Information Note on the Court’s case-law 72

February 2005

K.A. and A.D. v. Belgium - 42758/98 and 45558/99

Judgment 17.2.2005 [Section I]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Equality of arms

Reporting judge’s report and advocate-general’s submissions first made orally at the hearing before the Court of Cassation: no violation

Fair hearing

Adversarial trial

Advocate-general’s submissions not communicated prior to the Court of Cassation’s hearing: no violation

Article 7

Article 7-1

Nullum crimen sine lege

Foreseeability of rules of criminal liability: no violation

Article 8

Article 8-1

Respect for private life

Criminal conviction for certain sadomasochistic practices with others: no violation

Facts : The applicants, a judge and a doctor, were found guilty of inflicting particularly serious assault occasioning actual bodily harm on a third person during sessions o f sadomasochistic practices. One of the applicants was also convicted of incitement to immorality and to prostitution. They were both given prison sentences and ordered to pay fines, these penalties being suspended. In the context of the examination of the ir appeal on points of law, the reporting judge’s report and the advocate-general’s submissions were presented for the first time orally at the public hearing. According to the written law in force at the material time, counsels who were present at the hea ring were entitled to speak after the report. In line with the practice in force, the parties could respond to the advocate-general’s submissions at the hearing and obtain, if they sought it, an adjournment of the proceedings in order to reply in writing. In the instant case, neither the applicants nor their lawyers attended the hearing. The Court of Cassation dismissed the appeal after the hearing.

Law : Article 6 – Failure to communicate the reporting judge’s report prior to the public hearing at the Cour t of Cassation: Since the reporting judge’s report had been submitted for the first time orally at the public hearing in the Court of Cassation, the parties to the proceedings, the judges and the public had all learned of the content of those submissions a nd the recommendation made in them on that occasion. No breach of the principle of equality of arms had therefore been made out.

As to the failure to communicate the advocate-general’s submissions prior to the hearing at the Court of Cassation, there had been no violation of the principle of equality of arms or the right to adversarial proceedings, in keeping with the judgment in Wynen v. Belgium (ECHR 2002-VIII).

Conclusion : no violation (unanimously).

Article 7 ( nullum crimen sine lege ) – The Court held that there had been no violation of this Article in view of the circumstances of the case, and that the applicants could not have been unaware that they were at risk of being prosecuted. It further emphasised that the applicants were respectively a legal and a medical practitioner.

Article 8 – The conviction for actual bodily harm inflicted in the context of sadomasochistic practices represented an interference in the right to respect for “private life”. Prescribed by law, the conviction was in this case intended to protect the victim’s rights and freedoms. The Belgian judicial authorities had thus sought to protect health and to prevent disorder and crime, and there was no cause to believe that, in pursuing those objectives, they had been pursuing other a ims alien to the Convention. As to the necessity of the interference in a democratic society, the Court noted the conditions in which the sessions in question had been held: the facts showed that the applicants’ undertaking to intervene and put an immediat e stop to the practices in question when the “victim” no longer consented had not been honoured; they had drunk significant quantities of alcohol, so that all sense of organisation or control of the situation had been lost. There had been an increasing deg ree of violence and the applicants themselves had admitted that they had not known where it would end.

While individuals could claim the right to engage in sexual practices as freely as possible, the need to respect the wishes of the “victims” of such pra ctices – whose own right to freedom of choice in expressing their sexuality had likewise to be safeguarded – placed a limit on that freedom. This implied that the practices in question would take place in conditions which permitted such safeguards, which h ad not been the case. Having regard to the nature of the acts complained of, the penalties had not been disproportionate.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bi nd the Court.

Click here for the Case-Law Information Notes