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5. A first amendment to the above-mentioned provision was made by
Article 10 of the Legislative Decree of 19th September 1945, which was
designed to increase the severity of the measures by deleting the
words "to imprisonment" ("à une peine criminelle") in Article 123
***ies and by repealing Article 123 septies. The clause was worded as
follows:

"1. The words "à une peine criminelle" shall be deleted from
paragraph 1 of Article 123 ***ies of the Penal Code. The deprivation
prescribed in the said article as amended shall apply ipso jure to any
conviction pronounced since 27th August 1939.

2. Article 123 septies of the Penal Code is hereby repealed."

This was the clause in force when De Becker was tried and sentenced.

6. In 1950, as a measure of clemency, the sentence of life
imprisonment was reduced to seventeen years.

On 22nd February 1951, De Becker was conditionally released on making
a "declaration" to the effect that he voluntarily undertook to take up
residence in France within one month of his release and that he would
not engage in politics. After his release, the Applicant took up
residence in Paris.

Subsequently, De Becker made several unsuccessful requests for the ban
to be lifted on his residing in Belgium and for the professional
disabilities inflicted on him under Article 123 ***ies of the Penal Code
to be cancelled. He succeeded, however, in establishing legal
domicile in Belgium.

II

7. On 1st September 1956, De Becker lodged with the Commission an
application agginst Belgium.

First, De Becker contended that the restrictions imposed on him under
Article 123 ***ies of the Belgian Penal Code were an infringement of
two Articles of the Convention. The first of these was Article 7
(art. 7), which lays down the principle that crimes and offences must
be defined by legislation; but Article 123 ***ies had been introduced
by retroactive decree. Secondly, by preventing the Applicant from
exercising his profession as a journalist and writer, the imposition
of these restrictions also contravened Article 10 (art. 10), which
guarantees every person the right to freedom of expression. In
general, too, these restrictions were contrary to human dignity since
their effect was to leave the Applicant with four courses which were
equally unacceptable: to refrain from any expression at all, to
express himself under a pseudonym, to write abroad and renounce any
circulation in Belgium - which would hardly be acceptable to his
publishers - or, lastly, to disregard the injunction and expose
himself to a further term of imprisonment under Article 123 nonies
of the Penal Code. Under that clause, "any person who, notwithstanding
the prohibition resulting from the application of Article 123
***ies ... exercises, either directly or through another person, one
of the rights listed in that Article, shall on conviction be punished
by one to three years' imprisonment" and by a fine.

De Becker also complained of what he termed his de facto exile. There
is no provision for such exile in either the Belgian law or the
Constitution; it results solely from the terms on which the Applicant
was conditionally released on 22nd February 1951. The Applicant
submitted that it was incompatible with Article 5 (art. 5)
of the Convention, according to which "everyone has the right to
liberty and security of person", and with Article 9 of the Universal
Declaration of Human Rights, which proclaims that "no one shall be
submitted to arbitrary arrest, detention or exile". De Becker further
asserted that he had given an undertaking to reside abroad under moral
pressure alone, namely under the threat that his release might be
refused and also because he had been led to believe that his
banishment would rapidly be terminated. Similarly, he had contrived
to respect that undertaking in order to avoid again being imprisoned.
His status as a "de facto exile" has now lasted for several years, and
since the Belgian authorities show no readiness to terminate it, may
well continue legally until 14th July 1973, which is the date set for
his final discharge.

The Applicant accordingly asked for recognition:

- of the right to reside in Belgium and

- of the right to express his ideas by all lawful means, in accordance
with the spirit of the Convention (in particular, of Article 17)
(art. 17).

He asked the Commission to invite the Belgian Government, preferably
under the terms of a friendly settlement (Article 28 (b) of the
Convention) (art. 28-b), to lift the measures of which he complained
and, in so far as this might necessitate certain legislative steps, to
suspend these measures in the meanwhile.

III

8. The Commission, after declaring the Application inadmissible in so
far as it concerned the complaint of "de facto exile" and the question
of the compatibility of Article 123 ***ies of the Belgian Penal Code
with Article 7 (art. 7) of the Convention (which prohibits
retroactivity of the criminal law) decided on 9th June 1958 to declare
admissible the part of the Application that 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.

The Commission recognised:

- in regard to its competence ratione temporis that the Applicant had
found himself placed in a continuing situation which had no doubt
originated before the entry into force of the Convention in respect of
Belgium (14th June 1955), but which had continued after that date,
since the forfeitures in question had been imposed "for life";

- that all domestic remedies (Article 26 of the Convention) (art. 26)
had been exhausted;

- that the six months' time-limit stipulated in Article 26 (art. 26)
of the Convention was not applicable in that case; and lastly,

- that the Applicant's complaint regarding the compatibility of
Article 123 ***ies of the Belgian Penal Code with Article 10
(art. 10) of the Convention was not manifestly ill-founded
(Article 27, paragraph 2, of the Convention) (art. 27-2).

9. The Commission examined the part of the Application that has been
declared admissible under the procedure referred to in Articles 28 and
29 (art. 28, art. 29) of the Convention. In the absence of a friendly
settlement, the Commission drew up the Report provided for in Article 31
(art. 31) of the Convention.
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