(TRANSLATION) THE FACTS The facts as submitted by the parties may be summarised as follows : Thc applicant, ]osé Lamy, a company director of Belgian nationality, was bnrn at Vaux-Chavanne on 19 September 1932 . When the application was introduoed he was held at Verviers prison . Before the Connnission he is represente<i by Raoul Neuroth, member of the Liège Bar. On 29 November 1982 SPRL Lamy, a private limited company O"Société de personnes à responsabilité limitée"), declared its insolvency to the reeistry of the Verviers Commerciat Court. On 24 December 1982 the liquidatorsof SPRL Lamy iodged with the registry of the Verviers Commercial Cou rt an application to have e>aen,i~! to the applicant the bankruptcy proceedings against the company of which i,e wau inanager . On 30 December 1982 the Ve rviers Commereial =-ourt dcclared the applicant's personal bmikruptcy. 82 As a result of the applicant's objection to that decision the Commercial Court heard the case on 10 and 24 February 1983 . On 24 March 1983 it decided ttiat the nbjectior. was ill-founded: The applicant appealed to tie Liège Court of Appeal on .5 April 198:3 . Meanwhile, on 18 Febniary 1983, after questioning liim, the Verviers examsing judge had issced a warrant for his arrest . He was charged with bankruptcy and Praudulent bankmptcy and various of fences connected with ttiese charges . The reasons ~;iven foi tho arr.°st warrant, which was indorsed with the charges against him ., were ihe seriousness of the facts, the serious disturbance to public order and public security, be fact that the liabilities wocld exceed 500 million francs, the requirements of the nvestigetion, his establishcd intention to deprive the creditors or their righcs; his spending, and the danger of his flecing the country. On the same date a copy of the warrant was served on him. He was iinmecliately placed in Verviers remand prison . On 22 February 1983, assistec by his counsel, he, appeared before a Chamber of the Verviers Criminal Court, to which his counsel mace submissions intar alia disputing the existenee of the serious and exeeptional circ umsiances on which the arrest warrant relied. He ilso lodged exhibits concerning, antong other riatters, the banb. ivptcy proceedings against the applicant . After hearing the examining judge, the deputy public prosecutor and the defence counsel, the Chamber, concurring with the reiasoris ôr the warrant and finding that public seenriry necessitated the applicant's further i-emand, maintained the warrant. - On 23 February 1983 the applicant appealed from the ëecision to the Indictment Division of the LiB,e Court of Appe.al . The Public Prosecutor's Office lodged prosecution subinissious with the Indictment Division . The applicant s counsel lodged submissions in which he contended :hat no reasons had been given for the decision, he circuinstnnces tte court in chambers had found were not such as to justify reinand, and that the arrest warrant of 18 Pebruary 1983 was illegal, being unsigned and dated 18 Marçh 1983 . The Division heard both prosecution and defence . In its judgtnent of 10 Murch 1983 it set aside the decision oF the Charnier zs not havirg rr:plied to the applioznt's- submissions but it maintained !he arrest warrant on the grounds that the statutory requirements for issuing a warrant for the applicant's arrest had been met, there haà been no procvdural irragularity and the reasors Por the viarrant were well-founded . On the particular question whether there was auf6cierrt evidence of guili and of terious and exceptional circumstances aff,-cting public security, it referred to the applicant's "admissions eoncerning the irrr.guler ransactions referre9 to inreport 31 7 of the Verviers police and in the record of his questioning ~7y the examining judge on 18 February 1983, corroborated by the adinissions of the co-accused J. in report 292 of the Verviers police, although the accused now denies their extent" . It held that the applicant's copy of the arrest warrant was lawful si~ice it gave the examining judge's rame and stated that the original carrie d 83 the examining judge's signature. It further held that it was a purely clerical error that the applicant's copy was dated 18 March 1983 instead of 18 Pebruary 1983 . It decided that the two circumstances adduced by the applicant in no way made the arrest arbitrary and could not have harmed his defence rights. The applicant had in fact confined himself to noting the "discrepancy" . On 11 March 1983 the applicant appealed on points of law . The appeal was on three grounds : first, that because the copy of the warrant was unsigned and the remand order dated 18 March 1983 he had been arbitrarily detained since 18 February 1983 ; second, that the reasons for the warrant were obscure and inconsistent ; third, that there had been a breach of Article 6 paras . 1 and 3 of the Convention in that the Indictment Division had based its decision to maintain the arrest warrant on reports 317 and 292 of the Verviers police, neither of which had been made available to him, and that the Chamber hearing had therefore not been adversarial for the purposes of Article 6 of the Convention . On 4 May 1983 the Court of Cassation dismissed the appeal. On the first ground of appeal it held that the formalities prescribed in the Code of Criminal Investigation for service of arrest warrants were not essential and that failure to observe them did not invalidate a warrant . Referring to the Indictment Division's findings concerning the fact that the warrant was unsigned and the remand order executing it dated 18 March 1983, it ruled that the rights of the defence had not been infringed and that the principle of individualliberty had been complied with . On thesecond ground of appeal it held that the Indictment Division's findings were neither obscure nor inconsistent. The Indictment Division had based its decision to maintain the arrest warrant not only on the applicant's admissions concerning the irregular transactions referred to in reports 317 and 292 but also on the extremely large sums involved, the requirements of the investigation and the risk of the applicant's attempting to elude justice . It had given proper reasons for its judgment. On the third ground it held that Article 6 of the European Convention on Human Rights applied to the exercise of defence rights at the trial stage, not to remand proceedings . It was clear from Section 4 read with Section 5, last paragraph, of the Remand Act that in law the applicant was not allowed to see the file at that s-tageof the proceedings and that this had precluded a finding that not making the file available was a violation of the rights of the defence. The ground accordingly failed . On 18 August 1983, the remand order having been extended monthly in accordance with Section 6 of the Act, the applicant's remand came to an end . On 24 April 1985, determining the applicant's appeal of 5 April 1983, the Liège Court of Appeal (Third Civil Chamber) set aside the Verviers Commercial Court's decision of 24 March 1983 . 84 COMPLAINTS The applicant complains essentially that the proceedings in the investigating couiis concerning the first confirmation ef the arrest warrant were not idversarial in that he had no opportunity to acquaint himself with the file, particularly two reports on which the arrest warrant was based, whereas the Verviers Chambe~ and subsequently the Indiument Division of the Liège Court of Appeal were in possession of thetn . He paints out that the Remand Act of 20 April 1874 makei no provision for making the file available to the accused or his counsel either for the first Chamber review of ttie warrant or for ttle Corut of Appeal proceedings to determine any appeal from the decision in ehambers . The accused's counsel is not allowed to see he file until the second review of the warre nt, one month after the first hearing in chambers . He complains of a violation of the rights of the defence and relies on Article 5 paras 2, 3 and 4 and Article 6 para . 3 (b) of the Convention . SUBMISS1tONS OF THE PARTIES (Extract) . . .. . .. . . . .. . . A . The aJleged violation of Article 5 of the Conventio n I . The Government a) The alleged violatior of Article 5 para 2 of the Conventio n The Governrnent first point out that this provision deals solely with informing the acensed of the charges against him . Under Commission case-Iaw such information may be provided either orally or in writing . The inforrnatien requirement in Article 5 para. 2 of the Corivention was met by the applicant's interview cvith the examining judge on the evening of 18 February 1983 and by service, on Che same dale, of a copy of the arrest warrant giving s . clear 48-line statement of the facts, the relevant places and dates, and the legal classification of the Yacts . b) The alleged violation of Article 5 para . 3 of the C'onvention The C,overmnent consider ill-founded. the applicant's allegation that the Chamber disregarded his submissions to it . They point out that there is no requirement in the Coriverition or Article 5 para. ci to reply to submissions or, more generally, giive reasons for decisions . In any case the complaint was rem~-died by the Belgian legal system since the ]ndictment Division set aside the decision of the Chamber as not taking account of the applicant's submissions . c) The alleged violation of Article 5 para . 4 of the C'onvention Both the Chamber of the Criminal C'ourt and, at the appeal stage, the Indictment Division of the Court of Appeal are courts within the meaning of Article 5 85 para. 4 - that is (the definition given in the European Court of Human Rights judgment of 5 November 1981 in X . v. United Kingdom) "bodies which exhibit not only common fundamental features, of which the most important is independence of the executive and of the parties to the case . . ., but also the guarantees, appropriate to the kind of deprivation of liberty in question, of judicial procedure, the forms of which may vary from one domain to another" (Series A no . 46, para. 53). Notice of hearings is short so as not to protract the remand, but is still adequate to enable the accused to consult a lawyer and prepare his defence . The deliberations and delivery of the decision are not in open court so as not to harm the reputation of the accused, who is presumed innocent, but reasons are given for the decision and the accused receives a copy of the decision and reasons . There is a right of appeal, and of further appeal on points of law . The Chamber and the Indictment Division are both quite independent of the executive and the parties . The Government further point out that the main concern of Article 5 para . 4 is prompt review of the lawfulness of remand . Full written proceedings or adversarial proceedings would slow review of appeals against remand . As to the procedural safeguards provided in Article 5 para . 4 of the Convention, the Government acknowledge that until the second appearance before the Chamber the accused's counsel has no access to the file : at that point the investigation is only getting under way and new material is being added to the file daily . Thus the file cannot be removed from the examining judge and confined to the registry so that the accused or his counsel can consult it . 2 . Zâte applicant a) The alleged violation of Article 5 para . 2 of the Conventio n The applicant contends that this provision presupposes that, to be able to defend himself, the detainee, or his counsel at least, has access to the file against him . Here the applicant had no access to the liquidators' report submitted to the examining judge. In addition, the Chamber hearing within five days after his arrest was not meaningful since it gave him no opportunity to defend himself and refute the serious charges against him, b) The alleged violation of Article 5 para . 3 of the Convention The applicant maintains that it is a requirement of this provision that there be a proper adversarial hearing such that inter alia the court replies to any submissions made by the accused. Here there was no reply either to the applicant's submissions before the Chamber against confirmation of the arrest warrant or to his appeal submissions to the Indictment Division against the confirmation . 86 c) The alleged violation of Article 5 para . 4 of the Ccnventio n Thr, aoolicant savs there should have been an obiective . adversarial hearing to review the lawfulness of his remand . He argues that there is more to adversarial proceedings than the e.samining judge going through a thick file of whose contents only he is aware, the public prosecntor applying for maintenanee of an arrest warrant and the defence, to the examining judge's amusement, makïng submissions on ill-defined charges in the warrant. Th, submissions lodged by the applicant's counsel were not read . The andietment Division's judgment of 10 Mav 1983 in fact acknowledges that no reasons were given for the decision to maintain Ihe warrant . The I9tdictment Division's decision to maintain the warrant was based inter alda on the applicant's alleged admissions and on repo!rts 317 and 292 . There had been no admissions, however, and the reports do not establish the applicant's guiit . In point of fact the Indictment Division took refuge in routine formulae, which the Court of Cassation Iet pass, and did no[ reply to the applioant's submissions . In short, review of remand is a pure formaliry . The rights of the defence are disregarded : the hearings in the investigating courts for the first review of the arrest warrant are a"travesty" of justice since the relevant courts appear to have made up their minds beforinand . The injury is obvious, the applicant having been remanded in custody . B . Ttte alleged violation of Arlicle 6 para. 3 (b) of the Coniventio n 1 . The Government On the basis of established Court of Cassation case-law the Governtnent consider that Article 6 of the Conventicin applies to the defence's rights at the trial stage, not the rights of a person qu,estiored by the police or reinanded in custody . That what Article 6 of the Convention applies to is trial proceedings is clear from the context of Articles 5 and 6 of the Convention . Article 5 desls with deprivation of liberty and the problems raised thereby . Article 6, talcen as a whcle, sets out varieus rules which a trial court must conrply with . Ttie use of ttie word "accused" and the general context of Article 6 show that Article 6 has to do solelp with the fundamental rights of those actually prosecuted and brought before a court and whose case has thererore reachec the crucià! stage . Questioning whether there can be an "accused" before there has been a committal for trial, the Government observe that at the stage of the police enquiry and the unofficial investigation by the public Prosecutor's Office, there is definitely no accusec. In the im,estigation proper, charges may be brought, whether by the examining judge, the I'ublic Prosecutor's Office or a paity claiming damages, but th e 87 person against whom the charges are levelled is not an "accused" : even if remanded he will not necessarily have to appear and defend himself in the criminal courts . Only the investigating courts can say whether the evidence is sufficient to warrant prosecution. - The Government further point out that Belgian positive law draws a very clear distinction between an "inculpé" (a person provisionally remanded in custody pending the decision of the Chamber) and a"prévenu" (a person appearing or called before a criminal court to answer definitive official charges) . It is likewise apparent from the first sentence of Article 6 para . I ("In the determination of . . . any criminal charge against him, everyone is entitled to a .. . hearing . . . by an independent and impartial tribunal . . .") that Article 6 para . I applies only to trial proceedings. Needless to say, neither the examining judge nor the investigating courts detemiine any charge . That, by definition, is the business of the trial court. In the Can case the Commission admittedly held that Article 6 of the Convention had to be contplied with in the preliminary investigation, but it so held only in the light of the particular circumstances and because the preliminary investigation was crucial to the whole proceedings . That is not so in the present case for Belgian law keeps the two stages in criminal proceedings clearly separate : on the one hand the preliminary investigation, where maintenance of the remand order is the sole issue, and on the other the trial of the merits, which alone is concerned with the bringing of evidence and the question of guilt . The applicant's complaint of a violation of Article 6 is thus likewise manifestl y ill-founded. 2 . 7âte app[icant Article 6 para . 3 (b) of the Convention states that the accused must have adequate time and facilities for the preparation of his defence . These the applicant did not have since his counsel was given 24 hours' notice of the Chamber hearing and Belgian law altogether denied him access to the file . Referring to the Commission report in the Can case, in which the Commission held that the preliminary investigation must comply with Articlé 6 of the Convention, the applicant points out that his remand lasted six months and that in the first 45 days he was heard only twice . He further points out that for the first 30 days his counsel had nô access to th e file under Belgian law and that subsequently he had access to it only for the 48 hours prior to each hearing . There was accordingly a violation of Article 6 para . 3 (b) of the Convention . 88 THE LAW Th~, applicant complains that rieither he nor his lawyer had access to the investigation fi1e for the first review of the arrest warrant by the Chamber of the Verviers Criminal Court or l'or the appeal proceedings in the Inclictment DiNision of the Liège Court of Appeal . In particular he says that, in those proceeclings, he was not allowed to see two reports of the Verviers police containing statements on which the Indictment Chamlicr based its decision to maintain the warrant. He also alleges that the investigating courts did not take proper account of his submissions challenging the lawfulness of the warrant . He therefore coutends that the proceedings to review the lawfulness ot the viarrant were not adversarial or objective . He alleges there was a breach of Article 5 paras . 2, 3 and 4 and Article 6 para . 3 (b) of the Convention . The relevant sections ol' Article 5 of the Convention read : Paragraph 2 : "Everyone who is arrested shall be informed pwmptly, in a language which he understands, of the reasons for his arrest and of any charge against him ." Paragraph 3 : "Everyone arrested or detained in accordance wich the provisions of paragraph 1(c) of this Article shall be brought promptly before a judg e or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial . Release may be conditioned by guarantees to appear for trial - " Paragraph 4 : "Everyone who is deprived of his libeiiy by arrest or detention shall be entitle d to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release oi-dered if the detention is not lawlill ." Aricle. 6 para . 3 (b) provides :"Eveqone charged w;th a criminal offence has the following mininrum rights : to have adeqnate time and far_ilities Por the preparation of his defence" . The Commission first notes that the Government ack.uowleilge that the applieant has validly exhausted tho domestic remedies in accordance with Article 26 of the Cotriention . On the merits of the application the Government concede that Belgian law does not provide for inalcing the investigation file available ro the applicant or his eounsel for the flrst review of the reniand by the Chamber of Ihe Criminal Court or for ttie Indictment Divisioi hearing of an appeal from the decision of the Chamber . The Governntent say, however, that thal did not prevent the applicant 'rom knowing t}te charges against him since they were set out in the arreit warrant against him imd he subsequently heard the investigating judge's report at the first hearing befcre the Chamber . 89 They maintain he was thus adequately informed to prepare his defence in the investigating courts and that he in fact did so, making lengthy submissions . They contend that Article 6 para . 3(b) of'the Convention cannot be applied to the preliminary investigation . In their view the Convention provisions on which the applicant relies were complied with. They accordingly consider the application manifestly ill-founded. The applicant resists the Government's arguments . He considers that his being denied access to certain items in the investigation file which were known to the investigating courts and were the reason for his remand was contrary to Article 5 of the Convention. He contends there also a violation of the rule of equality of arms and of the rights of the defence set out in Article 6 para . 3 (b) of the Convention . In the Commission's view the issue is whether denying the applicant and his counsel access to the f'ile during the relevant period of remand infringed the applicant's right, as established by Article 5 para . 4 of the Convention, to prepare his defence in order to challenge the arrest warrant against him . As the Court has pointed out, Article 5 para . 4 requires that "the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question" (Eur. Court H.R., De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no . 12, para. 76). The Commission must also decide whether withholding the file from the applicant and his counsel during the relevant period was consistent with the requirements of Article 6 para. 3(b) of the Convention . Here it must decide whether, in the light of its recent case-law (in particular Can v . Austria, Comm. Report 12.7.84, para. 47 et seq., Eur. Court H .R., Series A no . 96, p. 14), the relevant provision of the Convention applies to preliminary investigations . As the file stands at present, the Commission, considers itself unable to declare the application manifestly ill-founded as it raises sufficiently complex issues to require an examination of the merits. For these reasons, the Commission , DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case . 90