Judgment (Merits and Just Satisfaction) of European Court of Human Rights, February 27, 1980 (case CASE OF DEWEER v. BELGIUM)
|Resolution Date:||February 27, 1980|
Violation of Art. 6-1 Not necessary to examine art. 6-2 and 6-3 Not necessary to examine P1-1 Pecuniary damage - financial award Non-pecuniary damage - finding of violation sufficient
CASE OF DEWEER v. BELGIUM
(Application no. 6903/75)
27 February 1980
In the Deweer case,
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. H. MOSLER, President,
Mr. M. ZEKIA,
Mr. R. RYSSDAL,
Mr. W. GANSHOF VAN DER MEERSCH,
Mr. P.-H. TEITGEN,
Mr. F. GÖLCÜKLÜ,
Mr. J. PINHEIRO FARINHA,
and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy Registrar,
Having deliberated in private on 28 and 29 September 1979 and on 4 and 5 February 1980,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Deweer case was referred to the Court by the European Commission of Human Rights ("the Commission"). The case originated in an application against the Kingdom of Belgium lodged with the Commission on 6 February 1975 under Article 25 (art. 25) of the Convention by a Belgian national, Mr. Julius Deweer.
The Commission’s request, to which was attached the report provided for under Article 31 (art. 31) of the Convention, was filed with the registry of the Court on 14 December 1978, within the period of three months laid down by Articles 32 par. 1 and 47 (art. 32-1, art. 47). The request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration made by the Kingdom of Belgium recognising the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the Commission’s request is to obtain a decision from the Court as to whether or not the facts of the case disclose a breach by the respondent State of its obligations under Article 6 (art. 6) of the Convention and Article 1 of Protocol No. 1 (P1-1).
The Chamber of seven judges to be constituted included, as ex officio members, Mr. W. Ganshof van der Meersch, the elected judge of Belgian nationality (Article 43 of the Convention) (art. 43), and Mr. G. Balladore Pallieri, the President of the Court (Rule 21 par. 3 (b) of the Rules of Court). On 26 January 1979, in the presence of the Registrar, the President of the Court drew by lot the names of the five other members, namely Mr. R. Ryssdal, Mrs. D. Bindschedler-Robert, Mr. P.-H. Teitgen, Mr. F. Gölcüklü and Mr. J. Pinheiro Farinha (Article 43 in fine of the Convention and Rule 21 par. 4) (art. 43). Subsequently, Mrs. Bindschedler-Robert was exempted from sitting (17 May 1979) and Mr. Balladore Pallieri was prevented from taking part in the consideration of the case (25 September 1979); they were replaced by the first two substitute judges, Mr. Mosler and Mr. Zekia (Rules 22 par. 1 and 24 par. 1 and 4).
Mr. Balladore Pallieri and then, as from 25 September 1979, Mr. Mosler assumed the office of President of the Chamber (Rule 21 par. 5).
Acting through the Registrar, the President of the Chamber ascertained the views of the Agent of the Belgian Government ("the Government") and the Delegates of the Commission regarding the procedure to be followed. On 6 June 1979, having particular regard to their concurring statements, the President decided that it was not necessary for memorials to be filed; in addition, he directed that the oral hearings should open on 27 September 1979. On 13 September, the President instructed the Registrar to request the Commission to produce certain documents to the Court; these documents were filed by the Commission on 19 September.
The hearings took place in public at the Human Rights Building, Strasbourg, on 27 September. Immediately prior to their opening, the Chamber had held a short preparatory meeting.
There appeared before the Court:
- for the Government:
Mr. J. NISET, Legal Adviser
at the Ministry of Justice, Agent,
Mr. J. DE MEYER, Professor
at the University of Louvain, Counsel,
Mr. R. GEURTS, Inspector
at the Ministry of Economic Affairs, Adviser;
- for the Commission:
Mr. Gaukur JÖRUNDSSON, Principal Delegate,
Mr. S. TRECHSEL, Delegate,
Mr. J.-M. VAN HILLE, the applicant’s counsel
before the Commission, assisting the Delegates (Rule 29
par. 1, second sentence, of the Rules of Court).
The Court heard addresses by Mr. De Meyer for the Government and by Mr. Gaukur Jörundsson, Mr. Trechsel and Mr. van Hille for the Commission, as well as their replies to questions put by the Court.
On 1 October 1979, acting on the instructions of the Chamber and the President, the Registrar made a written request to the Commission for an item of information and two documents. The following day, the matters requested were supplied to the Registrar by the Secretary to the Commission.
AS TO THE FACTS
A. The particular circumstances of the case
The applicant, a Belgian national, had been a retail butcher in Louvain since 1935. He died on 14 January 1978, but one month later his widow and three daughters advised the Commission that they considered themselves to have a material and moral interest in seeing completed the proceedings he had instituted.
On 18 September 1974, his shop, where he employed several persons, was the subject of a visit by Mr. Vanderleyden, an official in the Economic Inspectorate General. This official found an infringement of the Ministerial Decree of 9 August 1974 "fixing the selling price to the consumer of beef and pig meat" ("the Decree of 9 August 1974"), in that Mr. Deweer had not reduced his prices of pork by 6.5 per cent as required by Article 2 par. 4 and his "retail margin" for that meat was 5.95 BF in excess of the maximum - 22 BF per kilogram - permitted under Article 3 par. 1 (see paragraph 18 below).
When questioned in this connection, the applicant made the following statement, according to the report drawn up the same day by the inspector (translation from the Dutch original):
As is shown by the price-markings recorded by you, for beef I have applied the reduction provided for in the Ministerial Decree of 9 August 1974 and my margin is less than 22 F.
As concerns pig meat, I have not applied the reduction and my margin is in excess of 22 F.
This is because my calculations were for category 2 pig meat instead of category 1 pig meat. This was a mistake on my part. I acted in good faith and, in your presence, I immediately reduced the prices in order not to exceed the margin of 22 F.
He added the following note, signed, like the report, by Mr. Vanderleyden and himself:
"... I buy my meat on the hoof and ... the costs listed below were not included by you in your calculations:
(1) 1.50 F commission per live kg;
(2) transport costs of 100 F per animal, that is 1 F per kg;
(3) slaughter costs: 100 F per animal;
(4) slaughter tax: 105.20 per animal;
(5) transport costs for each carcase: 100 F per animal."
The inspector did not supply a copy of the report to Mr. Deweer. He set out the foregoing facts in a formal statement, known as a "pro-justitia", dated 18 September 1974; the Economic Inspectorate General transmitted this formal statement on 26 September to the procureur du Roi attached to the Louvain Court of First Instance.
On 30 September, the Louvain procureur du Roi ordered the provisional closure of the applicant’s shop within forty-eight hours from notification of the decision. The decision cited the gravity of the facts, whilst noting that there was no need to request a sentence of imprisonment; it referred to the interview report of 18 September and to sections 1 par. 1, 2, 5 to 7, 9 and 11 of the Economic Regulation and Prices Act of 22 January 1945 (see paragraphs 12 to 16 below). The closure was to come to an end either on the day after the payment of a sum of 10,000 BF by way of friendly settlement (minnelijke schikking) or, at the latest, on the date on which judgment was passed on the offence; Mr. Deweer had eight days in which to indicate whether he accepted the offer of settlement.
The same day the procureur du Roi wrote Mr. Deweer the following letter (translation from the Dutch original):
You are hereby informed of the decision provisionally closing your business in pursuance of section 11 par. 2 of the Act of 22 January 1945. Your attention is particularly drawn to the heavy penalties imposed by the Act for failure to comply with this decision.
The amount of the friendly settlement proposed is fixed at 10,000 F.
I should be obliged if, within eight days, you would transfer this sum to Post Office Account no. ... and advise me whether you accept the offer of settlement.
The closure of your business will be terminated the day after you make the required payment.
On 1 October, a deputy superintendent of police delivered this letter to the applicant together with a copy of the decision to which it referred. Mr. Deweer replied on 3 October by registered letter in the following terms (translation from the Dutch original):
Kindly note that I am today paying the sum proposed in your letter of 30 September 1974 by way of friendly settlement; consequently, the criminal proceedings become barred once and for all (section 11 par. 1 of the Act of 22 January 1945) and the closure of my establishment will no longer be put into effect.
Kindly note, however, that I reserve all my rights to take action against the Belgian State before the civil courts, in particular for the restitution of this sum plus damages.
In point of fact:
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