In the case of Farmakopoulos 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,
Mr J. Cremona,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr R. Macdonald,
Mr C. Russo,
Mr J. De Meyer,
Mr R. Pekkanen,
Mr F. Bigi,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold,
Deputy Registrar,
Having deliberated in private on 28 November 1991 and
25 March 1992,
Delivers the following judgment, which was adopted on
the last-mentioned date:
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Notes by the Registrar
* The case is numbered 1/1991/253/324. 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.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 8 March 1991,
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. 11683/85) against the
Kingdom of Belgium lodged with the Commission under Article 25
(art. 25) by Mr Georgios Farmakopoulos, a Greek national, on
4 July 1985.
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. 4 (art. 5-4).
2. Despite several reminders and the efforts of his
counsel, the applicant, whose current address was supplied by
the Greek Government following a request by the Registrar
(Rule 31), did not respond to the Registrar's enquiry as to
whether he wished to take part in the proceedings
(Rule 33 para. 3 (d)), and did not claim any just satisfaction
(Article 50 of the Convention and Rule 50 in conjunction with
Rule 1(k) of the Rules of Court) (art. 50).
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 22 March
1991, in the presence of the Registrar, Judge Matscher, having
been duly delegated by the President, drew by lot the names of
the other seven members, namely Mr J. Cremona,
Mr L.-E. Pettiti, Mr B. Walsh, Mr R. Macdonald, Mr C. Russo,
Mr R. Pekkanen and Mr F. Bigi (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") and the Delegate of the Commission on the
organisation of the procedure (Rule 37 para. 1 and Rule 38).
Pursuant to the order made in consequence, the Registrar
received the Government's memorial on 31 July 1991. On 14
October the Delegate of the Commission informed him that he
would submit his observations at the hearing.
5. On 4 November the Secretary to the Commission produced
various documents relating to the proceedings before it, as
requested by the Registrar on the President's instructions.
6. In accordance with the President's decision, the
hearing took place in public in the Human Rights Building,
Strasbourg, on 26 November 1991. 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, Deputy Agent,
Mr P. Lemmens, avocat,
Mr J.-F. Romain, avocat, Counsel;
(b) for the Commission
Mr F. Martinez, Delegate.
The Court heard addresses by Mr Lemmens for the
Government and Mr Martinez for the Commission, as well as
their replies to its questions.
AS TO THE FACTS
7. Mr Georgios Farmakopoulos, who is a Greek national, is
currently in prison in Athens (Greece).
8. He was apprehended on 11 January 1985 while passing
through Belgium and provisionally detained on the next day,
following a radiogram from the Chief Constable of
Cambridgeshire (United Kingdom) requesting his extradition on
the basis of two warrants for his arrest issued in Cambridge,
one for murder, the other for theft.
9. As neither of the warrants had been served within the
statutory time-limit, the Belgian Minister of Justice ordered
on 26 January that the applicant should leave Belgian
territory and that he should remain in custody in the meantime
pursuant to section 7 of the Aliens Law. He was due to be
deported to Argentina on 7 February; that country had been
finally chosen by Mr Farmakopoulos, who had initially opted
for France.
10. At midday on 6 February the applicant was served with
copies of the two British warrants, which had arrived at
Brussels on the previous day, and the order giving them
effect, which had been issued in Dutch on 6 February by the
Committals Chamber (chambre du conseil) of the Antwerp Court
of First Instance. The copy order did not mention the time-
limit for appealing, which was only twenty-four hours, and the
applicant has stated that no one had told him of it in any
other way.
On handing the said documents to Mr Farmakopoulos, the
bailiff informed him that the public prosecutor (procureur du
Roi) would within forty-eight hours ask him whether he
required the statutory formalities of extradition to be
carried out. He also suggested that he contact his lawyer
immediately. The lawyer visited the prison at 7.00 p.m.
on 7 February and lodged an appeal on the following day.
11. On 19 March 1985 the Indictments Chamber (chambre des
mises en accusation) of the Antwerp Court of Appeal held that
the appeal was inadmissible as being out of time. It said
that the applicant should have appealed within twenty-four
hours from the service of the order on him, in accordance with
Article 135 of the Code of Criminal Procedure, which was
applicable to the case.
Mr Farmakopoulos claimed that because of the illegality
vitiating his detention at the time of service of the order,
that service could not have started the relevant time-limit
running. The court replied in effect that the sole aim of the
detention in question, which was based on section 7 of the
Aliens Law, was to remove him from Belgian territory and that
the case-file did not show that the period strictly necessary
for that purpose had been exceeded in any way. The bailiff
had in any case, by means of his oral statements (see
paragraph 10 above), put the applicant in a position to obtain
information on the methods of appeal available to him, and
there was nothing to show that he had been prevented from so
doing.
12. The applicant then appealed to the Court of Cassation.
It dismissed the appeal on 21 May 1985 (Pasicrisie, 1985, I,
p. 1182). It confirmed that the period of twenty-four hours
laid down by Article 135 of the Code of Criminal Procedure was
applicable, and also held that there was no obligation,
notably under paragraphs 2 and 4 of Article 5 (art. 5-2,
art. 5-4) of the European Convention on Human Rights, to
inform a person who had been arrested of the appeals available
or the time-limits to be observed.
13. On 12 June Mr Farmakopoulos refused to waive compliance
with the statutory formalities of extradition. He therefore
appeared with his lawyer before the Indictments Chamber, which
gave its opinion on 12 July.
14. Mr Farmakopoulos was extradited to the United Kingdom
on 9 August 1985. He was sentenced to life imprisonment by
the Norwich Crown Court on 4 March 1986, and then handed over
to the Greek authorities.
PROCEEDINGS BEFORE THE COMMISSION
15. In his application of 4 July 1985 to the Commission
(no. 11683/85) Mr Farmakopoulos complained inter alia that he
had been unable to take proceedings in accordance with Article
5 para. 4 (art. 5-4) of the Convention against the Committals
Chamber's order of 6 February 1985.
16. On 8 February 1990 the Commission declared this
complaint admissible and the remainder of the application
inadmissible. In its report of 4 December 1990 (Article 31)
(art. 31) it expressed the unanimous opinion that there had
been a violation of Article 5 para. 4 (art. 5-4). The full
text of the Commission's opinion is reproduced as an annex to
this judgment*.
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* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume
235-A of Series A of the Publications of the Court), but a
copy of the Commission's report is obtainable from the
registry.
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AS TO THE LAW
17. In support of their request that the case be struck out
of the list, the Government relied on the applicant's silence
and his complete failure to co-operate with the Court. They
referred to Rule 49 para. 2 of the Rules of Court, which reads
as follows:
"When the Chamber is informed of a friendly settlement,
arrangement or other fact of a kind to provide a
solution of the matter, it may, after consulting, if
necessary, the Parties, the Delegates of the Commission
and the applicant, strike the case out of the list."
The Court consulted the Delegate, but not Mr
Farmakopoulos, whom it was unable to contact (see paragraph 2
above).
18. In the Commission's opinion, a case heard before the
Court without the individual applicant was not equivalent to a
default procedure or a withdrawal, in view of the applicant's
position before the Court. Moreover, the present case was one
of general interest.
19. Despite being approached by the registry on several
occasions over a period of eight months - well in excess of
the usual period of two weeks laid down by Rule 33 para. 3 (d)
of the Rules of Court - Mr Farmakopoulos has shown no interest
in the proceedings pending before the Court. Strictly
speaking, this is not a withdrawal for the purposes of
paragraph 1 of Rule 49, as the applicant is not a party to the
case in view of the fact that Protocol No. 9 (P9), which
authorises an individual applicant to refer a case to the
Court subject to certain conditions, has not yet come into
force (see, as the most recent authority, the Dal Sasso v.
Italy judgment of 3 December 1991, Series A no. 223-N, pp.
130-131, para. 11). However, the Court considers that there
has in the present case been an implied withdrawal,
constituting a "fact of a kind to provide a solution of the
matter" within the meaning of paragraph 2 of Rule 49.
In addition, it discerns no reason of ordre public
(public policy) for continuing the proceedings (Rule 49
para. 4). These are concerned to a large extent with
questions of fact, whose examination would furthermore require
additional information on the facts of the case. The Court
does not consider it necessary to seek to obtain this
information of its own motion.
Accordingly, the case should be struck out of the list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English and in French, and notified in writing
under Rule 55 para. 2, second sub-paragraph, of the Rules of
Court on 27 March 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy