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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;
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