reports which were transmitted to the procureur du Roi; these reports were deemed to be conclusive until production of proof to the contrary (section 6). 13. In addition to imprisonment of one month to five years and a fine of 3,000 to 30,000,000 BF (section 9 par. 1), offenders were liable to various criminal and administrative sanctions (sections 2 par. 5, 3, 7, 9 par. 2 to 6, 10, 11 and 11 bis). One of the most serious of these sanctions was closure of the offender’s business, which took four forms: (a) Under section 2 par. 5, the Minister could direct closure on a provisional basis, for five days at the most, in the event of refusal to comply with the instructions given by officials empowered by him; an appeal having suspensive effect was available to the person concerned before the judge in chambers at the Court of First Instance with jurisdiction in criminal matters. (b) Section 3, second paragraph, allowed the Minister, even in the absence of any offence, also to close establishments whose activity he considered useless or harmful. (c) Section 9 par. 5 enabled the courts to order closure for a period not exceeding five years, without prejudice to any penalty of imprisonment, fine or forfeiture (section 9 par. 1 to 4). (d) In the instant case, the closure decision was taken by the procureur du Roi. It was based on section 11 par. 2 according to which: "The procureur du Roi or, where preliminary investigations have been instituted, the investigating judge may order the provisional closure of the offender’s establishment. The closure may not continue beyond the date on which judgment is passed on the offence.   ..." The 1945/1971 Act did not provide for any appeal against such a decision to which, according to section 11 par. 2 in fine, section 9 par. 5 (b) applied. This latter section read as follows: "The closure ... shall come into effect forty-eight hours after notification of the conviction. If the decision of closure is contravened, the procureur du Roi shall take all appropriate action in order to secure compliance therewith, in particular by affixing seals ..., and the offender shall be liable to imprisonment of six months to two years and to a fine" which, in September 1974, was fixed at the amount of 3,000 to 3,000,000 BF. 14. Whereas the first three forms of closure had apparently not been used for fifteen years or so, the same was not true of the fourth form. Provisional closure of that type was ordered in the context of judicial proceedings already instituted or imminent and could thus precede a sentence of closure imposed by a court of law in pursuance of section 9 par. 5. However, according to decided case-law, provisional closure constituted an administrative measure differing in character from and incapable of being offset against any such sentence; it was not entered on the judicial records (casier judiciaire) or on the information extracts (bulletins de renseignements) and lists of convictions issued by the municipal authorities. 15. When he did not consider it necessary to seek a sentence of imprisonment and if proceedings for the offence had not yet been instituted before the trial court, the procureur du Roi could, under section 11 par. 1, inform the offender by registered letter that it was open to him to avoid prosecution by effecting one or more payments or services ("prestations"). The 1945/1971 Act listed five such payments or services from which the procureur du Roi made his choice. The first consisted of paying over a certain sum of money which might, if appropriate, be greater than the maximum fine fixed by the Act. The procureur du Roi called on the person concerned to advise him within a given period whether he accepted the settlement proposed; full and punctual performance of the settlement barred criminal proceedings. Although often referred to as a fine by way of settlement, the payment thus made was not regarded in Belgian law as a penalty. Consequently, the payment could not be taken into consideration when dealing with further offences and was not entered on the judicial records. It was nevertheless notified to the municipal authorities of the person’s place of residence; until a period of five years had expired, mention of it was included in the information extracts the municipalities supplied to the judicial authorities but not in the lists of convictions intended for other authorities. In that respect, settlements negotiated in accordance with section 11 par. 1 of the 1945/1971 Act resembled those provided for under, inter alia, Articles 166 to 169 and 180 to 180 ter of the Code of Criminal Procedure. With the possible exception of one or a few instances dating back to 1946, the closure orders issued by a procureur du Roi in pursuance of paragraph 2 of section 11 of the 1945/1971 Act were always accompanied by an offer of settlement made in accordance with paragraph 1. Such was the case in seven decisions - including the one affecting the applicant - taken in 1974 with regard to butchers in the district of Louvain. On the other hand, the converse situation - an offer of settlement without there being any closure order - was a frequent occurrence. 16. Again, under the terms of section 11 bis, a provision not applied in Mr. Deweer’s case, the officials specially empowered for these purposes by the Minister could, on finding an offence, fix a sum whose voluntary payment by the offender likewise barred criminal proceedings. In such cases, the settlement was not even entered on the information extracts issued by the municipal authorities. 17. Since the period under consideration, section 4 par. 4 of the 1945/1971 Act has been amended in one respect by section 24 of the Business Accounting and Annual Accounts Act of 17 July 1975, but each of the clauses quoted or summarised above, including in particular section 11, was left unchanged. 18. The offence established in the instant case by the Economic Inspectorate General related to the Ministerial Decree of 9 August 1974 "fixing the selling price to the consumer of beef and pig meat" (see paragraph 8 above). This Decree, which was passed pursuant to the 1945/1971 Act, came into force on 14 August 1974; it was intended, like numerous other Decrees preceding it, to restrain rises in the cost of products constituting a major item in the consumer’s budget and in the computation of the official price-index. Article 2 dealt with pig meat. Paragraph 1 of Article 2 required retailers in business before 1 November 1972 - such as the applicant - not to charge in excess of the prices prevailing during the first three weeks of October 1972 as increased by 10 per cent. Paragraph 4 specified that until 31 October 1974 the selling prices to the consumer, inclusive of value-added tax, charged in accordance with paragraph 1, had to be marked down by 15 per cent. The combined effect of these two paragraphs was to produce a price reduction of 6.5 per cent as compared with the levels current in October 1972. Article 3, however, contained a proviso. Under paragraph 1 of Article 3, retailers able to show that they were not obtaining a retail margin of 22 BF per kilogram were, subject to not exceeding that margin, allowed to charge prices other than those following from Article 2. Paragraph 2 indicated what was to be understood by "retail margin", namely the difference between "the weighted average selling price not inclusive of value-added tax" and "the weighted average purchase price", these two prices being in their turn defined in paragraphs 3 and 4. Paragraph 2 did not include any provisions regarding those butchers - a minority of the order of 2 per cent - who, like Mr. Deweer, purchased their meat on the hoof. Under Article 7, offences against the Decree of 9 August 1974 were to be investigated, established, prosecuted and punished in accordance with the provisions of Parts II and III of the 1945/1971 Act. Section II, which was applied in Mr. Deweer’s case, appeared in Part III of the latter Act. 19. The criminal prosecutions launched for failure to comply with the Decree of 9 August 1974 resulted, in numerous cases, in acquittals. For the most part, the relevant courts gave as the ground for their verdict the illegality of the Decree; in so doing they were acting in pursuance of Article 107 of the Constitution which states: "The courts and tribunals shall not apply any general, provincial or local decrees and regulations save insofar as they are in accordance with the law." In the early stages, the prosecuting authorities entered appeals which, however, failed; eventually they abandoned any attempt at appeal. Certain courts adopted another solution: faced with the accused pleading the incompatibility of the Decree with Community law, they requested the Court of Justice of the European Communities to give a preliminary ruling pursuant to Article 177 of the Treaty establishing the European Economic Community; for reasons that were the subject of dispute before the Commission, the Court of Justice did not have the occasion to deliver any ruling. 20. In a case brought before it on 14 October 1974 by a retail butcher and pork-butcher, the Conseil d’État declared the Decree of 9 August 1974 to be contrary to the principle of the equality of all Belgians before the law (Article 6 of the Constitution): the appreciable distinction drawn between retain according to the period of their establishment in business did not appear to the Conseil d’État to be justified either by any technical necessity or by imperative considerations of general economic interest. It accordingly annulled the Decree on 31 May 1978 (Ghekiere v. the State of Belgium). Four earlier Decrees of a similar kind, dating back to 1970 and 1971, had suffered the same fate on 5 July 1973 (National Federation of Retail Butchers and Pork-Butchers of Belgium v. the State of Belgium). 21. After being amended on 7 October 1974, 29 October 1974, 13 November 1974 and 12 February 1975, the Decree of 9 August 1974 was repealed on 27 March 1975. The Decree which replaced it on the latter date, and which came into force on 11 April 1975, contained - as did the Decrees of 7 October and 13 November 1974 – specific clauses relating to retailers who purchased their meat on the hoof (Article 3 par. 4, last sub-paragraph). The Decree of March 1975 was the subject of a request for a preliminary ruling submitted by the Neufchâteau Court of First Instance; the Court of Justice of the European Communities gave its decision on the request on 29 June 1978 (Procureur du Roi v. P. Dechmann, case 154/77, European Court Reports 1978, pp. 1573-1595). PROCEEDINGS BEFORE THE COMMISSION 22. In his application of 6 February 1975 to the Commission, Mr. Deweer objected to section 11 of the 1945/1971 Act and to the manner in which the Louvain procureur du Roi had applied that section in his case. He invoked each of the three paragraphs in Article 6 (art. 6) of the Convention, complaining in substance of the imposition of a fine by way of settlement under constraint of provisional closure of his establishment. When giving the notice provided for in Rule 42 par. 2 (b) of its Rules of procedure (18 May 1976), the Commission of its own motion requested the Government also to take account of Article 1 of Protocol No. 1 (P1-1) in their written observations on admissibility; subsequently, Mr. Deweer placed additional reliance on this Article (P1-1) in order to supplement his submissions. 23. The Commission accepted the application on 10 March 1977. In its report of 5 October 1978, it expressed the unanimous opinion that: - "the combined use ... of the procedures for settlement and for provisional closure of the business" violated the right, "guaranteed to the applicant under Article 6 par. 1 (art. 6-1) of the Convention, to a fair hearing in criminal proceedings"; - "taken in isolation, the decision of provisional closure" had neither "offended against the principle of the presumption of innocence", embodied in Article 6 par. 2 (art. 6-2), nor contravened Article 1 of Protocol No. 1 (P1-1); - there was no call "to pursue the examination of the case under Article 6 par. 3 (art. 6-3)". The report contains one separate opinion. Mr. Deweer, on the basis of Article 50 (art. 50) of the Convention, submitted a request before the Commission for compensation of 100,000 BF. FINAL SUBMISSIONS MADE TO THE COURT 24. At the hearings on 27 September 1979 the Government made the following final submissions: "...May it please the Court to hold: principally, that the application was brought before the Commission without domestic remedies having been exhausted and is accordingly not admissible; in the alternative, that the annulment by the Conseil d’État of Belgium of the Decree creating the offence prompting the decisions to which the application relates has rendered the application devoid of object, that accordingly there is no longer any need for a ruling and that the case should therefore be struck off the list; in the further alternative, that the decisions to which the application relates are not at variance with Belgium’s obligations under the European Convention on Human Rights, in particular under Article 6 (art. 6) of the Convention and under Article 1 of the First Protocol (P1-1), and that the application is accordingly ill-founded; in the final alternative, that the annulment of the Decree creating the offence and the resultant reimbursement of the fine of 10,000 francs paid by way of settlement by the applicant on 2 October 1974 will have made complete reparation, within the meaning of Article 50 (art. 50) of the Convention, for the consequences of the decisions to which the application refers." For his part Mr. van Hille, speaking on behalf of the applicant’s heirs, limited the initial request for just satisfaction (see paragraph 23 in fine above) - "in the material sphere", to "reimbursement of the amount of the fine of 10,000 Belgian francs paid without cause" and of 800 French francs for travel and accommodation costs incurred on the occasion of the hearings held before the Commission on 9 December 1977; - "as regards non-pecuniary damage", to the "finding by the Court of a violation of Mr. Deweer’s rights". AS TO THE LAW I. AS CONCERNS THE GOVERNMENT’S PRELIMINARY PLEAS A. The plea of non-exhaustion of domestic remedies 1. The jurisdiction of the Court and estoppel 25. In the Government’s submission, the application was inadmissible on the ground of non-exhaustion of domestic remedies. The Court has jurisdiction to take cognisance of such preliminary pleas insofar as the respondent State may have first raised them before the Commission "to the extent that their character and the circumstances permit[ted]" (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 29-31, par. 47-55). 26. The Government relied on the fact that Mr. Deweer did not - apply to the Conseil d’État for a declaration of annulment of the Decree of 9 August 1974; - bring a civil action for restitution of the sums paid over and for damages; - apply for a retrial of the criminal case (révision en matière pénale); - have recourse to other remedies. In their written observations on admissibility filed in 1976, the Government had already pleaded before the Commission failure to exercise the first two remedies. The Court must therefore take them into consideration (see the last-mentioned judgment, loc. cit.). As to the third remedy, the Government had stated, in their pleadings of 9 December 1977 on the merits, that it would be open to the applicant should the Conseil d’État annul the Decree of 9 August 1974 (see page 24 of the verbatim record). It is true that the Government had not pleaded non-exhaustion on this point but it would have been difficult for them to do so in the circumstances; annulment was hypothetical at the time and did not occur until 31 May 1978, by which date the case had already been at the stage of deliberations for more than six months and reopening the hearings could scarcely have been envisaged (see paragraph 20 above and Appendix I to the Commission’s report). There is accordingly no estoppel. On the other hand, the Government never specified the nature of the "other remedies" to which they adverted at the hearings of 27 September 1979. Admittedly, the Government have alleged before the Court, as they did before the Commission (see page 21 of their memorial of September 1977), that even without waiting for the launching of any criminal prosecution Mr. Deweer could have "brought an action ... to recover damages for the loss he suffered as a result of the provisional closure of his establishment or the excessive length of such closure" and could have endeavoured "to have the closure suspended through an application for interim measures". However, the Government were and are here proceeding from a supposition that does not correspond to the particular facts, namely that the closure had actually taken place because - which was not the case - the applicant had not paid the fine proposed by way of settlement; above all, the Government’s point went and goes to the merits and not to Article 26 (art. 26) (see paragraph 52 below). Where a Contracting State prays in aid the obligation to exhaust remedies, a rule essentially intended to "protect its national legal order", it is for the State to prove that there exist available remedies which have not been utilised by those concerned (see the above-mentioned De Wilde, Ooms and Versyp judgment, pp. 31 and 33, par. 55 and 60). The Court would be straying outside its given role were it to set about identifying the "other remedies" the Government had in mind. 27. What has to be examined in deciding whether the plea is well-founded is thus limited to the failure to - apply for a declaration of annulment of the Decree of 9 August 1974; - bring a civil action for restitution of the sums paid over and for damages; - apply for a retrial of the criminal case. 2. Whether the plea is well-founded (a) Application for a declaration of annulment of the Decree of 9 August 1974 28. In its decision of 10 March 1977 on the admissibility of the application, the Commission judged an application to the Conseil d’État for a declaration of annulment of the Decree of 9 August 1974 to be inadequate. In the Commission’s view, it would not have provided "redress for the applicant’s complaints" which were directed not against "the basic principle" of the Ministerial Decree of 9 August 1974, "the legislation creating the offence" found by the inspector, Mr. Vanderleyden, but solely against "the procedure for dealing with" that offence (see page 34 of the report). The Commission expressed substantially the same opinion before the Court. The Government replied that in his letter of 3 October 1974 to the Louvain procureur du Roi, Mr. Deweer indeed appeared to be objecting to the very principle of the Decree of 9 August 1974 since he gave notice of the lodging of an application to have the Decree declared null (see paragraph 10 above). This remedy, added the Government, "was the most radical because it allowed" the applicant to claim the retroactive invalidation of "the legislation creating the offence"; the judgments delivered by the Conseil d’État on 5 July 1973 and 31 May 1978 were said to have demonstrated the remedy’s effectiveness (see paragraph 20 above). In the Government’s submission, the fact that Mr. Deweer chose to limit his complaint before the Commission to the "procedure for dealing with the offence" did not absolve him from previously seeking in Belgium to have the Decree set aside. 29. As the Court has recently emphasised, the only remedies which Article 26 (art. 26) of the Convention requires to be exercised are those that are both available and sufficient in respect of the violation alleged (see the Airey judgment of 9 October 1979, Series A no. 32, p. 11, par. 19). The breaches complained of by the applicant before the Commission, and now complained of by his heirs, consist in infringements of the right to a fair trial (Article 6) (art. 6) and of the right of property (Article 1 of Protocol No. 1) (P1-1); these infringements were allegedly occasioned by the decision taken on 30 September 1974, namely the provisional closure of the shop failing payment of a "fine" by way of friendly settlement. Although the powers of the Louvain procureur du Roi were exercised in the particular circumstances in order to deal with an offence against Articles 2 par. 4 and 3 par. 1 of the Decree of 9 August 1974, they were not conferred by this Decree, an instrument of subordinate legislation against which an application for a declaration of annulment could be brought in accordance with the terms of section 14 of the Consolidated Conseil d’État Acts, but rather by a statutory text not liable to challenge in this way, that is to say section 11, par. 1 and 2, of the 1945/1971 Act (see paragraphs 8, 9, 13 and 15 above). In point of fact, Mr. Deweer was not mistaken in his objective: his claim before the Commission was directed against section 11, in particular paragraph 2 of the section, and not against the Ministerial Decree (see, especially, pages 2 and 17 of his memorial of July 1977 on the merits). Admittedly, doubts concerning the legality of the Decree had previously been expressed in his letter of 3 October 1974 to the procureur du Roi (see paragraph 10 above), but he did not revive the issue in his application to the Commission. This choice is binding on the Court. In availing himself of Article 25 (art. 25), the applicant was free to decide upon the measures of which he would claim to be the victim. What Article 26 (art. 26) in principle prevents is coming directly before the Commission with a complaint which has not first been litigated within the national legal order; on the other hand, the person concerned is not obliged by Article 26 (art. 26) to repeat in his petition to the Commission the full case he argued before the relevant national authorities. An application for a declaration of annulment would, it is true, probably have led - after a fairly lengthy interval (see paragraph 20 above) and by a side-wind as it were - to a finding that, having regard to Article 6 of the Belgian Constitution, Mr. Deweer had not committed any punishable offence and, in consequence, to reimbursement of the 10000 BF paid over by him. Nevertheless, the direct and speedy protection of the rights guaranteed by Article 6 (art. 6) of the Convention and Article 1 of Protocol no. 1 (P1-1) would not have been thereby secured. In short, such an action would have remedied certain of the consequences of the contested decision but not its cause, that is the concurrent application of paragraphs 1 and 2 of section 11 of the 1945/1971 Act. Article 26 (art. 26) of the Convention does not go so far as to require the use of such an indirect means of redress; it does not have the inflexible character which the Government seem to attribute to it (see, mutatis mutandis, the Stögmuller judgment of 10 November 1969, Series A no. 9, p. 42 par. 11). (b) Action for restitution of money paid over without cause and for damages 30. According to the Commission, an action for restitution of money paid over without cause and for damages (Articles 1235 and 1382 of the Civil Code) was of "uncertain" value "as Belgian law would not appear to have been broken in the circumstances"; in any event, the action would have left intact, in the shape of an entry in the information extracts attached to criminal files, a record of the impugned settlement of the criminal proceedings (see paragraph 15 above); the result, the Commission stated, is that this action also would not have constituted an effective and sufficient remedy (see page 34 of the report). The Government’s rejoinder was that Mr. Deweer did not appear to regard the action as of uncertain value, since in his letter of 3 October 1974 to the procureur du Roi he reserved his right to bring such proceedings (see paragraph 10 above). In their submission, judging by the attitude of the Conseil d’État and several criminal courts as to the legality of the Decree of 9 August 1974, the action would have had good chances of success; they maintained that it would have allowed not only "the legislation creating the offence" but also "the procedure for dealing with the offence" to be challenged, for example on grounds of non-compliance with the Convention. 31. The action in question prompts on the part of the Court the same comments, mutatis mutandis, as those already set out above in the first and last sub-paragraphs of paragraph 29. In particular, it would not have offered the applicant a genuine opportunity to argue his case before a court invested with jurisdiction to "determine" a "criminal charge". As was pointed out by the Delegates, payment of the fine by way of composition had barred any criminal proceedings (see paragraph 15 above). Only indirectly could the civil court have taken cognisance of the criminal side of the matter; the Government admitted this in a reply to a question put by the Court. (c) Application for a retrial of the criminal case 32. The question should be put, as it was by the Delegates, whether an application for a retrial of the criminal case is relevant for the purposes of Article 26 (art. 26). In any event, at least on a literal reading Articles 443 and following of the Code of Criminal Procedure, which govern the matter, are concerned solely with convictions that have become final. The Government themselves pointed this out, but it seemed possible to them to rely on these provisions "by analogy" in the case of a fine paid by way of settlement; however, they added that to their knowledge no one had as yet ever tried to do so. The Court does not have to rule on the correctness of a submission which at first view is debatable for the reason that the remedy in question is regarded under Belgian law as being extraordinary; the Court confines itself to finding that the Government have not produced the proof they were obliged to adduce (see paragraph 26 above). 33. To sum up, the plea of non-exhaustion has not been substantiated on any of the three counts. B. The request to strike the case off the list 34. Citing the De Becker judgment of 27 March 1962 (Series A no. 4, p. 26, par. 14), the Government contended that the application had become devoid of object as a result of the annulment by the Decree of 9 August 1974. The Government accordingly invited the Court to strike the case out of its list. 35. The issue must be examined by the Court on the basis of Rule 47 of the Rules of Court, the present wording of which dates from 27 August 1974. 36. Paragraph 1 of the Rule does not apply in the circumstances since it covers solely discontinuance by an applicant Party, that is to say a State which has brought a case before the Court (see the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 21, par. 47). 37. Paragraph 2 admittedly provides that when "informed of a friendly settlement, arrangement or other fact of a kind to provide a solution of the matter" the Court may, subject to paragraph 3, strike out of the list "a case brought before [it] by the Commission". However, there being no agreement - whether formal or otherwise - between the Government and the applicant or his heirs, it is not possible in the circumstances to talk of either a "friendly settlement" or an "arrangement" (see the Luedicke, Belkacem and Koç judgment of 28 November 1978, Series A no. 29, p. 15, par. 36). What remains to be determined is whether there exists any "other fact of a kind to provide a solution of the matter". Mr. Deweer’s death certainly does not constitute such a fact. On 14 February 1978, Mrs. Deweer and her three daughters advised the Commission "of their material and moral interest in seeing completed the proceedings instituted by their husband and father" (see paragraph 6 of the Commission’s report). The Government did not challenge this interest. The Court, for its part, wishes to mark its full approval of the practice which the Commission has been following in cases of this nature and which it has implicitly confirmed in the present instance: when an applicant dies during the course of proceedings, his heirs may in principle claim in their turn to be "victims" (Article 25 par. 1 of the Convention) (art. 25-1) of the alleged violation, as rightful successors and, in certain circumstances, on their own behalf (see application no. 4427/70, 24. 5. 1971, X v. Federal Republic of Germany, Collection of Decisions, vol. 38, p. 39; application no. 6166/73; 30. 5. 1975, Baader, Meins, Meinhof and Grundmann v. Federal Republic of Germany, Decisions and Reports, vol. 2, p. 66; applications nos. 7572/76, 7586/76 and 7587/76, 8. 7. 1978, Ensslin, Baader and Raspe, ibid., vol. 14, pp. 67 and 83). In the present case, Mr. Deweer’s widow and children today have the status of applicants. The "fact" relied on by the Government is the judgment of 31 May 1978 whereby the Conseil d’État annulled the Decree of 9 August 1974. Like Mr. Deweer’s death (14 January 1978), it predated the adoption of the Commission’s report (5 October 1978) and is mentioned therein at paragraph 20 in fine. The Court has therefore had cognisance of the "fact" as from the moment when the case was referred to it (14 December 1978). However, Rule 47 par. 2, as is made clear by its text, is concerned with the Court being "informed" of something having a bearing on a case already pending before it. Furthermore and above all, the judgment by the Conseil d’État could at the very best have led to restitution of the 10,000 BF paid over by Mr. Deweer; it did not restore the right being claimed by him in the circumstances, namely the right to defend himself in criminal proceedings in accordance with the requirements of Article 6 (art. 6) of the Convention. Up to the present time, the "matter" has thus received no "solution". 38. Furthermore, paragraphs 1 and 2 of section 11 of the 1945/19971 Act are still in force (see paragraph 17 above), with the result that they can at any moment be applied in combination as occurred in relation to Mr. Deweer. The leading issue raised by the case therefore remains unresolved; this issue transcends the person and the interests of the applicant and his heirs. This being so, the Court must, having regard to paragraph 3 of Rule 47 of the Rules of Court, proceed with the consideration of the issue (see, mutatis mutandis, the above-mentioned Luedicke, Belkacem and Koç judgment, p. 15, par. 36, last sub-paragraph, and the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 62, par. 154). II. AS CONCERNS THE MERITS A. The alleged violation of Article 6 par. 1 (art. 6-1) of the Convention 39. Mr. Deweer’s claim to be the victim of "the imposition of a fine paid by way of settlement under constraint of provisional closure of his establishment" was based in the first place on Article 6 par. 1 (art. 6-1) of the Convention, the first sentence of which reads as follows: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." According to the Commission, "taken separately, neither the offer of settlement nor the closure decision" would offend against the above-quoted provision, but the "combined use" of the two procedures did violate the right it guarantees (see paragraphs 49 and 59 of the report). The Government, for their part, submitted that "the act whereby ... the payment of a fine by way of settlement was proposed to the applicant ... did not constitute a ‘determination’ either of ‘his civil rights and obligations’ or of ‘any criminal charge against him’ but was simply a proposal for a friendly settlement" that did not prejudice his "right ‘to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’"; - "the act whereby ... the Louvain procureur du Roi ordered the provisional closure of the applicant’s establishment constituted no more than a control and safety measure, was not in the nature of a penalty, was not intended to be a ‘determination’ either of a ‘criminal charge’ or of ‘civil rights and obligations’, did not prejudge whatever the courts might have decided in this respect and consequently could not prejudice Mr. Deweer’s right ‘to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’"; - "there is nothing in the ... Convention ... to prohibit the combined application of the friendly settlement and provisional closure procedures". 40. The Court will confine its attention to the last-mentioned point. In proceedings originating in an individual application, the Court should as far as possible limit its examination to the issues raised by the concrete case before it. Consequently, the Court’s task is to rule not whether paragraphs 1 and 2 of section 11 of the 1945/1971 Act are in themselves compatible with the Convention, but whether the manner in which they were applied in the specific circumstances,