CEDH · CASELAW;CLIN;ENG — 3 septembre 2024

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary September 2024 Missaoui and Akhandaf v. Belgium (dec.) - 54795/21 Decision 3.9.2024 [Section II] Article 35 Article 35-1 Exhaustion of domestic remedies Negative opinion by a member of the Court of Cassation Bar on the prospects of success of an appeal on points of law did not, in the circumstances of the case, exempt the applicants from lodging it: inadmissible Facts – The applicants, who are Muslims, were refused entry to a public swimming pool while dressed in full-body swimsuits (burkinis), on the basis of a municipal by-law. They appealed unsuccessfully against the ban to the President of the Court of First Instance and the Court of Appeal, arguing that it amounted to indirect discrimination on grounds of religion. The applicants then sought an opinion by a member of the Court of Cassation Bar on the prospects of success of an appeal on points of law; that opinion was negative. The applicants subsequently applied to the Court, without having lodged an appeal on points of law. They relied on Article 14 of the Convention in conjunction with Article 9. Law – Article   35 §   1: The Government raised a preliminary objection of failure to exhaust domestic remedies. In this respect, the present application differed from other cases in which such an objection had not been raised, although in those cases the relevant applicant had not lodged an appeal on points of law after receiving a negative opinion by a lawyer at the Court of Cassation on its prospects of success. The Court reiterated that, where the respondent Government have been notified of an application, and if they have not raised any objection as to the applicant’s alleged failure to exhaust domestic remedies, then the Court could not raise this matter of its own motion. In that sense, the present application was thus to be distinguished from the case of Chapman v. Belgium (dec.), in which the Government had not raised an objection of non-exhaustion of domestic remedies and had not in any way argued that an appeal on points of law would have been effective in the circumstances of that case. In contrast, the Government argued in the present case that the rule on the exhaustion of domestic remedies required the lodging of an appeal on points of law before the Court of Cassation, if necessary after seeking a second opinion and, if that was also negative, then “on instruction”. The Court reiterated that an appeal on points of law before the Belgian Court of Cassation was, in principle, a remedy which had to be exhausted. The Court’s supervision was subsidiary to that carried out by the ordinary courts, at the apex of which was the Court of Cassation. The fact that the Belgian Court of Cassation did not examine the merits of cases was not, on the face of it, a reason exempting applicants from exhausting this remedy. The Court was mindful of the importance of the role of those lawyers who were members of the Court of Cassation Bar, in particular their filtering role at that court. The fact remained, however, that an opinion by a lawyer at the Court of Cassation did not constitute a judicial decision, no matter how renowned the lawyer. Thus, the fact that a lawyer at the Court of Cassation had given a negative opinion on the prospects of success of an appeal on points of law did not automatically mean that such an appeal would be “bound to fail” within the meaning of the Court’s case-law. In deciding whether an appeal was “bound to fail” with regard to the submissions alleging a violation of the Convention, it was necessary to consider the content of the opinion and the subject matter in issue, and also the wider context. In the present case, the Court noted the following: (i)   neither the lawyer at the Court of Cassation in his opinion, nor the applicants in their arguments before the Court, had relied on any domestic case-law or any other relevant materials demonstrating that an appeal was bound to fail; (ii)   the Court of Cassation had not to date ruled on the lawfulness of a judicial decision concerning the wearing of a burkini at a public swimming pool, in the light either of the Convention or of other similar provisions of national or international law; and (iii)   there appeared to be divergent case-law on the matter in the lower courts in Belgium, and it fell within the jurisdiction of the Court of Cassation to state the law and thereby set the course for subsequent judicial decisions. The applicants’ explanation that they had not had sufficient time to obtain a second opinion from a lawyer at the Court of Cassation could not be taken into account in this connection. Moreover, an appeal “on instruction” could have been lodged, if necessary, had the second opinion also been negative. Lastly, the applicants had not substantiated their arguments concerning the excessive financial costs of obtaining a second opinion and, in any event, a legal-aid scheme was open to litigants with limited financial means. In consequence, the Court considered that the single negative opinion received from a lawyer at the Court of Cassation and submitted by the applicants was not, in the circumstances of the case, a valid reason for exempting them from the requirement to lodge an appeal on points of law with the Court of Cassation for the purposes of Article 35 §   1 of the Convention. Conclusion : inadmissible (non-exhaustion of domestic remedies). (See also Van Oosterwijck v.   Belgium, 7654/76 , 6   November 1980; Chapman v.   Belgium (dec.) , 39619/06, 5   March 2013, Legal Summary ; Jans v.   Belgium (dec.), 68494/10 , 1   October 2013; Vučković and Others v.   Serbia (preliminary objection) [GC], 17153/11 et al., 25   March 2014, Legal Summary ; J.C. and Others v.   Belgium , 11625/17, 12   October 2021, Legal Summary ; Communauté genevoise d’action syndicale (CGAS) v.   Switzerland [GC], 21881/20, 27   November 2023, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .