Judgment (Merits) of European Court of Human Rights, June 18, 1971 (case CASES OF DE WILDE, OOMS AND VERSYP (\)
|Resolution Date:||June 18, 1971|
Preliminary objection partially allowed (non-exhaustion of domestic remedies) Violation of Art. 5-4 No violation of Art. 5-1 No violation of Art. 4 No violation of Art. 3 No violation of Art. 8 No violation of Art. 13 Just satisfaction reserved
CASES OF DE WILDE, OOMS AND VERSYP ("VAGRANCY")
v. BELGIUM (MERITS)
(Application no. 2832/66; 2835/66; 2899/66)
18 June 1971
In the De Wilde, Ooms and Versyp cases,
The European Court of Human Rights, taking its decision in plenary session in accordance with Rule 48 of its Rules and composed of the following Judges:
Sir Humphrey WALDOCK, President,
MM. H. ROLIN,
G. BALLADORE PALLIERI,
and also Mr. M.-A. EISSEN, Registrar, and Mr. J.F. SMYTH, Deputy Registrar,
Decides as follows:
The De Wilde, Ooms and Versyp cases were referred to the Court by the Government of the Kingdom of Belgium ("the Government"). The cases have their origin in applications lodged in 1966 with the European Commission of Human Rights ("the Commission"), under Article 25 (art. 25) of the Convention, by Belgian nationals - Jacques De Wilde, Franz Ooms and Edgard Versyp - and concerning certain aspects of Belgian legislation on vagrancy and its application to these three persons. In 1967 the Commission ordered the joinder of the said applications insofar as they had been declared admissible and, on 19th July 1969, it adopted in their respect the report provided for in Article 31 (art. 31) of the Convention. The report was transmitted to the Committee of Ministers of the Council of Europe on 24th September 1969.
The Government’s application, which referred to Articles 45, 47 and 48 (art. 45, art. 47, art. 48) of the Convention, was lodged with the Registry of the Court on 24th October 1969 within the period of three months laid down in Articles 32 (1) and 47 (art. 32-1, art. 47).
On 28th October 1969, the Registrar obtained from the Secretary of the Commission twenty-five copies of its report.
On 10th November 1969, the President of the Court drew by lot, in the presence of the Registrar, the names of six of the seven Judges called upon to sit as members of the Chamber, Mr. Henri Rolin, the elected Judge of Belgian nationality, being an ex officio member under Article 43 (art. 43) of the Convention. The six Judges so chosen were MM. Å. Holmbäck, A. Verdross, G. Balladore Pallieri, A. Favre, J. Cremona and S. Sigurjónsson. The President also drew by lot the names of three substitute Judges, namely MM. A. Bilge, E. Rodenbourg and G. Maridakis in this order.
Mr. Å. Holmbäck assumed the office of President of the Chamber in accordance with Rule 21, paragraph 7, of the Rules of Court.
The President of the Chamber ascertained, through the Registrar, the views of the Agent of the Government and of the President of the Commission on the procedure to be followed. By an Order of 23rd November 1969, he decided that the Government should file a memorial within a time-limit expiring on 15th February 1970 and that the Delegates of the Commission should have the right to reply in writing by 9th April 1970 as fixed by an Order of 12th February 1970. The respective memorials of the Government and the Commission reached the Registry on 9th February and 9th April 1970.
As authorised by the President of the Chamber in an Order of 18th April 1970, the Government filed a second memorial on 10th June 1970. On 1st July 1970, the Secretary of the Commission informed the Registrar that the Delegates did not wish to file a rejoinder.
On 10th January and 3rd March 1970, the President of the Chamber had instructed the Registrar to invite the Commission and the Government to produce a number of documents, which were placed on the file in February, April and May 1970.
At a meeting in Strasbourg on 28th May 1970, the Chamber decided, by virtue of Rule 48, "to relinquish jurisdiction forthwith in favour of the plenary Court" for the reason that the Commission had raised in the submissions of its memorial "certain questions on which it (was) desirable that the Court should be able to rule in plenary session".
Sir Humphrey Waldock assumed the office of President of the Court for the consideration of the present cases under Rule 21, paragraph 7, taken in conjunction with Rule 48, paragraph 3.
On 28th and 29th September 1970, the Court held a meeting in Paris to prepare the oral part of the procedure. On this occasion it decided to request the Commission and the Government to provide it with further documents and information which were received on 30th October and 16th November 1970, respectively.
Some other documents were filed by the Agent of the Government on 15th and 17th March 1971.
After having consulted the Agent of the Government and the Delegates of the Commission, the President decided, by Order of 1st October 1970, that the oral hearings should open on 16th November 1970.
The oral hearings began on the morning of 16th November 1970 in the Human Rights Building at Strasbourg. They continued during the two following days.
There appeared before the Court:
- for the Government:
Mr. J. DE MEYER, Professor
at Louvain University, Assessor to the Council of State, Agent and Counsel;
- for the Commission:
Mr. M. SØRENSEN, Principal Delegate, and
Mr. W.F. DE GAAY FORTMAN, Delegate.
On the afternoon of 17th November, Mr. Sørensen informed the Court that the Delegates of the Commission intended to be assisted on a particular point by Me X. Magnée, avocat at the Brussels Bar. The Agent of the Belgian Government having expressed objections, the Court took note, by a judgment of 18th November, of the intention of the Delegates to avail themselves of the right conferred on them by Rule 29, paragraph 1, in fine.
The Court heard the addresses and submissions of Mr. Sørensen and Mr. De Meyer as well as their replies to the questions put by several Judges. It also heard, on the afternoon of 18th November, a short statement by Me Magnée of the point mentioned by the Principal Delegate.
The hearings were declared provisionally closed on 18th November.
Judge G. Maridakis, who had attended the oral hearings, could not take part in the consideration of the present cases after 31st December 1970, as the withdrawal of Greece from the Council of Europe became effective from that date.
After having made final the closure of the proceedings and deliberated in private, the Court gives the present judgment.
AS TO THE FACTS
The purpose of the Government’s application is to submit the De Wilde, Ooms and Versyp cases for judgment by the Court. On several points the Government therein expresses its disagreement with the opinion stated by the Commission in its report.
The facts of the three cases, as they appear from the said report, the memorials of the Government and of the Commission, the other documents produced and the addresses of the representatives appearing before the Court, may be summarised as follows:
A. De Wilde case
Jacques De Wilde, a Belgian citizen, born on 11th December 1928 at Charleroi, spent a large part of his childhood in orphanages. On coming of age, he enlisted in the French army (Foreign Legion) in which he served for seven and a half years. As a holder of books for a fifty per cent war disablement pension and a military retirement pension, he draws from the French authorities a sum which in 1966 amounted to 3,217 BF every quarter. He has work, from time to time at any rate, as an agricultural labourer.
The applicant reported on 18th April 1966 at 11.00 a.m. to the police station at Charleroi and declared that he had unsuccessfully looked for work and that he had neither a roof over his head nor money as the French Consulate at Charleroi had refused him an advance on the next instalment of his pension due on 6th May. He also stated that he had "never" up to then "been dealt with as a vagrant". On the same day at 12 noon, Mr. Meyskens, deputy superintendent of police, considered that De Wilde was in a state of vagrancy and put him at the disposal of the public prosecutor at Charleroi; at the same time, he asked the competent authorities to supply him with information about De Wilde. A few hours later, after being deprived of his liberty since 11.45 a.m., De Wilde attempted to escape. He was immediately caught by a policeman and he disputed the right of the police to "keep him under arrest for twenty four hours". He threatened to commit suicide.
The information note, dated 19th April 1966, showed that between 17th April 1951 and 19th November 1965 the applicant had had thirteen convictions by courts of summary jurisdiction or police courts and that, contrary to his allegations, he had been placed at the Government’s disposal five times as a vagrant.
On April 19th, at about 10 a.m., the police court at Charleroi, after satisfying itself as to "the identity, age, physical and mental state and manner of life" of De Wilde, decided, at a public hearing and after giving him an opportunity to reply, that the circumstances which caused De Wilde to be brought before the court had been established. In pursuance of Section 13 of the Act of 27th November 1891 "for the suppression of vagrancy and begging" ("the 1891 Act") the court placed the applicant "at the disposal of the Government to be detained in a vagrancy centre for two years" and directed "the public prosecution to execute the order".
After being first detained at the institution at Wortel and then from 22nd April 1966 at that of Merksplas, De Wilde was sent on 17th May 1966 to the medico-surgical centre at St. Gilles-Brussels from where he was returned to Merksplas on 9th June 1966. On 28th June 1966, he was transferred to the disciplinary prison at Turnhout for refusal to work (Section 7, sub-section 2, of the 1891...
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