AS TO THE ADMISSIBILITY OF
Application No. 11230/84
by L. S.
against Belgium
The European Commission of Human Rights sitting in private on
4 March 1987, the following members being present:
MM C.A NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
F. MARTINEZ
Mr H.C. KRÜGER, Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 November 1984
by L. S. against Belgium and registered on 9 November 1984
under file No. 11230/84;
Having regard to:
- the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
- the Commission's decision of 2 December 1985 to bring the
application to the notice of the respondent Government and
invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government on
18 March 1986 and the observations in reply submitted by the
applicant on 6 June 1986;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as they have been submitted by the
parties may be summarised as follows.
The applicant is a Belgian citizen, born in 1931 and an
administrator by profession. He resides at Overijse, Belgium.
In the proceedings before the Commission he is represented by
Mr. Stroobants, a lawyer practising at Brussels.
On 1 February 1974, the applicant, as owner of the renovated
castle "Coloma" at Sint-Pieters-Leeuw, Belgium, granted a lease of
this building to a representative of the Brussels Buildings
Directorate, acting in the name of the Belgian Government, Buildings
Department (Regie der Gebouwen).
It appears that the Government duly paid rent but that the
castle was not inhabited, as a result of which it deteriorated
rapidly.
On 11 April 1978, the applicant summoned the Buildings
Department to appear before the Justice of the Peace (Vrederechter) of
Halle, claiming compensation for global damage to the building as well
as for damage done to certain movables in the castle.
On 20 June 1978, the judge appointed an expert to evaluate the
damages.
On 6 February 1980, the judge provisionally ordered the
Belgian State to pay the applicant BF 1,000,000.-- in damages, with
interest from 11 April 1978. The Belgian State, thereupon, paid the
applicant BF 1,206,466.-- on 6 November 1980.
On 22 June 1983, the judge ordered the Belgian State to pay
the applicant an additional BF 1,847,500.-- in compensation for the
damage to movables with interest from the date of the summons, as well
as, provisionally, BF 100,000.-- for legal costs.
The judgment was declared to be enforceable notwithstanding
appeal and without security.
At the request of the Belgian State in order to save costs the
judgment was not served on the Belgian state but a declaration was
made by a senior civil servant on behalf of the Minister of Public
Works (Minister van Openbare Werken), on 6 October 1983 that he
accepted the aforesaid judgment and that its terms would be complied
with.
It appears that the Buildings Department paid the applicant
BF 2,373,810.- on 27 December 1985 and BF 146,188.- on 10 January 1986.
COMPLAINTS
The applicant complains that the Belgian Government refused to
execute a judgment, which is enforceable notwithstanding any appeal,
pronounced against them by one of their own courts, concerning property
owned by the applicant.
In addition, the applicant complains of the absence in Belgium
of an effective means of obliging the State to pay compensation which
it has been ordered to pay, as the property of the Belgian State is
unseizable.
The applicant has invoked Art. 1 of the Protocol No. 1 to the
Convention as well as Art. 13 of the Convention.
&_PROCEEDINGS BEFORE THE COMMISSION&S
The application was introduced on 6 November 1984 and
registered on 9 November 1984.
The Commission decided on 2 December 1985 to give notice of
the application to the respondent Government and to invite them to
submit written observations on the admissibility and merits before
7 March 1986. The Government were asked, in particular, whether they
intended to comply with the judgment pronounced against them on
22 June 1983.
The Government's observations were submitted on 18 March 1986,
the applicant's observations in reply on 6 June 1986.
&_SUBMISSIONS OF THE PARTIES&_
A. The Government&S
The Government submit that the delay in the execution of the
judgment in the present case has its origins in the institutional
reform which is at present being carried out in Belgium, as it was in
the case of Sequaris, in which the Commission adopted a Report
(Sequaris v. Belgium, Comm. Rep. 13.7.83, D.R. 32, p. 242).
The following clarification should be added. Under the system
organised by the Act of April 1971 (creating the Buildings Department),
and under the various budgetary acts and the administrative rules
which apply to the relations between the Buildings Department and the
different ministries, the Department concludes the contracts of lease
(as was done on 17 February 1974 with the applicant) and pays rent to
private owners, subject to reimbursement by the ministries concerned
(in the present case the Ministry of Dutch Culture). However, the
latter are directly responsible for the tenant's additional dues as
well as for damages which result from the use (or, as in the present
case, the non-use) of the premises.
Exceptionally, the Buildings Department accepted to ensure
the provisional execution of the judgment of 6 February 1980 (as
advance payment) subject to reimbursement by the Ministry of Dutch
Culture. Following the Special Act of 9 August 1980 (Institutional
Reforms) and the transfer of functions it organises, it is the Flemish
Community which has reimbursed the Department the sums advanced by the
latter.
The Department, however, refused to advance the compensation
for the dilapidations which were awarded to the applicant by the final
judgment of 22 June 1983, insofar as the Flemish Community, refusing
to be answerable for the regulations previously set up between the
Department and the ministries, did not accept responsibility for the
dilapidations found.
The situation developed following the Act of 5 March 1984,
concerning outstanding accounts and charges of the communities,
regions and national economic sectors. Under Section 1 of the above
Act, the Flemish Community stated that it was prepared on 26 February
1985 to pay the compensation awarded by the judgment of 22 June 1983,
whilst nevertheless insisting that the Department ensured the
provisional execution of the judgment and whilst refusing to pay the
interests due to the delay which, in its view, had been caused by the
Department's failure to execute the judgment. Thus, the legal
uncertainties which surround the new institutions have caused the
delay in executing the judgment at issue.
However, in order that the dispute between public institutions
does not prejudice the rights of private persons, the Buildings
Department decided to pay the sums, interest included, as established
by the judgment of 22 June 1983 and on 27 December 1985 transferred
the sum of BF 2,373,810.-, and on 10 January 1986 the sum of
BF 146,188.- to the applicant, without prejudice to the settlement
that has to be reached as to the payment on the national level.
With regard to the admissibility, the Government submit that
the applicant failed to respect the six months' time-limit running from
the date of the final decision. This decision was given by the
Justice of the Peace of Halle on 22 June 1983, whereas the
application was introduced on 6 November 1984 and registered on
9 November 1984.
Moreover, the Government submit that, because of the execution
of the judgment by the Buildings Department and the payments carried
out on 27 December 1985 and 10 January 1986, the applicant has lost
his quality of victim within the meaning of Article 25 of the
Convention and, consequently, the application should be considered
ill-founded.
B. The applicant
The applicant submits that it is of no interest to Belgian
citizens that the Belgian Government has created a certain political
situation and certain political bodies which contest each other's
competence to the detriment of the Belgian citizen.
Moreover, the Belgian Government only reacted to the
situation after the applicant incurred the costs of introducing a
complaint with the Commission. The applicant would therefore wish to
receive compensation for these costs from the Belgian Government.
With regard to admissibility, the applicant points out that
the six months' time-limit cannot be said to have run from 22 June 1983,
the date of the relevant judgment. Only when he realised that the
Belgian Government was not going to execute the judgment, the
applicant decided to introduce a complaint with the Commission. In
this respect, the applicant further submits that in view of the
slowness of the Belgian administration in general a time lapse of
several months is not unusual before a payment is possibly made.
THE LAW
The applicant has complained that the Belgian Government
refused to execute a judgment pronounced against them and about the
absence of an effective means in Belgium of obtaining such execution.
He has invoked Article 1 of Protocol No. 1 (P1-1) to the Convention and
Article 13 (Art. 13) of the Convention.
Article 1 of Protocol No. 1 (P1-1) to the Convention provides,
inter alia:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or
other contributions or penalties."
Article 13 (Art. 13) of the Convention provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Government have submitted that the application should be
rejected for non-observance of the six months' time-limit prescribed
by Article 26 (Art. 26) of the Convention.
The Commission finds, however, that the failure by the Belgian
authorities to execute the final judgment of 22 June 1983 constituted
a continuing situation, which still existed when the application was
introduced. Consequently, the application cannot be said to have been
introduced out of time.
The Government have further submitted that, since the Belgian
authorities meanwhile did execute the judgment concerned, the
applicant can no longer claim to be a victim within the meaning of
Article 25 (Art. 25) of the Convention.
It is not disputed between the parties that on
27 December 1985 and 10 January 1986 the sums to which the applicant
was entitled under the judgment of 22 June 1983 were in fact paid to
him; and the applicant now merely claims compensation for the costs
incurred in bringing his application before the Commission.
The Convention does not provide for the reimbursement of costs
incurred in bringing cases before the Commission which finally are
declared inadmissible (save to the limited extent to which the
Commission's Rules of Procedure allow for the grant of free legal
aid). However, the Commission regards as most unfortunate the fact
that, in cases such as the present, individuals may be required to
incur considerable personal expense whilst awaiting settlement of
their legitimate claims.
Nevertheless, the Commission, noting that the Belgian
Government has now complied with the judgment given in favour of the
applicant on 22 June 1983, finds that he may no longer claim to be a
victim within the meaning of Article 25 (Art. 25) of the Convention.
It follows that the application must be rejected as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBILE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)