X. v. BELGIUM
X. v. BELGIUM
X. v. BELGIUM
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.
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".
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."
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.
"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 LAW