DISSENTING OPINION OF MR. A. ROSS

I keenly regret that I am unable, in the case now before the Court, to share the opinion of the majority of my colleagues and I therefore consider it my duty to append to the Judgment the following statement of my dissenting opinion.

1. As stated in the Court ’ s Judgment, this case was brought before the Commission in an Application dated 1st September 1956 , lodged by Raymond De Becker against Belgium . After the Commission had declared this Application admissible as to that part of it which disputed the compatibility of Article 123 sexies of the Belgian Penal Code with Article 10 (art. 10) of the Convention and in regard to the period subsequent to 14th June 1955, in the absence of a friendly settlement and pursuant to Article 31 (art. 31) of the Convention, the Commission drew up the Report, which, on 1st February 1960, was transmitted to the Committee of Ministers as laid down in that Article (art. 31). By a request dated 28th April 1960, transmitted to the Court on 29th April 1960, that is to say, within the time-limit of three months from the date of the transmission laid down in Article 32, paragraph 1 (art. 32-1), of the Convention, the Commission referred the case to the Court in accordance with Article 48 (art. 48) of the Convention.

2. It appears from Articles 25-32 and 48 (art. 25, art. 26, art. 27, art. 28, art. 29, art. 30, art. 31, art. 32, art. 48) of the Convention that, in a case like the present, the machinery to ensure the observance of the engagements undertaken by the States which are Parties to the Convention is as follows. If the Application, or a part thereof, has been declared admissible and a friendly settlement has not been reached, the Commission shall draw up a Report on the facts and state its opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention (Article 31) (art. 31). Thereupon a final decision shall be made by means of one of two procedures: "If the question is not referred to the Court in accordance with Article 48 (art. 48) of this Convention within a period of three months from the date of the transmission of the Report to the Committee of Ministers, the Committee of Ministers shall decide by a majority of two-thirds of the members entitled to sit on the Committee whether there has been a violation of the Convention" (Article 32, paragraph 1) (art. 32-1). There can be no doubt that the "question" referred to in this Article (art. 32-1) is "whether there has been a violation of the Convention", or, as more elaborately stated in Article 31 (art. 31), "whether the facts found disclose a breach by the State concerned of its obligations under the Convention".

From this it follows that when, as in these proceedings, a case is referred by the Commission to the Court; it is the duty of the Court to decide "whether there has been a violation of the Convention".

This duty, arising directly out of the Convention, cannot be cancelled or modified by any step taken by the Commission or the State concerned but only in accordance with the Rules of the Court or generally accepted principles of the administration of justice construed in the light of the specific purpose of the Convention.

As mentioned above, the Commission must in its Report "state its opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention" (Article 31, paragraph 1) (art. 31-1). In the present case the Commission, in its Report of 8th January 1960, section 263, expressed the opinion "that the paragraphs (e), (f) and (g) of Article 123 sexies, in so far as they affect freedom of expression, are not fully justifiable under the Convention". This statement, interpreted in the light of the terms of Article 31 (art. 31) of the Convention, can only mean that the Commission stated the opinion that the facts found disclosed a breach by the State concerned of its obligations under the Convention.

3. The Commission, in its Memorial of 22nd December 1960 , accordingly asked the Court to decide whether the paragraphs mentioned were compatible with the Convention. Furthermore, after the Belgian Act of 30th June 1961 had been passed, the Commission, in its submission of 21st August 1961 and at the hearing of 5th October 1961, renewed its request that the Court formally declare that the Applicant had been victim of a violation of Article 10 (art. 10) of the Convention from the entry into force (14th June 1955) of the Convention in regard to Belgium until the entry into force of the Act of 30th June 1961. With regard to the revised legislation, the Commission asked the Court "to note that the limitations maintained by the Act of 30th June 1961 as regards freedom of expression, in so far as these apply to Mr. De Becker, do not go beyond the ‘ formalities, conditions, restrictions or penalties ’ authorised in Article 10, paragraph 2 (art. 10-2) of the Convention".

It was not until 15th January 1962 that the Commission, in a document entitled "Reconsideration by the Commission of its Conclusions, having regard to the Applicant ’ s letter of 5th October 1961", expressed the desire to withdraw, subject to the approval of the Court, its earlier submission asking the Court to decide whether De Becker was or was not the victim of a violation of the Convention during the period before the legislative changes of 30th June 1961. As the Commission was further of the opinion that the legal situation of the Applicant after that date was not contrary to the Convention, the Commission, in logical consequence of these premises, declared that it would not wish to oppose a decision of the Court to terminate the proceedings.

From this it will be seen that between 5th October 1961 and 15th January 1962 the Commission changed its opinion about asking the Court to determine whether a violation of the Convention had or had not taken place under the legislation in force at the time when the case was brought before the Court. As its reason for this change of attitude, the Commission referred to the Applicant ’ s letter of 5th October 1961 which he stated that he considered the new Act by and large to be in conformity with the Convention and for this reason withdrew his Application. Various phrases used by the Commission in this connection showed that the Commission did not hold that it had any power to request that the proceedings be terminated. This, it was said, was a decision which belonged to the Court rather than to the Commission.

4. Having regard to the above, it must be asked: Does the Court have the necessary authority to terminate the proceedings, and, if so, is it, in the conditions described, reasonable and well-founded to do so and to strike the case off the list of the Court?

First, I wish to point out that the fact that the Belgian Government, in its submissions of 13th February 1962 , asked the Court to strike the case off the list, is in itself of no consequence. It seems to me obvious that no wish or submission in this direction on the part of the State accused by an Applicant of having violated the Convention can be a ground for terminating the proceedings.

If, therefore, there is reason to terminate the proceedings in the present case, it must be because of the withdrawal of the Application as a result of Belgian legislation having been amended by the Act of 30th June 1961 . It could be argued that since, after the case was brought before the Court, the defendant State took steps to change the legislation complained of and the Applicant declared himself satisfied by the steps taken, there was no longer ground for dispute between the Applicant and the defendant State and that, for this reason, the proceedings should, according to generally recognised principles for the administration of justice, be terminated.

I cannot agree with this view which seems to me to rest on a misinterpretation of facts and to be based on principles of procedural law which do not apply to proceedings before this Court.

To understand the problem it is necessary to analyse the situation, considering separately the two circumstances and their possible consequences.

5. First, it may be asked whether the fact that a State, accused of violating the Convention, amends the relevant legislation after the case has been brought before the Court, makes it ipso facto incumbent upon the Court to consider the case before it in the light of the amended legislation. This question arises independently of whether the Applicant is or is not satisfied with the new state of affairs and must be answered in the negative. It seems to me to follow from the spirit of the Convention that the Applicant is entitled to a decision on the question which the Commission brought before the Court. Whatever changes may occur after the case is brought before the Court, the Applicant may, should he, for example, wish to bring a suit for damages, have a legitimate interest in a decision relating to the legal situation prevailing before the legislative changes.

6. The next question is whether a withdrawal of the Application can reasonably allow the Court to terminate proceedings, especially when the withdrawal is due to the legal situation of the Applicant being improved by new legislation which he declares to meet his Application.

This question could have been answered in the positive if the function of this Court had been to enforce private claims, which a claimant may, if he wishes, modify during proceedings. This is not, however, the case here. According to the Convention, the function of the Court is "to ensure the observance of the engagements undertaken by the High Contracting Parties in the present Convention" (Article 19 of the Convention) (art. 19). In view of this the Applicant is not recognised as a Party before the Court. His Application can only cause the Commission to make investigations; and, if the result of these investigations substantiate to a reasonable extent the complaint and a friendly settlement is not achieved, the Commission may bring the question for final decision before the Committee of Ministers or before the Court. When the proceedings have gone that far, the public interest requires that the question whether a violation has or has not taken place shall be decided regardless of whether the Applicant is or is not interested in the continuance of proceedings.

In the present case the withdrawal of the Application by no means implies withdrawal of the accusations against the defendant State . The Applicant has never conceded that his legal situation before 30th June 1961 was not a violation of the Convention; he has declared only that he is no longer interested in a decision on this question. Neither before nor after amendment of the Belgian legislation, has the Belgian Government ever acknowledged that it committed any violation of the Convention. The question which the Commission brought before the Court still exists, and public interest demands that it be settled.

It is true that the Convention enjoins the Commission to place itself at the disposal of the Parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights as defined in the Convention; and it is also true that under the Rules of Court a friendly settlement may be reached even after the Commission has brought a case before the Court (Rule 47, paragraph 3). If a friendly settlement of this kind is reached before the Commission has transmitted its Report, there shall, it is understood, be no decision on the question whether a violation of the Convention has or has not taken place (Article 30 of the Convention) (art. 30). If the case has already been brought before the Court, the Court may strike the case out of its list (Rule 47, paragraph 3).

It would, however, be a mistake to assume that a friendly settlement, or anything similar thereto, has been reached in the present case. When Article 28 (art. 28) of the Convention (and Rule 47, paragraph 3, of the Rules of Court) speaks of a friendly settlement of "the matter" it obviously means the matter which is the subject of complaint in the Application (as far as declared admissible). If the parties, through the good offices of the Commission, come to an understanding with regard to the complaint, it seems reasonable to stop further proceedings. In the present case, however, no such understanding with regard to the complaint contained in the Application has been reached. The complaint contained in De Becker ’ s Application concerned his legal situation as it was before the Act of 30th June 1961 ; on this point no understanding has been reached. De Becker has declared himself to be no longer interested in pursuing the question; this is different from having reached a mutual understanding.

Furthermore, general considerations concerning the proper administration of justice militate against attaching undue importance to the withdrawal of an application. An individual lodging an application against a State, especially against the State of which he is a subject, will always be in a weak position. A withdrawal of an application which is not the outcome of a friendly settlement reached through the good offices of the Commission will always be the subject of suspicion that the decision may be influenced by the position of the individual being unequal to that of his State. This consideration is not invalidated because the circumstances in the present case disclose no grounds for doubting the sincerity and spontaneity of the withdrawal. If the particular circumstances could be taken into consideration, it is certain that the Court would almost invariably be obliged to accept a withdrawal, since it would be impossible to prove that pressure had been brought to bear upon the Applicant and improper to express and plead suspicion thereof.

Furthermore, I have no doubt that a withdrawal accepted by the Court will make an unfavourable impression upon public opinion, especially when the withdrawal is due to steps taken by the Defendant State . In people not fully acquainted with the facts may give rise to the view that the Defendant State , out of a feeling of guilt and fearing an unfavourable decision of the Court, has made a last-minute manoeuvre and induced the Applicant to withdraw his complaint. The belief, however mistaken, that a defendant State might be able to turn the tables on the Court and evade responsibility, would be highly damaging to the authority of the Court and to the prestige attaching to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

7. For these reasons I believe that it is inexpedient for the Court to terminate the proceedings in this case, even if it has the power to do so.

Indeed, I doubt whether the Court has such power. It seems clear that the provisions concerning discontinuance in Rule 47 of the Rules of Court do not apply in the present situation. This view is, moreover, shared by the Commission and by the majority of the Court. Confirmation of this power can, therefore, be sought only in generally accepted principles of judicial procedure. Those principles differ, however, according to whether the proceedings are civil or criminal. None of these principles apply to proceedings before this Court which are not to be identified with judicial proceedings in a private lawsuit or with criminal proceedings; the proceedings in this Court are of a special nature, particularly, when, as in this case, they concern a complaint lodged by an individual against his own State. Therefore I am inclined to believe that no authority to terminate proceedings can be found in general principles of judicial procedure which have not found recognition in the Rules of this Court.

For these reasons, I cannot concur in the conclusion of the majority of my colleagues that the De Becker case be struck out of the list of the Court.

[1] As adopted by the Court on 18th September 1959 ; this Rule was not revised until 25th October 1961