CEDH · CASELAW;RESOLUTIONS;MERITS;ENG — 11 septembre 1995

.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 Committee of Ministers, under the terms of Article 32 (art. 32) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),        Having regard to the report drawn up by the European Commission of Human Rights in accordance with Article 31 (art. 31) of the Convention relating to the application lodged on 16 December 1989 by Mr Daniel Bernaerts against Belgium (Application No. 15964/90);        Whereas on 31 August 1993 the Commission transmitted the said report to the Committee of Ministers and whereas the period of three months provided for in Article 32, paragraph 1 (art. 32-1), of the Convention has elapsed without the case having been brought before the European Court of Human Rights in pursuance of Article 48 (art. 48) of the Convention;        Whereas in his application, declared admissible by the Commission on 14 October 1992, the applicant complained that he did not have access to the file submitted to the investigating courts during the proceedings for confirmation of the arrest warrant;        Whereas in its report adopted on 30 June 1993, the Commission expressed, unanimously, the opinion that there had been a violation of Article 5, paragraph 4 (art. 5-4), of the Convention;        Whereas, at the 505th meeting of the Ministers' Deputies held on 7 January 1994, the Committee of Ministers, agreeing with the opinion expressed by the Commission, held, having voted in accordance with the provisions of Article 32, paragraph 1 (art. 32-1), of the Convention, that there had been in this case a violation of Article 5, paragraph 4 (art. 5-4), of the Convention;        Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 9 December 1994;        Whereas, at the 524th meeting of the Deputies held on 11 January 1995, the Committee of Ministers decided, in accordance with Article 32, paragraph 2 (art. 32-2), of the Convention, that the Government of Belgium was to pay the applicant as just satisfaction, within three months, 60 000 Belgian francs in respect of non-pecuniary damage and 100 000 Belgian francs in respect of costs and expenses, namely a total sum of 160 000 Belgian francs;        Whereas the Committee of Ministers invited the Government of Belgium to inform it of the measures taken following its decisions of 7 January 1994 and 11 January 1995, having regard to Belgium's obligation under Article 32, paragraph 4 (art. 32-4), of the Convention to abide by them;        Whereas, during the examination of the case by the Committee of Ministers, the Government of Belgium gave the Committee information about the measures taken in consequence of the Committee's decisions, which information appears in the appendix to this resolution;        Whereas the Committee of Ministers satisfied itself that on 28 August 1995 it was confirmed that the Government of Belgium paid the applicant the total sum of 160 000 Belgian francs as just satisfaction,        Declares, having taken note of the measures taken by the Government of Belgium, that it has exercised its functions under Article 32 (art. 32) of the Convention in this case;        Authorises the publication of the report adopted by the Commission in this case.                  Appendix to Resolution DH (95) 104          Information provided by the Government of Belgium         during the examination of the case of Bernaerts                   by the Committee of Ministers        In a judgment of 10 May 1989 the Court of Cassation modified its earlier restrictive case-law under the Act of 20 April 1874 on remand in custody as regards the accused's right of access to the file.   In this judgment the Court of Cassation adopted the view that Article 5, paragraph 4 (art. 5-4), of the Convention requires "proceedings which give the counsel of the remand prisoner the opportunity to inspect the documents relating to the confirmation of the arrest warrant with a view to a first appearance before the chambre de Conseil."        The Act of 20 April 1874 has subsequently been amended by a new Act of 20 July 1990 on remand on custody, which came into force on 1 December 1990.   Article 21, paragraph 3 of this law provides that "the file shall be at the disposal of the accused or his counsel on the last weekday before the appearance at proceedings for the confirmation of the arrest warrant".        In the light of the above changes, the Government is of the opinion that there is no risk of repetition of a violation of the Convention similar to that found in the present case.