The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter referred to as "the Convention"),
Having regard to the judgments of the European Court of Human
Rights in the Bouamar case delivered on 29 February 1988 and
on 27 June 1988 and transmitted the same days to the Committee of
Ministers;
Recalling that the case originated in an application against
Belgium lodged with the European Commission of Human Rights on
2 September 1980 under Article 25 (art. 25) of the Convention by
Mr Naïm Bouamar, a Moroccan national, and that the Commission
declared admissible his complaints regarding his placement in
remand prison and the absence of any judicial review of the
lawfulness of these placements;
Recalling that the case was brought before the Court by the
Commission on 16 October 1986;
Whereas in its judgment of 29 February 1988 the Court:
- held unanimously that there had been a breach of
paragraph 1 of Article 5 (art. 5-1);
- held by six votes to one that there was a breach of
paragraph 4 of the same article (art. 5-4);
- held unanimously that it was not necessary also to consider
the case under Article 13 (art. 13);
- held unanimously that there was no violation of Article 14
taken together with Article 5, paragraph 4 (art. 14+5-4);
- held unanimously that the question of the application of
Article 50 (art. 50) was not ready for decision;
Whereas in its judgment of 27 June 1988 the Court unanimously
decided to strike the case out of its list following a friendly
settlement between the government and the applicant according to
which the government would pay 150 000 Belgian francs to the
applicant;
Having regard to the Rules adopted by the Committee of
Ministers concerning the application of Article 54 (art. 54) of the
Convention;
Having invited the Government of Belgium to inform it of the
measures which had been taken in consequence of the judgments of
29 February 1988 and 27 June 1988, having regard to Belgium's
obligation under Article 53 (art. 53) 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
judgments, which information appears in the appendix to this
resolution;
Having satisfied itself that on 30 September 1988 the
Government of Belgium paid the applicant the sum provided for in
the friendly settlement,
Declares, after having taken note of the information supplied
by the Government of Belgium, that it has exercised its functions
under Article 54 (art. 54) of the Convention in this case.
Appendix to Resolution DH (95) 16
Information provided by the Government of Belgium
during the examination of the case of Bouamar
by the Committee of Ministers
The Government of Belgium considers that the measures
contained in the Act of 2 February 1994 ("the 1994 Act"), which
entered into force on 27 September 1994, together with the
development of an appropriate infrastructure capable of taking care
of severely disturbed young persons, are apt to prevent the
repetition of the violations of Article 5 (art. 5) found by the
Court.
According to Section 18 of the 1994 Act, which amends
Section 53 of the Children's and Young Persons' Welfare Act of 1965
("the 1965 Act"), the juvenile court may henceforth not place a
young person in remand prison more than once in the course of the
same procedure. The maximum period for this provisional detention
is kept at fifteen days. Under Section 18, the application of this
measure is, however, limited to persons who are suspected of having
committed an offence punishable by a term of one year's
imprisonment or by a more severe sanction according to the Penal
Code or the subsidiary legislation, and on condition that the
persons concerned have reached at least the age of fourteen at the
time of the event.
Article 53 of the 1965 Act has in addition been partially
abolished by the ordinance of the Flemish Community of
28 March 1990 and by the ordinance of the French Community of
4 March 1991. Thus, it is no longer possible to order detention in
a remand prison in cases which fall within the communities'
competence, that is, in cases where the young person has not
committed an act qualified as an offence. The abrogation of this
possibility of placement on the federal level is, however, also
foreseen. Section 19 of the 1994 Act provides that the date shall
be fixed by Royal Decree.
As far as the procedural guarantees in case of placement in
remand prison by virtue of Section 53 of the 1965 Act are
concerned, the 1994 Act has introduced the following changes.
According to Section 16 the interested person is entitled to
the assistance of a lawyer whenever heard by the juvenile court.
Section 21 provides that when a person under 18 years, party to the
proceedings, does not have a lawyer, a lawyer is appointed ex
officio and Section 22 specifies that the parties and their lawyer
shall have a right to consult the case-file, inter alia, when the
public prosecutor requests placement in remand prison pursuant to
Section 53 of the 1965 Act. Section 18 provides that an appeal
against a decision to place a person in remand prison has to be
lodged within forty-eight hours and that the juvenile chamber of
the appeal court has to render its decision within five working
days from the lodging of the appeal.
As to the development of the infrastructure, six institutions
have today closed sections reserved for highly disturbed young
people, three in the Flemish speaking region and three in the
French speaking region, offering a total of over a hundred places.
Full & Egal Universal Law Academy