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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> VAN DROOGENBROECK v. BELGIUM (ARTICLE 50) - 7906/77 [1983] ECHR 7 (25 April 1983)
URL: http://www.bailii.org/eu/cases/ECHR/1983/7.html
Cite as: (1991) 13 EHRR 546, [1983] ECHR 7
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In the Van Droogenbroeck 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:
_______________
(*) Note by the registry: In the version of the Rules applicable
when proceedings were instituted. A revised version of the
Rules of Court entered into force on 1 January 1983, but only
in respect of cases referred to the Court after that date.
_______________
Mr. G. Wiarda, President,
Mr. J. Cremona,
Mr. W. Ganshof van der Meersch,
Mr. F. Gölcüklü,
Mr. J. Pinheiro Farinha,
Mr. B. Walsh,
Mr. C. Russo,
and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 March 1983,
Delivers the following judgment, which was adopted on that date, on
the application in the present case of Article 50 (art. 50) of the
Convention:
PROCEDURE AND FACTS
1. The present case was referred to the Court in December 198O by
the European Commission of Human Rights ("the Commission") and in
January 1981 by the Government of the Kingdom of Belgium ("the
Government"). The case originated in an application (no. 7906/77)
against that State lodged with the Commission on 16 April 1977 by
Mr. Valery Van Droogenbroeck, a Belgian national.
2. On 23 November 1981, the Chamber constituted to examine the
case relinquished jurisdiction in favour of the plenary Court (Rule 48
of the Rules of Court). By a judgment of 24 June 1982, the latter
held that when Mr. Van Droogenbroeck was detained pursuant to
section 25 of the Social Protection Act of 1 July 1964, he had not
been able to take any proceedings satisfying the requirements of
paragraph 4 of Article 5 (art. 5-4) of the Convention; on the other
hand, the Court concluded that there had been no violation of
paragraph 1 of Article 5 (art. 5-1) or of Article 4 (art. 4) (Series A
no. 50, points 1 to 3 of the operative provisions and paragraphs 33-60
of the reasons, pp. 18-33).
The only outstanding matter to be settled is the question of the
application of Article 50 (art. 50) in the present case. Accordingly,
as regards the facts, the Court will confine itself here to giving the
pertinent details; for further particulars, reference should be made
to paragraphs 9 to 29 of the above-mentioned judgment (ibid.,
pp. 9-17).
3. At the hearings of 20 October 1981, Mr. J. Van Damme who, as
the applicant's lawyer and together with Mr. S. Beuselinck, was
assisting the Commission's Delegate had requested the Court, should it
find a violation, to afford his client just satisfaction under
Article 50 (art. 50). He had declared that he would leave the item of
"pecuniary and non-pecuniary damage" to the Court's discretion; as
regards "fees and expenses", he had listed these shortly afterwards in
a note dated 11 November 1981, which the Secretary to the Commission
transmitted to the Registrar on 14 December. The Government had not
taken a stand on the matter.
In its judgment of 24 June 1982, the Court reserved the whole of this
question and referred it back to the Chamber under Rule 50 § 4 of the
Rules of Court (ibid., §§ 61-62 of the reasons and point 4 of the
operative provisions, pp. 33-34). On the same day, the Chamber
invited the Commission to submit, within the coming two months, its
written observations, including notification of any friendly
settlement at which the Government and the applicant might have
arrived (Series A no. 50, p. 35).
4. After two extensions of the above-mentioned time-limit by the
President of the Chamber, and in accordance with his Orders and
directions, the Registrar received:
- on 25 October 1982, the observations of the Commission's Delegate,
accompanied by a memorial dated 19 August in which Mr. Van Droogenbroeck
himself set out his claims;
- on 3 December 1982 and 10 February 1983, the comments of the
Government.
These documents revealed that no friendly settlement had been arrived
at.
5. In addition, the applicant sent directly to the Registrar
numerous letters asking to be supplied with a series of documents and
items of information. In several of those letters he stated that he
had denied Mr. Van Damme and Mr. Beuselinck the right to act for him;
in the last, which was dated 16 March 1983, he asked to be allowed
time to enable him to reply to certain of those documents and to
instruct a new legal adviser.
6. Mr. J. Pinheiro Farinha and Mr. C. Russo, substitute judges,
took the place of Mrs. D. Bindschedler-Robert and Mr. D. Evrigenis,
whom the President had exempted from sitting on the case (Rule 24 § 4
of the Rules of Court).
7. After consulting, through the Registrar, the Agent of
the Government and the Delegate of the Commission, the Chamber decided
on 25 March 1983 that there was no call to hold hearings. It also
resolved, since the case was ready for decision, not to defer adoption
of its judgment.
AS TO THE LAW
8. Article 50 (art. 50) of the Convention reads as follows:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the present Convention, and if the internal law of the said Party
allows only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
9. The Court will examine firstly the claims made by the
applicant in person and then the list of fees and expenses drawn up by
Mr. Van Damme.
I. CLAIMS MADE BY THE APPLICANT IN PERSON FOR PECUNIARY AND
NON-PECUNIARY LOSS
10. In his memorial of 19 August 1982, Mr. Van Droogenbroeck
calculated that the number of days allegedly spent by him in
conditions that were contrary to Article 5 § 4 (art. 5-4) amounted to
1,899 (18 June - 8 August 1972, 3 October 1972 - 25 July 1973,
16 January - 11 July 1975, 21 January 1976 - 1 June 1977 and
21 December 1977 - 18 March 1980). For each of these days he claimed
6,000 BF as compensation for his pecuniary and non-pecuniary loss,
that is a total of 11,394,000 BF, together with interest. He also
asserted that he was presently suffering from a 20% incapacity for
work attributable to "nervous disorder" said to have been caused by
the aforesaid "long months of illegal detention"; he sought the
appointment of a medical expert to assess the percentage of permanent
incapacity and the payment, under this head, of a provisional sum of
100,000 BF, again together with interest.
11. The judgment of 24 June 1982 concerned only the applicant's
detention from 21 January 1976 to 1 June 1977 and from
21 December 1977 to 18 March 1980 (loc. cit., p. 19, § 34 in fine).
In addition and above all, the judgment concluded that these instances
of detention were compatible with paragraph 1 of Article 5 (art. 5-1)
since they had occurred "after conviction by a competent court", were
"lawful" and had been effected "in accordance with a procedure
prescribed by law" (ibid., pp. 18-22, §§ 34-42). The sole violation
found by the Court resulted from the absence of entitlement to take
proceedings, as required by paragraph 4 (art. 5-4).
Accordingly, for the present purposes no account can be taken of any
loss which was not occasioned by this deficiency but was caused by the
deprivation of liberty complained of, as such.
12. As regards the sole violation found by the judgment of
24 June 1982, there is nothing to suggest that Mr. Van Droogenbroeck
would have been released earlier if he had had the benefit of the
guarantees contained in Article 5 § 4 (art. 5-4) (see the De Wilde,
Ooms and Versyp judgment of 10 March 1972, Series A no. 14, p. 11,
§ 24). Any allegation of pecuniary loss must therefore be rejected.
13. On the other hand, the Court considers that the applicant must
have suffered, by reason of the absence of those guarantees, some
non-pecuniary loss for which compensation has not been provided solely
by the judgment of 24 June 1982 (see, mutatis mutandis, the X v. the
United Kingdom judgment of 18 October 1982, Series A no. 55, p. 16,
§§ 17-19). Having regard to Article 5 § 5 (art. 5-5) of the
Convention - a rule of substance to be taken into account in the
exercise of the competence conferred by Article 50 (art. 50) (see the
Neumeister judgment of 7 May 1974, Series A no. 17, p. 13, penultimate
sub-paragraph in fine) -, the Court, as was suggested by the
Commission's Delegate, awards satisfaction to Mr. Van Droogenbroeck
under this head; deciding on an equitable basis, it fixes the amount
thereof at 20,000 BF.
II. LIST OF FEES AND EXPENSES DRAWN UP BY MR. VAN DAMME
14. The fees and expenses listed by Mr. Van Damme in his note of
11 November 1981 (see paragraph 3 above) total 381,750 BF, that is to
say 186,750 BF for the two applications, filed in Belgium under
section 26 of the Act of 1 July 1964, for the release of
Mr. Van Droogenbroeck from the effects of the measure affecting him
(see the above-mentioned judgment of 24 June 1982, Series A no. 50,
pp. 11, 12-13 and 16, §§ 14, 18 and 23) and 195,000 BF for the
proceedings before the Commission and the Court.
15. As the Government pointed out, there is an initial difficulty
in the way of these claims, in that they were made not by the
applicant - who alone has the status of "injured party" for the
purposes of Article 50 (art. 50) (see the Airey judgment of
6 February 1981, Series A no. 41, p. 9, § 13) - but by a lawyer whose
right to act for him the applicant has denied for more than a year
(see paragraph 5 above). Mr. Van Droogenbroeck did not include the
claims in question in his memorial of 19 August 1982 and, although he
mentioned them in some of his letters to the Registrar, he did not
indicate whether he wished to disavow, to withdraw or to endorse them.
Moreover, the information supplied by the Government in February 1983
disclosed that Mr. Van Droogenbroeck did not have to meet, in Belgium,
any legal expenses properly so-called on the occasion of the
examination of either of his applications for release from the effects
of the measure affecting him; these were applications in which he
relied on the Convention, including Article 5 § 4 (art. 5-4), and the
second of them led to his being set free. The Government were unable
to ascertain whether Mr. Deheselle, the lawyer who at the time
represented the applicant before the Ghent Court of Appeal, had been
appointed "pro Deo" (official appointment as the representative of an
indigent person under Article 455 of the Judicial Code); however, this
appears probable and, in any event, there is no evidence to the
contrary in the material before the Court.
As regards the Strasbourg proceedings, the applicant had the benefit
of free legal aid before the Commission and, after reference of the
case to the Court, in his relations with the Commission's Delegate
(addendum to the Commission's Rules of Procedure). He has not
claimed, or a fortiori established, that he paid or is liable to pay
to his lawyers - who received from the Council of Europe a total sum
of 5,559 FF - additional fees or expenses for which he might seek
reimbursement (see the above-mentioned Airey judgment, Series A
no. 41, p. 9, § 13).
16. Accordingly, the claims set out in the note of
11 November 1981 fall to be rejected in their entirety.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that the Kingdom of Belgium is to pay to the applicant
twenty thousand Belgian francs (20,000 BF) in respect of non-pecuniary
loss;
2. Rejects the remainder of the claim for just satisfaction.
Done in English and in French, the French text being authentic, at the
Human Rights Building, Strasbourg, this twenty-fifth day of April, one
thousand nine hundred and eighty-three.
Signed: Gérard WIARDA
President
Signed: Marc-André EISSEN
Registrar