CASE OF CAPEAU v. BELGIUM
Violation of Art. 6-2;Not necessary to examine Art. 14
Christos Rozakis
8. The applicant was born in 1967 and lives in Ghent. 9. On 29 March 1994 he was arrested in connection with an investigation concerning a case of arson committed on 25 May 1993. 10. On 1 April 1994 the Committals Division of the Ghent Criminal Court refused to extend the validity of the arrest warrant. On appeal, the Indictment Division of the Ghent Court of Appeal overturned that decision and prolonged the applicant's pre-trial detention. 11. On 21 April 1994 the investigating judge rescinded the warrant concerned. 12. On 29 June 1994 and 2 June 1995 respectively the Committals Division and the Indictment Division, ruling on the action to be taken on the basis of the investigation to date, held that there was insufficient evidence to commit the applicant for trial and discontinued the proceedings. 13. On 25 October 1996 the applicant claimed compensation for unwarranted pre-trial detention, relying on the Law of 13 March 1973 (see “Relevant domestic law” below). 14. On 12 May 1997 the Minister of Justice refused the applicant's claim on the ground that he had not “established his innocence by adducing factual evidence or submitting legal argument to that effect”, as required by section 28(1)(b) of the Law of 1973. That requirement was justified, according to the Minister, in the case of an order or judgment discontinuing criminal proceedings, given that a discontinuation decision was not a bar to the reopening of the case if new information or evidence were to come to light. 15. On 4 July 1997 the applicant contested the Minister's decision by means of an application to the Unwarranted Pre-trial Detention Appeals Board. 16. On 1 December 1997 the applicant appeared before the Appeals Board, which upheld the refusal of his claim by a decision taken on the same day and served on the applicant on 29 March 1998. It noted that the grounds for presuming the guilt of the applicant, who had always denied committing the offence he stood accused of when appearing before the courts investigating the charge, had been held to be insufficient to justify committing him for trial. It observed that, although the applicant had announced his intention of submitting a pleading setting out the evidence in the file which “amply” proved his innocence, he had not done so and had not replied to the Government's submissions. Consequently, the Appeals Board found that he had not proved his innocence as the law required (dat verzoeker derhalve het bij de wet van hem vereiste bewijs van onschuld niet bijbrengt). 17. At the material time the relevant provisions of the Law of 13 March 1973 on compensation for unwarranted pre-trial detention read as follows: “(1) Any person deprived of his liberty in conditions incompatible with Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, approved by the Law of 18 May 1955, shall be entitled to compensation. (2) The action for compensation shall be brought in the ordinary courts in accordance with the formalities laid down in the Judicial Code and directed against the Belgian State in the person of the Minister of Justice.” “(1) A compensation claim may be lodged by any person held in pre-trial detention for more than eight days, provided the detention concerned or its prolongation were not provoked by his own conduct: (a) if he has been exculpated directly or indirectly by a judicial decision that has become final; (b) if after being discharged through an order or judgment discontinuing the proceedings he establishes his innocence by adducing factual evidence or submitting legal argument to that effect; (c) if he has been arrested or kept in detention after expiry of any statutory limitation period; (d) if he has been discharged through an order or judgment discontinuing the proceedings which expressly states that the act which gave rise to the pre-trial detention did not constitute a criminal offence. (2) The amount of compensation shall be determined equitably, and with regard to all the circumstances of public and private interest. (3) Where the person concerned is not able to bring compensation proceedings in the ordinary courts, compensation may be claimed by means of a written request to the Minister of Justice, who shall rule on it within six months. The compensation shall be awarded by the Minister of Justice from the Treasury account if the conditions set out in subsection (1) above are satisfied. Where compensation is refused, or the amount is considered insufficient, or the Minister of Justice has not replied within six months of the request, the person concerned may apply to the Board set up in accordance with subsection (4) below. In the case of prosecution for one of the offences defined in Articles 147, 155 and 156 of the Criminal Code, committed against the person detained, the six months mentioned in the preceding paragraph shall begin to run on the day when that prosecution is closed by a decision that has become final. (4) An Appeals Board is hereby instituted to hear appeals against decisions taken by the Minister of Justice, or rule on compensation claims where the Minister has not reached a decision in accordance with the conditions set out in subsection (3) above. The Appeals Board shall be composed of the President of the Court of Cassation, the President of the Conseil d'Etat and the President of the Belgian Bar Association or, where one or more of those persons are prevented from sitting, of the Vice-President of the Court of Cassation, the Vice-President of the Conseil d'Etat and the Vice-President of the Bar Association. The duties of secretary to the Appeals Board shall be performed by one or more members of the registry of the Court of Cassation appointed by its president. The rules of procedure of the Appeals Board shall be laid down by the Crown. (5) Appeals and claims shall take the form of applications in two copies signed by the claimant or his lawyer and lodged with the registry of the Court of Cassation within sixty days of the Minister's decision or of the expiry of the time within which he should have announced it. The Crown shall lay down the procedure before the Appeals Board sitting in closed session. The Appeals Board shall give its ruling on the opinion expressed at the hearing by Principal Crown Counsel attached to the Court of Cassation, after hearing the submissions of the parties. The Appeals Board's decisions shall be delivered at a public sitting. No appeal shall lie against them. At the parties' request, an extract from the Appeals Board's decision shall be published in the Moniteur belge, but the extract may not mention the amount awarded. The costs of publication shall be borne by the Treasury.”