Distr.

GENERAL

CCPR/C/94/Add.3
15 October 1997

ENGLISH
Original: FRENCH
Third periodic reports of States parties due in 1994 : Belgium. 15/10/97.
CCPR/C/94/Add.3. (State Party Report)
HUMAN RIGHTS COMMITTEE



CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 40 OF THE COVENANT

Third periodic reports of States parties due in 1994

Addendum


BELGIUM


 For the second periodic report submitted by the Government of Belgium, see CCPR/C/57/Add.3; for its consideration by the Committee, see the summary records CCPR/C/SR.1142 and 1143, and Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), paragraphs 395 to 430.


[23 August 1996]

CONTENTS

Paragraphs


Article 1 : 1

Article 2 : 2 - 26

Article 3 : 27 - 55

Article 4 : 56 - 58

Article 5 : 59

Article 6 : 60 - 64

Article 7 : 65 - 77

Article 8 : 78 - 82

Article 9 : 83 - 101

Article 10 : 102 - 118

Article 11 : 119

Article 12 : 120 - 145

Article 13 : 146 - 164

Article 14 : 165 - 181

Article 15 : 182

Article 16 : 183 - 184

Article 17 : 185 - 216

Article 18 : 217 - 234

Article 19 : 235 - 271

Article 20 : 272

Article 21 : 273 - 288

Article 22 : 289 - 310

Article 23 : 311 - 323

Article 24 : 324 - 325

Article 25 : 326 - 344

Article 26 : 345

Article 27 : 346 - 355

Annex


Audio-visual distribution in the Flemish Community

Article 1

1. The Government of Belgium refers the Committee to the commentaries to be found in the core document on Belgium (HRI/CORE/1/Add.1/Rev.1) and those relating to article 27 of the Covenant.

Article 2


Equality and prohibition of discrimination


2. The last paragraph of the General Comment on article 26 states that "not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant". The upper Belgian courts (the Court of Arbitration, the Court of Cassation and the Council of State) interpret the principle of equality and non-discrimination in an identical manner, on the clear understanding that the means invoked must also be proportionate to the objective pursued. Although, to date, the condition of proportionality has not arisen in the decisions of the Human Rights Committee, that does not mean that the Committee does not take implicit account of it.

3. Although the Belgian legal system's interpretation of the principle of equality is consistent with that of the Human Rights Committee, articles 2, paragraph 1, and 26 of the Covenant have been the subject of very few judicial decisions in the Belgian courts. Such decisions tend to be based more on an interpretation of articles 10, 11 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms than on the corresponding articles of the Covenant.

4. The first sentence of article 10, paragraph 2 of the Constitution provides that "Belgian citizens are equal before the law", while the first sentence of its article 11 states that "Enjoyment of the rights and freedoms accorded to Belgian citizens must be guaranteed without discrimination." It is possible to verify whether acts of the Executive - and, since 1989, rules having the force of law - are compatible with the above-mentioned constitutional provisions.

5. When article 26 of the Covenant is invoked, it is generally in combination with the above-mentioned articles of the Constitution, so that no separate assessment of article 26 takes place. The Court of Arbitration, for instance, ruled that: "Even assuming that [...] these grounds, based on the violation of provisions of international law that set forth the principle of equality and non-discrimination, can be considered as implicitly combined with articles 10 and 11 of the Constitution, it is not apparent that they are founded on arguments other than those already examined [above]." (Court of Arbitration (C.A.), 27 January 1994, No. 11/94, Moniteur belge (M.B.), 5 March 1994.)

6. The above comments call for an explanation, one that is of considerable relevance to equality of treatment of foreigners. It might be wrongly inferred from article 10 of the Constitution that only Belgians enjoy equality of treatment. However, article 10 of the Constitution must be read in conjunction with its article 191, which provides that any foreigner present within the territory of Belgium shall enjoy the protection accorded to persons and to property, except where otherwise provided by law.

7. In its decision of 14 July 1994 the Court of Arbitration nevertheless stressed that the purpose of article 191 of the Constitution is not to empower the legislature, when establishing a differentiation of treatment, to dispense with the requirement to "have regard to the fundamental principles of the Constitution". Article 191 thus in no way implies that the legislature may, when
establishing a differentiation of treatment to the detriment of foreigners, "fail to ensure that that differentiation is not discriminatory, whatever the nature of the principles at issue." (C.A., 14 July 1994, No. 61/94, M.B., 9 August 1994.) Consequently, all individuals on Belgian territory, without distinction, are ensured protection of the rights guaranteed by the Constitution and by directly applicable treaty provisions.

8. It should be stressed that article 11 of our Constitution, which has the same scope as article 26 of the Covenant, imposes an independent legal obligation of non-discrimination, also applicable to social, economic and cultural rights.

9. Recently the Court of Arbitration also ruled on cases of positive discrimination. In order for these to be compatible with the principle of equality and non-discrimination, "they must be applied only in cases where there is manifest inequality, where the elimination of that inequality is designated by the legislature as an objective to be promoted, where the measures are temporary in nature, being intended to be discontinued as soon as the objective sought by the legislature has been achieved, and where they do not unnecessarily restrict the rights of others". (C.A., 27 January 1994, No. 9/94, M.B., 23 March 1994.)

10. The creation of a Centre for Equal Opportunity and Action to Combat Racism (Act of 15 February 1993, M.B., 19 February 1993) and the Act Promoting Balanced Representation of Men and Women on Lists of Electoral Candidates may be seen as specific measures taken recently by the authorities in the context of promoting equality and combatting discrimination (Act of 24 May 1994, M.B., 1 July 1994, see commentaries on article 3 of the Covenant).


Direct applicability


11. The International Covenant on Civil and Political Rights is an integral part of the Belgian legal system. The provisions of the Covenant can be invoked before national judges, who apply them where they are directly applicable. In the event of conflict with a rule of domestic law, the directly applicable rule in the Covenant prevails over the domestic rule.

12. The Belgian courts, both ordinary and administrative, have generally accepted the direct applicability of the Covenant and apply its provisions more or less automatically, without even first establishing whether the provision in question is in fact directly applicable. During the period under review no case arose in which the provisions of the Covenant were not considered directly applicable. Contrariwise, many judgements and decisions were handed down in which the provisions of the Covenant were applied. These chiefly concerned article 2, paragraph 3, articles 6, 7 and 9, paragraph 3, articles 12 and 13, article 14 (in general, and its paragraphs 1, 3 and 5 - 7), and articles 17, 18, 23 and 26.

13. Non-application of an article of the Covenant results, not from its lacking direct applicability, but from differing interpretations thereof by the
litigant and the court (Cass., 3 March 1992, (Pas., 1992; Cass., 23 January 1992, Pas., 1992).

14. During the constitutional review (articles 10, 11 and 24), the Court of Arbitration interpreted these provisions in the light of the Covenant (C.A., No. 90/94, 22 December 1994, M.B., 12 January 1995; C.A., No. 61/94, 14 July 1994, M.B., 9 August 1994).

15. During the period under review, legal decisions continued to follow a trend that had already become apparent, namely, to invoke not only the applicable provision of the Covenant, but also the corresponding provision of the European Convention on Human Rights (Cass., 19 January 1994, Bull., 1994; Cass., 8 December 1992, Bull., 1992). Many provisions of the Covenant are in fact paralleled by a corresponding provision in the European Convention, the direct applicability of which in Belgium is generally accepted by the courts. It would be illogical for the one provision to be directly applicable but not the other.

16. The surprising opinion delivered by the Council of State in 1976, according to which "neither of the two Covenants contains provisions that would be directly applicable in Belgium without the support of other measures of domestic law" (Doc. Parl., House, 1977-78 session, No. 158/1, 29), has never actually been followed in the practice of the Belgian courts.

17. Article 2, paragraph 2, also refers to the implementation of the Covenant through the adoption of legislation; this constitutes another possibility in Belgium, in addition to direct application. With regard to specific legislation relating to specific rights, the Committee is referred to the commentaries on the various rights.


Remedies


(a) Effective legal assistance


18. With regard to the right to effective legal assistance, it should first be recalled that Belgium has acceded to the first Optional Protocol to the Covenant, under which the right of individual petition is recognized. The Protocol was ratified by an Act of 16 March 1994. The right of individual petition has been applicable in Belgium since 17 August 1994.

19. To supplement the information already provided in the first two reports submitted to the Committee, it should be added that, in line with the case-law of the European Court of Human Rights and the Convention on the Rights of the Child, the legislature took account of a number of problematic situations concerning minors when drafting the Act of 2 February 1994 Amending the Protection of Young Persons Act of 8 April 1965. Thus, inter alia, provision is made for the mandatory assistance of a lawyer from the outset of the preparatory procedure before the juvenile court judge. Article 53, paragraph 1, of the Protection of Young Persons Act, under the terms of which a minor may be kept in a local gaol for a maximum period of 15 days - a measure against which an appeal to the judge is often deemed to be pointless, in view of its short duration -will eventually be repealed by a decision of the Executive (art. 53, para. 3 (2) of the Protection of Young Persons Act), once a number of additional places have been created in the closed Community establishments (see commentary on article 9 of the Covenant).

20. Furthermore, in matters of formal legal (punitive) protection, the distinction between "civil" and "political" rights must be maintained, as must the possibility of bringing the matter before an ordinary judge or the Council of State (see the previous reports). The Act of 19 July 1991 gives the administrative section of the Council of State the possibility of ordering the suspension of annullable administrative acts. The Council of State may also order interim measures, a default fine, or both.

21. The Act of 1 August 1985 set up a committee to grant the victims of intentional acts of violence (or their relatives) financial aid, when the perpetrator is insolvent or unknown. (Such aid does not constitute true legal compensation, but it represents a first step towards a genuine right to damages paid from the public purse).

22. The changes that have taken place in recent months and years with regard to the right to effective legal assistance chiefly concern informal (preventive) legal protection of the citizen against the authorities and public access to the administration (see commentaries on article 20 of the Covenant).

23. There is also provision for a mediation service at various administrative levels. Mention should be made of the federal mediators (Act of 22 March 1995); the mediator of the Flemish Community (Decree of 23 October 1991 and Order of 9 December 1992); the mediator for the Walloon Region (Decree of 22 December 1994, amended by the Decree of 16 February 1995); and the mediators for the federal public enterprises (Act of 21 March 1991 and Royal Decree of 9 October 1992). A number of communes also have their own mediator. The mediator tries to find tailor-made solutions to specific problems. In other words, a distinction must be drawn between his task and that of the professional jurisdictional or administrative organs.


(b) Execution of compensation


24. With regard to the actual execution of legal compensation by the competent authority, one should first note the partial revocation of immunity from execution regarding public property. For such property, immunity from forcible execution, which was long considered "absolute" by court decisions, was rendered more flexible by the decisions of judges of the lower courts and of the Court of Cassation (see Cass., 30 September 1993), and particularly by the Act of 30 June 1994 (which entered into force on 21 January 1995). The Act introduces a number of exceptions to the principle of immunity from execution: first, property declared seizable by the public-law authorities may be seized; secondly, in the absence of such declaration or when the property mentioned therein is not sufficient to pay off the creditor, he may apply to the judge and arrange for the seizure of such property as is not manifestly necessary to legal persons of public law for the exercise of their tasks or for the continuity of the public service.

25. Some progress may also be noted with regard to the responsibility of the State in matters of judicial interventions. Shortly after the acceptance of the responsibility of the State for interventions by its organs, the Court of Cassation ruled, in two decisions handed down concerning the Anca case (see Cass., 19 December 1991 and 8 December 1994), that the State could be required to pay damages resulting from professional errors committed by magistrates. In the first Anca judgement the Advocate-General of the Court of Cassation declared in his conclusions that when there is a finding against a State by the European Court of Human Rights in Strasbourg and domestic remedies or the nature of the offence do not allow - or only partially allow - for compensation at law, an individual has the right to claim full compensation from the State concerned.

26. It should be pointed out that the above-mentioned developments may give rise to difficulties. Those difficulties call for further reflection. They include, for example, the statutory conditions for the financial aid granted pursuant to the Act of 1 August 1985 (see para. 21 above), which are relatively general and imprecise and are applicable only to a limited number of victims. The competent committee is comparatively little-known to the public. Furthermore, with regard to the new law on forcible seizure of public property, it should be noted that the respective authorities are not obliged to draw up lists of seizable property. If they do not do so, the judge can decide to seize it. The public authority will have to demonstrate that the property in question is necessary to it. The notion of "such property as is not manifestly necessary" is a vague one. It therefore remains to be seen whether judges will apply a broad interpretation of the notion.


Article 3


27. During the period under review several institutional mechanisms were created for the advancement of women. Many legislative measures were also adopted. Additionally, a number of examples taken from the rulings of the highest courts show that the right of women and of men to enjoy equality and non-discrimination is protected by the courts.


Mechanisms for the advancement of women


At federal level


28. In 1992 the State Secretariat for Social Emancipation, the first official structure to be given responsibility for equal opportunities policy, became a separate department within the Ministry of Employment and Labour. In that context an Equal Opportunities Service was set up, with the tasks of promoting initiatives to guarantee equal opportunities for men and women and coordinating policy to secure better integration of women in all areas of life.

29. The Council for Equal Opportunity between Men and Women, set up by the Royal Decree of 15 February 1993, is a consultative body replacing the Women's Employment Commission and the Council for Emancipation. This Council consists of 54 members representing the social partners, the women's organizations, consultative bodies with competence in the fields of cultural and youth policy, family organizations, the political parties in the Government and the "Women's Studies" support services set up within the Scientific Policy Programming Services' social sciences research programme. The Council's objectives are to contribute effectively to the elimination of all forms of direct or indirect discrimination against men and women and to the achievement of equality.


In the Flemish Community


30. The Flemish Community has put in place the following measures:

(a) At legislative level, a Parliamentary Committee on Equal Opportunity and Emancipation has been set up;

(b) At executive level:

A (woman) minister in the Flemish Executive is responsible for equal opportunities policy. This policy is specifically targeted on women, immigrants, homosexuals and disabled people;

An administrative unit attached to the Department of Coordination is responsible for supporting and implementing the policy of the minister (whose post was created by a decision of the Flemish Council of 10 October 1995, and who took office on 1 January 1996);

An Interdepartmental Committee on Equality of Opportunities was set up in 1996;

An official with responsibility for emancipation within the Ministry of the Flemish Community took office on 1 September 1991. She draws up an annual positive action plan and prepares an annual report on the previous year's results;

Posts of "emancipation official" have been created in the Flemish public institutions;

A Standing Committee on Equality of Opportunity for Girls and Boys in Education was set up within the Flemish Education Council by an order of the Flemish government in 1992; its purpose is to promote measures to offer a wider choice of studies to girls in secondary, technical and vocational education;

The Women's Consultation Committee, set up in 1990 within the Economic and Social Council of Flanders, is a consultative body whose membership includes representatives of the social partners and of women's organizations.

(c) At local level, some communes and towns have a commune emancipation council.


In the French Community


31. The Equal Opportunities Service of the French Community, which has been operational since 1985, is a consultative service intended to promote an equal opportunities policy. It has a budget of 1 million Belgian francs in addition to all the services made available to it by the ministry of which it forms part. The Women's Continuing Education Associations are subsidized to the tune of 98 million Belgian francs, or 20.35 per cent of the budget allocated to activities in this field. The two health education movements (services for specialized women teachers) receive 7.07 million Belgian francs. Projects targeted on women and children (immigrant families, training of infant welfare specialists and volunteer workers, brochures) receive about 3.5 million Belgian francs.

32. There are more than 100 sex, marriage and family counselling and information centres in the French Community, most of them subsidized by the public authorities. Women are strongly represented in these centres at all occupational levels (doctors, social workers, psychologists, sexologists, receptionists, etc.).

33. A committee on equal opportunities for boys and girls has been in operation since 1979.

34. As regards aid to families and the elderly, the French Community Commission adopted an order in March 1995 enabling 150 women, with or without special training, to gain access to full-time jobs providing assistance in the home to the elderly and disabled, invalids and persons experiencing social difficulties. In the social aid sector, in-service training of workers has been made compulsory. Consideration is currently being given to introducing training programmes leading on to higher paramedical and social studies.


In the Walloon Region


35. In 1994 a Regional Committee for Women was set up, attached to the Economic and Social Council of the Walloon Region. The establishment of this committee is the result of the granting of new powers to the Walloon Region in the framework of federalization. It is also the result of the abolition of the Women's Employment Commission, which has been replaced by an Equal Opportunities Council, with a different composition, no longer representative of the Communities and Regions. The Regional Committee for Women is a joint body made up of 16 full members and 16 alternates, all of whom, including the Chairperson and the Vice-Chairperson, are appointed by the organizations representing employers and employees. Experts and representatives appointed by the ministers of the Walloon Region may sit as associate members with a consultative role. The Regional Committee for Women is incorporated in the Economic and Social Council of the Walloon Region and functions like the other committees: its opinions are transmitted to the Bureau of the Council and relayed by the Council, which is responsible for communicating them to the interlocutors concerned.

Statutory guarantees of equality of rights


At federal level


36. The last vestige of discrimination against women was eliminated from the Constitution with the amendment of article 60 (now article 85), which provided that only males could succeed to the throne of Belgium, in the order of primogeniture. Henceforth, female members of the Royal Family may also claim the right to succeed to the throne.

37. In order to encourage the presence and election of women on electoral lists, the federal legislature adopted the Act of 24 May 1994 Promoting Balanced Representation of Men and Women on Lists of Electoral Candidates (M.B., 1 July 1994). This Act amends the acts organizing elections to the Chamber of Representatives, the Senate, the Walloon Region Council, the Flemish Council, the Council of the Brussels-Capital Region, the Council of the German-speaking Community, the provincial councils and the commune councils, and the election of the Belgian Members of the European Parliament. It provides that:

In the event of non-compliance with this provision, the offending list is disqualified from the elections by the chief competent electoral office. The Act will not enter fully into force until 1 January 1999. However, for the legislative elections, a quota of three quarters (rather than two thirds) is applicable from 1 January 1996 to 31 December 1998, as well as for any local (commune) elections that may be held before 1 January 1999.

38. It should be stressed that the two-thirds quota is calculated on the basis of the total number of seats to be filled, not of the total number of candidates on the list, which enables a political party to submit a list comprising only candidates of the same sex, provided that the list does not include more than two thirds of the total number of candidates for the seats to be filled. While the text of the Act is worded so as to place men and women on an equal footing, it is obvious that, when the electoral lists are drawn up, it will favour the minority group, namely, women, and that men may be left off a list purely on account of their sex.

39. The Royal Decree of 12 August 1994 provides that, for social elections (elections to works councils and safety and hygiene committees), the number of women on the electoral lists must be proportional to their presence in each category of worker for which a list of candidates is submitted.

40. With regard to the public sector, the Royal Decree of 27 February 1990 makes implementation of positive action compulsory in State administrative bodies and services, public-interest corporations under State jurisdiction, provincial administrative bodies and other provincial services, and in the communes and public undertakings subordinate to them. This action is implemented by means of equal opportunity plans which include measures to remedy harmful effects on women resulting from traditional social situations and patterns of behaviour, and through measures to promote their presence and participation in professional life at all hierarchical levels. The Royal Decree of 24 August 1994 stipulates that the officials responsible for positive action in the public services must have sufficient time at their disposal in which to perform their duties in that connection.

41. At the end of 1993 a report by the committee responsible for general monitoring of equal opportunities plans in the public institutions was circulated to the federal Government, the governments of the Communities and Regions and the joint committee for the public services as a whole. This report reveals that about one in every two federal services (ministries and federal public-interest bodies) has drawn up an equal opportunities plan; that the six services of the Regions and Communities are in the process of drawing up such plans; and that one in five institutions at provincial and local levels has actually implemented a positive action plan.

42. It should also be pointed out that, as regards conditions for access to employment in the commune police, steps have been taken to rectify the inequalities liable to affect women, inter alia at the recruitment stage, and especially when undergoing physical fitness tests. The status of women in the armed forces has also undergone some changes. Thus, the ministerial order of 19 December 1986 (M.B., 27 January 1987) determining the psycho-technical tests and physical fitness tests to be taken by military candidates for the active list was amended by the Royal Decree of 13 November 1991 (M.B., 7 December 1991) establishing the rules applicable when assessing the physical capacities of certain candidates and cadets in the armed forces; but the principle of identical selection criteria for the two sexes has been maintained. The total number of women in the armed forces on 1 January 1996 was 3,147, including 177 officers and 1,001 non-commissioned officers.

43. The Royal Decree of 14 July 1987 provides for the same type of positive action in the private sector, through the establishment of equal opportunity plans. The Royal Decree of 12 August 1993 adds to this the obligation for private enterprises with more than 50 employees to produce an annual report on equality of opportunity for men and women in the enterprise, giving overall figures for the number of men and women employees, for transmission to the works council.

44. On 10 May 1996 the Council of Ministers approved preliminary draft legislation to encourage balanced representation of men and women on bodies with advisory capacity. The text amends the Act of 20 July 1990, which provides that one man and one woman candidate must be put forward for each vacant seat on bodies with advisory capacity.

45. Reports on implementation of the Act of 20 July 1990 show that it has not yielded the desired results. In practice, two candidates are put forward in only about 50 per cent of cases. Sometimes there is not even any awareness that the legislation exists. Consequently, the new preliminary draft law provides for the following modifications:

Existing consultative bodies must adapt their membership to comply with the legislation when mandates are next renewed, and in any case by 31 December 1999 at the latest.


In the Flemish Community


46. Measures adopted include the following:

In the French Community


47. Measures adopted include the following:

Examples of court rulings


48. In the area of social benefits and pensions, the Court of Justice of the European Communities (Van Cant judgment, 1 July 1993) ruled that the Act of 20 July 1990 establishing a flexible age of retirement for employees is discriminatory because it places men at a disadvantage. This Act establishes a uniform age of retirement for men and women (between the ages of 60 and 65), but uses different methods for calculating the number of years each must work in order to gain entitlement to a pension, requiring 40 years' work for women and 45 for men. The argument that allowance must be made for interruptions in women's careers and earnings was rejected. The Court of Arbitration ruled that this argument, based on the principle of "positive discrimination" to take account of the legacy of the past, cannot be accepted when it is limited to an overall comparison of the situation of men and women, and fails to establish in what way the measure being criticized contributes to reducing a disadvantage in the case under consideration (C.A., 14 July 1994, No. 61/94, M.B., 9 August 1994). The provision giving entitlement to a guaranteed income for elderly persons to men from the age of 65 and to women from the age of 60 was deemed to be discriminatory.

49. The Court of Justice of the European Communities (judgment of 17 February 1993, Commission v. Belgium) also found against Belgium on the grounds that a supplementary pre-pension allowance, provided for in a national collective agreement, was limited to men. In two decisions the Court of Arbitration rejected the argument that a measure which makes no distinction founded directly on sex and which exclusively or principally affects women constitutes discrimination, contrary to the rule of equality of treatment (decision No. 17/91 of 4 July 1991 concerning a reduction in the survivor's pension for widows and widowers also receiving a retirement pension; decision No. 74/93 of 21 October 1993 concerning a special employer's contribution in connection with employment of involuntary part-time workers).

50. Concerning night work, Belgian law (Labour Act of 16 March 1971,
arts. 35-38 bis) contains a general prohibition on night work for men and women, together with a large number of exceptions. The exceptional régimes distinguish between the sexes chiefly with regard to the procedure for adoption of exemptions and the duration of the night work authorized. The Court of Justice of the European Communities (Minne judgment, 3 February 1994) ruled that this differentiation violates the rule of equality in that it is not justified by the need to protect women, with particular regard to pregnancy and motherhood.

51. On equality of remuneration, article 130 of the Act of 4 August 1978 establishes that provisions contravening the principle of equality of treatment shall be deemed invalid. In several decisions (those of 23 December 1991, 17 January 1994, 27 January 1994 and 20 June 1994) concerning end-of-career payments resulting from a collective labour agreement that were granted only to men, the Court of Cassation found that the invalidity did not extend to the entire provision granting the payments, but only to that part of it excluding women. In other words, equality is not restored by the withdrawal of advantages from the advantaged sex, but only by their extension to the disadvantaged sex.

52. Article 319 (3) of the Civil Code makes recognition of an unemancipated minor by the father conditional on the prior consent of the mother. In so doing it establishes a differentiation of treatment between the mother and the father. The Court of Arbitration was called upon to rule on this matter on two occasions. In its decision No. 39/90 of 21 December 1990, the Court ruled that, inasmuch as it makes the admissibility of recognition of an unemancipated minor by the man whose paternity is not contested conditional on the prior consent of the mother, article 319 (3) of the Civil Code violates articles 6 and 6 bis (now articles 10 and 11) of the Constitution (principles of equality and non-discrimination).

53. The Court confirmed its position in its decision No. 63/92 of 8 October 1992, adding that article 319 (3) of the Civil Code also violated articles 6 and 6 bis of the Constitution in that, when the case is referred to the court, it gives the court the power to assess whether the recognition may take place, even when it is not proven that the applicant is not the father.

54. The fourth paragraph of this provision grants the court, when the mother is unknown, deceased or unable to express her will, the power, on the basis of its assessment of the child's best interests, to annul recognition of an unemancipated minor by a man whose biological non-paternity is not proven. The Court of Arbitration also considered that this provision violated the principles of equality and non-discrimination (decision No. 62/94 of 14 July 1994).

55. As these decisions were handed down on preliminary issues, they have only limited authority. Thus, the statutory provisions referred to are still in place and continue to form part of the legal order.


Article 4


56. In addition to the information provided in the two previous reports of the Belgian Government concerning article 4 of the Covenant (CCPR/C/31/Add.3, paras. 51-65 and CCPR/C/57/Add.3, para. 65), the following information should also be noted.

57. Article 4 of the Covenant, like article 15 of the European Convention on Human Rights, states that neither war nor any other public emergency which threatens the life of the nation may authorize any derogation from the "core" human rights, and in particular the provisions prohibiting torture, slavery, the right to life, etc.

58. When adopting the Act of 16 June 1993 concerning the prosecution and punishment of serious breaches of the Geneva Conventions of 12 August 1949 and of Protocols I and II of 8 June 1977 Additional to the Geneva Conventions (annexed, M.B., 5 August 1993), the Belgian legislature included a specific provision covering irreducible human rights. Thus, paragraph 1 of article 5 of the Act of 16 June 1993 unequivocally provides that "No interest, no necessity of a political, military or national nature, may justify, even in the context of reprisals, the offences covered by articles 1, 3 and 4, without prejudice to the exceptions referred to in paragraphs 9, 12 and 13 of article 1." Paragraph 1 of article 5 thus includes the general principle of humanitarian law whereby certain basic minimum humanitarian standards must be respected in all circumstances - a principle set forth in article 15, paragraph 2 of the European Convention on Human Rights, in article 4 of the Covenant, in article 60 (5) of the Vienna Convention on the Law of Treaties, in article 75 of Protocol I Additional to the Geneva Conventions of 12 August 1949, and in article 5 of the Code of Conduct for Law Enforcement Officials (resolution adopted by the United Nations General Assembly on 17 December 1979).


Article 5


59. The remarks relating to article 5 contained in the initial report of Belgium (CCPR/C/31/Add.3, paras. 66 and 67) call for no further comment.


Article 6


Death penalty


60. The Death Penalty (Abolition) and Serious Penalties (Amendment) Act was adopted on 10 July 1996 (M.B., 1 August 1996). The abolition is absolute and applies to all types of offence, committed in all types of situation. The Act also totally does away with the outdated and ambiguous concept of "hard labour" and replaces it by the more neutral concept of "rigorous imprisonment", which thus becomes the generic name for any custodial penalty pronounced in criminal matters for an offence under the ordinary law. Lastly, the Act harmonizes long-term serious penalties more fully, by abolishing the distinction between ordinary detention and extraordinary detention.

61. Abolition of the death penalty will enable Belgium to ratify international instruments such as the Second Optional Protocol to the International Covenant on Civil and Political Rights, Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty, and the European Convention on Extradition.


Commencement and termination of life


62. On the question of the commencement of life, the Court of Arbitration declared, in the context of an application for annulment of the Belgian Act of 3 April 1990 on interruption of pregnancy (M.B., 5 April), that "while the obligation to respect life obliges the legislature to take steps also to protect the lives of unborn children, it cannot be deduced from this that the legislature is obliged to treat children once born and unborn children in an identical manner". (C.A., 19 December 1991, No. 39/91, M.B., 24 January 1992.) The Court of Cassation took a more decisive view, affirming that the right to life, as recognized in article 2 of the European Convention on Human Rights, implies the protection of the life of the child even before birth (Cass. 22, December 1992, Revue de droit pénal, 1993, 650-652).

63. The thorny problem of termination of life continues to be the subject of parliamentary debate, but has not passed beyond the stage of proposals for legislation (see proposed legislation on requests for interruption of life, tabled by Mr. Monfils, Doc. Parl., Senate, S.O. 1994-1995, 25 January 1995, doc. 1290-1; proposed legislation on incurable patients' right to therapeutic dignity, tabled by Mr. Serge Moureaux, Doc. Parl., House, S.O. 1995-96, 13 October 1995, doc. 121/1).

64. Mention should also be made of the setting up, under a cooperation agreement concluded on 15 January 1993 between the State and the Communities, of a consultative committee on bioethics. Under article 1 of this agreement, the committee exercises both an advisory and an informative role. It gives its opinion, on its own initiative or at the request of the persons or authorities empowered to bring matters before it, on biological, medical and health questions, whether they concern individuals, social groups or society as a whole. The ethical, social and legal aspects of the problems, and especially their human rights aspects, are considered. Thus, in some respects the committee's activities touch on the right to life. The cooperation agreement setting up this committee was approved by the Act of 6 March 1995 (M.B., 15 June 1995). The committee is now operational. Lastly, it should be pointed out that the Royal Decree of 12 August 1994 supplements the rules applicable to hospitals by requiring every hospital to set up a "local committee on hospital ethics".


Article 7


Measures for the removal of aliens


65. Paragraph 9 of General Comment 20 on article 7, adopted by the Human Rights Committee at its forty-fourth session, affirms that States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. In application of this rule, the Council of State has reiterated on a number of occasions that it is forbidden to return an alien who has been refused the status of political refugee to his country of origin, where there are substantial grounds for believing that he would be subjected to inhuman or degrading treatment if returned (Council of State (C.S.), 21 June 1991, No. 37,289, Revue de droit des étrangers 1991, p. 343).

66. Regardless of the risk incurred by the individual in the State to which he is returned, the Council of State decided that it would constitute inhuman treatment to return to Turkey a widowed 69-year-old with no family in Turkey who was suffering from a serious medical condition (C.S., 9 November 1994, No. 50,103, Revue de droit des étrangers 1995, p. 43; see also C.S., 11 February 1994, No. 46,098, Revue de droit des étrangers 1994, p. 31; C.S., 8 December 1993, No. 45,191, Revue de droit des étrangers 1994, p. 146).

67. Article 57, paragraph 2 (2) of the Public Social Welfare Centres (Organization) Act of 8 July 1976 places limits on the right to social welfare of aliens who have been issued with a final order to leave the territory. The Court of Arbitration decided that that limitation constitutes neither torture, nor inhuman treatment, nor serious degradation or humiliation (C.A., 29 June 1994, No. 51/94, M.B., 14 July; see too, for a continuation of this case-law, Cass., 4 September 1995, Journal des tribunaux du travail 1996, p. 46).


Deprivation of liberty


68. From 14 to 23 November 1993 Belgium was visited by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The Committee visited premises of the commune police and Gendarmerie, custodial centres for foreign nationals, and prisons.

69. Belgium agreed to publish the report issued by the Committee following its visit (document CPT/Inf (94) 15 of 14 October 1994), as well as the interim report (CPT/Inf (95) 6) of 3 May 1995 containing the response of the Belgian Government. On 21 February 1996 the follow-up report (CPT/Inf (96) 7) was also made public.

70. With regard to the allegations of ill-treatment by commune police and the Gendarmerie during questioning or interrogation, referred to in the report by the CPT, Belgium drew attention to various provisions, already existing or in the course of preparation, the purpose of which is to rectify the situation. These include:

71. With regard to accommodation conditions in holding centres for aliens, while the Committee heard no allegations of torture or serious ill-treatment, it nonetheless noted some shortcomings in the treatment of aliens in these centres, whether concerning conditions or the attitude of the gendarmes at Brussels National Airport (e.g., allegations of violence, particularly when aliens are escorted to aircraft). In its interim and follow-up reports the Belgian Government placed special emphasis on the opening of new closed centres for illegal aliens; it also gave a detailed description of reception conditions in the various centres, and of the improvements introduced since the Committee's visit. At the regulatory level, two projects are being studied, one of them concerning the functioning of the closed centres as a whole, the other including, inter alia, instructions for escorts in cases of repatriation.

72. With regard to prison establishments, the European Committee insisted that priority must be given to implementation of measures to reduce overcrowding and improve prisoners' living conditions.

73. In a circular of 4 July 1994, the Minister of Justice also prolonged indefinitely the emergency and ad hoc measures to remedy overcrowding in closed establishments periodically taken for a limited period. That circular basically extends the measures contained in the circular of 4 March 1994. Its essential features are provisional early release on parole of prisoners serving short prison sentences or a decision on the date of their eligibility for parole. Application of these principles has enabled several hundred prisoners to be released. Thus, proposals for individual pardons are submitted to the Head of State whenever a prisoner's personal file warrants such a measure. In addition to these individual measures, the effect of which is to shorten the duration of imprisonment or to obviate the need for it altogether, the Head of State also occasionally grants collective pardons. Statistics for the year 1994 provided by the Prisons Administration's service responsible for pardons reveal the following situation:

Miscellaneous


74. According to the Court of Arbitration, interruption of pregnancy, referred to in article 350, paragraph 2, of the Penal Code, does not constitute an act of torture or cruel, inhuman or degrading treatment or punishment within the meaning of article 7 of the Covenant (C.A., 19 December 1991, No. 39/91, M.B., 24 January 1992).

75. The interim relief judge, who hears urgent interlocutory applications, is the natural choice of judge to order measures to put an end to inhuman and degrading treatment (Trib. civ. Brussels - réf. - 25 November 1993, Jurisprudence de Liège, Mons, Bruxelles 1994, p. 656, and the note by P. Martens: "De l'interdiction d'infliger des sévices à l'obligation de protéger la dignité humaine").

76. The Court of Cassation has affirmed on several occasions that a death sentence pronounced by a court of a country in which there is provision for that penalty is not per se inhuman or degrading in nature (Cass., 29 January 1992, Bull. and Pas. 1992, I, No. 281).

77. Regarding the regulation of medical experiments, mention should be made of the amendments of 22 September 1992 (M.B., 5 December 1992) to the Royal Decree of 16 September 1985 concerning the standards and protocols applicable to testing of medicaments for human use.


Article 8


78. Military service was compulsory until December 1992. Under article 4 of the Military Service Acts coordinated on 30 April 1962, from the year in which he was 16 years old, every Belgian was enrolled on the levy list for the year during which he would attain 19 years of age. A deferment could be granted in the circumstances provided for in article 10 of those Acts; enlistment before call-up was also possible. In the latter case the conscript was accepted for service in the contingent for the year in which he turned 18, provided he was passed fit for service. Article 2, paragraph 4, of the Military Service Acts coordinated on 30 April 1962 provides that in time of war "conscripts shall form part of the recruitment reserve from 1 January of the year during which they reach the age of 17 until such time as they are called up or their military obligations are extinguished. That reserve may be called up for service only in case of war or when the territory is threatened."

79. The Act of 31 December 1992 limiting the scope of the old legislation to conscripts from the 1993 and previous levies, henceforth suspends any obligation to perform military service.

80. With regard to prison labour, it should be pointed out that throughout the country's various establishments special efforts are being made to increase the possibilities for providing prisoners with work. Furthermore, special training, ranging from basic literacy to advanced studies, together with vocational training in various fields such as bricklaying, electrical installation and maintenance, book-keeping and administration, are organized locally in collaboration with outside participants (social welfare institutes, vocational training enterprises, regional authorities, etc.). For further information on this subject, the Committee is referred to page 46 of the interim report and pages 14 and 15 of the follow-up report prepared by Belgium following the visit by the European Committee for the Prevention of Torture (CPT) in November 1993.

81. Although in principle child labour continues to be prohibited in Belgium, a new Act dealing with this question entered into force on 1 February 1993, authorizing, through an exemption granted by the competent minister, work by children in very specific cases such as theatrical roles, fashion parades and, recently, advertisements. The new Act establishes that the work must not have an adverse effect on children's educational, social or intellectual development, or endanger their psychological and moral integrity, or be harmful to their well-being. The broad scheme of this Act of 5 August 1992 is set forth in paragraphs 452 to 455 of the first report on implementation of the provisions of the Convention on the Rights of the Child (CRC/C/11/Add.4), which Belgium submitted to the Committee on the Rights of the Child on 12 July 1994.

82. In the case of young persons who have committed certain types of act characterized as offences, the juvenile court may decide, under the terms of article 37 of the Act of 8 April 1965, that the rendering of an educational or charitable service will suffice. In that case, the judge may order the minor to perform a number of hours' work in various public or public-interest agencies (see doc. CRC/C/11/Add.4, paras. 434-439).


Article 9


Lawfulness of arrest and detention


83. Belgian law provides for two main types of arrest by the forces of order: administrative arrest and judicial arrest.


84. Articles 31 to 33 of the Police Functions Act of 5 August 1992 harmonized and extended the existing provisions concerning administrative arrest. Under those provisions, a policeman may, in case of absolute necessity, administratively arrest a person who is causing an obstruction, causing an actual breach of the peace or preparing to commit certain offences, or, with a view to making him desist, a person committing certain offences. Article 22 of the Act also permits administrative arrests when dispersing crowds in the context of the maintenance and restoration of public order.

85. Administrative arrest cannot last longer than the circumstances warranting it, and can in no case ever exceed 12 hours. Where a person is concurrently subjected to administrative and judicial arrest for the same acts, the duration of the administrative arrest is included in the 24-hour period of deprivation of liberty to be taken into consideration in application of the Pre-trial Detention Act. The Act provides for the obligation to record administrative arrests in a special register and to inform the bourgmestre at the earliest opportunity.

86. Article 34 of the same Act deals with identity controls. Any person who cannot or will not establish his identity may be held for the period necessary for the establishment and verification thereof. However, that period may in no case exceed 12 hours. The person being controlled may in some circumstances be asked to accompany the police official to the police station or gendarmerie. He will have to wait there under surveillance until his identity is established (in appropriate premises, but not necessarily in a cell or provisional lock-up). If recourse to force is necessary, he may be confined to a cell, and thus administratively arrested, in which case the fact will then be recorded in accordance with article 33.


(b) Judicial arrest


87. The regulations covering pre-trial detention were entirely overhauled by the Act of 20 July 1990 (M.B., 14 August 1990), which entered into force on 1 December 1990.

88. Practically every aspect of arrest and pre-trial detention in criminal matters was brought together under this Act; only pre-trial detention in connection with customs and excise matters and the pre-trial detention of military personnel and minors are still covered by separate regulations. Additionally, the provisions concerning compensation in the event of "inoperative" or unjust pre-trial detention were removed and consolidated in a separate Compensation for Inoperative Pre-trial Detention Act of 13 March 1973. Lastly, a number of issues not covered in the Pre-trial Detention Act (such as the provisions concerning body searches) were transferred to the Code of Criminal Investigation.

89. The main features of the new act are as follows:

(a) The primary concern of the legislature was to emphasize the exceptional nature of pre-trial detention. That emphasis is achieved, inter alia, by:

(b) The legislature intended to strengthen guarantees of individual rights. This can be seen, inter alia, from the procedure, which was made more adversarial; and from the introduction of a rapid annulment procedure, improved provision of information to the accused and, especially, improved contact between the accused and his counsel through the abolition of the prohibition on communicating with persons other than the lawyer (art. 20 of the Pre-trial Detention Act).

90. The implications of the new law for prison establishments were spelled out in circulars (CM 1558/VI of 28 November 1990, 1560/VI of 18 December 1990 and 1561/VII of 21 December 1990). The last of these specifies that untried prisoners held incommunicado are not authorized to contact their lawyer even by telephone, despite the lifting of the prohibition on communicating freely with their lawyer. This can be done only through the intermediary of a member of the prison staff. Lastly, as regards the right to communicate, it should be pointed out that the Royal Decree of 26 September 1995 amended the list of authorities with whom the prisoner may correspond (General Regulations for Prison Establishments, art. 24). First, the list was adapted to take account of the new institutional situation in Belgium (i.e., the Communities and Regions); secondly, the Presidents of the Court of Arbitration and the Chairman of the European Committee for the Prevention of Torture (CPT) were added to the list.


Court rulings


91. In recent years persons held in pre-trial detention have repeatedly applied to the interim relief judge to safeguard their fundamental rights. The claim by one detainee that the strict régime of isolation and the intensified surveillance to which he had been subjected during his pre-trial detention should be considered as inhuman and degrading treatment (within the meaning of article 3 of the European Convention on Human Rights) was dismissed by the judge: his complaint was rejected, partly because the isolation imposed was not total, and partly because it was not demonstrated that the intensified surveillance had adverse consequences for the claimant's physical or psychological health (Kg., Brussels, 10 January 1991, Journal des procès 1991, No. 189, 27). However, the application by a detainee for transfer, brought in interim relief proceedings because he felt threatened by his fellow detainees and consequently did not dare leave his cell, was admitted by the judge, who deemed the physical and psychological health of the individual in question to be at risk and ordered his immediate transfer (Kg. Arlon, 11 July 1991, Journal des tribunaux 1991, 800).

92. With regard to detention during extradition proceedings, it should be pointed out that the lawfulness of the detention is examined in the first phase of extradition, during which the arraignment chamber is called upon to enforce the arrest and detention warrant issued by the foreign authority. The alien has a right to lodge an appeal against the decision of the arraignment chamber before the Chambre des mises en accusation (indictment division), whose decisions are subject to an appeal to vacate. He is thus able to take proceedings in accordance with article 5 (4) of the European Convention on Human Rights. On the other hand, no specific court exists in which the "proceedings" referred to in article 5 (4) of the European Convention may be heard during the second phase of extradition, when the alien is at the disposal of the executive authorities. Accordingly, it is the interim relief judge who is competent to decide on the lawfulness of the detention during this second phase of the extradition procedure. In the State of Belgium v. Essenn Husseyin case, the judge nevertheless rejected the application on the grounds of absence of a legitimate interest, as the applicant had been extradited in the mean time (Civ. Brussels, 11 October 1994). In connection with the extradition of two Basques to Spain, the Brussels Court of Appeal considered that, having regard to the length of the detention, there was a flagrant irregularity on the part of the administration (Brussels Court of Appeal, 7 December 1994).

93. It should also be mentioned that in view of the small number of places available in Social Protection Establishments (EDSs) located in the south of the country, over the past few years internees have had to spend several months in prison psychiatric annexes until it has been possible to transfer them to the EDS designated by the competent Social Protection Committee.


Measures concerning minors


94. The Protection of Young Persons Act of 8 April 1965, as amended by the Act of 2 February 1994, was again amended on 30 June 1994. This amendment further strengthens the exceptional nature of the measure, provided for in article 53 of the Act, whereby young persons may be held in a local gaol for 15 days. The conditions for application of this interim measure were amended as follows. Minors over the age of 14 must be suspected of an act punishable by a one-year mandatory custodial penalty or by a more serious penalty. The measure can be ordered only once by the juvenile court in the course of the same proceedings. If the young person concerned commits further offences subsequent to being placed in gaol, the Public Prosecutor's Office may either open a new file or make further submissions to the juvenile court judge. The time limit for the appeal decision is reduced to five working days from the notice of appeal. In order to respect this particularly binding provision, the time limit for issuing the summons to appear has been reduced to one day. The interim custody measure may be accumulated with the prohibition to communicate provided for in article 52, new paragraph 3, of the Act. In addition to these new guarantees, it should be mentioned that this is only a temporary solution and that article 53 is eventually to be eliminated entirely from our legislation. The infrastructure currently placed at the disposal of the judicial authorities by the Communities is still inadequate. This is why the article in question cannot be repealed immediately.

95. Furthermore, it should be pointed out that procedural guarantees in juvenile courts have also been improved. The new Act introduces a number of measures the result of which will be to improve the legal status of minors, especially during the preparatory phase of the procedure.

96. First, the Act explicitly guarantees the right to a hearing. New article 52 ter, paragraph 1, sets forth a mandatory requirement for minors of 12 years of age to be heard by the juvenile court judge before any interim measure is taken, unless particular reasons make that impossible. The minor must also be heard in disputes between persons exercising parental authority over him (new art. 56 bis).

97. Under article 52 ter, paragraph 2, the minor has the right to be assisted by a lawyer whenever he appears before the juvenile court. Henceforth, he also has the right to legal assistance during the preparatory phase of the proceedings. If he has no lawyer, one is assigned to him (art. 54 bis). The order imposing an interim measure must set forth the reasons for so doing (new art. 52 ter, para. 3). Furthermore, the duration of the preparatory procedure is limited in principle to a maximum of six months (new art. 52 bis).

98. The interim measure consisting of confinement in a closed educational régime is made subject to additional procedural guarantees (new art. 52 quater). Lastly, the right to consult the case file has been extended: from now on the minor and his lawyer may acquaint themselves with the file even when an interim custody measure is required (art. 55, para. 2).


Measures for the protection of the mentally ill


99. The Protection of Mentally Ill Persons Act of 26 June 1990, which repealed the Act of 18 June 1850 relating to the mentally ill, provides for deprivation of liberty in the circumstances set forth below. The governing principle is that liberty is the rule and confinement the exception. It introduces a judicial control of deprivation of liberty of the mentally ill.

100. Deprivation of liberty is a possibility only in the case of a mentally ill person whose state seriously jeopardizes his own health and safety or constitutes a serious threat to the life or the person of others (art. 2). In such cases, in the absence of any other appropriate treatment, the court may decide to order the patient to be placed under observation in a psychiatric unit (art. 4). Any person concerned may apply to the justice of the peace for that purpose. The application must be accompanied by a detailed medical report prepared by a doctor unconnected with the families of the patient and the applicant and the psychiatric unit in which the patient is placed (art. 5). In an emergency the crown procurator may decide that a patient is to be placed under observation in a psychiatric unit. He must address the application for placement under observation to the justice of the peace within 24 hours. Thereafter the normal procedure resumes its course (art. 9).

101. After the patient has been assigned a lawyer, the justice of the peace must visit the patient, who may receive the assistance of a lawyer, a doctor or a confidential adviser. The justice of the peace gives a ruling within 10 days of the filing of the application (art. 7). The period of placement under observation may not exceed 40 days. Account must be taken of that time limit when treating the patient. The patient is allowed out, with the doctor's authorization and on his responsibility (art. 11). The justice of the peace, the crown procurator and the doctor in charge of the unit may terminate the placement under observation prematurely (art. 12). No later than 15 days before the end of the placement under observation, the director of the establishment may request its extension. The justice of the peace may order an extension for a maximum period of two years (art. 13). That term is renewable. If it is not renewed, the patient has the right to leave the establishment (art. 14). During an extension of the placement the doctor in charge of the unit may decide to prescribe a period of readjustment as an out-patient, for a maximum period of one year (art. 16). The extension of placement is terminated on a decision by the doctor in charge and on completion of the period of readjustment. The original applicant may contest the decision to end the extension of the placement (art. 19). The justice of the peace may at any time review the measures taken, either of his own motion or at the request of the patient or of any other person concerned (art. 22). All court decisions taken under the provisions of the Act may be subject to an appeal to the court of first instance by the patient, his lawyer or his legal representative, as well as by all the parties to the case (art. 30). The Act also establishes a similar procedure for mental patients who can be cared for in the family environment (arts. 23 et seq.).


Article 10


102. The Government of Belgium refers the Committee to the information provided on article 7 of the Covenant and to the interim and follow-up reports it prepared in response to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Belgium from 14 to 23 November 1993 (see annex).

103. In recent years the General Regulations for Prison Establishments have been amended or expanded in several respects. The main amendments concerning the legal status of prisoners relate to release on parole and to high-security wings.


Changes in the procedure for release on parole


104. In 1991 the procedure for granting release on parole was amended so as to render the decision-making process rather more transparent, to give the prisoner fuller information and to enable him to participate officially in the procedure (Royal Decree, 4 April 1991, M.B., 26 April 1991). A few further minor adaptations were introduced in 1993 (Royal Decree, 25 June 1993, M.B., 17 July 1993). These new regulations improve the legal status of prisoners eligible for parole on two levels: first, by having the prison staff conference consider the case; and secondly, by consulting with the prison's administrative board with regard to the granting of parole.

105. At the level of the staff conference, there is a new mandatory requirement to inform the prisoner and his lawyer, at least 10 days beforehand, of the date of the staff conference meeting at which the application for parole is to be considered (new art. 116, para. 4, of the Royal Decree). The lawyer is authorized to consult his client's personal file in the prison registry (new arts. 37 and 117). He may submit a statement of case, which must be appended to the case file, to the staff conference (art. 116, para. 3). The prisoner himself may be heard by the staff conference and he is informed as fully as possible of the situation with regard to his imprisonment (new art. 116, paras. 1 and 2). The prisoner, his counsel, his family and his close relatives are, at their request, informed of the decision taken by the staff conference, and of the reasons for that decision (new art. 116, para. 5).

106. The lawyer may participate directly in the administrative board: he is entitled, if he so requests, to be heard by the board before it considers his client's case (new art. 118, para. 1). The lawyer may also consult his client's personal file up to 10 days before the administrative board meets (new art. 118, para. 2).

107. For the first time the prisoner, and especially his lawyer, are entitled to play a more active role in the procedure, long regarded as extremely opaque, for taking a decision concerning release on parole. However, these innovations constitute only a first, very limited, step towards a real improvement in the legal status of prisoners. The decision regarding parole remains entirely a matter for the administration, and there is no independent judicial control over the granting or reconsideration of this means of executing custodial penalties.

108. The Minister of Justice is currently working on a more comprehensive review of the procedure for granting release on parole.


Introduction of high-security wings


109. By a Royal Decree of 22 October 1993 (M.B., 28 December 1993) a new article 106 bis was incorporated in the Royal Decree, providing a legal base for the so-called "high-security wings".

110. In actual fact, high-security wings have in any case long been a feature of Belgian prisons. For instance, the "U Block" at Lantin prison was used as a special security section where dangerous prisoners were subjected to heightened surveillance and a strict régime. On two occasions to date the interim relief judge has deemed this strict régime of solitary confinement to be unlawful, for lack of a legal basis, and contrary to article 3 of the European Convention on Human Rights (Kg. Liège, 9 November 1987, Journal des procès 1987, No. 117, 28 and note by J.-M. Dermagne; Kg. Liège, 23 December 1988, Journal des tribunaux 1989, 164 and note by J. Détienne). In consequence, U Block was closed down.

111. The Royal Decree of 1993 attempts to respond to these requirements. The legislation sets out the criteria on the basis of which a prisoner may be transferred to a high-security wing, specifies that the placement may not last more than six months, and provides that the stay in the high-security wing must be regularly reviewed. The statutory regulations were subsequently supplemented by the rules relating to the régime applicable (Royal Decree, 6 February 1995, M.B., 10 June 1995). The statutory provisions were subsequently implemented by means of circulars (CM 1627/V of 15 July 1994, later superseded by CM 1648/V of 15 June 1995).

112. In spite of this statutory regulation, high-security wings continued to provoke intense criticism. An attempt was made to use interim relief proceedings to contest the legitimacy of incarceration in the high-security wing at Lantin prison. However, the judge rejected the applicant's argument based on article 40, paragraph 2 of the Constitution, as well as one based on article 3 of the European Convention on Human Rights (Kg. Liège, 30 January 1995, Journal des procès 1995, 26 and note by R. Ergec).

113. The legitimacy of the Royal Decree of 1993 has been contested in the Council of State on similar grounds, by the International League for Human Rights. The application for suspension of the Royal Decree was rejected at first instance (C.S. No. 47,472, 16 May 1994, Revue trimestrielle des droits de l'homme 1994, 587). In 1996 the Royal Decree was finally repealed, not on the basis of article 40, paragraph 2, of the Constitution or of article 3 of the European Convention on Human Rights, but directly on the basis of the Covenant, and in particular its article 10, paragraphs 2 and 3. The Royal Decree was deemed to be contrary to that provision because no provision had been made for segregation of convicted prisoners, unconvicted prisoners and minors (C.S. No. 58,310, 21 February 1996, Journal des procès 1996, No. 300, 8). Following that decision, the Minister of Justice undertook to review the situation in the context of a parliamentary debate.


Court rulings


114. In addition to the statutory measures concerning detention and execution of penalties referred to here, a number of decisions in which prisoners alluded to the violation of fundamental rights may also be cited.

115. A prisoner who had been shackled to his bed by the wrists and ankles during treatment in an external hospital applied to the justice of the peace for compensation from the Belgian State. The application was based, inter alia, on articles 3 and 8 of the European Convention on Human Rights and on articles 7 and 10 of the Covenant. The judge considered that, in the circumstances, such a measure was not justifiable, and awarded the applicant one franc in respect of non-material damage, to be paid by the State (Justice of the Peace of Woluwe-St.Pierre, 7 January 1992, Journal des procès 1992, No. 214, 28 and note by M. Neve).

116. A prisoner suffering from AIDS complained that his right to appropriate medical care was not respected during his detention and requested his immediate release in interim relief proceedings. His application was rejected at first instance, the judge having ruled that no fundamental right in the matter of medical care had been violated (Kg. Oudenaarde, 23 January 1992, Vl.T.Gez.
1992-93, 197). That ruling was confirmed on appeal: the prison establishments' medical infrastructure was deemed to be adequate to provide care for patients of this type; furthermore, a decision concerning early release on humanitarian grounds was deemed to be a purely political question and solely a matter for the Minister of Justice (Ghent, 6 November 1992, Vl.T.Gez. 1992-93, 202 and note by T. Balthazar). A few months after this decision, the Minister of Justice granted a pardon to the detainee concerned and remitted his sentence.

117. In 1995 an interim relief judge acknowledged that in addition to the prisoners themselves, associations for the defence of human rights in general, and for the defence of the rights of detainees in particular, may also join in the proceedings when the objectives set out in their statutes are violated. A complaint by the International League for Human Rights concerning inhuman living conditions in the overcrowded prison at Namur was declared admissible by the judge (Kg. Namur, 7 December 1993, Rev. Liège 1994, 29, confirmed on appeal: Liège, 29 April 1994, Journal des procès 1994, No. 262, 27, and note by R. Ergec). However, the application, which was based on article 3 of the European Convention on Human Rights, was rejected on the merits because the judge considered that the issue was not one of interim measures designed to safeguard rights that were under threat, but one of a more structural nature, namely, the widespread overcrowding in prisons, which must be resolved not by the judge but by parliament (Kg. Namur, 7 February 1995, Journal des procès 1995, No. 277 and note by R. Ergec).

118. Lastly, it should also be mentioned that application of the strict régime of solitary confinement was also submitted to the Council of State for a ruling. However, the Council of State did not accept recourse to article 3 of the European Convention on Human Rights, and deemed the measure to be justified in view of the behaviour of the individual concerned (C.S., Vanoirbeek, No. 38,910, 4 March 1992).


Article 11


119. The remarks relating to article 11 contained in paragraphs 217 and 218 of the initial report of Belgium (CCPR/C/31/Add.3) call for no further comment.


Article 12


120. In addition to the information provided by Belgium in paragraphs 23 et seq. of its report on implementation of the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD/C/260/Add.2), transmitted to the Committee in December 1995, the following comments concerning application of this provision in Belgium are of importance. All relate to restrictions on or conditions governing the liberty of movement and freedom to choose their residence of non-European-Community aliens in Belgium, and in particular of asylum seekers.


Compulsory registration of asylum seekers in a specified commune


Principle


121. Article 54 of the Belgian Act of 15 December 1980 on the entry, temporary and permanent residence and removal of aliens, as amended by article 15 of the Act of 6 May 1993, now provides that the minister whose portfolio includes the entry, temporary and permanent residence and removal of aliens (namely, the Minister of the Interior) or his representative (in practice, the administration of the Aliens Office) may "determine the place of registration" of certain aliens seeking asylum. The Royal Decree of 23 December 1994 (M.B., 14 March 1995, p. 5,700) establishes the criteria for a harmonious distribution of asylum seekers among the country's communes, as prescribed in the above-mentioned article 54, which lays down that the registration of asylum seekers shall take account, firstly, of the level of occupation of the reception centres for asylum seekers, and secondly, of a harmonious distribution among the communes (art. 54, para. 1 (3)). Two objectives were behind the adoption of this provision:

122. In a decision of 14 July 1994 the Court of Arbitration found that "such a limitation [of the liberty of movement of aliens declaring themselves refugees, as a result of compulsory administrative registration] is not contrary to the provisions of international law referred to; as, on the one hand, article 31, paragraph 2 of the Geneva Convention of 28 July 1951 relating to the Status of Refugees allows application of restrictions, provided they are necessary, to the liberty of movement of foreigners declaring themselves refugees; and as, on the other hand, both article 12 of the Covenant and article 2 of the Fourth Protocol to the European Convention on Human Rights allow the legislature to restrict the exercise of freedom to choose one's residence, if such restriction is necessary in a democratic society, particularly in the interests of national security or for the maintenance of public order." The Court found that "the administrative registration of aliens who may reside in Belgium only by reason of their request for recognition of the status of refugee meets the requirement of necessity formulated by the above-mentioned provisions" (C.A., decision No. 61/94, 14 July 1994, B.4.6; M.B., 9 August 1994).


Criteria for choice of the place of compulsory registration


123. In application of article 54 of the Act of 15 December 1980, article 1 of the Royal Decree of 23 December 1994 provides that the Minister of the Interior or his representative may "choose a commune as the place of compulsory registration only if the number of asylum seekers resident within the commune is lower than the result of the formula: [total number of refugee applicants on the waiting list who have not yet received an enforceable decision concerning their request for asylum] multiplied by [population of the commune divided by the population of Belgium]."

124. The purpose of this distribution formula is to determine the capacity of each commune to host asylum seekers, on the basis of its population as a proportion of the population of the Kingdom as a whole. However, that proportion will be scaled down to take account of the number of persons dependent on the commune's Public Social Welfare Centre, and scaled up to take account of the average per capita taxable income of the commune's natural persons.

125. It should be noted that this formula is applicable "except to the communes that the minister designates as communes in which, relatively speaking, a large number of asylum seekers reside" (art. 1, para. 2 of the Royal Decree of 6 April 1995). Pursuant to the latter provision, a ministerial order was issued on 4 May 1995 (M.B., 4 July 1995, p. 18,763), designating 34 communes that cannot be chosen as a place of compulsory registration in implementation of the Royal Decree of 6 April 1995.

126. It should also be pointed out that the determination of a place of compulsory registration for the refugee seeking asylum is intended to meet the concern to ensure a balanced distribution of asylum seekers (and therefore of the costs entailed) among all the communes and Public Social Welfare Centres, in view of the imbalances that have been identified. The principal residence of the person concerned may differ from his administrative residence as determined by the compulsory registration. However, the legislature's concern to promote a harmonious distribution of asylum seekers across the territory has led to the adoption of incentives to encourage communes and refugees seeking asylum to take steps to ensure that the latter's actual place of residence coincides with the administrative residence assigned to them by the Minister of the Interior or his representative.

127. First, registration in a specified place results in an obligation for the person concerned to present himself there regularly: a request for asylum may be declared inadmissible if submitted by an alien who, having been registered in accordance with article 54, paragraph 1, of the Act of 15 December 1980, "fails for at least one month to comply with the obligation to present himself" (art. 52, para. 2 (5) of the Act of 15 December 1980 on the entry, temporary and permanent residence and removal of aliens). According to the decision of the Court of Arbitration previously cited, imposition of this sanction in connection with failure to comply with the obligation to present oneself "cannot be regarded as manifestly disproportionate, as the legislature, in the person concerned's own interest, may require that he assist in the examination of his request" (C.A., decision No. 61/94, 14 July 1994, B.4.7).

128. Secondly, reimbursement by the State of the social aid granted to the asylum seeker is limited to 50 per cent of the aid granted when the Public Social Welfare Centre intervenes on behalf of an asylum seeker not resident within the commune specified pursuant to article 54 of the Act of 15 December 1980 or who is not entered in that commune's register of aliens, unless the commune or the Public Social Welfare Centre proves "that it has offered the refugee applicant decent and affordable public or private accommodation within its territory". This presupposes proof positive that available, "decent" (namely, conforming to the minimum safety, habitability and hygiene requirements) and affordable accommodation has been offered to the refugee seeking asylum, and that he has been afforded sufficient time to visit the premises and to accept or refuse the offer of accommodation: the Ministry of Public Health must be provided with proof that these steps have been taken.

129. Thirdly, when accommodation (public or private) is offered to the asylum seeker by the commune or Public Social Welfare Centre of his place of registration and that accommodation is decent and affordable, the amount of social aid granted may be reduced by an amount equal to the value of that benefit in kind, if the asylum seeker declines to reside in that accommodation.

130. Fourthly, the Public Social Welfare Centres are permitted to provide all or part of their social aid in kind rather than in cash, thereby greatly reducing the attractiveness to asylum seekers of residing outside - or at least any great distance from - the commune in which they are registered.


Waiting list for asylum seekers


131. The entry into force, on 1 February 1995, of the Act of 24 May 1994 (M.B., 21 July 1994) establishing a waiting list for aliens declaring themselves refugees or requesting recognition of the status of refugee (M.B., 21 July 1994, p. 19,104) must also be mentioned. The establishment of the waiting list and the principle of compulsory registration described above are indissociable in the mind of the legislature, for it is on this waiting list, kept in each commune of the Kingdom, that the compulsory registration is entered.

132. The creation of the waiting list is a result of the authorities' concern to exercise more effective control over asylum seekers staying in Belgium. The view was taken that the various authorities concerned should all have access to an information system enabling them, in each individual case, to take the necessary decisions. The authorities in question are those that participate in the procedure for granting the status of refugee, and also in the procedure for granting social aid.

133. This so-called "waiting list" register is distinct from the population register, which lists Belgians and aliens whose situation differs from that of asylum seekers. Once the status of refugee has been conferred on the asylum seeker registered on the waiting list, he is entered on the population register. Registration takes place on the initiative of the Minister of the Interior or his representative, as soon as the alien declaring himself a refugee or requesting recognition of the status of refugee arrives in Belgium, or as soon as his presence on the territory has been noted.

134. The Public Social Welfare Centre responsible for granting social aid to the asylum seeker is the one located in the commune on whose waiting list or population register he is registered, as provided for in article 12 of the Act of 24 May 1994 amending article 2, paragraph 5, of the Act of 2 April 1965 concerning responsibility for the cost of assistance granted by the public aid committees. This provision constitutes an exception to the principle that the Welfare Centre responsible is the one located in the actual residence of the beneficiary of the social aid.

135. The contents of the Act of 24 May 1994 were defined in greater detail in royal decrees. The Royal Decree of 1 February 1995 determines the information to be mentioned in the waiting list register and designates the authorities empowered to record that information (M.B., 16 February 1995, p. 3,456). The Royal Decree of 3 February 1995 provides that the members of the family of the alien declaring himself a refugee or requesting recognition of the status of refugee must be registered on the waiting list (M.B., 16 February 1995, p. 3,458).


Prohibition on the temporary or permanent residence of non-European Union aliens in certain communes


136. Article 6 of the Act of 28 June 1984 added an article 18 bis to the Act of 15 December 1980 on the entry, temporary and permanent residence and removal of aliens, authorizing the King, on a proposal by the Minister of Justice and subject to the favourable opinion of the commune Council concerned, to prohibit for a limited time the registration of aliens other than EEC nationals and persons considered as such in certain communes, if a growth in the foreign population of those communes is deemed to be detrimental to the public interest.

137. Six communes of Brussels and the city of Liège have obtained authorizations under article 18 bis. Mention has already been made, in the part of the previous report of Belgium concerning application of article 12 of the Covenant (CCPR/C/57/Add.3, paras. 144-146), of the existence of article 18 bis of the Act of 15 December 1980. In the course of the discussions reference was made to the applications made to the Council of State for annulment of the above-mentioned Royal Decrees. These applications were founded, inter alia, on article 12 of the Covenant.

138. Examining the compatibility of the contested Royal Decrees with article 12 of the Covenant and article 2 of the Fourth Protocol to the European Convention on Human Rights, on 9 November 1994 the Council of State handed down a decision rejecting those applications (C.S., decision No. 50,092, annexed).

139. The Royal Decrees in question ceased to have effect five years after the date of their adoption, that is, in May and June 1995 respectively. At the time of the drafting of this part of the present report they had not been renewed. However, article 18 bis remains unchanged in the Act of 15 December 1980.


Amendments to the Act of 15 December 1980 on the entry, temporary and permanent residence and removal of aliens


140. A bill amending the Act of 15 December 1980 on the entry, temporary and permanent residence and removal of aliens was adopted by the Senate on 27 June 1996.

141. This bill aims to bring Belgian legislation into line with the international instruments relevant in that connection: in particular, the Convention applying the Schengen Agreement on the gradual abolition of checks at the Contracting Parties' common borders, which was approved by the Act of 18 March 1993 (M.B., 15 October 1993) and entered into force in Belgium on 26 March 1995, and the provisions of the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (Dublin, 19 June 1990), once that Convention has entered into force.

142. The bill also aims at securing better control of immigration in Belgium. To that end, the Government intends to take the following measures:

143. Lastly, it is intended that the act will update some provisions of the Act of 15 December 1980. The changes will be adaptations made in consequence of the Convention applying the Schengen Agreement and the Dublin Convention. The adaptations are provided for in articles 31, 33, 34, 35 and 37 of the act.

144. A more radical change concerns the specific regulations regarding the use of languages when examining the application for asylum. In order to introduce more transparency and put an end to the legal uncertainty that currently prevails, article 32 provides for simple, uniform regulation of this issue.

145. At the same time the act abolishes the possibility for aliens who have entered the country legally, or who are legal residents, to apply to the communal authorities for asylum (art. 29).


Article 13


146. Removal of aliens is regulated by the Act of 15 December 1980 on the entry, temporary and permanent residence and removal of aliens, amended by the Acts of 28 June 1984, 14 July 1987, 18 July 1991, 6 May 1993, 1 June 1993, 6 August 1993, 24 May 1994, 8 March 1995 and 13 April 1995, by the Royal Decrees of 13 July 1992, 31 December 1993 and 22 February 1995, and by its implementing Royal Decree of 8 October 1981, also amended a number of times.

147. Some of the provisions of the Convention applying the Schengen Agreement of 19 June 1990 are also applicable in this regard.

148. Removal measures may take four different forms:

refoulement;
an order to leave the country;
repatriation;
expulsion.

Refoulement

149. Refoulement (return) is the administrative decision on removal whereby the alien who has not yet crossed the Belgian frontier is forbidden to enter the territory of the Member States of the Schengen Area by the authorities responsible for frontier controls, acting on the authority of the Ministry of the Interior.

150. An alien may be turned back if he attempts to enter Belgium in one of the circumstances covered by article 3, paragraphs 1 (1), (3) and (4) of the above-mentioned Act of 15 December 1980 and by article 5, paragraphs 1 (c), (d) and (e) of the Convention applying the Schengen Agreement.

151. Article 6 of the bill cited in the commentary on article 12 of the Covenant incorporates into article 3 of the Act the provisions of article 5 of the Convention applying the Schengen Agreement.

152. When the new act enters into force, an alien attempting to enter Belgium will be turned back for the following reasons:

Order to leave the country

153. An order to leave the country is the administrative decision on removal whereby the Minister of the Interior or the delegated administrative authority (generally the Aliens Office) requires an alien not authorized or permitted to stay more than three months (long-term stay) or to reside permanently in Belgium to leave the country.

154. The reasons for which the alien may be issued with an order to leave the
country before a specified date are set forth in article 7, paragraphs 1 (1) - (3)
and (5) - (9) of the Act of 15 December 1980 and in articles 19 (1), 20 (1) and 21 (1) of the Convention applying the Schengen Agreement.

155. An order to leave the country may also be issued to an alien authorized to stay in Belgium for a limited period and the members of his family when they prolong their stay beyond the limited period for which they have been authorized to stay in Belgium and are no longer in possession of a valid temporary residence permit (art. 13 of the act), and to an alien who, after being authorized to reside temporarily in Belgium in order to pursue a course of studies, prolongs his stay after the completion of those studies and is no longer in possession of a valid temporary residence permit, or who prolongs those studies unduly, having regard to the results obtained (art. 61, para. 2).

156. Article 11 of the afore-mentioned bill incorporates into article 7 of the Act of 15 December 1980 the provisions of articles 19 to 21 of the Convention applying the Schengen Agreement.

157. When the new act enters into force, the reasons for which an alien not authorized or permitted to stay more than three months or to reside permanently in Belgium may be issued with an order to leave the country will be as follows:

158. Article 49 of the bill provides that a foreign student may be issued with an order to leave the country in the following circumstances:

Repatriation

159. Repatriation is the decision (ministerial order) whereby the Minister of the Interior, and he alone, may remove from the territory an alien who is not permanently resident in Belgium, after having obtained, where appropriate, the opinion of the Advisory Committee on Aliens.

160. An alien not permanently resident may be repatriated when he has violated public order or national security or has not complied with the conditions imposed on his stay, as provided for in law (article 20 of the Act of 15 December 1980).

161. Some aliens not permanently resident may be repatriated only in the event of a serious violation of public order or national security. These include aliens who have been officially and uninterruptedly resident in Belgium for at least 10 years (art. 21 of the same Act). A foreign student may be repatriated when he prolongs his stay after the completion of his studies or prolongs them unduly, having regard to the results obtained, or engages in gainful activity manifestly incompatible with the normal pursuit of his studies or fails to sit his examinations for no good reason (art. 61, para. 1, of the Act).

Expulsion

162. Expulsion is the decision (Royal Decree) whereby the King, and he alone, may remove from the territory an alien permanently resident in Belgium or a national of the European Union or of the European Economic Area to whom a residence permit has been granted, following the opinion of the Advisory Committee on Aliens. The Committee is called upon to advise on certain decisions relating to aliens. It is a consultative body made up of magistrates, lawyers and persons concerned with the defence of aliens' interests.

163. The above-mentioned aliens may be expelled only if they have committed serious violations of public order or national security.

Corrections and further details concerning the second periodic report (CCPR/C/57/Add.3)

164. In addition to the above, the following additions and/or corrections should be made to the previous report:

Article 14


165. A number of acts have been adopted with a view to improving the administration of justice in the broad sense.

166. The purpose of the Training and Recruitment of Magistrates Act of 18 July 1991 (M.B., 21 July 1991) is to regulate appointments of magistrates and ensure greater independence for judges. Before the entry into force of this Act, judges were appointed on the basis of essentially political criteria. There are now two methods of becoming a magistrate. The first applies to candidates without professional experience; the second, to those with such experience. Candidates without experience who have won prizes in the competition for admission to the judicial training course are appointed judicial trainees; they may be appointed magistrates in the Public Prosecutor's Office after 18 months' training, or appointed judges after three years' training.

167. Candidates possessing professional experience must pass a professional aptitude examination designed to assess their maturity and intellectual capacity. Those who gain prizes in the examination may be appointed magistrates without having to undergo additional training.

168. The Minister of Justice, who proposes the appointment of a candidate to the King, may of course still make a political choice, but he is restricted in that choice and can choose only a candidate who has shown proof of the necessary skills.

169. The Act of 3 August 1992 (M.B., 31 August 1992) addresses another matter of concern, namely, delays in the judicial process. A number of measures concerning matters of judicial organization, jurisdiction, annulments, introduction of proceedings and especially examination and trial of cases, are intended to speed up proceedings. One of the most important measures taken in this context has been to offer the parties the possibility of requesting the judge, at the start of the proceedings, to rule on the subsequent progress of the proceedings. In a binding ruling, the judge sets the dates on which the parties must submit their conclusions and the date on which the case will be heard. In this way the legislature has tried to ensure that all proceedings take place within a reasonable period of time.

170. It was the same concern to guarantee every individual the right to sound administration of justice that prompted the adoption of the Act of 11 July 1994 on police courts and the acceleration and modernization of criminal justice (M.B., 21 July 1994). The principal aim of the part of the Act dealing with police courts is to deal with the judicial backlog in the courts of appeal, which are overwhelmed with cases relating to traffic accidents. Henceforth, all road traffic offences will be tried by the police courts, as will all compensation proceedings in cases of harm resulting from a traffic accident.

171. Likewise, the same Act also includes a series of measures aimed at speeding up the procedure itself, such as a new procedure for issuing official notice to appear before the court. The crown procurator may give a person no fewer than 10 days' and no more than 2 months' notice to appear before the police court or the correctional court. In this way the procedure is expedited without any impairment of the right of the accused to a fair trial.

172. Article 14 of the Covenant and article 6 of the European Convention on Human Rights are increasingly invoked and applied by the Belgian courts. Consequently, it is impossible to offer an exhaustive review of the application of article 14. The court decisions show that there is no dispute as to the application of the principles of fair trial in the ordinary courts. Many court rulings relate to the scope of application of articles 14 of the Covenant and 6 of the European Convention on Human Rights in proceedings before courts other than the ordinary courts. There follows an overview of the main court rulings relating to the scope of application of article 14 of the International Covenant on Civil and Political Rights and article 6 of the European Convention, and of the practice specific to article 14 of the Covenant. As regards the scope of article 14, the Court of Cassation decided that this provision is not applicable to the decisions of examining magistrates' courts ruling on pre-trial detention (Cass., 17 December 1991, Arr. Cass., 1991-92, 353; Pas., 1992, I, 307; Cass., 28 January 1992, Arr. Cass., 1991-92, 489; Pas. 1992, I, 467) or on the exequatur of arrest warrants issued by foreign authorities (Cass., 3 March 1992, Arr. Cass., 1991-92, 632, Pas., 1992, I, 598). The Court of Cassation also decided that article 14 is not applicable to disputes concerning rights and obligations in tax matters, except where proceedings in tax matters lead or may lead to a penalty resulting from a criminal charge within the meaning of those provisions (Cass., 23 January 1992, Arr. Cass., 1991-92, 471; Pas., 1992, I, 453).

173. The Council of State ruled that the conditions referred to in article 14 apply only to the judicial bodies. Consequently, they cannot be invoked against the decision of the Appeal Commission of the Institute of Business Auditors acting in its capacity as an administrative authority (C.S., No. 39,134, 31 March 1992, Recueil des arrêts du Conseil d'Etat 1992).

174. The Council of State also ruled, as had the Court of Cassation previously, that certain principles of articles 14 of the Covenant and 6 of the European Convention must be applied, even when those articles are not applicable to the proceedings concerned. Some of these principles, for example the obligation to hear the case within a reasonable period of time, are in fact general principles of law which must be applied to all proceedings (C.S., No. 40,749, 16 October 1992, Recueil des arrêts du Conseil d'Etat 1992).

175. In a decision of 2 March 1995 (C.A., No. 19/95, 2 March 1995, M.B., 11 May 1995), the Court of Arbitration decided that, in accordance with the first sentence of article 14, all persons subject to the jurisdiction of the courts must be treated in the same manner. Consequently, it decided that the rule set forth in article 671 of the Judicial Code, whereby a person on trial who is in receipt of legal aid may not obtain copies of the most important documents in the criminal file free of charge and therefore does not have access to the facilities necessary for the preparation of his defence, whereas a solvent person on trial is able to obtain copies of those documents, violates the principle of equality.

176. With regard to the principles of a fair and public hearing by a competent, independent and impartial tribunal, an extensive and well established body of practice has developed, particularly following the implementation of a number of judgments of the European Court of Human Rights. Application of the principle of presumption of innocence also gave rise to many cases. The right to the assistance of a lawyer was the subject of debate following the judgments of the European Court of Human Rights in the Poitrimol and Lala & Pelladoah cases (European Court of Human Rights (CEDH), 23 November 1993, Poitrimol v. France, Publ. Cour, Series A, vol. 277-A; CEDH, 22 September 1994, Lala & Pelladoah v. Netherlands, Publ. Cour, Series A, vol. 298 A & B). In matters of ordinary offences, the defendant must in principle appear in person. If he does not appear in person, he does not have the right to be represented by counsel. The European Court of Human Rights decided that that rule constitutes unwarrantable interference in the right to the assistance of a lawyer and that, consequently, it violated article 6, paragraph 3 (c) of the Convention.

177. There is also a rule in Belgian law whereby an application by an accused person to set aside the judgement sentencing him to a custodial penalty and ordering his immediate arrest is admissible only if he is actually in custody. In a decision of 8 December 1992 (Arr. Cass., 1991-92, 1400; Pas., 1992, I, 1350), the Court of Cassation decided that that rule does not violate articles 6 of the Convention and 14 of the Covenant, as it does not deny the right of access to a court but is only a reasonable additional precondition for an appeal. Following the Poitrimol judgment in the European Court of Human Rights, the question once again arises whether this rule is compatible with articles 14 of the Covenant and 6 of the European Convention.

178. The question whether the two rules should not be modified in the light of the judgments of the European Court of Human Rights has also been debated in parliament.

179. The Court of Cassation also decided that article 14, paragraph 3 (g) of the Covenant - pursuant to which, in the determination of the merits of any public right of action directed against him, everyone shall be entitled not to be compelled to testify against himself or to confess guilt - does not prevent a witness from being heard under oath by a parliamentary committee of enquiry (Cass., 6 May 1993, Arr. Cass., 1993, 455; Pas. 1993, I, 452).

180. As regards application of article 14, paragraph 5, of the Covenant, the Court of Cassation ruled that that provision is not violated by the circumstance that notice of appeal by an accused person on whom a default judgement has been pronounced must be given no more than 15 days after notice of the judicial decision has been served to the convicted party or to his domicile (Cass., 1 February 1994, Arr. Cass., 1994, 133; Bull., 1994, 137).

181. Lastly, the Court of Cassation decided that the sole purpose of article 14, paragraph 7, of the Covenant is to prohibit, after a final acquittal or conviction, new proceedings from being instituted with respect to the same offence in the same country; it is not applicable in Belgium in the case of a conviction handed down by a foreign court (Cass., 20 February 1991, Arr. Cass., 1990-91, 671; Pas., 1991, I, 597).


Article 15


182. In addition to the commentary to be found in paragraph 238 of the initial report (CCPR/C/31/Add.3), it should also be pointed out that the Special Act of 16 July 1993 (M.B., 20 July 1993) authorizes the decree-enacting legislature not to apply Book I of the Penal Code to the decrees and ordinances it enacts, as it is empowered to pass decrees providing for more severe criminal penalties with retroactive effect, or deny them retroactive effect when their effect is to mitigate: procedures which are prohibited under article 2, paragraphs 1 and 2 of the Penal Code. The facts of the matter are quite different, for the decree-enacting legislature is obliged, like the federal legislature, to comply with article 15 of the Covenant, which prohibits the retroactive criminalization of an act, and provides for the imposition of the lighter penalty. Article 15 has supranational force and is binding on all those empowered to enact legislation in Belgium.


Article 16


183. Article 18 of the Constitution stipulates that "Civil death [forfeiture of all civil rights] is abolished and shall not be reinstated."

184. In principle, individuals' legal personality begins at birth. For that to be the case, the child has, however, to have been born alive and viable. On the other hand, if these conditions are fulfilled, the law in principle allows personality to be extended retroactively to the moment of conception, if to do so is in the child's interest. This rule has concrete applications in areas such as succession, affiliation and civil liability.


Article 17


185. The rights protected by this provision are reproduced in various articles of the coordinated Constitution of 17 February 1994 (M.B., 17 February): articles 15 (inviolability of the home), 22 (private and family life) and 29 (freedom from interference with correspondence). Previously, privacy as such was not one of the rights and freedoms protected by the Constitution.

Privacy

(a) Personal data

186. According to paragraph 10 of General Comment 16 (thirty-second session) concerning article 17, the gathering and holding of personal information on computers, data banks and other devices, whether by public authorities or private individuals or bodies, must be regulated by law.

187. In accordance with that principle, Belgium adopted an Act of 8 December 1992 on the protection of privacy and the processing of personal data (M.B., 18 March 1993) together with several implementing orders (M.B., 28 February 1995). The adoption of this Act has enabled Belgium to ratify the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data (Approving Act of 17 June 1991, M.B., 30 December 1993). The Act of 1992 includes provisions on data quality, concerning the lawfulness of the computerized or manual processing, and the relevance of the data gathered and processed to specified and legitimate purposes (arts. 5 and 8).

188. Some provisions concern "sensitive" data:

189. Implementing orders Nos. 7, 8 and 14 referred to above specify the régimes derogating from the principles prohibiting the use of "highly sensitive" and "judicial" data, one of which is the special consent of the person concerned. These exceptions are very often motivated by the exigencies of the current systems for personnel and social insurance file management.

190. The Act establishes the principle of transparency, by conferring on all individuals the right to be informed when their names are entered in a database for the first time (art. 9), the right of access to the files relating to them (art. 10), and also the right to correct inaccurate, incomplete or irrelevant data (art. 12). In certain cases a right of monitoring is conferred on the Commission for the Protection of Privacy (art. 13), which also has advisory and recommendatory powers on any matter concerning application of the fundamental principles of protection of privacy in connection with personal data processing systems (arts. 29 and 30). The individual is also granted a right to bring proceedings for interim relief before the President of the court of first instance (art. 14), and specific criminal sanctions - such as the publication of judgements in the press and prohibition of the processing of personal data, the deletion of data and confiscation of computer hardware - are intended to ensure better implementation of the Act and the obligations of confidentiality for which it provides (arts. 37, 40 and 41).

191. Royal Decree No. 15 (M.B., 15 March 1996) regulates dispensations from the obligation to inform the person concerned (art. 9 of the Act).

192. The main shortcomings identified in the Act to date are as follows: