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.