X. v. BELGIUM - 2568/65 [1968] ECHR 6 (06 February 1968)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a Belgian national born in 1907 and at presentresident in ...In 1938 the Applicant who was a member of the Brussels Bar applied forleave of absence in order to undertake a non-professional activityabroad. He was convicted by the Military Tribunal in Brussels on ..July, 1946, for having written during the occupation, articles onforeign affairs for "Le Soir" which, in the opinion of MilitaryTribunal, although moderate showed an unquestionably collaborationisttrend, and sentenced to five years' imprisonment. As a result of hisconviction the Applicant was also subject to certain perpetualdisabilities imposed by Article 123 series of the Penal Code.The Applicant did not appeal against this judgment but obtained therevocation of these disabilities by a decision of the court of firstinstance in Ghent of .. December, 1956, and his rehabilitation by adecision of the Chamber of Indictments (Chambre des mises enaccusation) of the Court of Appeal in Ghent on .. September, 1960. Hethen applied to be re-inscribed as a member of the Brussels Bar, butthis was refused by the Brussels Bar Council on .. May, 1961, on theground that his action during the war and subsequent conviction wereof such a nature as to bring discredit on the profession. The Applicantdid not appeal against this decision but instead applied to beinscribed as a member of the Ghent Bar. This request was refused by theGhent Bar Council on .. January, 1963. The Applicant's appeal againstthis decision was rejected by a default judgment of .. March, 1963,against which the Applicant appealed to the Court of Appeal (Hof vanberoep) in Ghent which rejected his appeal on .. May, 1963, principallyon the grounds that the decision of the Ghent Bar Council was not adisciplinary but an administrative decision which had been properlytaken although no reasons were given and although the Applicant and hislawyer were not present. Furthermore the decision was not subject toappeal. This judgment of the Court of Appeal was upheld by the Courtof Cassation on .. March, 1965, which rejected the twenty-threegrounds of appeal advanced by the Applicant including those allegingviolations of the preamble to and Articles 2, 3, 5, 6, 7, 9, 10, and13 of the Convention. With regard to his complaint that a member of thedisciplinary committee of the Ghent Bar had taken part in theproceedings of the Court of Appeal as a member of the court, the Courtof Cassation stated that there was nothing to show that he had takenpart in the decision of the Disciplinary Committee of which theApplicant was complaining.Arguments based on Article 6The Applicant argues that the right to be admitted to practice as alawyer, which is dependent on proof of professional aptitude and moralcharacter, is a civil right. He cites French and American jurisprudenceon this point and quotes in particular, "The right to practise law is... shared by all equally and to be equal must be upon the sameconditions. It cannot be treated as a matter of grace and favour".The Applicant seeks to distinguish his case from that decided by theCommission in Application No. 1931/63 which he states, "was formallydifferent in that professional rights were claimed, whereas, in thiscase, the right claimed is access to the court on the bases of thecivil rights prerequisite; and substantially different in that commonlaw offenses as well as professional misbehaviour were involved whichare absent from the case at bar".Arguments based on Article 14 in conjunction with Article 6 and 9"Article 6 The determination of the right to practise as a member ofthe bar is founded in civil rights and the general practice of allnations.The Applicant has been discriminated against in the exercise of thesecivil rights for political reasons.Article 9 confers the right to maintain an opinion. The Applicant'sopinions which he has held from before the war and continued to holdduring the war and during the protracted criminal proceedings in thepostwar period are not in any way criminal.Article 14 prohibits discrimination on grounds of political opinion.Persons of all sorts of opinions, communists, national socialists,anarchists and even persons who have committed common law delinquencieshave been admitted to practice.If a lawyer has been subjected to a disciplinary measure includingdisbarment by the Bar Council, even as the result of a political orcommon law conviction, he has the right to appeal to the courts.If a young lawyer is refused admission he has the right to appeal tothe courts.If a lawyer is disbarred by the Executive and so later refusedre-admission he has the right to appeal to the courts and may bereinstated by them in spite of renewed opposition of the Executive.The Court of Cassation itself has held that the silence of the ImperialDecree of 1810 on the point of recourse to the courts upon refusal ofre-admission did not preclude such recourse. It was not until 1920, ina particular case, it reversed this opinion."This position discriminated against the Applicant who had alwaysstrictly observed the discipline of the Bar.The Applicant develops arguments relating to the uncertain state ofBelgian law on matters touching his application, and also discusses theBelgian law concerning the prerogatives and independence of the BarCouncils.He maintains that the Bar Councils are not in fact independent bodiesbut if they were, as the Belgian courts have held, their actions inrelation to him constitute clear violations of Articles 6 and 14. Hestates "A former bâtonnier was adjoined to the Court of Appeal at Ghentfor the particular case; this bâtonnier, sitting with the Bench, tookan active part in the deliberations. The Applicant was during part ofthe proceedings in the dock (banc des accusés) and had to face not onlythe public prosecution but also the opponent sitting on the Bench. Theproceedings were in the nature of a criminal procedure, whereas anyargument, explanation or consultation should have been produced fromthe other side, as provided for in civil matters. This is a manifestviolation of Article 6 of the Convention, the universal rule of law:Nemo judex in re sua and the procedural guarantee: Equality of Arms".The Applicant also claims that he was not granted proper legalassistance before the Court of Cassation and considers that thisamounts to a breach of the principle of equality of arms (Article 6).In this connection he writes: "Lawyers at the Court of Cassation areappointed by the State and are therefore ... under an obligation to actprovided that the applicant is willing to pay for the expenses. Variouslawyers of the Court of Cassation refused to handle the case althoughthe applicant was willing to pay and paid for the expenses: allprocedures would have been null and void without the intervention ofa lawyer of the Court of Cassation as appears from consultations bylawyers who refused. Finally, in extremis, a lawyer was designated bythe bâtonnier. This lawyer only acted as a depositary and all the workhad to be done by the Applicant himself, who is obviously not aspecialist in matters of Cassation". The Applicant maintains that hewas thus denied legal assistance and a fair trial.The Applicant further complains of the continuing effects of hisconviction in 1946 particularly insofar as they affect his admissionto the Bar and invokes Article 7 of the Convention. He states paragraph(2) does not apply to him in contradistinction to the case of De Becker(Yearbook 1962, p. 322) since "it has never been contended that theapplicant has been guilty of any of these acts [i.e. acts committed byDe Becker] having observed strictly the rule of law, whether municipalor international, and that hence he could not be considered as criminalunder the terms of Article 7 paragraph (2) ... Retrospective nationallegislation is exceptionable [? permissible] only insofar as it is inconformity with the principles of law recognised by civilized nations.The existence and interpretation of those principles are subject tointernational law only and not to national law, even less inretrospective frame. According to the preparatory works Article 7,paragraph (2) was intended to give immunity for post-war behaviour (theexception implicitly recognised that such behaviour was unlawful inprinciple) but that immunity does not extend beyond its proper terms.Moreover exceptio ist strictae interpretationis. In the most remoteorder, in dubio pro reo. Since the escape clause does not impede theprinciple Article 7 (1) applies. Indeed, the effects of the applicationof retrospective legislation, as resumed integrally or confirmed inrecent documents, are actual and persistent and derive wholly from aconviction considered as unlawful by said Article 7, paragraph (1) ....These effects have been steadily intensified by adverse decisions andproceedings .... and by absence of motivation which apparently, haveno other effect than to create a suspicion of guilt and at all eventsto compel the admission of guilt not committed, always denied. TheApplicant has admitted fault on two points". [The reference appears tobe to his going to Berlin in 1938 and joining a certain group ofpersons in 1939.) He continues: "The Applicant is reluctantlycompelled to distinguish further his case from the De Becker case,which has been and is used to charge him with heavier penalties. In theDe Becker case at Yearbook 1958-59 page 218 the Commission said thatthe Belgian Court: "allowed the existence of attenuating circumstances,namely intentions of the German authorities, which opposition led tohis arrest by the said authorities in October, 1943, and deportationto Germany for two years". In contrast it should be pointed out thatthe Applicant was, first, convicted with aggravating circumstances;secondly that he was not "arrested" or "deported" to Germany inconditions of the case alluded to but was subjected to regular criminalproceedings and penitentiary onslaught as well during as after the war;thirdly that the perpetual consequences of his conviction were notmaintained, but legally lifted on December ..., 1956, de facto, howeverapplied in sharper form. On all those points the Applicant demands theright of explanation, since otherwise, it would be and is alreadysupposed that, for instance, he fostered separatism and annexionism inBelgium."The Applicant then brings an additional argument on Article 123 seriesof the Belgian Criminal Code and Articles 3 and 10 of the Conventionas follows:"That argument pervades the whole case, since according to the BlackList and Article 123 series scores of lawyers were excluded from theBar ex officio, disproving the whole array of assertions on theindependence and self-determination of the Bar Councils. Its spirit wasagain operative in the Applicant's case. But his claim is also lodgedon the basis of Article 10 of the Convention insofar as Article 123series of the Belgian Criminal Code extends to the present its actualand persistent effects in the form of restriction of freedom ofexpression. The text of Article 123 series has been fully applicableto the petitioner for long years in all its components. Its effectshave been far heavier and more persistent than those inflicted on manycondemned to death."The Applicant complains of a degrading process with lasting andincreasing effects which initially had not justifiable basis: heinvokes Articles 3 and 7 of the Convention and maintains that penaltieswhich continue forever are repulsive to law and human conscience.The Applicant has also sent material relating to criticism of a bookabout King Leopold an copies of letters relating to double taxation andpension insurance contributions but it would seem that these are onlyintended for background information.THE LAWWhereas, in regard to the Applicant's complaints concerning the refusalof the Ghent Bar Council to re-admit him to practice as a lawyer andthe refusal of the Belgian Courts to interfere with this decision, itis to be observed that the Convention, under the terms of Article 1(Art. 1), guaranteed only the rights and freedoms set forth in SectionI of the Convention; and whereas, under Article 25, paragraph (1)(Art. 25-1), only the alleged violation of one of those rights andfreedoms by a Contracting Party can be the subject of an applicationpresented by person, non-governmental organisation or group ofindividuals; whereas otherwise its examination is outside thecompetence of the Commission ratione materiae; whereas the right to beadmitted to the exercise of a particular profession is not as suchincluded among the rights and freedoms guaranteed by the Convention;whereas the Applicant's complaint is in particular directed against thefact that the courts concerned with this case have refused to reviewthe decision of the Ghent Bar Council; whereas he claims in thisrespect that he was denied access to the courts for the determinationof a civil right, namely the right of admission to practice as alawyer, in accordance with Article 6, paragraph (1) (Art. 6-1) of theConvention; whereas this Article provides inter alia that "In thedetermination of his civil rights and obligations ... everyone isentitled to a fair and public hearing within a reasonable time by anindependent and impartial tribunal established by law; whereas,however, the interpretation given by the Commission to the concept ofa "civil right" within the meaning of this Article does not include theright to be admitted and to exercise the function of a barrister;Whereas in coming to this conclusion the Commission has, in particular,had regard to features peculiar to the bar is a profession; indeed,barristers are called upon to exercise important functions in theadministration of justice, in civil as well as in criminal cases, andthe question whether or not a person should be admitted to exercisesuch functions cannot be considered to be a question of thedetermination of his civil rights; whereas in this respect theCommission refers to its decision in Application Nos. 1931/63 - X v.Austria - Yearbook Vol. 7, p. 212 and 2409/65 - X v. Federal Republicof Germany; whereas it follows that this part of the Application isincompatible with the provisions of the Convention within the meaningof Article 27, paragraph (2) (Art. 27-2), of the Convention;Whereas, in regard to the Application's complaint that the continuingrefusal to permit him to practise his profession and is, as such,repulsive to law and human conscience and this amounts to inhumantreatment, an examination of the case as it has been submitted,including an examination made ex officio, does not disclose anyappearance of a violation particular in Article 3 (Art. 3); whereas thesame objection applied to his complaint that he has been restricted inhis freedom that he has been so restricted during the period coveredby the Convention;Whereas it follows that this part of the Application is manifestlyill-founded within the meaning of Article 27, paragraph (2)(Art. 27-2), of the Convention;Whereas, further, the Applicant maintains that his freedom of opinionhas been indirectly restricted through the continuing effects of hisconviction in 1946; whereas this conviction occurred prior to 14thJune, 1955, the date of the entry into force of the Convention withrespect to Belgium; and whereas, in accordance with the generallyrecognised rules of international law, the Convention only governs, foreach contracting Party, facts subsequent to its entry into force withrespect to the Party; whereas it follows that the examination of theApplication, insofar as it relates to this conviction and the allegedeffects thereof is outside the competence of the Commission rationetemporis;Now therefore the Commission declares this application INADMISSIBLE.[/align]