CEDH · PRESS;GENERAL;ENG — 17 février 2005

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1520664 { margin-left:30.6pt; text-align:left; padding-left:8.4pt; font-family:serif; font-size:10pt } .s8408AAD1 { font-family:Arial; font-size:12pt; font-weight:bold } .s4B4B41EE { font-family:Arial; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s1EDF3BA6 { font-family:Arial; font-size:8pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   073 17.2.2005   Press release issued by the Registrar   CHAMBER JUDGMENT K.A. AND A.D. v. BELGIUM   The European Court of Human Rights has today notified in writing a judgment [1] in the case of K.A. and A.D. v. Belgium (applications nos. 42758/98 and 45558/99).   The Court held unanimously that there had been   no violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights; no violation of Article 7 (no punishment without law) of the Convention; no violation of Article 8 (right to respect for private life) of the Convention.   (The judgment is available only in French.)   1.     Principal facts   The applicants, K.A. and A.D., are two Belgian nationals who were born in 1945 and 1949 respectively and live in Belgium.   At the material time K.A., who was a judge, and A.D., a doctor, took part in sadomasochistic practices with the wife of K.A. Between 1990 and 1996 they frequented a sadomasochism club, whose owners became the subject of a judicial investigation that was extended to the applicants.   On 30 September 1997, on the basis of Articles 398 and 380 bis of the Criminal Code, the Antwerp Court of Appeal found the applicants guilty of assault occasioning actual bodily harm and also found K.A. guilty of incitement to immorality or to prostitution. K.A. was sentenced to one year’s imprisonment and fined 100,000 Belgian francs (BEF) (equivalent to 2,478 euros (EUR)), those penalties being suspended and accompanied by other sanctions including disqualification from public duties, employment or office for five years, while A.D. was sentenced to one month’s imprisonment and fined BEF 7,500   (equivalent to EUR 185), those penalties being suspended.   With regard to the offence of assault occasioning actual bodily harm, the Court of Appeal observed that the applicants had engaged in extremely violent practices on premises which they had specially hired and equipped for that purpose and that such practices were, moreover, forbidden by the rules of the sadomasochism clubs which K.A. and his wife had previously frequented.   Besides the extreme cruelty of those practices, it appeared from video recordings seized during the investigation that the defendants had, in particular, ignored several pleas by their victim for their activities to stop. The Court of Appeal considered that the practices in question were so serious, shocking, violent and cruel as to undermine human dignity, and the fact that the defendants continued to maintain that their activities had merely amounted to a kind of sexual experience in the context of sadomasochistic rituals played out behind closed doors between consenting adults did not alter that conclusion.   The Court of Appeal also found it established that K.A. was guilty of incitement to immorality and to prostitution, seeing that he himself had suggested to the management of a sadomasochism club that his wife be employed there as a “slave” to indulge in extremely violent practices amounting to immorality and prostitution, that he had implicitly consented to the publication of classified advertisements to that end and that for months he had provided material assistance by driving his wife to the club in question on several occasions, each time coming to collect her and receive her earnings.   The applicants appealed to the Court of Cassation, which dismissed their appeal on 6 January 1998.   Observing that K.A. had seriously undermined the dignity of his office as a judge and that he was accordingly unfit to hold such office, the Court of Cassation dismissed him on 25 June 1998. He subsequently lost his entitlement to a public-sector retirement pension.   2.     Procedure and composition of the Court   The applications were lodged with the European Commission of Human Rights on 3 July and 24 December 1998 and transmitted to the Court on 1 November 1998. In a decision of 23   May 2002 a Chamber of the Court decided to join the applications and declared them partly inadmissible. In a decision of 15 September 2003 the Chamber declared the remainder of the applications admissible.   Judgment was given by a Chamber of 7 judges, composed as follows:   Christos Rozakis (Greek), President , Loukis Loucaides (Cypriot), Françoise Tulkens (Belgian), Elisabeth Steiner (Austrian), Khanlar Hajiyev (Azerbaijani), Dean Spielmann (Luxemburger), Sverre Erik Jebens (Norwegian), judges , and also Søren Nielsen , Section Registrar .   3.     Summary of the judgment [2]   Complaints   Relying on Article 6 § 1 of the Convention, the applicants complained that the proceedings in the Court of Cassation had been unfair because they had not been sent a copy of the reporting judge’s report or of the advocate-general’s submissions. They also complained under Article 8 that their conviction, which had not been “in accordance with law”, had infringed their right to respect for their private life.   Decision of the Court   Article 6 § 1 of the Convention   The Court noted that the reporting judge’s report had been submitted for the first time orally at the public hearing in the Court of Cassation. The advocate-general’s submissions had likewise first been made orally at the public hearing.   Accordingly, the parties to the proceedings, the judges and the public had all learned of the content of those submissions and the recommendation made in them on that occasion. No breach of the principle of equality of arms had therefore been made out, since the applicants could not derive from the right to equality of arms a right to have disclosed to them, before the hearing, submissions which had not been disclosed to the other party to the proceedings or to the reporting judge or to the judges of the trial bench. The Court accordingly held that there had been no violation of Article 6 § 1 on that account.   As to the opportunity to reply to the advocate-general’s submissions, in accordance with the principle of adversarial proceedings, had the applicants attended the hearing they could have either made their observations on that occasion or sought an adjournment or leave to file a memorandum for the deliberations. Seeing that the applicants and their lawyers had not attended the hearing, the fact that they had been unable to take the steps indicated above could not be attributed to the authorities. The Court therefore held that there had been no violation of Article 6 § 1 on that account either.   Article 7 of the Convention   The applicants had initially submitted that their conviction had not been “in accordance with the law”, in breach of Article 8 of the Convention. The Court reiterated that it had decided at the admissibility stage to examine that complaint under Article 7 alone.   The Court pointed out that it was not its task to rule on the applicants’ criminal responsibility, that being primarily a matter for the assessment of the domestic courts, but to verify whether at the time when the accused had performed the acts that had led to their being prosecuted and convicted there had been a legal provision under which those acts had been punishable.   The Court noted, firstly, that the applicants had not called into question the provisions on the basis of which they had been convicted, but had alleged that in a “permissive, liberal and individualistic society”, in which forms of collective sexual experience were tolerated, the average citizen would no longer be shocked by various practices, which should accordingly not constitute criminal offences.   As to the applicants’ argument that their conviction had not been foreseeable because there had been no comparable judicial precedent, the Court noted that the practices in question had been so violent – and probably, therefore, so uncommon – that the lack of relevant case-law was hardly surprising. In any event, the absence of precedent was not a factor that could have prevented the national authorities from intervening.   Furthermore, as to the applicants’ argument that they should not have been convicted because their victims had consented to their actions, the Court considered that K.A., as a judge, must have been aware of the principle that the victim’s consent had no bearing on the unlawfulness of the acts committed or on the perpetrator’s guilt and could not therefore be used as a defence.   In the Court’s view, two factors had to be taken into consideration. Firstly, the applicants did not appear to have complied with the rules normally observed for such practices: not only had they consumed large quantities of alcohol at these sessions, so that they had lost all control of the situation, but they had also ignored the victim’s cries of “mercy” and “stop”, the words which those taking part had apparently agreed would be used as a signal for the activities to cease. Secondly, the applicants had hired private premises to pursue their activities as they had known that such practices were forbidden by the rules in force at the sadomasochism clubs they had previously frequented. The owners or managers of those clubs had been and were still particularly well placed, on account of their activities, to assess the various risks that sadomasochistic practices could entail.   In those circumstances, the applicants could not have been unaware that they were at risk of being prosecuted for assault. The Court further emphasised that they were respectively a legal and a medical practitioner.   Observing that the applicants had had the opportunity to submit argument in the national courts, which had given full reasons for their judgments on that point, the Court considered that the Belgian courts had not gone beyond a reasonable interpretation of the legislation applicable in the present case. It therefore held that there had been no violation of Article 7.   Article 8 of the Convention   The issue to be determined was whether the interference with the applicants’ right to respect for their private life had been “necessary in a democratic society”.   The right to engage in sexual relations derived from the right of autonomy over one’s own body, an integral part of the notion of personal autonomy, which could be construed in the sense of the right to make choices about one’s own body. It followed that the criminal law could not in principle be applied in the case of consensual sexual practices, which were a matter of individual free will. Accordingly, there had to be “particularly serious reasons” for an interference by the public authorities in matters of sexuality to be justified for the purposes of Article 8 § 2 of the Convention.   In the present case, the Court considered that on account of the nature of the acts in question, the applicants’ conviction did not appear to have constituted disproportionate interference with their right to respect for their private life. Although 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 practices – whose own right to free choice in expressing their sexuality likewise had to be safeguarded –   placed a limit on that freedom. However, no such respect had been shown in the present case.   The applicants’ undertaking to intervene and put an immediate stop to the practices in question when the “victim” no longer consented did not appear to have been honoured. In addition, as time had gone on, all sense of organisation or control of the situation had been lost. There had been an increasing degree of violence and the applicants themselves had admitted that they had not known where it would end.   As to the applicants’ sentences and their consequences, the Court was not satisfied that the penalties imposed on them had been disproportionate, especially as K.A. would still be entitled to a pension under the general private-sector scheme for his years of service as a judge, and would not therefore be deprived of all means of subsistence.   In those circumstances, the Court considered that the Belgian authorities had been entitled to consider that the prosecution and conviction of the applicants had been necessary in a democratic society for the protection of the “rights and freedoms of others”. It therefore held that there had been no violation of Article 8.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.