European Court of Human Rights

Information Note on the Court’s case-law No. 155

August-September 2012

Boelens and Others v. Belgium (dec.) - 20007/09, 20019/09, 20024/09 et al.

Decision 11.9.2012

Article 35

Article 35-3-b

No significant disadvantage

EUR 50 fine for refusing to participate in organisation of elections: inadmissible

 

Facts - The applicants were allocated various tasks in the course of the federal elections of June 2007. They sent registered letters refusing to take part on the grounds that the elections were manifestly unconstitutional. They relied in their letter on a judgment of the Administrative Jurisdiction and Procedure Court (subsequently the “Constitutional Court”) of 26 May 2003. The applicants were then prosecuted for failing to carry out their duties without “valid grounds”. They were acquitted at first instance, but the criminal division of the court of appeal set aside convicted them on appeal and ordered each applicant to pay a fine of EUR 50. Their appeals on points of law were dismissed.

Law - Article 35 § 3 (b): The applicants complained of their prosecution for refusing to take part in the organisation of the federal elections. They further complained that the domestic courts had failed to take into consideration the unconstitutional nature of the elections. Having regard to the wording of the complaints, the Court, as master of the characterisation to be given in law to the facts of the case, decided to examine the case solely in terms of the right to a fair trial.

Applying the admissibility criterion set out in Article 35 § 3 (b), the Court had to examine whether the applicants had suffered a “significant disadvantage” and if not, whether either of the two protection clauses was applicable. The applicants were each ordered to pay a fine of EUR 50. The financial loss was therefore very minor. Beyond that aspect, there was no evidence that, in the circumstances of the case, their conviction had had any significant impact on their personal situation. Accordingly, they had not suffered a “significant disadvantage” with regard to their right to a fair trial. As to the issue of whether respect for human rights as defined in the Convention and the Protocols thereto required an examination of the application on the merits, the disputed provisions of the Constitutional Court’s judgment of 26 May 2003 on the constitutionality of the electoral constituency had been amended by a law of 19 July 2012. In those circumstances, and given that the case was now only of historical interest, respect for human rights did not require continued examination of this complaint. Finally, having regard to the third condition in the new admissibility criterion, which required that the case had been “duly considered” by a domestic tribunal, the applicants’ actions had been examined on the merits by the national courts. Thus, they had had an opportunity to make their submissions in adversarial proceedings.

Conclusion: inadmissible (majority).

 

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