S.B and D.B v. Belgium (dec.)

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 87

June 2006

S.B and D.B v. Belgium (dec.) - 63403/00

Decision 15.6.2006 [Section I]

Article 10

Article 10-1

Freedom of expression

Allegations of interference with freedom of expression on account of criminal-code provisions prohibiting soliciting by prostitutes and advertising sexual services: inadmissible

Article 8

Article 8-1

Respect for private life

Allegations of interference in private life on account of criminal-code provisions prohibiting soliciting by prostitutes and advertising sexual services: inadmissible

In January 2000 the first applicant was in a room used for group sexual relations in a homosexual bar when the premises were raided by the police. He claimed that he was brutally ejected from the room and was greatly disturbed by the arrogant manner in which he had been ordered to leave the premises and the insulting language directed at the staff and manager of the bar. On 16 May 2000 the applicant’s counsel sent a request for information to the appropriate public prosecutor, who replied on 26 June 2000 that, after verification, no investigation had been opened. The applicant also complained of the fact that the classified advertisements in the press that he used in order to find other sexual partners could entail liability to prosecution on the basis of provisions in the Criminal Code making it an offence to advertise offers of prostitution or debauchery.

The second applicant, who identified herself as a self-employed prostitute working from a studio flat, complained that she had been forced to stop soliciting in the street because – she alleged – the police had repeatedly harassed her on the basis of the provisions in the Criminal Code penalising public incitement to debauchery, and that she had had to rent a costly flat where she had to wait for her clients. She also considered that she had been deprived of any means of advertising her business – even though it was not illegal – because of the existence of a provision in the Criminal Code making it an offence to advertise the services of a prostitute.

Inadmissible under Article 8 in respect of the first applicant – As to the police intervention of which the first applicant had been witness and victim, the Government had indicated that he could have lodged a complaint with the Standing Committee for Police and Inspection Services, or with the General Federal and Local Police Inspectorate. However, whilst those bodies could be called upon to examine complaints from private persons, their role was not to establish – still less to penalise – individual acts. They did not therefore satisfy the criteria to constitute a remedy that had to be exhausted by the applicant. However, with regard to the possibility for him – also mentioned by the Government – to lodge a criminal complaint, combined with a claim for damages as a civil party, with the judicial authorities, such an action could have enabled the applicant to obtain redress before the domestic courts for the alleged violation: non-exhaustion of domestic remedies.

In so far as the first applicant had complained that he could be prosecuted under the criminal-code provisions prohibiting debauchery, because of his partner-swapping homosexual activity, and that this would infringe his right to respect for his private life, the Court noted that only a person who kept a brothel or who gained from the operation of such an establishment was liable to prosecution on such charges. The first applicant had failed to adduce any firm evidence to suggest that he, as a partner-swapping homosexual and an ordinary customer of that type of establishment, would be directly affected by the provisions creating the offence in question. The impugned police intervention had not in fact sought to ban that type of establishment or its customers. Moreover, the first applicant had not claimed that he was prevented from continuing to engage freely in his sexual activity, and the risk that his private life might be disclosed in connection with possible criminal proceedings against the manager of an establishment that he frequented was pure speculation: manifestly ill-founded.

Inadmissible under Article 10 in respect of the first applicant – In so far as he had complained of the criminal-law provisions prohibiting the advertising of prostitution or debauchery, the Court noted that the definition of the offence in question left considerable discretion to the trial court. Accordingly, there was nothing to prevent a court from classifying as debauchery the conduct of an individual in his “private life”, including sexual orientation or sexual relations. However, the first applicant had failed to adduce any firm evidence to suggest that he was directly affected by the criminal-law provisions in question. Moreover, he had not established that the advertisements concerned had become subject to unreasonable censorship, since he had indicated, on the contrary, that their publication was not confined to specialist magazines. In addition, the prosecution of an ordinary reader was implausible, since it would be impracticable, and the applicant had not referred to any evidence or case-law to show that such advertisements actually resulted in prosecution: manifestly ill-founded.

Inadmissible under Article 10 in respect of the second applicant – In so far as she had alleged that the provision against public incitement to debauchery interfered with her right to impart information and prevented her from actively soliciting in the street, the Court first noted that the parties had agreed on the existence of interference in that connection and that such interference was prescribed by law. As to its proportionality, the interference in question was not absolute, since it was confined to active soliciting. The second applicant had thus remained entitled to engage in her professional activity in a studio flat that she rented and where she entertained clients. Accordingly, the interference in question was not disproportionate: manifestly ill-founded.

As to the complaint by the second applicant concerning the criminal-law provision prohibiting the advertising of prostitution, the Court observed that she had not adduced any evidence to suggest that such advertisements resulted in prosecution or that she was personally and directly affected by that provision: manifestly ill-founded.

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