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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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