European Court of Human Rights

JOINT SEPARATE OPINION OF JUDGES ROSS         AND SIGURJÓNSSON

(Translation)

According to Article 26 (art. 26) of the Convention, the Commission may not deal with the petition addressed to the Secretary General of the Council of Europe (Article 25) (art. 25) until all domestic remedies have been exhausted.

According to Article 27 (3) (art. 27-3), the Commission shall reject any petition referred to it which it considers inadmissible under Article 26 (art. 26).

According to Article 28 (art. 28), in the event of the Commission accepting a petition referred to it, it shall undertake an examination of the petition with a view to ascertaining the facts and place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights.

According to Article 31 (art. 31), if a solution is not reached the Commission shall draw up a report on the facts and state its opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention, and this report shall be transmitted to the Committee of Ministers.

According to Article 32 (art. 32), if the question is not referred to the Court in accordance with Article 48 (art. 48) within a period of three months from the date of the transmission of the Commission’s report to the Committee of Ministers, the Committee of Ministers shall decide by a two-thirds majority whether there has been a violation of the Convention.

According to Article 45 (art. 45), "The jurisdiction of the Court shall extend to all cases concerning the interpretation and application of the present Convention which the High Contracting Parties or the Commission shall refer to it in accordance with Article 48 (art. 48)".

The expression "case" means the facts found by the Commission in its report. A "case" does not exist until the Commission’s report has been transmitted to the Committee of Ministers. The Commission, in its report which is transmitted to the Committee of Ministers, finds the facts and states an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention. If the case is not referred to the Court in accordance with Article 48 (art. 48), the Committee of Ministers decides whether there has been a violation of the Convention.

If the "case" is referred to the Court, its jurisdiction consists in interpreting and applying the Convention to all the "matters", i.e. to all the facts found by the Commission in its report, and in rendering a final judgment (Article 52) (art. 52) as to whether those facts disclose a breach by the State concerned of its obligations (engagements: Article 19 (art. 19)) under the Convention. A final judgment can only be a judgment that deals with the merits of the "case", that is to say, whether the facts found by the Commission disclose a violation of the Convention.

The admissibility or inadmissibility of the petition is a preliminary (procedural) question which is left to the "powers" of the Commission (Article 25 (4)) (art. 25-4). As against this, the question whether the facts found in the Commission’s report disclose a breach by the State concerned of its obligations under the Convention is a matter for the jurisdiction of the Court, and if the case is not brought before the Court it is a matter for the jurisdiction of the Committee of Ministers.

The question of the admissibility or inadmissibility of the petition is, from the standpoint of pure logic, one and indivisible. The Commission either has jurisdiction or it has not. It would be illogical if the Commission had exclusive jurisdiction when it rejected a petition but did not have exclusive jurisdiction when it accepted one, so that the Court’s jurisdiction (or that of the Committee of Ministers if the case is not referred to the Court) also covers the preliminary (procedural) question whether the Commission, in accepting the petition, has rightly or wrongly interpreted and applied Article 27 (art. 27) of the Convention.

Under Protocol No. 3 (P3) to the Convention, Article 29 (art. 29) is deleted from the Convention and the following provision is inserted:

"After it has accepted a petition submitted under Article 25 (art. 25), the Commission may nevertheless decide unanimously to reject the petition if, in the course of its examination, it finds that the existence of one of the grounds for non-acceptance provided for in Article 27 (art. 27) has been established.

In such a case, the decision shall be communicated to the parties."

Under this provision, the Commission may at any time return to the preliminary (procedural) question of the admissibility or inadmissibility of the petition accepted and reject the petition, by a unanimous decision, if it finds that the existence of one of the grounds for inadmissibility provided for in Article 27 (art. 27) has been established.

The Commission’s power to resume at any time its consideration of the admissibility proves that it has sole jurisdiction on this point and that, unless there is a unanimous decision to reject a petition accepted, the Court has no jurisdiction to consider this preliminary question. Thus, there is a saving of time and, at the same time, the prestige of the Court remains intact as the Court is rid of questions which do not relate to the facts found in the Commission’s report.

The Contracting Parties inserted Article 26 (art. 26) in order to have it solemnly declared that the Convention does not depart from the generally recognised principle that there can be no access to an international authority until all domestic remedies have been exhausted.

One might have expected the sanction to be included in the same Article 26 (art. 26). One might even have expected that nothing be said. On the contrary, the sanction was included in Article 27 (art. 27) as one of the grounds for inadmissibility. The words "the Commission shall reject" have the same meaning as "the Commission feels, the Commission considers".

SEPARATE OPINION OF JUDGE BILGE

(Translation)

I do not share the opinion expressed in the judgment as regards the jurisdiction of the Court to entertain submissions on the non-exhaustion of domestic remedies. In paragraphs 47-49, the judgment, referring to Article 45 (art. 45), gives the Court’s jurisdiction a wide scope which corresponds neither to the texts nor to the aim and purpose of the Convention.

It is true that, according to Article 45 (art. 45), "The jurisdiction of the Court shall extend to all cases concerning the interpretation and application of the present Convention which the High Contracting Parties or the Commission shall refer to it in accordance with Article 48 (art. 48)", but the Court has interpreted the text broadly. One of the three elements of the basis of the Court’s jurisdiction provided for in this article (art. 48) is the word "affaires" ("cases"). Relying on the English version of paragraph (1) of Article 46 (art. 46-1), the Court interprets this word as "all matters". But in interpreting a text which is authentic in two languages, one cannot, in my opinion, give preference to one language: one must find the meaning which best reconciles the two texts, taking into account the aim and purpose of the Convention. In the different articles of the Convention, the French text constantly uses the word "affaire" while the English text expresses the same concept by the words "question", "cases" and "matters". The English version is not, from this point of view, a text which has a uniform terminology on which one can rely. The text of Article 45 (art. 45) does not provide sure indications to clarify the meaning of the word "affaires". One must therefore go to the source of the Court’s jurisdiction to harmonise the words quoted and find a common meaning. According to Articles 31 and 32 (art. 31, art. 32) what is referred as an "affaire" ("case") by the Commission to the Committee of Ministers or to the Court is the question whether there has or has not been a violation of the Convention. The word "affaire" must therefore be interpreted in this sense.

This meaning of the word "affaire" is also confirmed by the general plan of the Convention. By Article 19 (art. 19), the Convention set up two organs, the Commission and the Court, to ensure the observance of Human Rights. To this aim, the Commission and the Court have defined powers. Competence to accept an application and to check its admissibility belongs to the Commission. Jurisdiction to decide whether there has been a violation of the Convention belongs to the Court. It is within this field that the Court enjoys full jurisdiction.

The purpose of the Convention is to ensure the observance of Human Rights. To achieve this end the Court must reach a decision as quickly as possible without letting the case drag on unreasonably. Through a broad interpretation of Article 45 (art. 45), the judgment has set up a system of supervision by the Court of the Commission’s decisions on admissibility. An enormous waste of time and effort would result in cases where the Court should find, generally four or five years after the admissibility of the applications, that Article 26 (art. 26) has not been observed. If there is jurisdiction to supervise decisions of admissibility, it must be exercised at the first stage of the proceedings. Such supervision is not provided for by the Convention, because it is left to the competence of the Commission.

I agree with the judgment when it states, in paragraph 50, that "the rule of exhaustion of domestic remedies, which dispenses States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, is also one of the generally recognised principles of international law to which Article 26 (art. 26) makes specific reference". However, I do not agree with the judgment in deducing therefrom a supervisory jurisdiction of the Court. In effect, the rule of exhaustion of domestic remedies is not concerned with the internal organisation of a given international jurisdictional body. As stated above, the Convention set up two organs to ensure the observance of Human Rights. The aim of the rule in question is achieved if the rule is observed by one of these organs and, above all, by the organ entrusted with the task of checking the observance of the conditions of admissibility. This is all the more true since, according to paragraph (3) of Article 27 (art. 27-3), the condition of exhaustion of domestic remedies is a preliminary question which concerns essentially the admissibility of the application. It is for the Commission to decide whether this condition is fulfilled. If the question of exhaustion of domestic remedies is raised before the Commission and the latter has decided the issue, the requirements of the rule in question are completely satisfied from the point of view of international law.

Moreover, the judgment states in paragraph 51 that "the task which this Article [27] (art. 27) assigns to the Commission is one of sifting; the Commission either does or does not accept the applications. Its decisions to reject applications which it considers to be inadmissible are without appeal as are, moreover, also those by which applications are accepted; they are taken in complete independence". The judgment adds, however, that the decision of the Commission to accept a case "is not binding on the Court any more than the Court is bound by the opinion expressed by the Commission". I cannot accept this reasoning. First of all, the decision of admissibility taken by the Commission and the opinion expressed by it on the merits are of a different nature. An opinion, by its very nature, does not bind anyone. There is no need to cite it alongside the decision of admissibility for the purpose of making an argument against the latter.

According to Articles 25 and 27 (art. 25, art. 27), the decision on the admissibility of an application falls within the competence of the Commission. In the exercise of this jurisdiction, the Commission checks the observance of the conditions of admissibility. In the course of this examination it takes into consideration the condition laid down in Article 26 (art. 26). This article (art. 26) is addressed, as the text itself bears witness, to the Commission and not to the Court. It is part of the Commission’s field of activity. On the other hand, it is not reasonable to declare that the decision of refusal binds the Court while that of admissibility does not, for the two aspects of the same jurisdiction cannot be separated. In adopting another solution, the judgment has opened a way of proceeding, which, in my view, does not conform to the principles of good administration of justice.

For the reasons set out above, I think that the Court has no jurisdiction to entertain submissions of non-exhaustion of domestic remedies.

SEPARATE OPINION OF JUDGE WOLD

As to the jurisdiction

I have come to the conclusion that the Court has no jurisdiction regarding admissibility. In regard to individual petitions, the task of the Commission is one of sifting and screening. One feared to get too many unjustified petitions. It was necessary at an early stage to select the applications which the European supervisory organs should deal with. The preparatory works show that all conditions for admissibility - exhaustion of remedies, compatibility with the provisions of the Convention and not manifestly ill-founded – were considered from the same angle, namely to prevent a flood of cases. The whole responsibility with regard to admissibility - also including exhaustion of local remedies - was laid upon the Commission. The member States seemed to be fully satisfied that this function should be the task of the Commission and the Commission alone.

The Court is not a court of appeal in relation to the Commission. The Commission shall, according to Article 19 (art. 19), ensure observance of the engagements undertaken by the Contracting States. The Court has the same duty. But the task is divided between these two organs. The majority of the Court admits that "... the Commission either does or does not accept the applications. Its decisions to reject applications which it considers to be inadmissible are without appeal as are, moreover, also those by which applications are accepted; they are taken in complete independence ...". But if this is so, how can then the Court through "interpretation or application" of Article 26 (art. 26) set aside the Commission’s final decision laying down that all internal remedies are exhausted? The majority contend that as the Court’s jurisdiction according to Article 45 (art. 45) shall extend to "all cases concerning the interpretation and application ... which the High Contracting Parties or the Commission shall refer to it", it is "impossible to see how questions concerning the interpretation and application of Article 26 (art. 26) ... should fall outside its jurisdiction". But the Court’s jurisdiction is limited to cases referred to it by the Commission or a State. The question of exhaustion of internal remedies is not part of the case as this question is already finally decided by the Commission, exercising a judicial function against which no appeal lies. The interpretation and application of Article 26 (art. 26) do not therefore fall within the jurisdiction of the Court.

The Court has competence to decide its own jurisdiction, but it is not competent to make decisions regarding the jurisdiction of the Commission.

A decision of non-admissibility on the ground that the local remedies have not been exhausted is a final judicial decision. The application of the individual cannot go further. In this respect the Commission’s jurisdiction is absolute without any interference by the Court, although the decision will always depend on an interpretation and application of Article 26 (art. 26). But exactly the same is the fact when the Commission finds that the application is admissible on the ground that the internal remedies have been exhausted. That is also a final judicial decision.

The Contracting States must accept the negative decision by the Commission: why should they have a right to challenge the positive one? It is an identical jurisdiction which the Commission exercises in both cases. The individual has to abide by a decision of non-admissibility. The opposite decision gives him a justified expectation that his claim will now be dealt with by the European international organs. If the Court nevertheless exercises its own jurisdiction in regard to admissibility and decides against the Commission’s decision, the inequality between the applicant and the State in proceedings before the Court will be more aggravated, which can only harm the cause of Human Rights. The provisions in Articles 28 to 31 (art. 28, art. 29, art. 30, art. 31) clearly show that the meaning of the Convention is that the Contracting States shall also abide by a decision of admissibility. The Commission acts immediately upon its finding that the application, in whole or in part, is admissible. There is no means by which the decision laying down that all internal remedies have been exhausted can be controlled or tried by any other organ. The Commission’s further dealing with the application is consequently in full compliance with the Convention when the Commission accepts the petition (Article 28) (art. 28), and undertakes to ascertain the facts, to examine the petition and carry out - if need be - an investigation. It shall try to secure a friendly settlement and if a friendly settlement is not reached, the Commission shall draw up its report on the facts and state its opinion "as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention". The Commission performs a conscientious, strenuous and very extensive work - and we are confronted with a report which is prepared in full legal compliance with the provisions of the Convention and consequently according to Article 44 (art. 44), the Commission - as well as a State - has "the right to bring a case before the Court". When the Commission, or a State, exercises this right and decides to bring a case before the Court, the Court cannot decline to deal with it or decide that it will not go into the merits of the case.

As regards especially the exhaustion of internal remedies, it should be noted that the Commission, regularly and in several meetings, discusses thoroughly the question of admissibility in default of which it is not possible to bring the case duly before the Court. A State may easily waive any objections regarding exhaustion of remedies. Furthermore, a State will have every opportunity to remedy a decision during the time the application has been under consideration by the Commission, and the question of exhaustion discussed at length. This is usually the situation in every application which is dealt with by the Commission. It seems unreasonable that, under these circumstances, a State shall have the right to pursue this question of local remedies further and take it up before the Court. In this connection to speak about the rule of exhaustion as marking out the limits "within which the Contracting States have agreed to answer for wrongs alleged against them before the organs of the Convention", and that "the Court has to ensure (its) observance ... just as of the individual rights and freedoms ...", carries really no weight. As to the interests of a State in regard to exhaustion of remedies, the State itself has every opportunity to look after them before the Commission, which also protects these interests.

Articles 44, 45 and 48 (art. 44, art. 45, art. 48) speak about "a case" or "cases" brought before the Court by the Commission or by a State. The Court’s jurisdiction, as mentioned above, is laid down in Article 45 (art. 45) as extending to all cases the Commission - or a State - has referred to the Court. One may ask what the Convention means by using the denomination case. The answer is simple. The case is the "report on the facts" and the Commission’s opinion "whether the facts found disclose a breach by the State concerned of its obligations under the Convention" (Article 31) (art. 31). It is in respect of this report that the Court has jurisdiction to interpret and apply the Convention. In other words it is the merits which the Court shall try. Nothing less, nothing more!

The report shall be transmitted to the Committee of Ministers (Article 31 (2)) (art. 31-2) and, if the case is not referred to the Court, the Ministers shall make the decision. The Committee of Ministers is competent to "decide ... whether there has been a violation of the Convention" (Article 32 (1)) (art. 32-1), the Court has jurisdiction to examine "cases concerning the interpretation and application of the Convention" (Article 45) (art. 45). But there is in actual fact no difference between the competence of the Committee of Ministers and the competence of the Court. It is generally understood that the Ministers shall not deal with the question of admissibility, they shall only decide whether there has been a violation. But is it not just the same competence the Court exercises? The Ministers shall of course also "interpret and apply" the Convention in the same way as the Court. The fact that the Ministers do not deal with the question of admissibility bears out the contention that the Court has not this competence either. The Ministers and the Court stand in a supplementary position to each other. There is no reason to believe that their jurisdiction in regard to exhaustion of internal remedies should not be the same.

Finally, if the Court takes upon itself jurisdiction in regard to admissibility, the consequence will be that the Commission’s report may not be dealt with by any responsible organ, and no final decision taken whether a violation has taken place or not. And that in spite of the fact that the report may very well contain the considered opinion of the members of the Commission that grave violations of the Convention have taken place! This result is really detrimental to the cause of Human Rights and it does not seem consistent with sound common sense.

Regarding the alleged violation of paragraph (1) of Article 5 (art. 5-1)

In this regard I concur with the conclusions of the Court. I find it, however, sufficient to state that I am in full agreement with the opinion of the Commission in regard to paragraph (1) (e) of Article 5 (art. 5-1-e) (paragraph 186 of the Commission’s report). It is not for the Court or the Commission to decide whether a municipal law was correctly applied, it is sufficient that the procedure prescribed by the municipal law is applied correctly.

As to the alleged violation of paragraph (4) of Article 5 (art. 5-4)

Here I concur with the conclusion of the Court but I cannot adhere to the Court’s reasoning in regard to the question whether Article 5 (4) (art. 5-4) requires that two authorities should deal with a case. The Court’s reasoning in respect to the text of the Convention and also the Court’s statement that the supervision required by Article 5 (4) (art. 5-4) is incorporated in the magistrate’s decision are, in my view, not adequate on this point regarding the question of a person deprived of his liberty being entitled, even at a later stage, to bring proceedings before a court. The opinion of the Commission was divided. The European Court does not, however, in my view, need to decide this question. With this reservation I concur with the Court’s conclusion on this point.

As regards the alleged violation of Article 4 (art. 4)

In this respect I also concur with the conclusions of the Court but in my view the work imposed upon the vagrants, De Wilde, Ooms and Versyp, was an incorporated consequence of the magistrate’s decision of detention and cannot be considered an independent separate violation of the Convention. On these grounds I vote for the conclusion that no violation of Article 4 (art. 4) has taken place.

As to the alleged violation of Article 8 (art. 8)

Here I have a dissenting opinion. I cannot see that it was necessary for the public authorities to interfere with the correspondence of the detained vagrants. The authorities had no reason to believe that they had to censor the correspondence, either for the purpose of preventing disorder or crime, or for the protection of health and morals, or for the protection of the rights and freedoms of others. The vagrants had committed no crime and even if the authorities, in their interference with the vagrants’ private correspondence, were within their jurisdiction according to Belgian law they were most certainly overstepping Article 8 (art. 8) of the Convention.

In regard to Article 8 (art. 8) of the Convention I therefore find that a violation has taken place.

SEPARATE OPINION OF JUDGE ZEKIA

The main issues involved in the present case may be summarised as follows:

1. Has this Court jurisdiction to examine, after the ruling made by the Commission in favour of the admissibility of the petitions lodged by the applicants, submissions relating to (a) the non-exhaustion of domestic remedies, (b) the non-observance of the six months’ time-limit, occurring in Article 26 (art. 26) of the Convention?

2. If this Court possesses such jurisdiction, to decide:

(a) whether domestic remedies had been exhausted, and

(b) whether the six months’ limit was observed with the object and meaning of Article 26 (art. 26) of the Convention.

3. Whether the Belgian State has failed to meet its obligation under Article 5 (4) (art. 5-4) of the Convention by not providing the judicial machinery envisaged by the said Article for the benefit and protection of persons detained under the Belgian Vagrancy Act of 1891 in conjunction with Article 5 (1) (e) (art. 5-1-e) of the Convention.

4. Whether as a consequence of the alleged failure to provide an appropriate judicial machinery as per Article 5 (4) (art. 5-4) or for other reasons, Belgium violated Articles 3, 4 (2) and (3), 5 (1), 6 (1) (3b) (3c), 7 and 13 (art. 3, art. 4-2, art. 4-3, art. 5-1, art. 6-1, art. 6-3-b, art. 6-3-c, art. 7, art. 13) of the said Convention.

Although I respectfully agree with the majority decision and the conclusions arrived at in respect of the major issues, yet as my line of reasoning differs to some extent in a number of points from that of the majority, I thought it appropriate to give very briefly a concurrent opinion.

I am not dealing with the factual aspect of the case. I am content for this purpose to refer to the part of the main judgment dealing with the facts of the case.

As to issue No. 1

My answer to the questions framed in issue No. 1 is in the affirmative. The Court has jurisdiction to examine (a) whether the domestic remedies have been exhausted and (b) whether the six months’ time-limit has been observed. Both (a) and (b) are preconditions laid down under Articles 26 and 27 (art. 26, art. 27) for the exercise of jurisdiction by the Commission and as they constitute component parts of the Convention both fall within the ambit of Article 45 (art. 45) shall extend to all cases concerning the interpretation and application of the present Convention which the High Contracting Parties or the Commission shall refer to it in accordance with Article 48 (art. 48)". Article 49 (art. 49) leaves the last word to the Court in deciding its own jurisdiction.

I do not consider, however, that the holding of this view in any way amounts to a transgression of the domain of the Commission, admittedly an independent body within the structure of the European Convention. A ruling on the inadmissibility of an application by the Commission is final for all intents and purposes with all its implications. On the other hand, a ruling on the admissibility of such application does not and ought not to have the far-reaching effect and result that all matters touching the prerequisites for the acceptance of a petition have been decided upon once and for all and can not be questioned by any authority whatsoever including the Committee of Ministers and the Court. Had the case been so, the Court would have been handicapped in the exercise of its jurisdiction and precluded from arriving at conclusions which might appear to be inconsistent with the way in which the Commission dealt with one or more of the preconditions attached to the admissibility of a petition under Articles 26 and 27 (art. 26, art. 27).

This could not have been the intention of the Parties to the Convention. Moreover, the exhaustion of domestic remedies, prior to any right of a recourse to an international tribunal, is a vital precondition recognised by international law and governments are as a rule particularly jealous for the observance of such conditions.

The ruling on the admissibility of a petition by the Commission, strictly speaking, is not in issue before the Court. Such a ruling in the affirmative was made and as a result it set in motion the Commission who investigated the applicants’ complaints under Articles 28 and 29 (art. 28, art. 29), and made its report under Article 31 (art. 31). In other words the ruling in question fulfilled the object it was intended to achieve.

As to issue No. 2

I agree with the Commission’s decision that domestic remedies in the accompanying circumstances of the case were exhausted. The same applies as to whether Versyp’s petition was made in time. I am of the opinion that all these applicants, throughout the material time, could not reasonably anticipate any remedy for which they could institute proceedings prior to the "Du Bois" judgment.

As to issue No. 3 relating to the alleged violation of Article 5 (4) (art. 5-4) of the Convention

The Belgian Government strongly argued that the requirement of the Convention under Article 5 (4) (art. 5-4) has been satisfied by the fact that the detention of the applicants in a vagrancy centre or assistance home was ordered by a magistrate. Article 5 (4) (art. 5-4) reads: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful".

Article 5 (4) (art. 5-4) postulates the detention of a person effected by some authority and that such person disputes the lawfulness of his detention and wishes to take proceedings in a court in order to obtain a judicial decision on the lawfulness or otherwise of his detention with a view to his release from such detention if he succeeds in his recourse or appeal.

Could the functions of the magistrate whose primary duty is to implement the Vagrancy Act of 1891, and in pursuance of that Act, to investigate "the identity, age, physical and mental state and manner of life" of the person involved and if satisfied to send such person suspected as vagrant in pursuance of Sections 13 and 16 of the said Act to a vagrancy centre or to an assistance home, conform or correspond with the functions of a court whose primary duty would be to ascertain, according to Article 5 (4) (art. 5-4), whether the vagrant in question is lawfully detained or not.

Even if we admit that the magistrate constitutes a court for deciding the lawfulness of the detention, he has not before him a case of detention the lawfulness of which is sub judice. Detention originates from his own order. He cannot be the judge of his own act. He is not there to decide either as to the lawfulness of the arrest and detention by the policemen who brought the applicant before him with a view to investigating whether a state of vagrancy existed and if it did which of the courses under Sections 13 and 16 of the Vagrancy Act of 1891 is to be adopted.

The applicants are not the persons who instituted proceedings before the magistrate. Apart from the unsuitability and inadequacy of its procedural rules, if the magistrate could be considered as the court under Article 5 (4) (art. 5-4), then his decision is expected to be a judicial one, that is a decision in a declaratory form that the detention of the applicants is lawful or unlawful. The Conseil d’État, however, in the Du Bois case, in connection with the nature of the order of the magistrate, authoritatively stated that placing a vagrant at the disposal of the Government is not the result of a criminal offence but "an administrative security measure ... of a purely administrative nature".

It is obvious from what has been said that the magistrate in applying Sections 13 and 16 of the Vagrancy Act of 1891 was performing administrative and not judicial functions, as one would have expected a court to discharge its duties under Article 5 (4) (art. 5-4).

Even if we accept, for argument’s sake, the magistrate constituting a police court with a competence to decide speedily lawfulness of detention for the purpose of Article 5 (4) (art. 5-4), could it be said that a detainee during the period of his continued detention can apply anew to the said magistrate to decide about the legality of such detention? An order of detention might be lawful at its inception but it cannot be said that irrespective of any supervening events it continues to be lawful throughout the duration of his detention.

Can it be said that, after the decision of the Conseil d’État in the Du Bois case, the way to seeking a remedy by a vagrant detainee is wide open and therefore if there was a gap in the Belgian judicial system in connection with Article 5 (4) (art. 5-4) this no longer existed? I have my doubts about this. As a rule, High Judicial or Administrative Tribunals, in all countries, are not suited for the delivery of speedy decisions contemplated in the Article (art. 5) in question. The decision on the lawfulness of a detention might depend not only on the legal aspect but also on the consideration of the factual aspect of a case. The High Courts, administrative or otherwise, as a rule are not inclined to go deeply into the factual aspects of the case.

But this is a matter for the future. If the constitution and the procedural rules of the Conseil d’État, as well as the time at their disposal, allow them to deal speedily with recourses coming from the inmates of the vagrancy centres or assistance homes so much the better for this class of detainees.

I am therefore of the opinion that the Belgian State failed, within the material period, to discharge its obligations under Article 5 (4) (art. 5-4) of the Convention.

As to issues in No. 4

Failure on the part of the Government to make available, for the applicants under detention, a court in which they could institute proceedings for obtaining a decision on the lawfulness of their detention, in my view, does not necessarily amount to a violation of Articles 3 to 6 (art. 3, art. 4, art. 5, art. 6) of the Convention. These Articles (art. 3, art. 4, art. 5, art. 6), although inter-related with Article 5 (4) (art. 5-4), are not interdependent. Because there was no court available for the applicants to decide whether they were rightly or wrongly kept in detention it does not necessarily follow that they were unlawfully detained. On the material, documentary or otherwise, put before us, I cannot say that the detention of the applicants under the relevant Belgian Act and procedure was unlawful. Allegations of contraventions of other Articles of the Convention, independently of Article 5 (4) (art. 5-4), have not been substantiated. In this connection I respectfully associate myself with the views expressed in the main judgment.

The consideration for a remedy, due to violation of Article 5 (4) (art. 5-4), is up to the national authority to decide as per Article 13 (art. 13), which reads:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

I have, however, to make certain reservations. This Court having been called upon to decide on allegations of contraventions of certain Articles of the Convention has to pronounce judgment on the evidence available. In doing so, however, one can not lose sight of the fact that the proper forum for deciding the legality of the detention under Article 5 (1) (e) (art. 5-1-e) is the national court where applicants could go and adduce before it the evidence they possess. Strictly speaking, applicants are not parties before our Court.

I entertain, therefore, doubts as to what extent our Court can pronounce final and binding judgments on matters primarily falling within the jurisdiction of the national courts, access to which might be rendered possible in the future.

JOINT SEPARATE OPINION OF JUDGES BALLADORE PALLIERI AND VERDROSS

(Translation)

We regret that on several points we are not able to agree with the judgment.

First, we cannot go so far as the judgment in declaring at paragraph 69: "Having thus the character of a vagrant the applicants could ... be made the subject of a detention". In our opinion, the Court is not, in the first place, competent to declare that a person is a vagrant any more than to declare that a person is a criminal or of unsound mind. It can only find that this or that criterion has been established in internal law in accordance with a lawful procedure conforming to the requirements of the Convention in a way which renders legitimate certain measures taken by the State. Apart from this, since in the Court’s opinion the applicants were not in a position to have supervised within the meaning of Article 5 (4) (art. 5-4) of the Convention the lawfulness of their alleged character of a vagrant, it had to be concluded that there were perhaps very strong reasons to hold that they were vagrants and that it was permitted to undertake and pursue the appropriate procedure, but that the state of vagrancy could not yet be considered to exist according to the Convention. The same principle as that in Article 6 (2) (art. 6-2) of the Convention is applicable here ("Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law"). According to the Court, the state of vagrancy was not lawfully established because of the violation of Article 5 (4) (art. 5-4) of the Convention; it was therefore still to be presumed that they were not vagrants.

The judgment finds, on the contrary, that the state of vagrancy could be taken as established (a conclusion of which it takes account, moreover, in paragraphs 89 and 92) and it accepts that the Belgian Government took the measures allowed by the Convention against vagrants. In these circumstances, it seems rather difficult to understand how the conclusion can be reached that there has been a violation of the Convention by the Belgian State.

On the other hand, if, while admitting that in the present cases one was actually dealing with vagrants for whom the measures (deprivation of liberty) provided for by the Convention were allowed, one nonetheless adds that the Belgian Act, due to its undeniable imperfections, does not offer sufficient guarantees to ensure the observance of the Convention in all cases, it is easy to object that it is not at all the Court’s function to judge in abstracto the worth of the legislation of a Contracting State. The jurisdiction of the Court is conditioned by the presence of a victim (Articles 5 (5) and 48 (b) of the Convention) (art. 5-5, art. 48-b) and the Court’s task is to put right the wrong suffered by the person concerned. Without a victim, no condemnation of a State by the Court is possible.

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As regards more particularly the proceedings mentioned in Article 5 (4) (art. 5-4) of the Convention, there are several points on which we are in agreement with the Court. First of all, the Court states, quite rightly in our opinion, that the Convention requires only the supervision by a judicial organ of the measures taken by the police, irrespective of whether this control is exercised ex officio or at the request of the interested party. We also agree with the Court in accepting that the Belgian magistrate, invested with jurisdiction to decide in vagrancy matters, is a court independent of the executive and enjoying the guarantees afforded to the judges by Articles 99 and 100 of the Belgian Constitution. Similarly, we can also accept that the magistrate necessarily decides on the lawfulness of the detention which the prosecuting authority requests him to sanction. Lastly, the same is true of the finding that the procedure before the said magistrate allows certain rights of the defence and presents certain judicial features, such as the hearing taking place and the decision being given in public. Nevertheless, the Court finishes by deciding that all this is not sufficient.

In the opinion of the Court the forms of the procedure need not necessarily be identical in each of the cases where the Convention requires the intervention of a court. Once again, we agree with the Court: one cannot, for example, consider the procedure for the detention of a person of unsound mind to be satisfactory if it did not include medical examinations fully guaranteeing objectivity and competence. But, in the present cases, the Court says that the deprivation of liberty complained of by the applicants resembles very closely that imposed in criminal cases and that therefore the procedure to be followed should not provide guarantees markedly inferior to those existing in criminal matters in the member States of the Council of Europe. This comparison seems scarcely exact to us. Shelter in an assistance home or in a vagrancy centre is not quite the same as being locked in prison; the consequences are not shameful to the same degree; release can be requested and obtained at any time, which is not the case where a prison sentence is being served. On the other hand, it must be emphasised that the decision of the magistrate in vagrancy matters deals simply with the existence of certain factual conditions which are quite easily established and which do not require either a lengthy investigation or long hearings. A rather simplified procedure therefore normally suffices.

To conclude, detention for vagrancy is a particular measure of security, sometimes requested by the interested persons themselves and very different from detention in a criminal case. It is perhaps otherwise in the only case where the placing at the disposal of the Government is not of a temporary and transitory nature but is decided for a whole determinate period which, according to Belgian law, can go up to seven years. In that case it can reasonably be asked whether this is not a sort of conviction and sentence, and even quite a serious one, to which the ordinary guarantees of criminal procedure should apply. The Court however has not made an abstraction of this case, which concerned only some of the applicants; moreover, De Wilde and Versyp, who were both placed at the disposal of the Government for two years, were released before, and one of them well before, the expiry of the term which thus does not seem to be as rigorous as a criminal sentence. With all reservations as to the compatibility in general of the Belgian law with the Convention, we do not believe that in the present cases there are sufficient elements to support the conclusion that there has been a violation on this point by the Belgian Government of the applicants’ right protected by Article 5 (4) (art. 5-4) of the Convention.

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We cannot follow the Court on yet another point. Even if the decision of the magistrate does not constitute the result of proceedings before a court, within the meaning of Article 5 (4) (art. 5-4) of the Convention, the Court has not taken into account, as it should have done, the possibility of appealing to the Conseil d’État. It is true that, although the applicants failed to appeal to the Conseil d’État, the Court has unanimously declared the submission of non-exhaustion of domestic remedies to be ill-founded for the reason that the applicants can not be blamed for not having attempted an appeal which, according to established case-law, was inadmissible. This, however, does not mean that such an appeal could not have been possible. The Du Bois case, which was already pending at the time of the detention of the applicants, reversed the former case-law and the Conseil d’État decided that the orders of the magistrates in vagrancy matters were subject to appeal to it. An appeal by the applicants which would very likely have been the subject of a decision by the Conseil d’État subsequent to the Du Bois judgment would have been dealt with in the same way and would have been declared admissible and then judged. From the uncertainty of the situation existing at the time, while in spite of the previous case-law to the contrary a new attempt to appeal to the Conseil d’État had already been made and had finally been crowned with success, no argument can be drawn either to deny that, according to the communis opinio, there had then been exhaustion of domestic remedies or to deny that, this notwithstanding, the real possibility of an appeal existed. The applicants can ask to be excused for not having entered an appeal which at that time seemed ill-founded but they cannot seriously complain that an appeal did not exist which in fact existed.

It must also be added that the Court has acknowledged (paragraph 82) that the Convention is directly applicable in Belgium so that any alleged violation of the Convention could have been submitted for examination by the superior administrative court once the latter had, as in the Du Bois case, declared itself competent to examine the magistrate’s orders. The Court finally does not omit to emphasise that nothing allows it to be affirmed a priori that the Conseil d’État would not have decided speedily.

Even if the magistrate does not constitute the court mentioned in Article 5 (4) (art. 5-4) of the Convention, the appeal to the Conseil d’État, which was admissible at the time of the proceedings, is enough to prevent it being declared that there has been a violation of this provision of the Convention by the Belgian Government.

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

(Translation)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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