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.
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