THE FACTS

The facts of the case as submitted by the applicant may be summarised
as follows:

The applicant is a Belgian citizen, born in 1926 and at present
resident in Istanbul, Turkey.

From his statements and documents submitted by the applicant it appears
that, on .. July 1959, he was arrested in accordance with a warrant of
arrest issued by the Judges' Chamber of the Court of First Instance
(Raadkamer der Rechtbank van Eerste Aanleg) in Antwerp on .. April 1959
and remanded in custody. He was suspected of having committed various
offenses of fraud, breach of trust and inflicting bodily harm. On ..
September 1959 a psychiatrist allegedly examined the applicant and
found, on the basis of this examination and the applicant's case file,
that he was mentally deranged. According to the applicant, this
examination lasted twenty minutes only. Subsequently, the order for his
detention on remand was allegedly confirmed on .. September and ..
October 1959.

The applicant stated that on .. November 1959 he was conditionally
released from detention. At the same time an order was made by the
above Judges' Chamber that the applicant should again be examined by
a psychiatrist as to his criminal responsibility. According to the
applicant this order was never executed owing to the fact that, on ..
February 1960, he had moved to Germany where he remained until 1968.
However, on .. June 1960 the Judges' Chamber of the Court of First
Instance in Antwerp took a decision in the absence of the applicant to
the effect that he had committed certain of the above offenses while
being mentally deranged and thus incapable of being responsible for his
acts, but that he constituted a danger to public safety. For these
reasons the Court ordered, in accordance with the relevant provisions
of the Act of 9 April 1930 relating to Social Protection in respect of
Abnormal Persons and Habitual Criminals, that the applicant should be
detained during a period of five years in a mental institution. On ..
June 1960 the Criminal Court of First Instance took a similar decision
with regard to further charges of fraud and certain offenses committed
in connection with the issuance of cheques. It again ordered the
applicant's detention in a mental institution for a period of five
years but decided that this period should run concurrent with the
period fixed by the decision of .. June 1960.

It appears that in 1967 the German authorities informed the applicant
that he could no longer stay in the Federal Republic, the validity of
his passport having expired. He states that he intended to move to
London but before he could put his plan into effect the German
authorities deported him to Belgium where he was arrested on ..
September 1968 and transferred to Antwerp. He was detained in the
psychiatric division of Antwerp prison where the above decisions of ..
and .. June 1960 were communicated to him.

On .. October  1968 the applicant assisted by Mr. L., a lawyer
practising in Antwerp, appeared before the Board for the Protection of
Society (Commissie tot bescherming van de matschappij) which rules that
the applicant should be detained at M. in execution of the above
decisions of .. and .. June 1960.

The applicant lodged with the Court of Cassation (Hof van Verbreking)
pleas of nullity against that ruling and against the decisions of ..
and .. June 1960 but the Court declared them inadmissible on ..
December 1968. As regards the Board's ruling it stated that, as it
simply determined the place at which the applicant should be detained
in execution of the above court decisions and was not concerned with
maintaining the detention as such, it was not possible to challenge in
cassation proceedings this ruling. As regard the decisions of .. and
.. June 1960 the Court stated that, insofar as the applicant had failed
to appeal against these decisions, pursuant to Article 8 of the Act of
9 April 1930, he had not exhausted the remedies available to him under
Belgian law.

The applicant considered that he was wrongfully detained. He alleged
that he was not mentally deranged and emphasised, in particular, the
fact that for years he had lived in Germany and even built up and run
a business in that country. He therefore made an application to the
Board for the Protection of Society at Antwerp Prison for his release.
The Board heard the applicant on .. March 1969. It appears that it also
procured a further psychiatric opinion on the applicant's mental state.
However, on .. March 1969 it took a decision rejecting his application
for release.

The applicant then addressed himself to the Council of States (Raad van
State) requesting that his case should be examined by the Council. By
letter of .. April 1969 from the Council's President's Office he was
informed that the Council of State had no competence to examine the
decisions of the Boards for the Protection of Society which had been
established under the Act of 1 July 1964 and simply replaced the Boards
set up under the previous Act of 9 April 1930.

The applicant also lodged with the Court of Cassation a plea of nullity
against the said Board's decision of .. March 1969. He alleged, first,
that the provisions of the Act of 1 July 1964 which replaced the Act
of 9 April 1930 had been applied without taking into consideration the
fact that the applicant's detention had been ordered before the 1964
Act had entered into force. Secondly, he alleged that the Commission
had ignored the fact that his mental state had improved and that
consequently the condition for his release on probation (reclassering)
had been satisfied. He finally alleged that the 1964 Act had been
violated by virtue of the fact that two members of the Board had simply
adopted the "vote" (stem) of the Procureur of the King (Procureur des
Konings).

On .. June 1969 the Court of Cassation rejected the plea in the absence
of the applicant or his lawyer and after hearing the conclusions of the
Solicitor General (Advocaat-generaal). With regard to the applicant's
first allegation the Court held that it was ill-founded and explained
that the system of the Act of 1 July 1964 was applicable to such
detention orders which had not been fully executed at the time of the
entry into force of that Act. Consequently, from that date onwards the
determination of the actual length of detention was a matter falling
exclusively within the competence of the Board for the Protection of
Society. The Court further held that the applicant's second allegation
was inadmissible since the Board was the sovereign judge as to any
improvement of a prisoner's state of mind and the possibility of his
release on probation. The Court finally decided that the applicant's
third allegation was also inadmissible as it lacked sufficient clarity.

The applicant complained that he was wrongfully detained in a mental
institution. He alleged that the psychiatrist who had examined him in
1969 had not found any trace of mental illness but that the Board had
ignored that finding. He further seemed to allege that his detention
was unlawful in that the 1960 detention orders were executed in
accordance with the Act of 1 July 1964 which had not been in force at
the time when the orders were made. According to the applicant, there
was no provision in the 1964 Act which states that the 1930 Act should
be replaced. This had only been accomplished by Ministerial Ordinance
34/64 so that he was presently detained at M. simply on the basis of
an administrative ordinance rather than a law enacted by the
legislature. Moreover, the 1960 detention orders had lost their force
by reason of the lapse of time.

The applicant finally referred to the Delcourt Case and complained
that, as in that case, his pleas of nullity had been dealt with by the
Court of Cassation in his absence but in the presence of the
Procureur-General.

He invoked Articles 25, 26 and 27 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The Commission examined the application on 13 and 24 July 1970. It
noted the following additional facts:

On 13 October 1969 the applicant had last written to the Commission
from M. and on 1 April 1970 the Commission's Secretary informed him
that, as his case would soon be examined by the Commission, he should
confirm his intention to maintain his application and submit any
further information that he wished to be put before the Commission. The
applicant did not reply to that letter.

On 22 June 1970 the Secretary wrote a further letter to the applicant
at M. requesting him once more to state his intention to maintain the
application and, in particular, to submit a copy of the decision of the
Board for the Protection of Society, dated .. March 1969. This letter
was returned with the statement on the letter:  "Parti pour: c/o J. G.,
A.F. Ltd., G. Lane, H., Middlesex, Great Britain".

On the basis of this information the Secretary on 29 June 1970 sent by
registered mail a copy of his letter of 22 June to the above address
in England. This letter was accepted by one S.A. but there had been no
reply from the applicant by July 1970.

In the circumstances the Commission decided to adjourn until its
October session the further examination of the application and, in the
meanwhile, to instruct the Secretary to try to re-establish contact
with the applicant and obtain from him further information on the
circumstances of his detention and subsequent release.

In pursuance of the Commission's decision of 24 July 1970, the
Secretary wrote again to the applicant informing him of the above
decision and requesting from him further information on the
circumstances of his detention at, and subsequent release from, the
mental institution at M..

The applicant finally replied by letter of 28 August 1970 from Istanbul
stating, however, the address in England as indicated by the Belgian
authorities. He stated that he wished to maintain his application
before the Commission but that he could not comply with the
Commission's request for the submission of further decisions and, in
particular, of the Board's decision of .. March 1969 as he never
received the decision concerned. He contends that he tried to clarify
matters in Belgium with the assistance of two lawyers but without
success: his efforts in this connection were allegedly defeated by one
Mr. van L., who is apparently the Procureur at the Board for the
Protection of Society in Antwerp.

The applicant further stated that he was released on .. October 1969
on the condition that he should leave Belgium for England and never
return. He contended that he never received the decision ordering his
release, although the competent authorities had promised to send him
a copy thereof to his address in England.

The applicant finally states that, under Belgian law, he is still 100%
insane and that he suffered severe damage during his detention in a
mental institution.

He requested the Commission to grant him justice and set aside the
decision declaring him to be mentally deranged.

On 7 October 1970 the Commission continued its examination of the
applicant's complaints. It decided to communicate the application, in
accordance with Rule 45, 3 (b) of the Commission's Rules of Procedure,
to the Belgian Government and to invite the Government to submit its
observations in writing on the admissibility of the application.

In the meanwhile, the Commission adjourned again the further
examination of the case.

The Government's observations, dated 28 December 1970, were submitted
to the Commission on 11 January 1971. On 13 January 1971 they were sent
to the applicant's address in England which was the only address known
to the Secretary and the applicant was invited to submit, with a period
of two weeks, i.e. before 26 January 1971, his written observations in
reply.

Receipt of the Secretary's letter of 13 January 1971 containing the
Government's observations on admissibility was acknowledged on 18
January 1971 by a person at H., Middlesex, England. However, there was
never a reply from the applicant.

On 9 February 1971, the Commission's Secretary telephoned to the JDAF
Company at H. He spoke to a Mr. Y. who informed him that the applicant
had been with the company only for a very short time two years ago and
that, since that time, there had been no communication from him except
a postcard from Istanbul, Turkey.

SUBMISSIONS OF THE BELGIAN GOVERNMENT

In the observations of 28 December 1970 the Belgian Government first
submitted further details regarding the facts of the case. They confirm
that two decisions were taken against the applicant by reason of
various criminal offenses committed by him.

The first was an order by default (Ordonnance par deĢfaut) by the
Judges' Chamber of the Court of First Instance at Antwerp, dated ..
June 1960 and committing the applicant to detention during the period
of five years. During these proceedings the applicant had been remanded
in custody from .. April to .. May 1959 and again from .. July to ..
November 1959. The offenses concerned were eleven acts of breach of
trust and one act of severe bodily harm which the applicant inflicted
on .. July 1959 on an acquaintance while he was in the office of the
psychiatrist T. who had been asked to examine him in connection with
the other charges against him.

The second decision was a judgment by default of the Ninth Chamber of
the Criminal Court at Antwerp, dated .. June 1960 and again committing
the applicant to detention during a period of five years but declaring
that this detention was absorbed by the order pronounced by the Judges'
Chamber on .. June 1960. During these proceedings the applicant had
never been in detention on remand although he had been arrested on ..
August 1958 and released the next day after his interrogation by the
Investigating Judge. The offenses concerned were eight acts of breach
of trust and two acts of obtaining money by means of worthless cheques.

The Government states that it had been impossible to rearrest the
applicant after his provisional release on .. November 1959. In fact,
it had not been possible to communicate to the applicant either a
warrant to appear in court, issued on .. March 1960, or any subsequent
sub-poena, or the two decisions concerned. Consequently, the
applicant's name had been included on .. June 1960 in the Central
Bulletin.

It appeared from two petitions for pardon, lodged by the applicant on
.. September and .. November 1960 by which he requested the quashing
of the orders for detention in order to obtain an extension of his
passport by the Belgian Consulate in D. that the applicant was at that
time in H. where, according to him, he intended to begin a new life.

For reasons unknown to the Belgian authorities the applicant was
expelled from Germany on .. September 1968 and delivered to the
Government authorities at the Belgo-German border at C. The Government
authorities telephoned the King's Counsel (Procureur du Roi) at Antwerp
on whose orders the applicant at once was transferred to the
psychiatric division of Antwerp Prison and placed under the
jurisdiction of the Board for the Protection of Society. At the same
time, the above decisions of June 1960 were communicated to him. The
applicant made a plea of nullity against the decisions which was
dismissed by the Court of Cassation on .. December 1968.

The Government further states that, on .. October 1968, the Board for
the Protection of Society decided that the applicant should be
transferred to M.. and that a plea of nullity against the decision was
dismissed by the Court of Cassation on .. December 1968. On .. March
1969 his detention at M.. was confirmed by the said Board and a plea
of nullity against that decision was again rejected by the Court of
Cassation. Then, on .. September 1969 the Board ordered the applicant's
transfer to T.. and on .. December 1969 it made an order for the
applicant's provisional release granting his request to leave Belgium
and establish himself in London. This approval was given on the
condition that he should inform the Board of his residence in England
but according to the Government, the applicant, who was released on ..
December 1969 never gave this information.

The Belgian Government then also makes some observations regarding the
applicant's mental condition. They explain that he had been examined
by a psychiatrist, Dr. R., who had been charged with the case after Dr.
T. had resigned as a result of the incident in his office on .. July
1959. Dr. R. had come to the conclusion that the applicant showed signs
of insanity, although he was physically and intellectually sufficiently
well. The applicant was a disintegrated person who, as a result of his
hallucinations, made attempts at his reintegration. He had no sense of
guilt with regard to the offenses committed by him and considered
himself as being hindered in his development by a particular person
whom he planned to kill. Consequently, he constituted a clear danger
for that person and such an attitude was a sign of mental illness.

The Government then deals with the question of the admissibility of the
application and submits that the applicant had not satisfied the
requirements under Article 26 of the Convention.

First they point out that the applicant had failed to exhaust the
remedies which were at his disposal under Belgian law. In fact, the
applicant had the possibility of making an objection (opposition)
against the Judges' Chamber's decision, either immediately after having
taken cognisance of that decision or within ten days after it had been
communicated to him. In this connection the Government explains that,
under Article 187 of the Code of Criminal Procedure, the person
concerned must simply have cognisance of the decision by default as
such but not of the terms of the act of its notification, nor was it
necessary that he should have received a copy of the act of
notification or of the decision itself.

In the present case, it resulted clearly from the petitions for pardon
made by the applicant on .. September 1960 and .. November 1960 that
he had cognisance of the decisions against him at least by 20 November
1960 and he should have made his objection within 10 days from that
date.

But even assuming that this was not accepted, Article 187 of the Code
of Criminal Procedure further provided for an extraordinary objection
to be made within 10 days after the notification of the decision.
Applying this rule, the Government observes that the decision had been
notified to the applicant on 4 September 1968 and that consequently he
had until 14 September 1968 to make an extraordinary objection which
he failed to do so.

Furthermore, as regards the judgment of the Criminal Court of Antwerp
dated .. June 1960 the Government refers to Article 199 of the Code of
Criminal Procedure which provides for an appeal (appel) against the
judgments in criminal matters. However, the applicant had challenged
both decisions against him by means of a plea of nullity (pourvoi en
cassation) which had been declared inadmissible on .. December 1968.

The Belgian Government next submits that the applicant also failed to
observe the six months' time-limit laid down in Article 26 of the
Convention. In this connection the Government refers again to the fact
that, on .. September 1960 the applicant had made a petition for
pardon, and concludes that from that date onward the applicant had been
aware of the measures taken against him. As he had made neither an
objection nor an appeal against the decisions concerned, these had
acquired the force of res judicata by .. October 1960 at the latest.
However, the applicant had not seized the Commission before .. April
1969 that is more than six months after the final national decision.

The Government submits that, for these reasons, the application is
inadmissible.

The Government further submits, in the alternative and reserving the
right to make further observations in this respect, that the
application is also ill-founded.

Firstly, the applicant's detention was not inconsistent with Article
5, paragraph (1) of the Convention. The detention order was based on
the Act of 9 April 1930. It had not been possible before .. September
1968 to enforce that order because the applicant had absconded. As the
detention constituted, in the present case, a security measure and not
a penalty, it was not subject to the rules of prescription. Under the
Royal Decree of 28 August 1964 relating to the Social Protection in
respect of Abnormal Persons and Habitual Criminals, the new Act
replaced the 1930 Act and also governed any detention order prior to
1 September 1964.

Secondly, contrary to the applicant's allegations, the Board for the
Protection of Society had maintained his detention solely by reason of
his personality. Under Article 18 of the 1964 Act the Board had, of
course, the power to release him.

Finally, the Government submits that the applicant's further
allegations were in no way substantiated by the facts of the case.

DECISION OF THE COMMISSION

The Commission notes that there has been no communication from the
applicant since 28 August 1970. The Commission further notes that the
applicant has failed to keep it informed of his whereabouts and that
the address indicated by him in his correspondence was not his correct
address with the consequence that it was not possible to communicate
with him at that address. The Commission finally notes that its
Secretary has made various efforts to establish contact with the
applicant, but without success.

In these circumstances, the Commission considers that the applicant has
failed to show any interest in the maintenance of his application
before the Commission;  and there appear to be no reasons of a general
character affecting the observance of the Convention which would
necessitate a further examination of his complaints.

For these reasons, the Commission DECIDES TO STRIKE THIS APPLICATION
OFF ITS LIST OF CASES