CASE OF BOUAMAR v. BELGIUM
Violation of Art. 5-1;Violation of Art. 5-4;Not necessary to examine Art. 13;No violation of Art. 14+5-4;Just satisfaction reserved
C. Russo
7. Mr. Naïm Bouamar, a Moroccan national born in Oujda (Morocco) on 20 November 1963, who was a minor at the material time, lives at Ougrée-Seraing, Belgium. He arrived in Belgium in 1972, having previously lived in Morocco, where he was brought up by an aunt. He was an adolescent with a disturbed personality owing mainly to family problems, and from June 1977 to May 1978 he was placed in various juvenile homes as a preventive welfare measure provided for in the Children's and Young Persons' Welfare Act of 8 April 1965 ("the 1965 Act"). In May 1978, Mr. Bouamar was suspected of certain offences and was brought before the Liège Juvenile Court. Thereafter, a number of court orders were made in regard to him under the 1965 Act. 8. On nine occasions in 1980, the applicant was ordered to be placed in a remand prison under section 53 of the 1965 Act, whereby a juvenile may, "if it is materially impossible to find an individual or an institution able to accept [him] immediately", "be provisionally detained in a remand prison for a period not exceeding fifteen days" (see paragraph 32 below). In this way he was detained in the remand prison at Lantin on the following dates: 18 January - 1 February (14 days); 12-23 February (11 days); 4-11 March (7 days); 7-22 May (15 days); 17 June - 1 July (14 days); 4-19 July (15 days); 11-26 August (15 days); 2-16 September (14 days); and 21 October - 4 November (14 days). In all, he was thus deprived of his liberty for 119 days during the period of 291 days from 18 January to 4 November 1980. It is with these provisional placements that the present case is concerned. They were all ordered on the submissions of Crown Counsel by the Liège Juvenile Court, save the second, which was ordered by the Liège Juvenile Court of Appeal. Each of the placement orders recorded that it was materially impossible to find an individual or an institution able to accept Mr. Bouamar immediately, except that the first order did not use the word "materially". The second, third, fourth, fifth, sixth and eighth orders referred to an institution "appropriate to the juvenile's behaviour", while the seventh and the ninth used only the adjective "appropriate". 9. The first placement in Lantin Prison was ordered by the Juvenile Court on 18 January 1980, following an incident at Fraipont Reformatory, where the applicant had been placed on 30 December 1979. The order referred to the applicant's "dangerous behaviour" and his "numerous previous placements". Mr. Bouamar appealed against the order to the Juvenile Court of Appeal (see paragraph 19 below), which on 31 January 1980 made an interim order that the applicant should be returned to Fraipont Reformatory; it noted that no other solution had been found and that the placement in Lantin Prison would cease to "have effect after expiry of the statutorily prescribed period". 10. On 12 February 1980, the Juvenile Court of Appeal varied its order of 31 January and ordered the second placement in Lantin Prison. The order referred to "information obtained", in particular as regards the applicant's "new pattern of behaviour". It noted that "no institution or individual [had] come forward ... to take" him and that "the two State institutions designed for the purpose [said] that they [were] ... unable" to "accept him immediately, in view of, among other things, his behaviour". It stated that the placement in the remand prison was ordered "pending a solution to be suggested ... by the welfare service of the juvenile court of first instance". On 22 February 1980, the Juvenile Court of Appeal, "having regard to all the information obtained and in the imminent expectation of a more satisfactory placement measure", varied its order of the 12th and ordered that the applicant should be placed in the reformatory at Jumet. Mr. Bouamar absconded from that institution the day after he arrived and, on 29 February 1980, the Juvenile Court of Appeal placed him in the care of his father, under the supervision of the Youth Welfare Officer and the Youth Welfare Board and subject to certain conditions. 11. The third placement in Lantin Prison was ordered by the Juvenile Court on 4 March 1980, after "fresh offences" had been committed by the applicant between 1 January and 27 February. The order recorded that the applicant was "stubbornly unresponsive to any custodial, protective or educative measure". By way of justifying the material impossibility of finding "an institution appropriate to [his] behaviour", it cited the fact that "the State reformatories were open institutions". On 11 March 1980, the Juvenile Court of Appeal again made an interim order placing the applicant in the care of his father, under the supervision of the Youth Welfare Officer and on the same conditions as on 29 February 1980 (see paragraph 10 above). 12. The fourth placement in Lantin Prison was ordered by the Juvenile Court on 7 May 1980. The order noted that Mr. Bouamar "persist[ed] in his delinquent behaviour". On 21 May 1980, the Juvenile Court of Appeal made another interim order placing the applicant in the care of his father, under the same supervision and on the same conditions as on 11 March 1980 (see paragraph 11 above). 13. The fifth placement in Lantin Prison was ordered by the Juvenile Court on 17 June 1980. The order referred to the "information obtained" and "the fact that the juvenile persist[ed] in his delinquent behaviour". On 30 June 1980, the Juvenile Court varied the order of 17 June and returned the applicant to "his father's family circle", under the same supervision and on the same conditions as laid down by the Juvenile Court of Appeal on 11 March and 21 May 1980 (see paragraphs 11 and 12 above). 14. The sixth placement in Lantin Prison was ordered by the Juvenile Court on 4 July 1980. The order referred to the "information obtained", "the fact that the juvenile persist[ed] in his delinquent behaviour", "warnings already given him" and his "rebellious behaviour ... at the police station". It stated that "because of the juvenile's personality and behaviour, it [was] necessary to send him to an institution in which he [would] be closely supervised", that "during the holiday period a private institution [did] not meet the requirements", and that none of the State institutions (Fraipont, Wauthier-Braine and Jumet) had "agreed to take the juvenile", one of them having "flatly refus[ed]" to do so. On 18 July 1980, the Juvenile Court of Appeal made an interim order placing Mr. Bouamar in the care of an aunt. 15. The seventh placement in Lantin Prison was ordered by the Juvenile Court on 11 August 1980. The order referred to the "information obtained", a "burglary at night, as a member of a gang, on 1 August 1980" and the applicant's "participation ... in an assault on an under-age girl on 6 August 1980". It pointed out that his aunt no longer wished to assume the responsibility laid on her by the Juvenile Court of Appeal. On 22 and 26 August 1980, the Juvenile Court varied its order of 11 August and decided that the applicant should be returned to "his father's family circle, under the supervision of a Youth Welfare Officer". 16. The eighth placement in Lantin Prison was ordered by the Juvenile Court on 2 September 1980. The order referred to the "information obtained" and to the fact that the applicant "persist[ed] in his delinquent behaviour". On 16 September 1980, the Juvenile Court varied the order of 2 September and ordered that Mr. Bouamar should be returned to "his family ... under the supervision of a Youth Welfare Officer". 17. The ninth placement in Lantin Prison was ordered by the Juvenile Court on 21 October 1980. The order referred to the "information obtained". On 3 November 1980, the Juvenile Court varied the order of 21 October and ordered the "provisional release" of the applicant "to his family under the supervision of a Youth Welfare Officer". 18. Thereafter, Mr. Bouamar was not again placed in a remand prison. His behaviour improved, it seems, following his placement during the autumn of 1980 in a more conducive environment, at the instigation of one of his lawyers. On 8 August 1981, the Juvenile Court relinquished jurisdiction in favour of the ordinary court, under section 38 of the 1965 Act (see paragraph 29 below), but Crown Counsel did not bring the case to trial. 19. On 22 January and 7 March 1980, the applicant appealed against the Juvenile Court's orders of 18 January and 4 March 1980 placing him in Lantin Prison for the first time and the third time respectively (see paragraphs 9 and 11 above). In a judgment given on 29 April 1980, the juvenile chamber of the Court of Appeal joined these two appeals and declared them to be inadmissible because they had become devoid of purpose; it noted that by its orders of 31 January 1980 and 11 March 1980 (see paragraphs 9 and 11 above) it had terminated the two placements in question. As to the lawfulness of the two periods of detention complained of, the Court of Appeal observed: "While the provisions of section 53 of the Children's and Young Persons' Welfare Act do not represent a deprivation of liberty with a view to bringing the juvenile before the competent legal authority, the Act does not contravene the Articles of the Convention for the Protection of Human Rights in that the 'deprivation of liberty' is ordered in the general context of the educational supervision of the juvenile in the exceptional cases in which it is materially impossible to find an individual or an institution able to accept the juvenile immediately, as a necessary custodial measure in a remand prison for a period which cannot exceed fifteen days. Against this background, regard must be had to the individual features of the case at the time the interim custody order was made. The material impossibility referred to in section 53 is not meant to indicate merely those cases in which literally no physical location can be found in which to place the juvenile, regardless of the education and protection aspects which have to be taken into account in the assessment the judge makes when taking his decision in the light of the practical possibilities that are really open to him; ...". The Court of Appeal thus considered that the two orders appealed against did not contravene either the Convention or section 53 of the 1965 Act. The applicant appealed on points of law against this judgment on 30 April 1980. The Court of Cassation dismissed the appeal on 25 June 1980, noting merely that "the substantive formalities and those required on pain of nullity [had] been complied with and the decision [was] in accordance with the law". It did not take into account the pleadings submitted by the applicant in support of his appeal because they had been filed late. 20. In the meantime, the applicant had appealed to the Court of Cassation - on 14 February 1980 - against the order made by the Juvenile Court of Appeal on 12 February 1980 placing him in Lantin Prison for the second time (see paragraph 10 above). The Court of Cassation dismissed this appeal on 5 March 1980. It noted that the appeal had become inadmissible because devoid of purpose, as the order appealed against had been varied by the one of 22 February 1980 (see paragraph 10 above). The applicant had argued that he still had an interest in having the order quashed, mainly because that would, under Article 5 § 5 (art. 5-5) of the Convention as well as under national legislation, enable him to claim compensation for the damage caused to him by his detention. The Court of Cassation held that the right to bring such an action for damages did not depend on a prior finding, in a judicial decision, that the deprivation of liberty had been unlawful. The applicant had also contended that a decision declaring his appeal inadmissible because devoid of purpose would contravene Article 5 § 4 and Article 13 (art. 5-4, art. 13) of the Convention. On this point the Court of Cassation held that as the impugned measure had been taken by the Juvenile Court of Appeal, the guarantee embodied in those two provisions had been fulfilled. 21. On 14 May 1980, the applicant appealed against the Juvenile Court's order of 7 May 1980 placing him in Lantin Prison for the fourth time (see paragraph 12 above). On 30 June 1980, the juvenile chamber of the Court of Appeal declared the appeal inadmissible because devoid of purpose, since the order of 21 May 1980 (see paragraph 12 above) had terminated the applicant's detention. 22. On 7 July 1980, the applicant appealed against the Juvenile Court's order of 4 July 1980 placing him in Lantin Prison for the sixth time (see paragraph 14 above). This appeal failed like the three previous ones (see paragraphs 19 and 21 above): on 3 February 1981, the juvenile chamber declared it inadmissible because devoid of purpose, as the order of 18 July 1980 had ended the detention in question (see paragraph 14 above). The applicant appealed to the Court of Cassation against this judgment on 12 February 1981 but his appeal was dismissed on 20 May 1981. He had criticised the Court of Appeal for not having dealt adequately with his submissions alleging a violation of section 53 of the 1965 Act and of Article 5 § 1 (d) (art. 5-1-d) of the Convention. The Court of Cassation held that the Court of Appeal did not have to deal with those submissions, since they were of no relevance once the court had decided that the appeal had become devoid of purpose. He had also maintained that there had been a breach of section 53 of the 1965 Act in that the impugned decision had taken his behaviour into account, and of Article 5 § 1 (d) (art. 5-1-d) of the Convention in that section 53 of the Act permitted deprivation of liberty in circumstances which, in his view, were not compatible with that provision of the Convention. The Court of Cassation held this ground of appeal to be "inadmissible because devoid of purpose" as it attacked reasons given for the judgment appealed against which had "no effect on [its] lawfulness". 23. The applicant did not appeal against the orders of 17 June (see paragraph 13 above), 11 August (see paragraph 15 above), 2 September (see paragraph 16 above) or 21 October 1980 (see paragraph 17 above). Nor did he appeal on points of law against the Court of Appeal's judgment of 30 June 1980 (see paragraph 21 above). 24. Before each of the orders was made provisionally placing him in the remand prison, Mr. Bouamar was heard by the court. He declined to be heard before the order of 21 October 1980 was made, however (see paragraph 17 above). According to their own statements, which were not disputed by the Government, the applicant's lawyers were not called on to assist or represent him on any of these occasions. On the other hand, they addressed the court before some of the other interim decisions in his regard were taken; and, according to the evidence, the same was true when the juvenile chamber of the Court of Appeal had to determine the applicant's appeals against the orders of 18 January, 4 March, 7 May and 4 July 1980. The juvenile was, moreover, duly represented before the Court of Cassation. 25. The 1965 Act replaced an Act of 15 May 1912; its purpose is to protect the health, morals and education of young people under the age of eighteen ("juveniles"). Under it, "offending acts" committed by juveniles can normally be dealt with only by means of custodial, protective or educative measures and not by means of criminal sanctions. 26. The 1965 Act contains provisions relating to "social welfare" and others relating to "protection by the courts". Judicial protection of juveniles is provided by specialised courts: the Juvenile Court, which is a section of the tribunal de première instance (regional court of first instance) and sits as one or more single-judge courts (Article 76 of the Judicial Code), and the juvenile chambers of the Court of Appeal (Article 101 of the same Code), which likewise have a single member (Article 102 of the same Code at the material time, subsequently Article 109 bis). At the material time, there were three Juvenile Court judges at the Liège tribunal de première instance, who sat in the fifteenth, sixteenth and seventeenth chambers, which made up the juvenile section of that court; and at the Liège Court of Appeal there was a judge who heard appeals in juvenile cases and sat in the single juvenile chamber of that court. Unless otherwise provided, the statutory provisions governing the prosecution of lesser criminal offences apply to proceedings concerning judicial measures for the protection of juveniles (section 62 of the 1965 Act). 27. Section 36 of the 1965 Act lays down the cases in which the juvenile courts may take the various measures set out in the Act in respect of juveniles. They may make an order on an application by Crown Counsel in several instances: (a) in respect of "juveniles whose health, safety or morals are endangered, either by reason of the environment in which they are being brought up or by the activities in which they engage, or whose education is put at risk by the behaviour of the persons having custody of them"; (b) in respect of "juveniles ... found begging or wandering as vagrants or who are habitual beggars or vagrants"; (c) in respect of "juveniles ... proceeded against for an act classified as an offence". The same courts can also intervene upon a complaint by "persons having paternal authority or having custody ... of a juvenile ... who on account of his misconduct or indiscipline gives serious cause for concern". 28. The measures they may order are, for the most part, set out in section 37: (a) a warning (section 37(1)); (b) placing the juvenile under the supervision of the Youth Welfare Board or of a Youth Welfare Officer (section 37(2)); (c) keeping the juvenile in his own surroundings, subject to certain conditions, such as having to attend an educational establishment, to perform educative or socially useful tasks or to comply with instructions from an educational-counselling centre or mental-health centre (section 37(2)); (d) placing the juvenile in the home of any trustworthy person or in any appropriate institution, under the supervision of the Youth Welfare Board or of a Youth Welfare Officer (section 37(3)); (e) placing the juvenile in a State reformatory (section 37(4)). There are two types of institution which may accommodate juveniles: private institutions and State institutions. In the French-speaking part of Belgium in 1980 there were three State reformatories for boys (Fraipont, Jumet and Wauthier-Braine) and one for girls. The inmates of these so-called "open" institutions live under a regime of semi-liberty. The first "closed" institution - for highly disturbed young people - came into service in 1981. 29. Where a juvenile over sixteen has been brought before the juvenile courts for an "act classified as an offence", they may, if they consider the measures referred to in section 37 to be "inadequate", relinquish jurisdiction and remit the case to Crown Counsel so that proceedings may be taken in the appropriate court (section 38 of the 1965 Act). If a measure taken under section 37 proves "ineffective on account of persistent misconduct or dangerous behaviour by the juvenile", the juvenile courts may also decide that he should be "placed at the disposal of the Government" until he attains his majority (section 39 of the 1965 Act). Relinquishment of jurisdiction and "placing at the disposal of the Government" are regarded as exceptional measures which are to be applied only as a last resort. 30. By section 50 of the 1965 Act, the Juvenile Court "shall take all possible steps, and have all necessary investigations made, to acquaint itself with the personalities of the juveniles concerned and with the environment in which they have been brought up and to determine their best interests and the means appropriate to their education or treatment"; it may "have a social enquiry report prepared by a Youth Welfare Officer and require the juvenile to undergo a medical and psychiatric examination where it considers that the evidence before it ... is insufficient". 31. A juvenile brought before the Juvenile Court appears in person or is represented by a lawyer (section 54 of the 1965 Act). If he has no lawyer, the leader of the Bar (bâtonnier) or the Legal Advice and Defence Office assigns him one (section 55). The Juvenile Court can at all times summon the person concerned, his parents, his guardian or other persons having custody of him to appear before it (sections 51 and 54). The juvenile and his lawyer may inspect the contents of the file on the case not later than three days before the hearing; documents concerning the juvenile's personality and the surroundings in which he is living are made available only to his lawyer (section 55). During the hearing the Juvenile Court can at any time sit in camera to hear evidence regarding the juvenile's personality from experts and witnesses as well as from the juvenile's parents or guardian or from other persons having custody of the juvenile; such hearings can only take place in the presence of the juvenile's lawyer, but the juvenile himself is not present, unless called by the court (section 57). When the various measures listed in section 37 of the 1965 Act are adopted as final orders, these are made in the form of judgments given in open court. Often the measures are ordered only after a fairly lengthy procedure designed to enable the court to observe the juvenile concerned and to have all necessary investigations made in order to determine what action it is appropriate to take. 32. During the proceedings, the Juvenile Court may order interim measures in respect of the juvenile under sections 52 and 53, which provide: "For the duration of proceedings for the implementation of one of the measures provided for in Part II, Chapter III, the Juvenile Court shall make any necessary interim custody orders in respect of the juvenile. It may either leave him in the care of the persons who have custody of him or, if necessary, place him under supervision in accordance with the terms of section 37(2), or it may provisionally order one of the measures provided for in section 37(3) and (4)." "If it is materially impossible to find an individual or an institution able to accept the juvenile immediately, and the measures provided for in section 52 therefore cannot be implemented, the juvenile may be provisionally detained in a remand prison for a period not exceeding fifteen days. A juvenile who is detained in a remand prison shall be segregated from the adults who are also detained there." The present section 53 replaces section 30 of the Act of 15 May 1912. The latter section allowed temporary placement in a prison by reason of the juvenile's bad character as well as if it was materially impossible to find another placement, which is the only criterion adopted in the 1965 Act. 33. The interim measures set out in sections 52 and 53 are taken by means of an order made by the Juvenile Court judge in chambers, that is to say after hearing the juvenile alone, without a lawyer being present. However, under a "practical arrangement" applying only in Liège and which operated in the instant case, a duty scheme enables lawyers to have informal contacts with the Juvenile Court judge where a juvenile is in custody. The Juvenile Court may at any time, either of its own motion or on an application by Crown Counsel, revoke or vary any measures taken in regard to the juvenile, except for "placing at the disposal of the Government" (section 60, first paragraph, of the 1965 Act). After a year has elapsed from the date on which a measure has become final, an application may be made to the Juvenile Court for the same purpose by the juvenile's father, mother or guardian or other persons having custody of the juvenile or by the juvenile himself (section 60, second paragraph). 34. "Decisions of the Juvenile Court ... shall, within the statutory time-limits, be subject to appeal by Crown Counsel and to appeal or to applications to have them set aside (opposition)" by the juvenile or any other parties concerned (section 58). The juvenile can appeal against any interim order made in his regard. The Juvenile Court of Appeal can itself take the interim measures provided for in sections 52 and 53 and set aside or vary those taken by the Juvenile Court (section 59). Like the Juvenile Court, it does so by means of orders made in chambers (see paragraph 33 above). 35. An appeal on points of law lies to the Court of Cassation against judgments of the juvenile chamber of the Court of Appeal. 36. The Belgian courts have held that the material impossibility required by section 53 may arise not only where there is no room in an appropriate institution but also where conditions do not meet the needs of the case, particularly as regards security (Mons Court of Appeal, 6 January 1978 - Journal des Tribunaux, 1979, p. 6 - and Liège Court of Appeal, 16 December 1980). In a judgment of 8 February 1978, the Court of Cassation held that it is for the trial judge to rule on the question of material impossibility (Pasicrisie belge, 1978, I, p. 664). 37. In a judgment of 10 September 1981, the Liège tribunal de première instance held: "The 'educational supervision' envisaged in the Convention ... does not exclude resorting, in hopeless cases, to spells of imprisonment for juveniles, ordered by the competent legal authority, where all other, less coercive educational-supervision attempts and measures have failed; detention in prison for a short period, limited by the Act, in a special section set aside for adolescents may have an educative effect by convincing the juvenile that society, after trying to help him, has decided to look to its own protection; such detention may serve as a transition to the state of having reached the age of criminal responsibility ... when society will take measures against him which are very different from those he has experienced while under age." On 18 November 1982, the Court of Cassation dismissed an appeal against that judgment. It held that the foregoing reasoning was not incompatible with the legal concept of "educational supervision" in Article 5 § 1 (art. 5-1) of the Convention. It added that by finding that the evidence showed that it was materially impossible to "give the juvenile into the care of anyone at all", since "he immediately absconded in order to commit fresh offences" and "hampered his companions' education, to which they were also entitled, by persuading them to join in his escapades", the court had justified its decision in law (Pasicrisie belge, 1983, I, p. 333). 38. Section 27 of the Act of 20 April 1874 on detention pending trial, as amended by the Act of 13 March 1973, provides: "Any person who has been deprived of his liberty in circumstances incompatible with the provisions of Article 5 (art. 5) of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, as approved by the Act of 18 May 1955, shall be entitled to compensation. An action in the form provided for in the Judicial Code shall be brought in the ordinary courts against the Belgian State in the person of the Minister of Justice."