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الموضوع: DE BECKER v. BELGIUM - 214/56 [1962] ECHR 1 (27 March 1962)

  1. #1

    افتراضي DE BECKER v. BELGIUM - 214/56 [1962] ECHR 1 (27 March 1962)

    [align=left]
    In the "De Becker" case,

    The European Court of Human Rights, constituted, in accordance with
    the provisions of Article 43 (art. 43) of the Convention for the
    Protection of Human Rights and Fundamental Freedoms (hereinafter
    referred to as "the Convention") and Rules 21 and 22 of the Rules of
    Court of the European Court of Human Rights, in a Chamber composed of:

    Mr. R. CASSIN, President

    and of MM. A. VERDROSS
    G. MARIDAKIS
    A. ROSS
    T. WOLD
    K. F. ARIK
    Baron L. FREDERICQ, ad hoc judge, Judges
    Mr. P. MODINOS, Registrar

    decides as follows:

    PROCEDURE:

    1. On 29th April 1960, the European Commission of Human Rights
    (hereinafter referred to as the "Commission"), transmitted to the
    Court a request dated 28th April 1960 referring to the Court the case
    brought before the Commission on 1st September 1956 by an Application
    (Article 25 of the Convention) (art. 25) of Mr. Raymond De Becker, a
    Belgian national, against the Government of the Kingdom of Belgium.
    The request, to which was attached the Report drawn up by the
    Commission (Article 31 of the Convention) (art. 31), was submitted to
    the Court within the period of three months laid down in
    Articles 32 (1) and 47 (art. 32-1, art. 47) of the Convention.

    In referring the case to the Court, the Commission adverted to the
    declaration in which the Belgian Government recognised on 5th July 1955
    the jurisdiction of the Court (Article 46 of the Convention) (art. 46)
    and to the powers conferred upon the Commission under Article 48 (a)
    (art. 48-a) of the Convention.

    In accordance with Rule 32 of the Rules of Court, the Commission's
    request was transmitted to the Belgian Government on 29th April 1960.
    In pursuance of Rule 21, paragraph 2, of the Rules of Court, the
    Registrar invited the said Government to inform him within thirty days
    whether it wished to appear as a Party in this case. In accordance
    with Rule 32, paragraph 1 in fine of the Rules of Court, the Registrar
    informed the Committee of Ministers, also on 29th April 1960, of the
    filing of the request.

    2. By letter of 19th May 1960, the Belgian Government informed the
    Registrar that it agreed to appear as a Party to this case and that
    it had appointed as its Agent, Mr. Anthony Gomrée, Magistrat délégué
    at the Ministry of Justice in Brussels.

    3. Before the Chamber which was to hear the case was constituted,
    Mr. Henri Rolin, the elected Judge of Belgian nationality and, under
    Article 43 (art. 43) of the Convention, in this capacity an ex officio
    member of the Chamber, informed the President of the Court that,
    owing to certain special circumstances, he was obliged to withdraw.

    The President having accepted this withdrawal and notified the Belgian
    Government accordingly, the latter appointed as an ad hoc judge, in
    accordance with (former) (1) Rule 23, paragraph 1 of the Rules of Court,
    Baron Louis Fredericq, Honorary Rector of the University of Ghent. The
    names of the other six judges required to sit in the Chamber were
    chosen by lot [(former) (1) Rule 21, paragraph 3 of the Rules] by the
    President of the Court in the presence of the Registrar on
    20th June 1960.

    _______________
    (1) As adopted by the Court on 18th September 1959; this Rule was not
    revised until 25th October 1961.
    _______________

    On 22nd June 1960 the judges, the Agent of the Belgian Government and
    the President and delegates of the Commission were notified of the
    composition of the Chamber.

    4. After ascertaining, in accordance with Rule 35, paragraph 1, of
    the Rules of Court, the views of the Agent of the Party, as well as
    those of the delegates of the Commission, on the procedure to be
    followed, on 6th October 1960, the President of the Chamber, by Order
    dated the same day, granted the Commission for the filing of its first
    Memorial a time-limit of six weeks as from the date of the Court's
    decision on the preliminary objections raised in the "Lawless" case,
    and to the Belgian Government for the filing of its Counter-Memorial,
    a time-limit of two months as from the date of receipt of the
    Commission's Memorial.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  2. #2

    افتراضي

    [align=left]
    The decision in the "Lawless" case having been rendered on
    14th November 1960, the Memorial of the Commission was filed on
    22nd December 1960. After receiving on 3rd January 1961 the
    Commission's Memorial, the Agent of the Belgian Government presented
    on 3rd March 1961 his Government's Counter-Memorial.

    5. A first public hearing was held on 3rd July 1961. The proceedings
    having been postponed until a new hearing, the Commission and the
    Belgian Government filed further written documents:

    - The Commission, on 23rd August 1961, filed a document dated
    21st August 1961, containing new conclusions,

    - The Belgian Government, on 20th September 1961, also filed new
    conclusions.

    A second public hearing was held on 5th October 1961; at that hearing
    the Court closed the hearings while reserving the right to re-open
    them at a later date, if necessary.

    On 7th October 1961, the Court was informed by the Secretary of the
    Commission that R. De Becker, the Applicant before the Commission, had
    on 5th October 1961 sent a memorandum to the delegates of the
    Commission according to which "he now regards it as unnecessary further
    to proceed with the case and withdraws his application".

    In accordance with the invitation addressed to it during the hearing
    of 5th October, the Belgian Government submitted to the Court on
    16th October 1961 a communication supplemented by an additional
    memorandum by that Government dated 18th December 1961 (deposited with
    the Registrar of the Court on 20th December 1961). The Commission,
    for its part, submitted on 22nd January 1962 new written conclusions
    dated 15th January 1962. The President of the Chamber accordingly
    decided, by Order of 24th January 1962, to re-open the hearings. The
    Belgian Government filed further conclusions on 15th February 1962, in
    reply to the conclusions of the Commission of 25th January 1962.

    A third public hearing took place on 19th February 1962, when the
    proceedings were declared closed.

    At the hearings held in this case, the following have appeared:

    For the Commission:

    Mr. C.Th. Eustathiades, Principal Delegate

    Mr. L.J.C. Beaufort (hearings of 3rd July 1961 and
    19th February 1962 only)

    Mr. F. Castberg (hearing of 5th October 1961 only)

    Mrs. G. Janssen-Pevtschin, Deputy Delegates.

    For the Government of the Kingdom of Belgium, Party:

    Mr. A. Gomrée, Agent (hearings of 3rd July 1961 and
    5th October 1961 only)

    Mr. J. Van Ryn, Counsel (acting as Agent at hearing of
    19th February 1962)

    Mr. Dassesse, Counsel (hearings of 3rd July 1961 and
    5th October 1961 only)

    At the public hearings, the Court heard the addresses, replies and
    conclusions of:

    For the Commission:

    Mr. C.Th. Eustathiades, Principal Delegate.

    For the Belgian Government:

    Mr. J. Van Ryn, Counsel.

    THE FACTS:

    I

    1. Mr. Raymond De Becker, journalist and writer of Belgian
    nationality, presently living in Paris, was condemned to death by the
    Brussels Conseil de Guerre on 24th July 1946 on the ground that
    between 13th June 1940 and 5th October 1943 he had collaborated with
    the German authorities in Belgium in various ways and capacities,
    principally in the exercise of his functions as general editor of the
    Belgian daily newspaper Le Soir (Articles 66, 113, 117 and 118 bis
    of the Belgian Penal Code).

    De Becker was, in particular, found guilty of having "participated in
    the enemy's transformation of legal institutions or organisations, of
    having undermined the loyalty of Belgian citizens to the King and the
    State in time of war" and of having "furthered the enemy's policy and
    designs"; of having "deliberately directed, practised, incited,
    promoted and encouraged propaganda against resistance to the enemy and
    the enemy's allies ..."; of having by his writings "directly incited
    Belgian nationals to commit the crime of taking up arms against their
    country" or its allies "by knowingly performing on behalf of the enemy
    such tasks as fighting, transport, mounting guard and other tasks
    normally carried out by the enemy forces and their auxiliary services,
    ... with the effect intended" and of having "directly as well as through
    intermediaries or acting himself as an intermediary, supplied the
    enemies of the State with troops and manpower".

    The judgment of the Conseil de Guerre carried with it, inter alia,
    forfeiture by De Becker of the rights set out in Article 123 ***ies of
    the Belgian Penal Code.

    2. The Brussels Military Court, to which De Becker appealed, while
    confirming the facts and the Applicant's criminal intent, admitted the
    existence of extenuating circumstances, namely the Applicant's
    opposition to the "annexionist and separatist" intentions of the
    occupant, which had led to his arrest in 1943 and his deportation to
    Germany for a period of two years. In its judgment of 14th June 1947
    the Court commuted the death penalty to one of life imprisonment.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  3. #3

    افتراضي

    [align=left]
    confirmed the judgment in all other respects, including the forfeiture
    of the rigths enumerated in Article 123 ***ies of the Penal Code.

    3. Loss of civil and political rights for offences against the
    external security of the State were introduced into the Belgian Penal
    Code by the Legislative Decree of 6th May 1944, whose Article 2
    provided as follows:

    "The following provisions shall be added to Vol. II, Section 1,
    Chapter II, of the Penal Code:

    1. An Article 123 ***ies worded as follows:

    Any person sentenced to a penalty exceeding five years' imprisonment
    for an offence or attempted offence under Vol. II, Section 1,
    Chapter II, of the Penal Code or Articles 17 and 18 of the Military
    Penal Code, committed in time of war, shall, ipso jure, be deprived
    for life of the following rights:

    (a) the rights set out in Article 31 of the Penal Code, including the
    right to vote and the right to be elected;

    (b) the right to appear on any roll of barristers, honorary counsel or
    probationary barristers;

    (c) the right to take part in any capacity whatsoever in instruction
    provided by a public or private establishment;

    (d) the right to receive remuneration from the State as a minister of
    religion;

    (e) the right to have a proprietary interest in or to take part in any
    capacity whatsoever in the administration, editing, printing or
    distribution of a newspaper or any other publication;

    (f) the right to take part in organising or managing any cultural,
    philanthropic or sporting activity or any public entertainment;

    (g) the right to have proprietary interest in, or to be associated
    with the administration or any other aspect of the activity of any
    undertaking concerned with theatrical production, films or
    broadcasting;

    (h) the right to exercise the functions of director and/or manager or
    authorised representative of a private company, limited shareholding
    partnership, co-operative society or credit union; the functions
    of manager of a Belgian establishment, under Article 198 (2) of the
    consolidated Commercial Companies Acts; to follow the profession of
    stockbroker, broker's agent or bank auditor, the profession of
    banker, or exercise the functions of director, governor, manager or
    authorised representative of a bank as defined in Royal Decree No. 185
    of 9th July 1935, or those of manager of the Belgian branches of
    foreign banks specified in Article 6 of Royal Decree No. 185 of
    9th July 1935;

    (i) the right to be associated in any way with the administration,
    management or direction of a professional association or a
    non-profit-making association;

    (j) the right to be a leader of a political association.

    2. An Article 123 septies worded as follows:

    Any person sentenced to a correctional penalty of eight days or
    more for an offence or attempted offence mentioned in Article 123
    ***ies shall ipso jure be temporarily debarred from exercising his
    right to vote, to stand for election or to be elected.

    The said disability shall cease ten years after conviction if the
    sentence was of less than one month's imprisonment, and twenty years
    after conviction if the sentence was of one month's imprisonment or
    more.

    If the correctional penalty exceeds one year's imprisonment, the
    convicted person shall in addition be debarred ipso jure from
    exercising the other rights referred to in Article 123 ***ies.

    Suspension of the exercise of these other rights shall cease ten years
    after conviction where the sentence was less than three years'
    imprisonment and twenty years after conviction where the sentence was
    three years' imprisonment or more."

    4. The report to the Council on the Legislative Decree of
    6th May 1944 contains the following explanations:

    "Article 2 also provides for the prohibition or suspension of the
    exercise of certain rights by persons convicted of crimes against the
    external security of the State.

    Such prohibition and suspension following upon conviction of an
    offence against the external security of the State constitute
    preventive measures vis-à-vis those persons who have contributed to
    placing their country in peril. Such persons are removed, for a
    period which varies according to the seriousness of the offence, from
    all activities in the national life where their action or influence
    might revive that peril ...".

    "... Thus, unlike the deprivation or suspension of rights prescribed in
    Articles 31 et seq. of the Penal Code, those prescribed in
    Article 2 (1) and (2) (123 ***ies and 123 septies) of the draft are
    not penalties. They are measures of a civil character, originating in
    the law itself.

    The rigths, the exercise of which is prohibited for life or suspended,
    are listed in Article 2 (1) (123 ***ies).

    Paragraphs (b), (c), (d), (e) and (f) safeguard the nation's
    spiritual, cultural and scientific heritage ..."
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  4. #4

    افتراضي

    [align=left]
    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.
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  5. #5

    افتراضي

    [align=left]
    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
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  6. #6

    افتراضي

    [align=left]
    (Loi relative à l'épuration civique)

    SECTION 1

    Amendments to the Penal Code and the Military Penal Code

    Article 1. Articles 123 ***ies, septies, octies and nonies of the
    Penal Code are replaced by the following provisions:

    Article 123 ***ies, paragraph 1

    By derogation from Articles 31 and 32, death sentences or sentences to
    hard labour, life or rigorous (extraordinaire) imprisonment for an
    offence or attempted offence punishable under Volume II, Section 1,
    Chapter II of the Penal Code and committed in time of war shall not
    include a prohibition on the accused against exercising the rights
    enumerated therein but shall ipso jure entail deprivation for life of:

    1° the rights enumerated in the said Article 31, including the rights
    to vote, to elect or to be elected;

    ...

    6° the right to participate, in any capacity whatsoever, in the
    ownership, administration, editing, printing or distribution of a
    newspaper or of any publication if such participation has a political
    character;

    7° the right to participate in the management or administration of any
    cultural, philanthropic or sporting activity or any public
    entertainment if such participation has a political character;

    8° the right to participate in the ownership or administration or any
    other aspect whatsoever of any undertaking concerned with theatrical
    production, films or broadcasting if such participation has a
    political character;

    ...

    Paragraph 2

    ...

    The sentence may entail deprivation of rights for a period of ten to
    twenty years if the penalty is rigorous imprisonment (réclusion) or
    ordinary detention, or for a period of five to ten years if the
    penalty is correctional. The period of deprivation laid down in the
    judgment or sentence shall run from the day on which the sentence,
    whether delivered after a full hearing or in absentia, becomes res
    judicata.

    Article 123 septies, paragraph 1

    Any person sentenced to deprivation of rights under Article 123 ***ies
    may apply for restitution of the rights enumerated in paragraphs 6 and
    9 on condition that the said person:

    1° is not under detention in execution of a penalty, and is not a
    fugitive from justice nor in rebellion against the law (fugitif ou
    latitant);

    2° has paid the fines inflicted on him and acquitted himself of all
    restitutions, damages and costs payments to which he has been
    sentenced (the court may, however, release him from this condition if
    he can prove that he cannot meet such payments either by reason of
    poverty or for any other reason not imputable to him) and on condition
    that;

    3° twenty years have elapsed since the sentence was passed, in the
    case of life deprivation of rights, ten years in the case of
    deprivation for a period of ten to twenty years following a sentence
    to a term of rigorous or ordinary imprisonment, or five years in the
    case of deprivation for a period of five to ten years following a
    sentence to a correctional penalty.

    Paragraph 2

    The application shall be made by registered letter addressed to the
    Public Prosecutor (Procureur du Roi) of the domicile or place of
    residence of the individual concerned, or, if the latter has neither
    domicile nor residence in Belgium, to the Public Prosecutor of the
    Brussels arrondissement.

    The Public Prosecutor shall obtain such information as he considers
    necessary and submit the application to the Court of first instance.

    On receiving a summons, under registered postal cover, from the Public
    Prosecutor, the individual concerned shall appear before the Court
    sitting in private (Chambre du Conseil), either in person or
    represented by an officer of the Court (avoué) or by Counsel briefed
    by the Applicant (avocat porteur des pièces).

    The summons shall indicate the Chamber before which the application
    will be heard and the date and time at which the Applicant is to
    appear. There shall be an interval of at least a week between the
    date of notification and the date of the hearing. The date of
    notification shall be the date of posting the summons.

    If, after notification, the applicant fails to appear either in person
    or represented by his Counsel or by an officer of the Court, the Court
    may adjourn the case before sitting on the application, so as to allow
    the Public Prosecutor (ministère public) time to issue a new summons.

    The record of the case as kept by the Public Prosecutor shall be filed
    with the Clerk of Court at least a week before the date fixed for the
    hearing. The hearing procedure shall be the same as in a correctional
    case.

    There shall be no appeal from the judgment of the Court.

    If the application is rejected in whole or in part it cannot be
    renewed until two years have elapsed, since the date of the said
    judgment.

    ...

    Paragraph 3

    Restitution of rights forfeited as a result of a sentence under the
    preceding Article shall not be retrospective.

    Article 123 octies

    ...

    Article 123 nonies

    ...

    Article 2

    ...

    Article 3. The Civic Black Lists Act of 14th June 1948 and the
    Civic Black Lists (Amendment) Act of 29th February 1952 are hereby
    repealed.

    SECTION 2

    Interim Measures

    Article 4. Within the limits indicated below, deprivations of civil
    and political rights incurred before the present Act enters into force
    and in respect of offences committed between 26th August 1939 and
    15th June 1949 shall be maintained:

    Paragraph 1
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  7. #7

    افتراضي

    [align=left]
    All deprivations of civil and political rights incurred under
    paragraphs 1 or 2 of Article 1 of the Legislative Decree of
    19th September 1945 (Civic Black Lists Act), or by inscription on the
    lists of the Military Prosecutor (auditeur militaire) in virtue of the
    said Legislative Decree or of the Act of 14th June 1948, or in virtue
    of Article 7 of the said Legislative Decree or of Article 7,
    paragraph 1 of the said Act, are hereby terminated.

    Paragraph 2

    ...

    Paragraph 3

    ...

    Paragraph 4

    ...

    Paragraph 5

    Persons sentenced to deprivation of liberty for a period of more than
    twenty years may apply to the Court for total or partial restitution
    of the rights enumerated in sub-paragraphs 6 and 9 of paragraph 1 of
    Article 123 ***ies of the Penal Code.

    The admissibility of such applications shall be subject to the
    conditions laid down in Article 123 septies of the Penal Code and the
    procedure shall be that defined in paragraph 2 of the said Article.

    Paragraph 6

    For the purposes of the present interim measures, heavier sentences
    shall be assimilated to the penalties referred to above, if they have
    been reduced to the equivalent of the latter by act of clemency.

    Paragraph 7

    Deprivations of rights under Article 123 ***ies (e), (f) and (g) of
    the Penal Code, as worded before the present Act came into force, shall
    be maintained only insofar as the participation envisaged therein is of a
    political character; the deprivation mentioned under (h) shall no
    longer be applicable.

    Paragraph 8

    The provisions made under the preceding paragraphs shall quash all
    future effect of these deprivations but shall not restore to those
    concerned any title, rank, office, employment or public position of
    which they have been stripped; nor shall they restore to such persons
    the status of avocat, avocat stagiaire or avocat honoraire (barrister,
    probationary barrister or honorary counsel) if they have been deprived
    of such status."

    20. At the public hearing on 3rd July 1961, the Agent of the Belgian
    Government maintained that, in its earlier form, Article 123 ***ies
    was fully justified and that De Becker's criticisms were without
    foundation. The Agent of the Belgian Government also submitted that
    the Court had to consider the case on the basis of the Act of
    30th June 1961 and that no one could deny that, by virtue of the
    temporary measures of the said Act, De Becker had achieved the purpose
    of his Application; that even in the matter of "political expression"
    it was possible for De Becker to have recourse to the ordinary courts
    of his country to recover the remaining rights of which he has been
    deprived. Consequently - in the opinion of the Belgian Government -
    the Applicant had no interest in the continuance of proceedings
    arising from his Application.

    Accordingly, at the hearing of 3rd July 1961 the Agent of the Belgian
    Government submitted new conclusions as follows:

    "May it please the Court,

    1. To rule that in view of present Belgian legislation the Applicant
    De Becker has no interest in further proceedings on his application;

    2. To rule that in determining the compatibility of Article 123
    ***ies of the Belgian Penal Code with the provisions of the
    Convention, both in regard to the past and the future, the provisions
    of the Act of 30th June 1961 must be taken into account;

    3. To state that there is no incompatibility between the said
    Article 123 ***ies and the provisions of the Convention."

    21. The hearing having been adjourned, the Commission submitted on
    21st August 1961 a Memorial in which it gave its views on the Act of
    30th June 1961.

    In this Memorial the Commission - while maintaining its view that the
    former Article 123 ***ies was not fully compatible with the Convention -
    concluded that the Act of 30th June 1961, in so far as it is
    applicable to De Becker, satisfied at least that part of the
    Application which the Commission had recognised as being admissible.

    In its Memorial of 21st August 1961 and at the hearing of
    5th October 1961, the Commission adopted the following conclusions:

    "May it please the Court, while confirming the view expressed by the
    Commission on the subject of the former Article 123 ***ies of the
    Belgian Penal Code, 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."

    22. At the hearing on 5th October 1961, the Agent of the Belgian
    Government emphasised that the views of the Commission and the Belgian
    Government were identical concerning the compatibility with the
    Convention of Article 123 ***ies of the Belgian Penal Code, as amended
    and superseded by the Act of 30th June 1961; he recalled that
    parliamentary work on the Act had begun as long ago as 1952 and he
    recognised that the opinion of the Commission had contributed to this
    task of law-making.

    With regard to the past the Agent of the Belgian Government submitted
    that there was no longer any need for the Court to give a ruling on
    the request of the Commission concerning the former Article 123
    ***ies, whether it be to confirm the opinion of the Commission on this
    point or to reject it, as previously by the Belgian Government.

    The Agent of the Belgian Government added that there was no longer a
    single person in Belgium to whom the provisions of the former
    Article 123 ***ies were applicable.

    The Agent of the Belgian Government went on to say that the Commission
    could not insist upon the Court giving its opinion regarding the past
    unless the Court assumed that the legislative changes of
    30th June 1961 were late in taking place. The Agent pointed out that it
    was not the Court's function to see whether these legislative changes
    were timely or not; if however, the Court did not share this point of
    view, the Belgian Government must be given an opportunity of replying
    to the arguments by which the Commission sought to justify its
    opinion.

    The conclusions submitted by the Agent of the Belgian Government at
    the hearing of 5th October 1961 were as follows:

    "May it please the Court

    Disregarding all other fuller or contrary submissions,

    To state that there is no incompatibility between Article 123 ***ies
    of the Belgian Penal Code, now supplemented and replaced by the Law of
    30th June 1961, and the provisions of the Convention;

    Insofar as former Article 123 ***ies of the same Code is concerned, to
    state that, in view of these circumstances, there is no further need
    to deal with any application concerning it."

    23. At the same hearing of 5th October 1961 the Commission maintained
    that, in asking the Court to confirm the Commission's opinion
    regarding the effect of applying the former Article 123 ***ies to
    De Becker, it was asking the Court to state that De Becker had been
    the victim of a violation of Article 10 (art. 10) of the Convention
    between the entry into force of the Convention with respect to
    Belgium and promulgation of the Act of 30th June 1961.

    The Commission submitted:

    "May it please the Court,
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  8. #8

    افتراضي

    [align=left]
    To say whether during the whole or part of the period between the
    entry into force of the Convention (14th June 1955) and the Act of
    30th June 1961, the Applicant was the victim of a violation of
    Article 10 (art. 10) of the Convention."

    24. After the hearing of 5th October 1961 De Becker addressed a
    memorandum to the Commission in which he stated that he considered
    "that his Application to the Commission of Human Rights requesting the
    restitution of the right of free expression of which he was deprived
    under the former Article 123 ***ies of the Belgian Penal Code has been
    met by the adoption in the Belgian Parliament of the Act of
    30th June 1961" and that he recognised that it "gives everyone the
    possibility of regaining his or her full rights of free expression
    including that of political expression". For this reason De Becker,
    at the end of the memorandum, said that he "now regards it as
    unnecessary futher to proceed with this case and withdraws his
    Application". The Commission transmitted the text of the memorandum
    to the Court on 7th October 1961.

    25. On 22nd January 1962 the Commission sent to the Court a
    memorandum dated 15th January 1962, entitled "Reconsideration by the
    Commission of its Conclusions, having regard to the Applicant's letter
    of 5th October 1961". Having regard to the new situation arising out
    of De Becker's memorandum of 5th October 1961, the Commission, in its
    own memorandum, stated, inter alia, that neither the general interests
    of European public order nor the particular interest of the individual
    in the present case required it to ask the Court to pronounce on the
    question whether or not De Becker was the victim of a violation of the
    Convention in the period between the entry into force of the
    Convention with respect to Belgium and the entry into force of the Act
    of 30th June 1961. The Commission therefore emphasised that it wished to
    withdraw the submission made to the Court by the delegates of the
    Commission at the hearing on 5th October 1961, asking the Court to
    pronounce upon that question.

    The final submissions of the Commission, set forth in the
    above-mentioned memorandum, read as follows:

    "Accordingly, the Commission believes that the appropriate course for
    it to adopt on this question is to confine itself to submitting its
    point of view to the Court, which is as follows:

    1. If the Court should consider that, in the situation which now
    exists in the case, the appropriate course is to terminate the
    proceedings and strike the case off the list on the basis of the
    Applicant's interests having been met, the Commission, since it
    considers the provisions of the Belgian Penal Code now applicable to
    Mr. De Becker to be in conformity with the Convention, would not wish
    to oppose such a solution;

    2. If the Court, however, were to consider that the general question
    of the interpretation and application of the Convention, to which
    attention has been drawn above, is of such a nature as to make it
    desirable for the Court to pronounce upon the compatibility with the
    Convention of the provisions of Article 123 ***ies of the Belgian
    Penal Code, as modified and supplemented by the Law of 30th June 1961
    and as now applicable to Mr. De Becker, the Commission would wish to
    ask the Court to decide:

    (a) whether the compatibility with the Convention of Article 123
    ***ies of the Belgian Penal Code as amended and supplemented by the
    Law of 30th June 1961, 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, as amended, are compatible with Article 10
    (art. 10) of the Convention;

    and in deciding these questions, the Commission asks the Court:

    (a) for the reasons stated in paragraph 263 of the Commission's
    Report, to confirm its opinion that the powers of States to inflict
    penal sanctions and apply preventive measures recognised in Articles 2
    to 7 (art. 2, art. 3, art. 4, art. 5, art. 6, art. 7) of the
    Convention do not of themselves suffice to justify the deprivation of
    freedom of expression in political matters now imposed on
    Mr. De Becker by Article 123 ***ies and the Law of 30th June 1961; and
    that it is by reference to the provisions of Article 10 (art. 10) that
    the compatibility with the Convention of this restriction on his
    freedom of expression has to be appreciated;

    (b) for the reasons stated in the Commission's memorandum of
    21st August 1961, to confirm its opinion 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"."

    26. The Belgian Government in its turn, in a memorandum deposited on
    15th February 1962, said it shared the Commission's opinion that the
    case could be struck off the list. In addition, the Belgian
    Government pointed out that, in the unlikely event of the Court
    nevertheless retaining the case for judgment, the difference of opinion
    between the Commission and the Belgian Government as to the
    compatibility of the new Act with Articles 2 to 7 (art. 2,
    art. 3, art. 4, art. 5, art. 6, art. 7) of the Convention rather than
    with Article 10 (art. 10), could only give rise to a purely academic
    argument, since the Commission and the Belgian Government both agreed
    that "the restrictions on freedom of expression retained by the Act of
    30th June 1961 in so far as they apply to Mr. De Becker in no case go
    beyond the formalities, conditions, restrictions or penalties permitted
    by paragraph 2 of Article 10 (art. 10-2) of the Convention".

    The Belgian Government accordingly requested the Court:

    "May it please the Court,
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  9. #9

    افتراضي

    [align=left]
    Setting aside all other fuller or contrary submissions,

    to strike the case off the list;

    or, failing that, to declare that no incompatibility exists between
    the provisions of the Convention and Article 123 ***ies of the Belgian
    Penal Code as amended and supplemented by the Act of 30th June 1961
    and as applicable at the present time to Mr. De Becker."

    27. At the hearing of 19th February 1962 and, in particular, as
    regards the request that the case be struck off the list, the Agent of
    the Belgian Government was in favour of striking the case off the list
    as he found this solution to be logical and reasonable if one took
    into account that, in these proceedings, the Court was concerned with
    the submissions which affected the Applicant and the judgment should
    not, therefore, contain any appreciation of the merits.

    28. At the same hearing on 19th February 1962, the Principal Delegate
    of the Commission submitted that it would be difficult to strike the
    case off the list if the Court had any doubts regarding the
    compatibility of a permanent loss of freedom of expression on
    political matters with Article 10 (art. 10) of the Convention: in
    spite, however, of the judicial recourse provided for in Section 4,
    paragraph (4), the Act of 30th June 1961 did not wholly exclude the
    possibility of such a permanent or perpetual loss: if, therefore, the
    Court was not absolutely convinced of the lawfulness of this
    particular restriction on the freedom of expression, the new Act of
    30th June 1961 would still give rise to certain problems in regard to
    Article 10 (art. 10) of the Convention: in that event the Court would
    be justified in hesitating to strike the case off the list, in spite
    of De Becker's declaration of "discontinuance" of 5th October 1961.

    The Principal Delegate of the Commission added that in this connection
    De Becker's memorandum of 5th October 1961 should not be the only
    factor to be taken into account, although it was a factor of great
    weight. In the opinion of the Commission that declaration was not
    binding upon the Commission or the Court. If the Commission
    nonetheless thought that the case should be struck off the list, it
    did so because of its own conviction that the new legislation, as it
    applied to De Becker, was not at variance with the Convention.

    The Principal Delegate of the Commission went on to express the hope
    that the Court, in the event of its striking the case off the list,
    would avoid giving, in the reasons for its decision, the impression
    that the case brought before the Court had ceased to have any purpose
    for the only reason that the person who was the author of the
    Application before the Commission had declared that he wished to
    withdraw his Application.

    29. Finally, the Principal Delegate and the Agent of the Belgian
    Government both confirmed, at the hearing of 19th February 1962, their
    own ultimate conclusions which are set forth in paragraphs 25 and 26
    above.

    AS TO THE REQUEST AS TO STRIKE THE CASE OUT OF THE LIST:

    1. Whereas the case was referred to the Court by the Commission
    following the Report drawn up by the Commission in pursuance of
    Article 31 (art. 31) of the Convention; whereas the Commission's
    request relates to the Application of De Becker, who claimed to be the
    victim of a violation by the Belgian Government of his right, under
    the European Convention, to freedom of expression, allegedly
    disregarded by Article 123 ***ies of the Belgian Penal Code - which
    was applied to him - in that it prevented him from exercising his
    profession of journalist and author;

    2. Whereas two events have occurred since the first exchange between
    the Commission and the Belgian Government of memorials before the
    Court, first, the promulgation on 30th June 1961 of the Belgian Act on
    civic screening, which amended Article 123 ***ies of the Belgian Penal
    Code, and secondly, the letter addressed to the Commission on
    5th October 1961 in which the Applicant, finding that his Application
    before the Commission has been met by the Act of 30th June 1961,
    states that he regards it as "unnecessary further to proceed with this
    case and withdraws his Application".

    3. Whereas with regard to the Act of 30th June 1961, the Commission
    found in its final Conclusions "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."

    4. Whereas, with regard to the letter from De Becker, the statement
    therein contained, coming from an individual who is not entitled under
    the Convention to bring a case before the Court (Articles 44 and 48 of
    the Convention) (art. 44, art. 48), cannot possess the legal character
    or produce the effects of a notice of discontinuance of the present
    proceedings, as provided for in Rule 47 of the Rules of Court; whereas
    furthermore it is not binding on the Commission, which, as the
    defender of the public interest, had a duty to take the statement into
    account if it considered that it was a means of enlightening the Court
    on the points at issue;

    5. Whereas the Commission did make known to the Court on
    7th October 1961 the statement it had just received from De Becker,
    but insisted, at the hearing of 19th February 1962, that its ground
    for proposing that the case be struck off the list of the Court was,
    irrespective of the said statement, that, in its view, the Belgian Act
    of 30th June 1961 was in conformity with the requirements of the
    Convention, although the distinction between political and
    non-political participation in various activities relating to
    publication might give rise to certain problems of interpretation;
    whereas in its final Conclusions the Commission stated that "if the
    Court should consider that, in the situation which now exists in the
    case, the appropriate course is to terminate the proceedings and
    strike the case off the list on the basis of the Applicant's interests
    having been met, the Commission, since it considers the provisions of
    the Belgian Penal Code now applicable to De Becker to be in conformity
    with the Convention, would not wish to opppose such a solution";

    6. Whereas, lastly, the Commission, in its final Conclusions, has
    withdrawn its request made at the hearing of 5th October 1961 for a
    ruling as to whether the Applicant was the victim of a violation of
    the Convention during the period from 14th June 1955 when the
    Convention entered into force in regard to Belgium, and the entry
    into force of the Act of 30th June 1961;

    7. Whereas the Belgian Government, too, in its final Conclusions
    adopted the opinion of the Commission and, as its principal submission,
    requested the Court "to strike the case off the list";

    8. Whereas, with regard to the withdrawal by the Commission of its
    request relating to the period between 14th June 1955 and 30th June 1961,
    the Belgian Government has approved the said withdrawal, while
    maintaining that the former Article 123 ***ies of the Belgian Penal
    Code was never in conflict with the provisions of the Convention;

    9. Whereas, therefore, on the day the oral proceedings terminated,
    the two bodies appearing submitted to the Court final Conclusions
    which, though differently formulated, are concordant in that they ask
    that the case be struck off the list; whereas it follows from all the
    facts and submissions mentioned above that the proceedings instituted
    before the Court no longer have any purpose, following the amendment of
    Article 123 ***ies by an Act of the Belgian State, Party to the case,
    and whereas, on general principles, it is fitting to comply with the
    request to strike off the list;
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  10. #10

    افتراضي

    [align=left]
    10. Whereas, however, Article 19 (art. 19) of the Convention confers
    on the Court a general responsibility to ensure the observance of the
    engagements undertaken by the High Contracting Parties to the
    Convention; whereas, for that purpose and in the special cases of
    discontinuance by the Party which brought the case before the Court
    (Rule 47, para. 1, of the Rules of Court) or of friendly settlement
    reached during the proceedings (Article 28 of the Convention and
    Rule 47, para. 3) (art. 28), it is provided that the Court, before
    striking a case off its list, is bound to satisfy itself, after having
    obtained the opinion of the Commission, that there is no objection
    thereto, in which event it may strike out the case only by means of a
    reasoned judgment;

    11. Whereas the provisions referred to above do not directly cover
    the present case, where the request to strike the case off the list has
    been made by both sides - having regard to an Act of the Belgian
    State, a Party, which Act is recognised by the Commission as
    complying with the requirements of the Convention - but cover
    particular aspects of the Court's supervisory duty;

    12. Whereas the Court should therefore satisfy itself as to whether
    there are any grounds, such as might, in the person of De Becker,
    jeopardise the observance of the Human Rights set forth in the Convention,
    oppose the removal of the case from the list or oblige the Court to
    decide - as in the case covered by Rule 47, para. 2, of the Rules of
    Court - to proceed with the consideration of the case ex officio
    notwithstanding the latest conclusions of the Belgian Government and
    the Commission; whereas the Court must satisfy itself successively
    whether it should proceed with the case;

    (a) as to whether De Becker was the victim of a violation of the
    Convention between the entry into force of the Convention with respect
    to Belgium and the entry into force of the Act of 30th June 1961;

    (b) as to De Becker's freedom of expression in the light of the
    provisions of Article 123 ***ies of the Penal Code, as worded in the
    Act of 30th June 1961;

    13. Whereas, with regard to the first question, the Court has no
    reason not to allow the concordant requests of the Commission and the
    Belgian Government that this question be not examined as to substance;
    whereas, although up to and including the hearing of 5th October 1961
    there existed a divergence - already mentioned in the part of this
    judgment relating to the "facts" - between the views of the Commission
    and those of the Belgian Government as to whether former Article 123
    ***ies of the Belgian Penal Code had remained fully justified after
    ratification of the Convention by Belgium, the modification of the
    text of this Article which had in the meantime taken place has
    deprived this divergence of any interest - other than historic;
    whereas the Commission and the Belgian Government well understood
    this, as is shown in their final conclusions; whereas, moreover,
    De Becker, in the letter of 5th October 1961, which there is no reason
    to believe does not express the free will of its author, regarded it
    as "unnecessary further to proceed with this case" and made no
    reservation or request for compensation in respect of the past;
    whereas, therefore, the Court considers that there is no need for it
    to give a decision on this question;

    14. Whereas, with regard to the question of De Becker's freedom of
    expression in the light of the provisions of Article 123 ***ies of the
    Belgian Penal Code, as applicable to him under the Act of
    30th June 1961; whereas the Belgian Government submitted that in the
    present state of legislation the Applicant regarded it as unnecessary
    to proceed with his Application and that there was no incompatibility
    between Article 123 ***ies and the provisions of the Convention;
    whereas on 5th October 1961, that is to say prior to any statement by
    De Becker, the Commission, convinced of this compatibility, requested
    the Court to find that "the limitations maintained by the Act of
    30th June 1961 as regards freedom of expression, in so far as these
    apply to De Becker, do not go beyond the 'formalities, conditions,
    restrictions or penalties' authorised in Article 10, paragraph 2
    (art. 10-2), of the Convention"; whereas, in his turn De Becker, in
    his memorandum of 5th October 1961 addressed to the Commission,
    recognised that the Belgian Act of 30th June 1961 "gives everyone the
    possibility of regaining his or her full rights of free expression
    including that of political expression"; whereas the Court observes
    incidentally, though it has no bearing on its decision, that such
    recognition is all the more significant since it emanates from a
    person who had been sentenced for betraying his country and assisting
    an enemy whose victory would have led to the abolition of freedom of
    expression and would have made it impossible to implement any
    international instrument for the protection of human rights;

    Whereas it is true that in spite of its "profound conviction" that
    Belgian legislation complied with the Convention in regard to
    De Becker's freedom of expression, the Commission expressed the
    opinion that the new Act seemed to raise a question of general
    importance in respect of the interpretation and implementation of the
    Convention, namely to what extent and in what circumstances an
    individual may be deprived of his right to freedom of expression in
    political matters in pursuance of a penal sanction or a preventive
    measure; whereas for this reason the Commission suggested, rather than
    asked, that this part of the case be struck off the list, in order to
    respect the Court's right of appreciation;

    But whereas, although an individual who has lodged an application with
    the Commission has no right to bring a case before the Court, no one
    should forget the origins of a case such as this one brought before
    the Court by the Commission which had been petitioned in pursuance of
    Article 25 (art. 25) of the Convention on foot of an allegation that
    the rights of an individual Applicant were violated as a result of
    the application to him of legislative provisions in force in his
    country; whereas the Court is not called upon, under Articles 19 and
    25 (art. 19, art. 25) of the Convention, to give a decision on an
    abstract problem relating to the compatibility of that Act with the
    provisions of the Convention, but on the specific case of the
    application of such an Act to the Applicant and to the extent to
    which the latter would, as a result, be prevented from exercising one
    of the rights guaranteed by the Convention;

    15. Whereas, therefore, were implementation of the new Belgian Act to
    raise problems of interpretation, it would not be incumbent upon the
    Court - since in the present instance striking the case off the list
    as requested by both the Belgian Government, as a Party to the case,
    and the Commission is not likely to prejudice the fundamental freedoms
    of the author of the original application - to give ex officio a
    decision on such problems;

    16. Whereas, finally, no particular circumstance of the De Becker
    case justifies it being kept on the list in opposition to the
    concordant submissions of the Commission and the Belgian Government,
    and whereas, therefore, there is no need to proceed ex officio with
    the case;
    [/align]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

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المواضيع المتشابهه

  1. X. v. THE FEDERAL REPUBLIC OF GERMANY - 920/60 [1961] ECHR 6 (19 December 1961)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-14-2009, 12:48 AM
  2. X. v. THE FEDERAL REPUBLIC OF GERMANY - 627/59 [1961] ECHR 4 (14 December 1961)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-14-2009, 12:47 AM
  3. X. v. THE FEDERAL REPUBLIC OF GERMANY - 599/59 [1961] ECHR 3 (14 December 1961)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-14-2009, 12:45 AM
  4. LAWLESS v. IRELAND (No. 3)- 332/57 [1961] ECHR 2
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 15
    آخر مشاركة: 07-14-2009, 12:40 AM
  5. LAWLESS v. IRELAND (No. 2) - 332/57 [1961] ECHR 1
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-14-2009, 12:29 AM

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