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 judgment of the European Court of Human Rights in the Muyldermans case delivered on 23 October 1991 and transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application
(No. 12217/86) against Belgium lodged with the European Commission of Human Rights on 22 December 1983 under Article 25 (art. 25) of the Convention by Ms Marie-Louise Muyldermans, a Belgian national, and that the Commission declared admissible the complaints that, in the proceedings engaged against her before the Court of Audit, she had not received a public hearing, nor had there been any adversarial argument or any oral submissions;
Recalling that the case was brought before the Court by the Commission on 8 December 1990;
Whereas in its judgment of 23 October 1991 the Court, after having taken formal note of a friendly settlement reached by the Government of Belgium and the applicant and having found that there were no reasons of public policy justifying the continuation of the proceedings, decided unanimously to strike the case out of its list;
Whereas under the above-mentioned friendly settlement it was agreed that:
- the Belgian Government would not enforce the judgment of the Court of Audit of 5 May 1982 in which the applicant was ordered to pay 2 000 000 Belgian francs and that this decision would be enshrined in a legislative provision without delay;
- the Belgian Government would amend the Act of
29 October 1846 on the organisation of the Court of Audit and the Law of 28 June 1963 on public accounts;
- the Belgian Government would pay the applicant
50 000 Belgian francs for costs and fees and 20 000 Belgian francs for pecuniary damage, namely a total sum of 70 000 Belgian francs;
Recalling that Rule 49, paragraph 3, of the Rules of the Court provides that the striking out of a case shall be effected by means of a judgment which the President shall forward to the Committee of Ministers in order to allow it to supervise, in accordance with Article 54 (art. 54) of the Convention, the execution of any undertakings which may have been attached to the discontinuance or solution of the matter;
Having satisfied itself that the Government of Belgium paid, in January 1992, the applicant the sum provided for in the friendly settlement and taken the other measures set out therein,
Declares that it has exercised its functions under Article 54 (art. 54) of the Convention in this case.
Appendix to Resolution DH (96) 18
Information provided by the Government of Belgium
during the examination of the Muyldermans case
by the Committee of Ministers
The Belgian Government has complied with its obligations under the friendly settlement approved by the Court in its judgment of
23 October 1991 in the present case.
The sum of 70 000 Belgian francs agreed upon in the friendly settlement was paid to the applicant in January 1992.
The judgment rendered against the applicant by the Court of Audit has been declared non-enforceable by the Act of 29 July 1992 concerning certain tax and financial measures (Section 65).
The planned legislative amendments have led to the adoption of a new act of 3 April 1995 (act modifying the 29 October 1846 Act on the organisation of the Court of Audit and the laws on the keeping of public accounts, co-ordinated on 17 July 1991), which entered into force on 1 September 1995.
The new act provides for a real contradictory and public procedure before the Court of Audit, including the right for the person concerned to appear in person before the Court, if she so desires with the assistance of a lawyer (Sections 5 and 6). The possibilities of excluding the public from the proceedings are the same as those referred to in Article 6, paragraph 1 (art. 6-1), of the Convention (Section 6). The new act also provides that the judgments of the Court of Audit should be motivated and rendered at a public hearing (Section 9). The parties have a right to lodge an appeal against the judgment to the Court of Cassation on the ground of unlawfulness or procedural error, either where the error goes to the substance of the dispute, or where nullity is prescribed as a sanction (idem).
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