Definitive Report - Report No 109, 1969

Case No 488 (Belgium) - Complaint date: 16-JUN-66 - Closed

1. 26. The complaint of the Federation of Flemish Public Services' Employees is contained in a communication dated 16 June 1966 and a further communication dated 14 July 1967. The text of these communications was brought to the attention of the Government, which forwarded its observations on the subject in a communication dated 30 August 1968.
2. 27. Belgium has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to a Search Carried Out in the Premises of the Complainant Organisation
  28. 28 The complainants state that Mr van Steenkiste, assistant police superintendent of Ostend and assistant officer of the judicial police under the Public Prosecutor of Bruges, as a member of the Federation of Flemish Public Services' Employees, had asked the Federation for information on the Belgian linguistic laws with respect to the performance of his duties in preparing cases on files not written in the language of the region where he was living. The Federation had replied that he could not shirk his duties, but that it was permissible for him to request a translation of the documents in order to enable him to make a better job of preparing the cases in question.
  29. 29 The complainants allege that on the instructions of the Examining Magistrate for Bruges, in agreement with the Examining Magistrate for Brussels, the judicial police searched the Federation's offices for the letters in which Mr van Steenkiste had sought the Federation's advice concerning the interpretation of the linguistic laws. The search was carried out on 24 September 1965 by two officers of the judicial police, in the presence of Mr. J. de Troyer, at that time Secretary-General of the Federation, and Mr. R. Vandezande, the President-General.
  30. 30 In the opinion of the complainants it was perfectly permissible for Mr van Steenkiste to ask advice on the interpretation of the linguistic laws, since such a request for advice did not in any way constitute, as had been claimed, a violation of professional secrecy. The complainants therefore consider that the search complained of must be interpreted as an attempt at intimidation amounting to violation of the provisions and guarantees included in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
  31. 31 In its reply the Government makes the following observations on the subject of the complaint.
  32. 32 The Government states that on 15 September 1965, following receipt of specific information from various sources, the Public Prosecutor attached to the Court of Appeal of Ghent called on the First President of the Court to open an investigation into the conduct of Mr van Steenkiste on the charge of having violated professional secrecy during the performance of his duties as a judicial police officer, an offence covered by section 458 of the Penal Code.
  33. 33 By an order of 16 September 1965, the Government continues, the First President of the Court of Appeal, on the basis of the information provided by the Public Prosecutor and in accordance with the provisions of the Code of Criminal Procedure, ordered the opening of an inquiry to be carried out by an Examining Magistrate of the Court of First Instance of Bruges. Under the same legal provisions, the Public Prosecutor of Bruges and one of his deputies were appointed to perform the duties of judicial police officers in the matter.
  34. 34 On 17 September 1965 the Examining Magistrate carried out a search of the flat occupied by Mr van Steenkiste at Ostend, accompanied by the above-mentioned prosecutors and two officers of the judicial police attached to the Public Prosecutor's Office at Bruges, who had been instructed to assist him in his search. During the search, various documents seeming of value in the investigation were seized; an inventory of these documents was handed to Mr van Steenkiste, who had been informed personally of the charge brought against him. Among the documents seized were two letters dated 6 February and 7 September 1965, addressed by Mr van Steenkiste to the Federation of Flemish Public Services' Employees, of which he said that he was a member. These letters contained complaints about alleged irregularities in the handling of legal files in French that had been sent to him for the performance of certain judicial duties by the officer of the Public Prosecutor's Office attached to the Police Court of Ostend. It appeared from the text of those letters, the Government states, and particularly that of 6 February 1965, that Mr van Steenkiste had enclosed with them a copy of a legal report taken from one of the judicial files that had been entrusted to him; this fact was a very serious indication that professional secrecy had been violated.
  35. 35 In view of this indication and the fact that, when interrogated, Mr van Steenkiste flatly denied having sent or communicated a copy of this report to any third party, and in particular to the Federation of Flemish Public Services' Employees, the Examining Magistrate, acting strictly within his legal powers, immediately sent a senior superintendent and a senior inspector of the judicial police to Brussels with a rogatory commission, instructed: (a) to carry out an immediate interrogation of Mr. R. Vandezande, President of the Federation of Flemish Public Services' Employees, and of Mr. J. de Troyer, Secretary-General of the Federation; (b) to call upon them to hand over the originals of the two letters mentioned above and their enclosures; (c) if the documents should not be handed over voluntarily, to carry out domiciliary searches at the offices of the Federation and at the home of Mr de Troyer at Ninove, for the purpose of seeking, finding and seizing those documents. This rogatory commission was declared to have executory powers in the Brussels judicial district by an Examining Magistrate of the Court of First Instance of Brussels on 24 September 1965.
  36. 36 The Government states that Mr. Vandezande and Mr de Troyer clearly remembered the originals of the letters that were being searched for and their subject-matter, but stated that they could no longer remember what had become of them within the Federation of Flemish Public Services' Employees. In view of this reply, the judicial police officer carried out the searches that had been ordered, first in the offices of the Federation and next at Mr de Troyer's home at Ninove. These searches were carried out in the continuous presence of Mr. Vandezande and Mr de Troyer, and with the free consent of the latter to the search of his home.
  37. 37 The Government states that the two searches were without result, but adds that after they had been completed, both Mr. Vandezande and Mr de Troyer affirmed " that they would do everything possible to find out from various members of the executive of the Federation what had happened to the originals of the letters in question and their enclosures and, if these documents should be found, to communicate them direct to the Examining Magistrate at Bruges. These intentions led to nothing and the documents have never been found. "
  38. 38 In consequence, the Government states, as the offence of violation of professional secrecy could not be sufficiently established against Mr van Steenkiste, " a non-suit was directed and he was discharged ".
  39. 39 After giving this account of the facts, the Government presents the following comments. The action in respect of which Mr van Steenkiste had been charged by the judicial authorities had nothing whatever to do with the request for advice that he had addressed to the Federation of Flemish Public Services' Employees concerning the application of the Act on the use of languages in judicial matters. The actions of which he had been accused consisted solely and exclusively " in the communication to third parties, with his letter, of a copy of a report taken from a judicial file, a document that had come into Mr van Steenkiste's possession in the course of his duties as an officer of the judicial police. It was therefore impossible for him to violate the secrecy imposed on him without becoming guilty of the offence covered by section 458 of the Penal Code. Indications that the offence had been committed were provided by the discovery at his home, by the judicial authorities, of the copy of the letters. If the proof of the commission of the offence has not been established, this is only because the originals of those letters, and in particular their enclosures, have not been found."
  40. 40 The Government continues: " It is beyond doubt that the Examining Magistrate had the right and the power, of his own independent authority, to order a domiciliary search wherever he thought the elements contained in the file showed the possibility of discovering the proof that an offence had been committed. It is also beyond doubt that this search could be carried out on the premises of the Federation in question."
  41. 41 In the light of the circumstantial explanations furnished by the Government, it seems clear that the action of the judicial authorities in the matter was limited to endeavouring, by regular and legal procedures, to establish the truth with respect to offences which a named individual was suspected of having committed, and that the proceedings against that person had been abandoned for lack of proof.
  42. 42 There is nothing to suggest that the searches carried out on the premises of the Federation of Flemish Public Services' Employees (and elsewhere) had any other object than an attempt to determine the facts in a matter unconnected with freedom of association, or that these searches, as alleged by the complainants, had the aim or effect of infringing the guarantees provided by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

The Committee's recommendations

1. 43. In the circumstances the Committee recommends the Governing Body to decide that the case does not call for further examination.