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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. BELGIUM - 2568/65 [1968] ECHR 6 (06 February 1968) URL: http://www.bailii.org/eu/cases/ECHR/1968/2568_65.html Cite as: [1968] ECHR 6

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THE FACTS

Whereas the facts presented by the Applicant may be summarised as
follows:

The Applicant is a Belgian national born in 1907 and at present
resident in ...

In 1938 the Applicant who was a member of the Brussels Bar applied for
leave of absence in order to undertake a non-professional activity
abroad. He was convicted by the Military Tribunal in Brussels on ..
July, 1946, for having written during the occupation, articles on
foreign affairs for "Le Soir" which, in the opinion of Military
Tribunal, although moderate showed an unquestionably collaborationist
trend, and sentenced to five years' imprisonment. As a result of his
conviction the Applicant was also subject to certain perpetual
disabilities imposed by Article 123 series of the Penal Code.

The Applicant did not appeal against this judgment but obtained the
revocation of these disabilities by a decision of the court of first
instance in Ghent of .. December, 1956, and his rehabilitation by a
decision of the Chamber of Indictments (Chambre des mises en
accusation) of the Court of Appeal in Ghent on .. September, 1960. He
then applied to be re-inscribed as a member of the Brussels Bar, but
this was refused by the Brussels Bar Council on .. May, 1961, on the
ground that his action during the war and subsequent conviction were
of such a nature as to bring discredit on the profession. The Applicant
did not appeal against this decision but instead applied to be
inscribed as a member of the Ghent Bar. This request was refused by the
Ghent Bar Council on .. January, 1963. The Applicant's appeal against
this decision was rejected by a default judgment of .. March, 1963,
against which the Applicant appealed to the Court of Appeal (Hof van
beroep) in Ghent which rejected his appeal on .. May, 1963, principally
on the grounds that the decision of the Ghent Bar Council was not a
disciplinary but an administrative decision which had been properly
taken although no reasons were given and although the Applicant and his
lawyer were not present. Furthermore the decision was not subject to
appeal. This judgment of the Court of Appeal was upheld by the Court
of Cassation on .. March,  1965, which rejected the twenty-three
grounds of appeal advanced by the Applicant including those alleging
violations of the preamble to and Articles 2, 3, 5, 6, 7, 9, 10, and
13 of the Convention. With regard to his complaint that a member of the
disciplinary committee of the Ghent Bar had taken part in the
proceedings of the Court of Appeal as a member of the court, the Court
of Cassation stated that there was nothing to show that he had taken
part in the decision of the Disciplinary Committee of which the
Applicant was complaining.

Arguments based on Article 6

The Applicant argues that the right to be admitted to practice as a
lawyer, which is dependent on proof of professional aptitude and moral
character, is a civil right. He cites French and American jurisprudence
on this point and quotes in particular, "The right to practise law is
... shared by all equally and to be equal must be upon the same
conditions. It cannot be treated as a matter of grace and favour".

The Applicant seeks to distinguish his case from that decided by the
Commission in Application No. 1931/63  which he states, "was formally
different in that professional rights were claimed, whereas, in this
case, the right claimed is access to the court on the bases of the
civil rights prerequisite; and substantially different in that common
law offenses as well as professional misbehaviour were involved which
are 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 of
the bar is founded in civil rights and the general practice of all
nations.

The Applicant has been discriminated against in the exercise of these
civil rights for political reasons.

Article 9 confers the right to maintain an opinion. The Applicant's
opinions which he has held from before the war and continued to hold
during the war and during  the protracted criminal proceedings in the
postwar 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 delinquencies
have been admitted to practice.

If a lawyer has been subjected to a disciplinary measure including
disbarment by the Bar Council, even as the result of a political or
common law conviction, he has the right to appeal to the courts.

If a young lawyer is refused admission he has the right to appeal to
the courts.

If a lawyer is disbarred by the Executive and so later refused
re-admission he has the right to appeal to the courts and may be
reinstated by them in spite of renewed opposition of the Executive.

The Court of Cassation itself has held that the silence of the Imperial
Decree of 1810 on the point of recourse to the courts upon refusal of
re-admission did not preclude such recourse. It was not until 1920, in
a particular case, it reversed this opinion."

This position discriminated against the Applicant who had always
strictly observed the discipline of the Bar.

The Applicant develops arguments relating to the uncertain state of
Belgian law on matters touching his application, and also discusses the
Belgian law concerning the prerogatives and independence of the Bar
Councils.

He maintains that the Bar Councils are not in fact independent bodies
but if they were, as the Belgian courts have held, their actions in
relation to him constitute clear violations of Articles 6 and 14. He
states "A former bâtonnier was adjoined to the Court of Appeal at Ghent
for the particular case; this bâtonnier, sitting with the Bench, took
an active part in the deliberations. The Applicant was during part of
the proceedings in the dock (banc des accusés) and had to face not only
the public prosecution but also the opponent sitting on the Bench. The
proceedings were in the nature of a criminal procedure, whereas any
argument, explanation or consultation should have been produced from
the other side, as provided for in civil matters. This is a manifest
violation 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 legal
assistance before the Court of Cassation and considers that this
amounts to a breach of the principle of equality of arms (Article 6).
In this connection he writes: "Lawyers at the Court of Cassation are
appointed by the State and are therefore ... under an obligation to act
provided that the applicant is willing to pay for the expenses. Various
lawyers of the Court of Cassation refused to handle the case although
the applicant was willing to pay and paid for the expenses: all
procedures would have been null and void without the intervention of
a lawyer of the Court of Cassation as appears from consultations by
lawyers who refused. Finally, in extremis, a lawyer was designated by
the bâtonnier. This lawyer only acted as a depositary and all the work
had to be done by the Applicant himself, who is obviously not a
specialist in matters of Cassation". The Applicant maintains that he
was thus denied legal assistance and a fair trial.

The Applicant further complains of the continuing effects of his
conviction in 1946 particularly insofar as they affect his admission
to 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 the
applicant has been guilty of any of these acts [i.e. acts committed by
De Becker] having observed strictly the rule of law, whether municipal
or international, and that hence he could not be considered as criminal
under the terms of Article 7 paragraph (2) ... Retrospective national
legislation is exceptionable [? permissible] only insofar as it is in
conformity with the principles of law recognised by civilized nations.
The existence and interpretation of those principles are subject to
international law only and not to national law, even less in
retrospective frame. According to the preparatory works Article 7,
paragraph (2) was intended to give immunity for post-war behaviour (the
exception implicitly recognised that such behaviour was unlawful in
principle) but that immunity does not extend beyond its proper terms.
Moreover exceptio ist strictae interpretationis. In the most remote
order, in dubio pro reo. Since the escape clause does not impede the
principle Article 7 (1) applies. Indeed, the effects of the application
of retrospective legislation, as resumed integrally or confirmed in
recent documents, are actual and persistent and derive wholly from a
conviction considered as unlawful by said Article 7, paragraph (1) ....

These effects have been steadily intensified by adverse decisions and
proceedings .... and by absence of motivation which apparently, have
no other effect than to create a suspicion of guilt and at all events
to compel the admission of guilt not committed, always denied. The
Applicant has admitted fault on two points". [The reference appears to
be to his going to Berlin in 1938 and joining a certain group of
persons in 1939.)  He continues: "The Applicant is reluctantly
compelled to distinguish further his case from the De Becker case,
which has been and is used to charge him with heavier penalties. In the
De Becker  case at Yearbook 1958-59 page 218 the Commission said that
the Belgian Court: "allowed the existence of attenuating circumstances,
namely intentions of the German authorities, which opposition led to
his arrest by the said authorities in October, 1943, and deportation
to Germany for two years". In contrast it should be pointed out that
the Applicant was, first, convicted with aggravating circumstances;
secondly that he was not "arrested" or "deported" to Germany in
conditions of the case alluded to but was subjected to regular criminal
proceedings and penitentiary onslaught as well during as after the war;
thirdly that the perpetual consequences of his conviction were not
maintained, but legally lifted on December ..., 1956, de facto, however
applied in sharper form. On all those points the Applicant demands the
right of explanation, since otherwise, it would be and is already
supposed that, for instance, he fostered separatism and annexionism in
Belgium."

The Applicant then brings an additional argument on Article 123 series
of the Belgian Criminal Code and Articles 3 and 10 of the Convention
as follows:

"That argument pervades the whole case, since according to the Black
List and Article 123 series scores of lawyers were excluded from the
Bar ex officio, disproving the whole array of assertions on the
independence and self-determination of the Bar Councils. Its spirit was
again operative in the Applicant's case. But his claim is also lodged
on the basis of Article 10 of the Convention insofar as Article 123
series of the Belgian Criminal Code extends to the present its actual
and persistent effects in the form of restriction of freedom of
expression. The text of Article 123 series has been fully applicable
to the petitioner for long years in all its components. Its effects
have been far heavier and more persistent than those inflicted on many
condemned to death."

The Applicant complains of a degrading process with lasting and
increasing effects which initially had not justifiable basis: he
invokes Articles 3 and 7 of the Convention and maintains that penalties
which continue forever are repulsive to law and human conscience.

The Applicant has also sent material relating to criticism of a book
about King Leopold an copies of letters relating to double taxation and
pension insurance contributions but it would seem that these are only
intended for background information.

THE LAW

Whereas, in regard to the Applicant's complaints concerning the refusal
of the Ghent Bar Council to re-admit him to practice as a lawyer and
the refusal of the Belgian Courts to interfere with this decision, it
is to be observed that the Convention, under the terms of Article 1
(Art. 1), guaranteed only the rights and freedoms set forth in Section
I of the Convention; and whereas, under Article 25, paragraph (1)
(Art. 25-1), only the alleged violation of one of those rights and
freedoms by a Contracting Party can be the subject of an application
presented by person, non-governmental organisation or group of
individuals; whereas otherwise its examination is outside the
competence of the Commission ratione materiae; whereas the right to be
admitted to the exercise of a particular profession is not as such
included among the rights and freedoms guaranteed by the Convention;
whereas the Applicant's complaint is in particular directed against the
fact that the courts concerned with this case have refused to review
the decision of the Ghent Bar Council; whereas he claims in this
respect that he was denied access to the courts for the determination
of a civil right, namely the right of admission to practice as a
lawyer, in accordance with Article 6, paragraph (1) (Art. 6-1) of the
Convention; whereas this Article provides inter alia that "In the
determination of his civil rights and obligations ... everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law; whereas,
however, the interpretation given by the Commission to the concept of
a "civil right" within the meaning of this Article does not include the
right 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 the
administration of justice, in civil as well as in criminal cases, and
the question whether or not a person should be admitted to exercise
such functions cannot be considered to be a question of the
determination of his civil rights; whereas in this respect the
Commission refers to its decision in Application Nos. 1931/63 - X v.
Austria - Yearbook Vol. 7, p. 212 and 2409/65 - X v. Federal Republic
of Germany; whereas it follows that this part of the Application is
incompatible with the provisions of the Convention within the meaning
of Article 27, paragraph (2) (Art. 27-2), of the Convention;

Whereas, in regard to the Application's complaint that the continuing
refusal to permit him to practise his profession and is, as such,
repulsive to law and human conscience and this amounts to inhuman
treatment, an examination of the case as it has been submitted,
including an examination made ex officio, does not disclose any
appearance of a violation particular in Article 3 (Art. 3); whereas the
same objection applied to his complaint that he has been restricted in
his freedom that he has been so restricted during the period covered
by the Convention;

Whereas it follows that this part of the Application is manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention;

Whereas, further, the Applicant maintains that his freedom of opinion
has been indirectly restricted through the continuing effects of his
conviction in 1946; whereas this conviction occurred prior to 14th
June, 1955, the date of the entry into force of the Convention with
respect to Belgium; and whereas, in accordance with the generally
recognised rules of international law, the Convention only governs, for
each contracting Party, facts subsequent to its entry into force with
respect to the Party; whereas it follows that the examination of the
Application, insofar as it relates to this conviction and the alleged
effects thereof is outside the competence of the Commission ratione
temporis;

Now therefore the Commission declares this application INADMISSIBLE.