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17. Whereas there is accordingly no cause to examine the subsidiary
conclusions of the Commission or of the Belgian Government;
18. For these reasons,
THE COURT
By 6 votes to 1
Decides to strike the case out of its list.
Done in French and English, the French text being authentic at the
seat of the Court at Strasbourg this twenty-seventh day of March 1962.
Signed: R. CASSIN
The President
Signed: P. MODINOS
The Registrar
Judge A. ROSS, availing himself of his right under the terms of
Rule 50 (2) of the Rules of Court, appends his dissenting opinion to
the present judgment.
Initialled: R. C.
Initialled: P. M.
DISSENTING OPINION OF MR. A. ROSS
I keenly regret that I am unable, in the case now before the Court, to
share the opinion of the majority of my colleagues and I therefore
consider it my duty to append to the Judgment the following statement
of my dissenting opinion.
1. As stated in the Court's Judgment, this case was brought before
the Commission in an Application dated 1st September 1956, lodged by
Raymond De Becker against Belgium. After the Commission had declared
this Application admissible as to that part of it which disputed the
compatibility of Article 123 ***ies of the Belgian Penal Code with
Article 10 (art. 10) of the Convention and in regard to the period
subsequent to 14th June 1955, in the absence of a friendly settlement
and pursuant to Article 31 (art. 31) of the Convention, the Commission
drew up the Report, which, on 1st February 1960, was transmitted to
the Committee of Ministers as laid down in that Article (art. 31).
By a request dated 28th April 1960, transmitted to the Court on
29th April 1960, that is to say, within the time-limit of three months
from the date of the transmission laid down in Article 32, paragraph 1
(art. 32-1), of the Convention, the Commission referred the case to
the Court in accordance with Article 48 (art. 48) of the Convention.
2. It appears from Articles 25-32 and 48 (art. 25, art. 26,
art. 27, art. 28, art. 29, art. 30, art. 31, art. 32, art. 48) of the
Convention that, in a case like the present, the machinery to ensure
the observance of the engagements undertaken by the States which are
Parties to the Convention is as follows. If the Application, or a
part thereof, has been declared admissible and a friendly settlement
has not been reached, the Commission shall draw up a Report on the
facts and state its opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the Convention
(Article 31) (art. 31). Thereupon a final decision shall be made by
means of one of two procedures: "If the question is not referred to
the Court in accordance with Article 48 (art. 48) of this Convention
within a period of three months from the date of the transmission of
the Report to the Committee of Ministers, the Committee of Ministers
shall decide by a majority of two-thirds of the members entitled to
sit on the Committee whether there has been a violation of the
Convention" (Article 32, paragraph 1) (art. 32-1). There can be no
doubt that the "question" referred to in this Article (art. 32-1)
is "whether there has been a violation of the Convention", or, as more
elaborately stated in Article 31 (art. 31), "whether the facts found
disclose a breach by the State concerned of its obligations under the
Convention".
From this it follows that when, as in these proceedings, a case is
referred by the Commission to the Court, it is the duty of the Court
to decide "whether there has been a violation of the Convention".
This duty, arising directly out of the Convention, cannot be cancelled
or modified by any step taken by the Commission or the State concerned
but only in accordance with the Rules of the Court or generally
accepted principles of the administration of justice construed in the
light of the specific purpose of the Convention.
As mentioned above, the Commission must in its Report "state its
opinion as to whether the facts found disclose a breach by the State
concerned of its obligations under the Convention" (Article 31,
paragraph 1) (art. 31-1). In the present case the Commission, in its
Report of 8th January 1960, section 263, expressed the opinion "that
the paragraphs (e), (f) and (g) of Article 123 ***ies, in so far as
they affect freedom of expression, are not fully justifiable under the
Convention". This statement, interpreted in the light of the terms of
Article 31 (art. 31) of the Convention, can only mean that the
Commission stated the opinion that the facts found disclosed a breach
by the State concerned of its obligations under the Convention.
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3. The Commission, in its Memorial of 22nd December 1960, accordingly
asked the Court to decide whether the paragraphs mentioned were
compatible with the Convention. Furthermore, after the Belgian Act of
30th June 1961 had been passed, the Commission, in its submission of
21st August 1961 and at the hearing of 5th October 1961, renewed its
request that the Court formally declare that the Applicant had been victim
of a violation of Article 10 (art. 10) of the Convention from the
entry into force (14th June 1955) of the Convention in regard to
Belgium until the entry into force of the Act of 30th June 1961. With
regard to the revised legislation, the Commission asked the Court "to
note that the limitations maintained by the Act of 30th June 1961 as
regards freedom of expression, in so far as these apply to
Mr. De Becker, do not go beyond the 'formalities, conditions,
restrictions or penalties' authorised in Article 10, paragraph 2
(art. 10-2) of the Convention".
It was not until 15th January 1962 that the Commission, in a document
entitled "Reconsideration by the Commission of its Conclusions, having
regard to the Applicant's letter of 5th October 1961", expressed the
desire to withdraw, subject to the approval of the Court, its earlier
submission asking the Court to decide whether De Becker was or was not
the victim of a violation of the Convention during the period before
the legislative changes of 30th June 1961. As the Commission was
further of the opinion that the legal situation of the Applicant after
that date was not contrary to the Convention, the Commission, in
logical consequence of these premises, declared that it would not wish
to oppose a decision of the Court to terminate the proceedings.
From this it will be seen that between 5th October 1961 and
15th January 1962 the Commission changed its opinion about asking the
Court to determine whether a violation of the Convention had or had
not taken place under the legislation in force at the time when the
case was brought before the Court. As its reason for this change of
attitude, the Commission referred to the Applicant's letter of
5th October 1961 which he stated that he considered the new Act by and
large to be in conformity with the Convention and for this reason
withdrew his Application. Various phrases used by the Commission in
this connection showed that the Commission did not hold that it had
any power to request that the proceedings be terminated. This, it was
said, was a decision which belonged to the Court rather than to the
Commission.
4. Having regard to the above, it must be asked: Does the Court have
the necessary authority to terminate the proceedings, and, if so, is
it, in the conditions described, reasonable and well-founded to do so
and to strike the case off the list of the Court?
First, I wish to point out that the fact that the Belgian Government,
in its submissions of 13th February 1962, asked the Court to strike
the case off the list, is in itself of no consequence. It seems to me
obvious that no wish or submission in this direction on the part of
the State accused by an Applicant of having violated the Convention
can be a ground for terminating the proceedings.
If, therefore, there is reason to terminate the proceedings in the
present case, it must be because of the withdrawal of the Application
as a result of Belgian legislation having been amended by the Act of
30th June 1961. It could be argued that since, after the case was
brought before the Court, the defendant State took steps to change the
legislation complained of and the Applicant declared himself satisfied
by the steps taken, there was no longer ground for dispute between the
Applicant and the defendant State and that, for this reason, the
proceedings should, according to generally recognised principles for
the administration of justice, be terminated.
I cannot agree with this view which seems to me to rest on a
misinterpretation of facts and to be based on principles of procedural
law which do not apply to proceedings before this Court.
To understand the problem it is necessary to analyse the situation,
considering separately the two circumstances and their possible
consequences.
5. First, it may be asked whether the fact that a State, accused of
violating the Convention, amends the relevant legislation after the
case has been brought before the Court, makes it ipso facto incumbent
upon the Court to consider the case before it in the light of the
amended legislation. This question arises independently of whether
the Applicant is or is not satisfied with the new state of affairs and
must be answered in the negative. It seems to me to follow from the
spirit of the Convention that the Applicant is entitled to a decision
on the question which the Commission brought before the Court.
Whatever changes may occur after the case is brought before the Court,
the Applicant may, should he, for example, wish to bring a suit for
damages, have a legitimate interest in a decision relating to the
legal situation prevailing before the legislative changes.
6. The next question is whether a withdrawal of the Application can
reasonably allow the Court to terminate proceedings, especially when the
withdrawal is due to the legal situation of the Applicant being
improved by new legislation which he declares to meet his Application.
This question could have been answered in the positive if the function
of this Court had been to enforce private claims, which a claimant
may, if he wishes, modify during proceedings. This is not, however,
the case here. According to the Convention, the function of the Court
is "to ensure the observance of the engagements undertaken by the High
Contracting Parties in the present Convention" (Article 19 of the
Convention) (art. 19). In view of this the Applicant is not
recognised as a Party before the Court. His Application can only
cause the Commission to make investigations; and, if the result of
these investigations substantiate to a reasonable extent the complaint
and a friendly settlement is not achieved, the Commission may bring
the question for final decision before the Committee of Ministers or
before the Court. When the proceedings have gone that far, the public
interest requires that the question whether a violation has or has not
taken place shall be decided regardless of whether the Applicant is
or is not interested in the continuance of proceedings.
In the present case the withdrawal of the Application by no means
implies withdrawal of the accusations against the defendant State.
The Applicant has never conceded that his legal situation before
30th June 1961 was not a violation of the Convention; he has declared
only that he is no longer interested in a decision on this question.
Neither before nor after amendment of the Belgian legislation, has the
Belgian Government ever acknowledged that it committed any violation
of the Convention. The question which the Commission brought before
the Court still exists, and public interest demands that it be
settled.
It is true that the Convention enjoins the Commission to place itself
at the disposal of the Parties concerned with a view to securing a
friendly settlement of the matter on the basis of respect for Human
Rights as defined in the Convention; and it is also true that under
the Rules of Court a friendly settlement may be reached even after the
Commission has brought a case before the Court (Rule 47, paragraph 3).
If a friendly settlement of this kind is reached before the Commission
has transmitted its Report, there shall, it is understood, be no
decision on the question whether a violation of the Convention has or
has not taken place (Article 30 of the Convention) (art. 30). If the
case has already been brought before the Court, the Court may strike
the case out of its list (Rule 47, paragraph 3).
It would, however, be a mistake to assume that a friendly settlement,
or anything similar thereto, has been reached in the present case.
When Article 28 (art. 28) of the Convention (and Rule 47, paragraph 3,
of the Rules of Court) speaks of a friendly settlement of "the matter"
it obviously means the matter which is the subject of complaint in the
Application (as far as declared admissible). If the parties, through
the good offices of the Commission, come to an understanding with
regard to the complaint, it seems reasonable to stop further
proceedings. In the present case, however, no such understanding with
regard to the complaint contained in the Application has been reached.
The complaint contained in De Becker's Application concerned his legal
situation as it was before the Act of 30th June 1961; on this point no
understanding has been reached. De Becker has declared himself to be
no longer interested in pursuing the question; this is different from
having reached a mutual understanding.
Furthermore, general considerations concerning the proper
administration of justice militate against attaching undue importance
to the withdrawal of an application. An individual lodging an
application against a State, especially against the State of which he
is a subject, will always be in a weak position. A withdrawal of an
application which is not the outcome of a friendly settlement reached
through the good offices of the Commission will always be the subject
of suspicion that the decision may be influenced by the position of
the individual being unequal to that of his State. This consideration
is not invalidated because the circumstances in the present case
disclose no grounds for doubting the sincerity and spontaneity of the
withdrawal. If the particular circumstances could be taken into
consideration, it is certain that the Court would almost invariably be
obliged to accept a withdrawal, since it would be impossible to prove
that pressure had been brought to bear upon the Applicant and improper
to express and plead suspicion thereof.
Furthermore, I have no doubt that a withdrawal accepted by the Court
will make an unfavourable impression upon public opinion, especially
when the withdrawal is due to steps taken by the defendant State. In
people not fully acquainted with the facts may give rise to the view
that the defendant State, out of a feeling of guilt and fearing an
unfavourable decision of the Court, has made a last-minute manoeuvre
and induced the Applicant to withdraw his complaint. The belief,
however mistaken, that a defendant State might be able to turn the
tables on the Court and evade responsibility, would be highly damaging
to the authority of the Court and to the prestige attaching to the
European Convention for the Protection of Human Rights and Fundamental
Freedoms.
7. For these reasons I believe that it is inexpedient for the Court
to terminate the proceedings in this case, even if it has the power to
do so.
Indeed, I doubt whether the Court has such power. It seems clear that
the provisions concerning discontinuance in Rule 47 of the Rules of
Court do not apply in the present situation. This view is, moreover,
shared by the Commission and by the majority of the Court.
Confirmation of this power can, therefore, be sought only in generally
accepted principles of judicial procedure. Those principles differ,
however, according to whether the proceedings are civil or criminal.
None of these principles apply to proceedings before this Court which
are not to be identified with judicial proceedings in a private
lawsuit or with criminal proceedings; the proceedings in this Court
are of a special nature, particularly, when, as in this case, they
concern a complaint lodged by an individual against his own State.
Therefore I am inclined to believe that no authority to terminate
proceedings can be found in general principles of judical procedure
which have not found recognition in the Rules of this Court.
For these reasons, I cannot concur in the conclusion of the majority
of my colleagues that the De Becker case be struck out of the list of
the Court.
Signed: A. ROSS
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