In the case of Clooth v. Belgium*,
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:
Mr R. Ryssdal, President,
Mrs D. Bindschedler-Robert,
Mr F. Gölcüklü,
Mr C. Russo,
Mr A. Spielmann,
Mr J. De Meyer,
Mrs E. Palm,
Mr A.N. Loizou,
Mr J.M. Morenilla,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 28 June and 27 November 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 49/1990/240/311. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
*** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court on 12 October 1990 by
the European Commission of Human Rights ("the Commission"), within
the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated in an
application (no. 12718/87) against the Kingdom of Belgium lodged
with the Commission under Article 25 (art. 25) by a Belgian
national, Mr Serge Clooth, on 12 February 1987.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Belgium recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its
obligations under Article 5 para. 3 (art. 5-3) of the Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings and designated the lawyer
who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio Mr J. De
Meyer, the elected judge of Belgian nationality (Article 43 of the
Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 26 October 1990, in the presence
of the Registrar, the President drew by lot the names of the other
seven members, namely Mrs D.Bindschedler-Robert, Mr F. Gölcüklü,
Mr C. Russo, Mr A. Spielmann, Mrs E. Palm, Mr A.N. Loizou and
Mr J.M. Morenilla (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Belgian Government ("the Government"), the Delegate of the
Commission and the applicant's lawyer on the need for a written
procedure (Rule 37 para. 1). In accordance with the order made in
consequence, the Registrar received the applicant's memorial on
28 February 1991 and the Government's memorial on 6 March. By
letter of 25 March, the Secretary to the Commission indicated that
the Delegate would submit his observations at the hearing.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President had directed on 31 January 1991
that the oral proceedings should open on 24 June 1991 (Rule 38).
6. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Lathouwers, Legal Officer,
Ministry of Justice, Agent,
Mr F. Huisman, avocat, Counsel;
(b) for the Commission
Mr J.-C. Soyer, Delegate;
(c) for the applicant
Mr Y. de Gratie, avocat, Counsel.
The Court heard addresses by Mr Huisman for the Government, by
Mr Soyer for the Commission and by Mr de Gratie for the applicant, as
well as their answers to its questions.
AS TO THE FACTS
I. The particular circumstances of the case
7. Serge Clooth, who is a Belgian national born in 1964,
currently resides at Angleur (Belgium).
8. On 13 September 1984 Mr Eloy, investigating judge at the
Brussels tribunal de première instance (first-instance court)
remanded him in custody. The applicant was one of the suspects in
a murder and arson case, known as the "mushroom house case" after
the abandoned building where the police had found, in February of
that year, the partly burned and mutilated corpse of a teenage
girl. The German authorities - who had detained Mr Clooth in
connection with another murder carried out on their territory, but
then released him for lack of evidence - had extradited him to
Belgium shortly before.
At the time, Mr Clooth's criminal record showed previous
convictions for attempted aggravated theft, for which he had been
sentenced to two months' imprisonment (judgment of 30 June 1983 of
the Liège Criminal Court, upheld on 26 June 1985 by the Liège Court
of Appeal), and for desertion, for which he had been sentenced to
one month's military detention suspended (judgment of 24 November 1983
of the Liège Military Court).
A. The investigation
9. Judge Eloy conducted the investigation of the case until
his departure on indefinite leave on 30 September 1985. Prior to
that he had been absent from his chambers either on health grounds
or on leave from 4 March to 14 June, from 25 July to 27 August and
from 28 August to 27 September 1985. He had ordered his last
investigative measure - the fourteenth - on 29 January 1985. By
that time, the investigators had drawn up 104 reports and carried
out 86 interviews or follow-up interviews as well as several
searches, seizures and confrontations. The investigating judge had
himself questioned seven persons and sent letters rogatory to the
German authorities.
10. On 14 September 1984 he had instructed two psychiatric
experts to examine Mr Clooth. After several reminders, they
submitted a report on 21 June 1985 in which they concluded that the
applicant suffered from serious mental disturbance which made it
impossible for him to control his actions. They stated that a
"judicious application of the law should take account of the need
for him to be placed in long term psychiatric care". On
23 September 1986 one of them confirmed this diagnosis in every
respect. At the request of the applicant's lawyer, another expert
was appointed on 4 May 1987; in a report of 10 June, he referred to
a chronic disturbance of Mr Clooth's personality, which made the
latter dangerous.
11. Until the appointment on 1 October 1985 of Judge Van Espen,
two investigating judges replaced Judge Eloy in turn (see
paragraph 9 above). On 26 March, 6 and 15 May, 6 and 9 August and
9 September 1985, they ordered interviews to be effected, two of
which had been requested by the applicant's lawyer. From 26 March
to 17 October 1985, the date of the first investigative measure
ordered by Judge Van Espen, the investigators forwarded nine
reports. However, no document was added to the file from 27 March
to 5 May 1985.
12. The steps taken by the investigating judges from
14 September 1984 to 17 October 1985 included twenty orders
for investigative measures, seven interviews of accused, four
appointments of experts, four sets of letters rogatory, two
decisions to prefer charges and a warrant for a search and a body
search.
During this period, the police effected inter alia 127 interviews
or follow-up interviews, thirteen confrontations, a search and a
seizure, they detained one person for questioning, carried out two
interceptions and made one "administrative arrest"; they also made
at least twenty-nine requests for information and verifications.
Over the same period twenty-five expert reports were drawn up.
Mr Clooth was questioned sixteen times, including three times at his
request, and confronted seven times with other persons; he altered
his version of events or of how he had spent the time in question
eleven times.
13. On 31 July or 1 August 1986 the Brussels police obtained
the statement of a person who claimed that he had discovered, from
another source, the name of the murderer. The witness demanded
that he should be allowed to remain anonymous and refused to sign
his statement. When the text of the statement was passed to the
police investigators, they asked that the informant's identity be
disclosed; this entailed inquiries which were concluded on
6 January 1987.
At this point, the investigative measures carried out by the
investigating judge since 31 July 1986 included at least one
interview of Mr Clooth, the issue of a search warrant, an
inspection of the site and seven orders for specific investigative
measures. For their part, the police had drawn up thirty-one
reports and effected, among other things, a search, a seizure, made
fourteen requests for information or verifications and carried out
twenty-three interviews or follow-up interviews, including one of
Mr Clooth, requested, in particular, by the latter himself.
Judge Van Espen had also ordered the interview after the applicant
had changed his version of events at his monthly appearance before
the chambre du conseil (Review Chamber). According to the
Government, and they have not been contradicted on this point by
him, the applicant gave twenty different versions in the course of
the investigation.
14. By 17 November 1987, the date of Mr Clooth's release (see
paragraph 30 below), more than 175 reports and notes had been drawn
up since Judge Van Espen had taken over the case (see paragraph 11
above).
B. The proceedings before the investigation organs
15. On 17 September 1984 the chambre du conseil of the Brussels
tribunal de première instance had confirmed the detention order of
13 September (see paragraph 8 above).
16. On 12 October it decided that the applicant should remain
in detention on remand. In respect of the grave and exceptional
circumstances on which the lawfulness of such a measure was
conditional (see paragraph 32 below), it cited the seriousness of
the acts threatening public safety of which Mr Clooth was accused,
the danger to society which he represented, the needs of the
investigation and the risks of collusion.
17. Whereas the applicant's principal co-accused were released
between October and December 1984, the same chambre du conseil
extended the contested detention by one month on 29 October,
28 November and 28 December 1984, and then on 28 January, 27 February,
27 March, 26 April, 23 May and 21 June 1985. On each occasion it
deemed that the grave and exceptional circumstances affecting
public safety, which it had noted on 12 October 1984 (see
paragraph 16 above), required the continuation of the incarceration.
On an appeal by the applicant, the indictments division (chambre
des mises en accusation) of the Brussels Court of Appeal confirmed
the order of 21 June on 5 July. In its view, Mr Clooth's numerous
confessions, although they had all been retracted, gave grounds for
fearing that he would be the object of reprisals from his circle of
acquaintances; as his latest version of events had not been
verified and as no conclusions had been reached regarding his
mental state, his release from prison would moreover create a
"serious danger of public safety" and would risk impeding the
investigation.
18. Invoking the same grounds, simply by reference to the
decision of 5 July (see paragraph 17 above), the chambre du conseil
extended the contested measure on 19 July, 19 August, 18 September,
18 October, 18 November and 18 December 1985, then on 17 January,
14 February, 14 March, 14 April, 14 May and 13 June 1986.
19. On 11 July 1986 it made an order further extending the
detention, stating the following grounds:
"... the crime being investigated is of exceptional gravity and is
a serious threat to public safety; the accused has made admissions
and retracted them, but the precise details that he has given
provide grounds for suspecting that he committed the crime; the
investigation is continuing, the most recent investigative measures
dating from May and June 1986, effected with due respect for the
rights of the accused who, by retracting his confessions, has
compelled the investigators to undertake inquiries in every
possible direction in order to identify other perpetrators,
co-perpetrators or accomplices; in view of the complexity of the
inquiry and the foregoing considerations, Article 5 para. 3
(art. 5-3) of the Convention on Human Rights has in no way been
infringed ... ."
On 25 July the Brussels indictments division dismissed the
applicant's appeal in the following terms:
"There are serious indications that the accused is guilty of
participating in a murder and an act of arson; these particularly
serious offences show a total disregard for human life;
This dangerous state of mind, combined with the finding that the
accused was at the material time and is still in a serious state of
mental disturbance, making him incapable of controlling his actions
and requiring long-term psychiatric care, constitutes a serious
danger to public safety inasmuch as it is to be feared that the
accused, if released, would commit similar offences;
The accused's numerous statements and their varying content have
made the investigation especially difficult and have necessitated
further extensive inquiries;
It is wrongly asserted that there has been a violation of
Article 5 para. 3 (art. 5-3) of the Convention for the Protection
of Human Rights in this case, more specifically on the ground that
the investigation has not progressed any further in recent months;
The evidence contradicts this assertion ... ."
Mr Clooth appealed to the Court of Cassation. He relied inter alia
on Article 5 para. 3 (art. 5-3) of the Convention and criticised
the indictments division for not having answered two complaints,
one based on the lack of investigative measures during the months
following the departure of Judge Eloy, and the other on the belated
submission of the expert's report (see paragraphs 9-12 above).
In a decision dismissing the appeal on 8 October 1986, the Court of
Cassation took the view that "having ... stated the reasons for the
length of the investigation, the judgment [had] impliedly but
clearly [decided] that any delays in the completion of the
investigative measures referred to in the appeal submissions had
not had an effect on the length of the investigation so that the
Court of Appeal was not obliged to consider whether or not such
delays were justified ... ."
20. In the meantime the chambre du conseil had extended the
applicant's detention on 11 August and 10 September and the
indictments division had dismissed the applicant's appeals on
22 August and 25 September.
The latter decision noted, among other things, that the innumerable
investigative measures, inquiries and interviews, made necessary by
the seriousness of the offences and by the applicant's numerous and
changing statements, justified his being kept in detention. The
very attitude of the accused showed that his release would have
been liable to compromise the conduct of the investigation; in
addition, according to the psychiatric expert, he constituted a
"particular danger to society".
The applicant filed an appeal in the Court of Cassation, which was
dismissed on 3 December 1986.
21. On 10 October the chambre du conseil had ordered a further
extension of the detention, confirmed on 22 October by the
indictments division. In the latter's view, three recent reports
attested to the fact that the investigation had been conducted with
diligence since the decision of 25 September (see paragraph 20
above), whose grounds continued moreover to be valid.
On 7 January 1987 the Court of Cassation dismissed the applicant's
appeal; it considered that the indictments division had
satisfactorily answered the submissions and in particular those
alleging a violation of Article 5 para. 3 (art. 5-3) on account of
delays in the completion of important investigative measures, the
lack of investigative measures from 13 May to 4 June and
from 4 June to 31 July 1986 and the failure by the police to
identify a witness (see paragraph 13 above).
22. On 10 November 1986, referring to the grounds of the
decision of 22 October (see paragraph 21 above), the chambre du
conseil again decided that the applicant should remain in
detention. On appeal the indictments division confirmed the
decision on 21 November; it took the view that a new version of
events given by the accused had made it essential to carry out
verifications, which were still in progress.
23. On 10 December 1986 and 9 January 1987 the chambre du
conseil made other similar orders. They were founded on the
decision of 21 November (see paragraph 22 above) and the
indictments division upheld them on 24 December 1986 and
21 January 1987. On 6 February the chambre du conseil relied on that
last decision in order to refuse once again to release the applicant.
24. On 20 March the indictments division dismissed the
applicant's appeal against an extension ordered on 6 March by the
chambre du conseil; it gave the following grounds:
"The factors peculiar to the case or to the accused's personality,
specified in the decisions of 25 July 1986, 25 September 1986,
22 October 1986 and 21 November 1986, constitute grave and
exceptional circumstances, which still obtain and which concern
public safety to the extent that it is necessary for the detention
on remand to be continued ... ."
25. The chambre du conseil gave the same grounds in an order of
6 April 1987 keeping Mr Clooth in detention. On 16 April the
indictments division dismissed his appeal. In addition to the risk
of his absconding, it invoked the threats to public safety which
stemmed in its view from the seriousness of the alleged offences
and the applicant's mental state. It added that "the investigation
has been continued with no interruptions whatsoever to date in
spite of the successive confessions of the accused in different
contexts and this attitude in itself fully explains the length of
the detention".
26. On 4 May, 3 June and 3 July 1987 the chambre du conseil
extended the detention further, basing its decisions on the
reasoning set out in the judgments of 20 March and 16 April
(see paragraphs 24 and 25 above). The applicant filed appeals
against the orders of 4 May and 3 July; his appeals were dismissed
by the indictments division on 15 May and 17 July. In the second
decision, it stated that letters rogatory to Luxembourg were in the
process of being executed and that a recent psychiatric report,
dated 10 June 1987, had confirmed how deeply disturbed the
applicant's personality was and the danger that he might represent
for others (see paragraph 10 above).
27. The same considerations led the chambre du conseil to
extend the detention on 3 August and 2 September 1987 and the
indictments division to confirm those decisions on 11 August
and 16 September.
28. In written submissions of 11 July, 22 July, 24 September,
22 October 1986 and 16 April 1987, Mr Clooth complained on each
occasion of considerable delays in the conduct of the inquiry and
demanded his release in accordance with Article 5 para. 3 (art. 5-3)
of the Convention. He contended that neither his personality
nor the charges brought against him nor the interests of public
safety could justify his continued incarceration.
29. On 2 October 1987 the chambre du conseil ordered Mr
Clooth's provisional release, but on appeal by the public
prosecutor the indictments division set aside this decision on
16 October 1987. It considered that the grave and exceptional
circumstances affecting public safety, referred to in its decisions
of 20 March and 16 April 1987 (see paragraphs 24 and 25 above),
continued to make the applicant's detention necessary; in addition,
the reasons relating to the applicant's mental state (see
paragraph 26 above) subsisted.
On 23 December 1987 the Court of Cassation declared the applicant's
appeal to be devoid of purpose as his detention had since come to
an end.
30. On 2 November the chambre du conseil had in fact ordered
Mr Clooth's release. The indictments division had upheld this
decision on 17 November, on the ground that a reasonable time
within the meaning of Article 5 para. 3 (art. 5-3) of the
Convention had been exceeded. Nevertheless, the applicant remained
in detention pursuant to a detention order made in connection with
a robbery case.
31. On 6 November 1990 the chambre du conseil made an order
finding that the applicant and his co-accused had no case to
answer; this order subsequently became final.
II. Relevant domestic law
32. At the material time pre-trial detention was governed by a
Law of 20 April 1874, which had been amended several times since
its enactment. The principal provisions relevant to the present
case were worded as follows:
Article 1
"After the examination, the investigating judge may issue a
detention order where the offence is such as to entail a term of
imprisonment (emprisonnement correctionnel) of three months or a
heavier sentence.
If the accused is resident in Belgium, the judge may issue such an
order only in grave and exceptional circumstances, where this
measure is necessary in the interests of public safety.
... ."
Article 2
"The detention order, in the case provided for in the second
paragraph of the preceding Article, shall specify the grave and
exceptional circumstances affecting public safety which justify the
arrest, indicating the factors peculiar to the case or to the
accused's personality."
Article 4
"The detention order shall not remain in force, if in the five days
following the examination, it is not confirmed by the chambre du
conseil after hearing the report of the investigating judge and the
views of the Crown prosecutor and the accused.
... ."
Article 5
"Where the chambre du conseil has not ruled on the charge in the
month following the examination, the accused shall be released,
unless the chambre du conseil, by a reasoned order, adopted
unanimously, after hearing the views of the Crown prosecutor and
the accused or his counsel, states that grave and exceptional
circumstances affecting public safety require the continuation of
the detention. The order shall specify such circumstances,
indicating the factors peculiar to the case or to the personality
of the accused.
The same procedure shall be followed at monthly intervals, if the
chambre du conseil has not ruled on the charge by the end of a new
month.
... ."
Article 19
"The accused and the prosecuting authority may appeal to the
indictments division from the orders of the chambre du conseil made
in the cases provided for in Articles 4, 5 ... ."
PROCEEDINGS BEFORE THE COMMISSION
33. In his application of 12 February 1987 to the Commission
(no. 12718/87), Mr Clooth complained of the length of his detention
on remand.
The Commission declared the application admissible on 9 May 1989.
In its report of 10 July 1990 (Article 31) (art. 31), it expressed
the unanimous opinion that there had been a violation of Article 5
para. 3 (art. 5-3) of the Convention. The full text of the
Commission's opinion is reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 225 of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3)
34. According to the applicant the length of his detention on
remand was in breach of Article 5 para. 3 (art. 5-3), which is
worded as follows:
"Everyone arrested or detained in accordance with the provisions of
paragraph 1 (c) of this Article (art. 5-1-c) ... shall be entitled
to trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for trial."
The Government contested this view, whereas the Commission
subscribed to it.
A. Period to be taken into consideration
35. The period to be taken into consideration began on
13 September 1984, the date of Mr Clooth's arrest, and ended on
17 November 1987, with the decision of the indictments division
confirming the applicant's release (see paragraphs 8 and 30 above).
The fact that he remained in prison is not material here, as that
was on account of other proceedings (see paragraph 30 above). The
detention in question therefore lasted three years, two months and
four days.
B. Reasonableness of the length of the detention
36. It falls in the first place to the national judicial
authorities to ensure that, in a given case, the pre-trial
detention of an accused person does not exceed a reasonable time.
To this end they must examine all the circumstances arguing for or
against the existence of a genuine requirement of public interest
justifying, with due regard to the principle of the presumption of
innocence, a departure from the rule of respect for individual
liberty and set them out in their decisions on the applications for
release. It is essentially on the basis of the reasons given in
these decisions and of the true facts mentioned by the applicant in
his applications for release and his appeals that the Court is
called upon to decide whether or not there has been a violation of
Article 5 para. 3 (art. 5-3) of the Convention.
The persistence of reasonable suspicion that the person arrested
has committed an offence is a condition sine qua non for the
validity of the continued detention, but, after a certain lapse of
time, it no longer suffices: the Court must then establish whether
the other grounds given by the judicial authorities continued to
justify the deprivation of liberty. Where such grounds were
"relevant" and "sufficient", the Court must also ascertain whether
the competent national authorities displayed "special diligence" in
the conduct of the proceedings (see, as the most recent authority,
the Kemmache v. France judgment of 27 November 1991, Series A
no. 218, p. 36, para. 45).
37. In extending Mr Clooth's detention the investigation
authorities relied essentially, in addition to the serious
indications of his guilt, on the danger of repetition and the needs
of the inquiry as well as the risks of collusion. Certain
decisions also noted the danger that the applicant might abscond.
1. The danger of repetition
38. The Government stressed that in view of the applicant's
mental disturbance and the atrociousness of the crime of which he
was suspected, it could be feared that he would perpetrate other
offences if he were to be released, in particular as all the
psychiatric experts consulted considered him to be dangerous (see
paragraph 10 above).
39. In the Commission's opinion, the chambre du conseil and the
indictments division could legitimately have attached importance to
such considerations, but only initially: once the conclusions of
the psychiatrists were known, the courts in question should have
taken measures more suited to Mr Clooth's psychological
deficiencies.
40. The Court considers that the seriousness of a charge may
lead the judicial authorities to place and leave a suspect in
detention on remand in order to prevent any attempts to commit
further offences. It is however necessary, among other conditions,
that the danger be a plausible one and the measure appropriate, in
the light of the circumstances of the case and in particular the
past history and the personality of the person concerned.
In the present case, the offences which had given rise to the
applicant's previous convictions were not comparable, either in
nature or in the degree of seriousness, to the charges preferred
against him in the contested proceedings (see paragraph 8 above).
In addition, the same expert report of 21 June 1985 which described
Mr Clooth as dangerous mentioned the need for him to be taken into
psychiatric care (see paragraph 10 above). Such conclusions,
submitted more than nine months after the beginning of the
detention, ought to have persuaded the competent courts not to
extend it without an accompanying therapeutic measure.
The ground based on the risk of repetition did not therefore in
itself justify the continuation of the detention after
21 June 1985.
2. The needs of the inquiry and the risks of collusion
41. According to the Government, Mr Clooth contributed
considerably to rendering the facts more complicated by the number
and changing nature of his statements. By repeatedly obliging the
investigators to undertake new inquiries, he bore a large part of
the responsibility for the length of the investigation. The
atrociousness of the crimes in question led them to leave no avenue
unexplored, as was shown by the voluminous criminal file, which
contained more than 350 reports and notes. Furthermore, it was
necessary to pre-empt any attempt at collusion or intimidation of
witnesses.
42. The Commission considered that this argument, which was
acceptable at the outset, became questionable after the first
fifteen months of investigations, once numerous testimonies had
been obtained and innumerable findings made. In its view, all the
different versions given by the applicant gave rise not so much to
a risk of the evidence being tampered with as to the need to pursue
the investigation further. If there were no such risk, this need
could justify only the extension of the investigation and not that
of the deprivation of liberty.
43. The Court acknowledges that it was a very complicated case
necessitating difficult inquiries. By his conduct (see paragraphs 12
-13 above), Mr Clooth considerably impeded and indeed delayed
them. The authorities' belief that he should consequently be kept
in detention in order to prevent him from disrupting the inquiry
even more is easy to understand, at least at the outset.
In the long term, however, the requirements of the investigation do
not suffice to justify the detention of a suspect: in the normal
course of events the risks alleged diminish with the passing of
time as the inquiries are effected, statements taken and
verifications carried out.
44. In the present case, the orders or decisions, which, like
those of 5 July 1985, 11 and 25 July, 25 September,
21 November 1986 and 17 July 1987, specified the cause or the purpose
of the inquiries underway precluding the release of the applicant were
rare (see paragraphs 17, 19, 20, 22 and 26 above). The majority of
them merely mentioned, without more ado, the requirements of the
investigation, when they were not simply confined to referring, by
means of a stereotyped formula, to an earlier decision, adopted
more than eleven months previously in one case (13 June 1986 to
5 July 1985, see paragraphs 17-18 above).
Where the needs of the investigation are invoked in such a general
and abstract fashion they do not suffice to justify the
continuation of detention.
45. In addition to this there were delays in the investigation.
It slowed down significantly from January to October 1985, on
account in particular of the repeated changes of investigating
judge (see paragraphs 9 and 11 above).
Furthermore, there were lengthy delays before the lodging of the
first report of a psychiatric expert (see paragraph 10 above) and
before the identification of the anonymous witness who had come
forward in the summer of 1986 (see paragraph 13 above).
46. Moreover, the evidence does not show that the applicant was
released only after the completion of certain specific
investigative measures (see paragraphs 29-30 above); this suggests
that the competent court could have ordered his release earlier.
3. The danger of absconding
47. When, on 16 April 1987, it confirmed the extension of the
detention, the indictments division invoked, for the first time,
the danger of the applicant's absconding. Its decision served as
the basis for three subsequent orders (see paragraphs 25-26 above).
48. In the Government's contention, these fears were supported
by the fact that Mr Clooth had been arrested in Germany and that
Belgium had had to seek his extradition (see paragraph 8 above).
Like the Commission, however, the Court considers that such fears
had become immaterial by the time at which they were expressed, not
less than thirty-one months after the applicant's arrest. In
addition, the decisions referring thereto did not put forward any
argument capable of showing that these fears were well-founded.
4. Conclusion
49. In the light of all these considerations, the Court finds
that the length of Mr Clooth's detention on remand exceeded the
reasonable time referred to in Article 5 para. 3 (art. 5-3).
II. APPLICATION OF ARTICLE 50 (art. 50)
50. According to the terms of Article 50 (art. 50):
"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 ... 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."
The applicant claimed 1,520,000 Belgian francs for non-pecuniary
damage and 607,030 francs for pecuniary damage, as well as
1,134,372 francs under the head of costs and expenses referable to
the proceedings conducted in the national courts and then at
Strasbourg.
51. The Government raised the objection inter alia that the
applicant had not instituted proceedings for damages available
under Belgian law to any person deprived of his liberty in
circumstances contrary to Article 5 (art. 5) of the Convention.
The Delegate of the Commission observed that the wording of Article 50
(art. 50) recommended leaving to the national authorities
responsibility for making good the consequences of a violation
found.
52. Having regard to the circumstances of the case, the Court
wishes to take into account the compensation that Mr Clooth may
obtain under domestic law. As the question of the application of
Article 50 (art. 50) is therefore not ready for decision, it should
be reserved.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 5 para. 3
(art. 5-3);
2. Holds that the question of the application of Article 50
(art. 50) is not ready for decision;
accordingly,
(a) reserves the whole of the said question;
(b) invites the Government and the applicant to submit,within three
months, their written observations thereon and, in particular, to
notify the Court of any agreement reached between them;
(c) reserves the further procedure and delegates to the President
of the Court the power to fix the same if need be.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 12 December 1991.
Signed: For the President
Alphonse SPIELMANN
Judge
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy