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10. As stated in that Report and in the first Memorial filed in the
course of the present procedure the Commission had to consider four
main questions:

(a) Is the compatibility of Article 123 ***ies, paragraphs (e), (f)
and (g), of Belgian Penal Code with the provisions of the Convention
to be judged in the light of Article 10 (art. 10) to the Convention or
in the light of Articles 2 to 7 (art. 2, art. 3, art. 4, art. 5,
art. 6, art. 7)? In other words, is Article 10 (art. 10) applicable
here?

(b) If so, are paragraphs (e), (f) and (g) of Article 123 ***ies
compatible with Article 10 (art. 10) of the Convention?

(c) If not, is the breach of Article 10 (art. 10) covered by
Article 15 (art. 15), or

(d) by Article 17 (art. 17) of the Convention?

11. As regards the first of these questions, the Commission, in its
Report (paragraph 263), expressed the unanimous opinion that "it is
Article 10 (art. 10), not Articles 2, 5 and 4 (art. 2, art. 5,
art. 4), to which reference has to be made in considering the
compatibility or otherwise of Article 123 ***ies with the provisions
of the Convention".

As regards the second question, the Commission, by eleven votes to one,
expressed the opinion that 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, "whether they be regarded as
providing for penal sanctions or for preventive measures in the
interests of public security. They are not justifiable in so far as
the deprivation of freedom of expression in regard to non-political
matters, which they contain, is imposed inflexibly for life without
any provision for its relaxation when with the passage of time public
morale and public order have been re-established and the continued
imposition of that particular incapacity has ceased to be a measure
'necessary in a democratic society' within the meaning of
Article 10, paragraph 2 (art. 10-2), of the Convention."

As regards the third and fourth questions, the Commission expressed
the unanimous opinion that neither Article 15 (art. 15) nor Article 17
(art. 17) of the Convention was applicable to the present case.

IV

12. In its request dated 28th April 1960 referring the matter to the
Court, the Commission pointed out that the Belgian Government had
referred on several occasions to the existence of proposals and draft
legislation directed towards amending Article 123 ***ies or mitigating
its application.

The Belgian Government supplied the Court with full information on
this subject and added the relevant parliamentary papers to the file.

This material shows that, from 1948 onwards, various proposals and
bills were submitted to the Belgian legislature with a view to
mitigating the effects of the disabilities prescribed by Article 123
***ies.

13. The Act of 14th June 1948 (Article 10) amended Article 123
***ies: in contradistinction to the 1945 Act it provided that the
disabilities prescribed by that Article should only affect persons
upon whom a criminal sentence had been passed.

The 1948 Act also introduced an Article 123 septies worded as follows:

"Courts shall be empowered to impose the total or partial forfeiture,
for life or for a period, of the rights listed in the preceding
Article upon persons sentenced to a correctional penalty or to less
than five years' criminal detention for an offence or attemped offence
covered by the said Article."

14. Article 5 of the Act of 29th February 1952 made a further change,
limiting the application of Article 123 ***ies to persons sentenced
"to more than five years' detention", and stipulating that Article 123
septies would in future cover only those sentenced either to a
correctional penalty or to less than five years' criminal detention.

15. Fresh initiatives were subsequently taken in the mood of
conciliation either by the Belgian Government or by Parliament with a
view to mitigating the system of professional disabilities introduced
by Article 123 ***ies of the Belgian Penal Code.

On 15th January 1957 a bill - known as the "Lilar Bill", after the
Minister who initiated it - was introduced in Parliament with the
object inter alia of revising Article 123 ***ies "in order to rectify
situations which it is undesirable to prolong".

The bill was amended several times during the parliamentary
proceedings.

16. The European Commission of Human Rights adopted its Report on the
De Becker case on 8th January 1960. On 1st February 1960 the Report
was transmitted to the Committee of Ministers.

While the "Lilar Bill" was being studied by the Belgian Parliament,
the Commission bound by Articles 32 and 47 (art. 32, art. 47)
of the Convention, referred the case to the Court on 28th April 1960,
pointing out at the same time that steps were being taken in the
Belgian Parliament to amend Article 123 ***ies.

17. In its Memorial addressed to the Court on 22nd December 1960, the
Commission, after stating its opinion on the case, mentioned that it
had received no fresh information about the proceedings in the Belgian
Parliament relating to the Bill to amend Article 123 ***ies.

The Commission emphasised, however, that "it will be for the Court to
take into account such developments as may occur in Belgian
legislation".

Subject to that reservation, and in those circumstances, the
Commission, in its Memorial of 22nd December 1960, made the following
submissions:

"May it please the Court to decide:

(a) whether the compatibility of Article 123 ***ies of the Belgian
Penal Code with the provisions of the Convention should be determined
with relation to Article 10 (art. 10) or, rather, with relation to
Articles 2 to 7 (art. 2, art. 3, art. 4, art. 5, art. 6, art. 7). In
other words, whether Article 10 (art. 10) is applicable in
the present case;

(b) in the affirmative, whether paragraphs (e), (f) and (g) of
Article 123 ***ies are compatible with Article 10 (art. 10) of the
Convention;

(c) if there has been a breach of Article 10 (art. 10), whether this
breach is covered by Article 15 (art. 15)

or

(d) by Article 17 (art. 17) of the Convention."

18. The Belgian Government, after reaffirming the standpoint which it
had maintained before the Commission throughout the proceedings,
namely that Article 123 ***ies was fully compatible with the terms of
the Convention, made the following submissions in its Counter-Memorial
of 27th February 1961:

"May it please the Court to decide that Article 123 ***ies of the
Belgian Penal Code is compatible with the terms of the Convention for
the Protection of Human Rights and Fundamental Freedoms."

19. The "Lilar Bill", taken up again in 1960 by the efforts of
Mr. Vermeylen, the Minister of Justice, became the Act of
30th June 1961 amending Article 123 ***ie of the Belgian Penal Code.

This Act, insofar as it concerns the De Becker case, is worded as
follows:

30th June 1961
Civic Black Lists Act
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