BELGIUM (MERITS) JUDGMENT. 1. In the case “relating to certain aspects of the laws on the use of languages in education in Belgium”,. The European Court of
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CONSEIL DEL™EUROPE COU NCIL OFEUROPE COUREUROPÉE NNEDESDROITSDEL™HOMM EEUROPEA NCOU RTOFHUMA NRIGHTS COURT (PLENARY) CASE “RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM” v. BELGIUM (MERITS) (Application n o 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64) JUDGMENT STRASBOURG 23 July 1968
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“RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM” v. BELGIUM (MERITS) JUDGMENT 1 In the case “relating to certain aspects of th e laws on the use of languages in education in Belgium”, The European Court of Human Rights, taking its decision in plenary session in accordance with Rule 48 of the Rules of Court, and composed of the following Judges: Mr. R. CASSIN, President , and MM. A. HOLMBÄCK, A. VERDROSS, G. MARIDAKIS, E. RODENBOURG, A. ROSS, T. WOLD, G. BALLADORE PALLIERI, H. MOSLER, M. ZEKIA, A. FAVRE, J. CREMONA, Sir HUMPHREY WALDOCK, G. WIARDA, Mr. A. MAST, Judge ad hoc , and also Mr. H. GOLSONG, Registrar, and Mr. M.-A. EISSEN, Deputy Registrar Decides as follows concerning the merits of the case: PROCEDURE 1. By a request dated 25th June 1965, the European Commission of Human Rights (hereinafter referred to as “the Commission”) brought before the Court a case relating to certain aspects of the laws on the use of languages in education in Belgium. The origins of this case lie in six applications agai nst the Kingdom of Belgium lodged with the Commission under Article 25 (art. 25) of the Convention for the Protection of Huma n Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”). These applications, the first of which was deposited on 16th June 1962 and the last on 28th January 1964 were submitted by inhabitants of Alsemberg and Beersel, Kraainem, Antwerp and environs, Ghent and environs, Louvain and environs and Vilvorde. 2. The Belgian Government, Party, ra ised a preliminary objection which was rejected by the Court in a j udgment on 9th February 1967. That judgment includes a summary of proceedings prior to its delivery.
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“RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM” v. BELGIUM (MERITS) JUDGMENT 2 3. On 9th February 1967, the Presid ent of the Court ascertained the views of the Agent for the Belgian Gove rnment, and of the Delegates of the Commission, on the procedure to be fo llowed concerning the merits of the case. By an Order of the same date he decided, in pursuance of Rules 35 (1) and 48 (3) of the Rules of Court: – that the Belgian Government would have until 1st Ma y 1967 to file a first memorial; – that the Commission would be enti tled to file a memorial in reply within the two months following the receipt of the memorial of the Government; – that the Belgian Government would have, in order to file a second and last memorial, until 15th September 1967. Both time-limits set for the Belgian Government were extended to, respectively, 10th May 1967 (Order of 26th April) and 2nd October 1967 (Order of 2nd September). 4. The Belgian Government™s firs t memorial was received by the Registry of the Court on 9th Ma y 1967, the Commission™ s memorial on 12th July 1967 and the Government™s second memorial on 2nd October 1967. 5. On 6th June 1967, the Secretar y of the Commission informed the Registrar that the Commission had in structed its President, Mr. M. Sørensen, to represent it as principal Delegate in subsequent proceedings before the Court, Mr. S. Petrén having been relieve d of this function at his own request. 6. By a letter of 22nd Novemb er 1967, the Belgian Government informed the President of the Court that it had appointed Mr. A. de Granges de Surgères as its Agent to replace Mr. A. Gomrée, deceased. 7. In accordance with an Order made by the President of the Court on 7th October 1967, a public hearing was opened in Strasbourg on 25th November 1976 in the Human Rights Bu ilding; the hearing continued on 27th, 29th and 30th November. There appeared before the Court: – for the Commission: Mr M. S ØRENSEN, Principal Delegate , assisted by: Mr. G. J ANSSEN-PEVTSCHIN and Mr. F. WELTER, Delegates; – for the Belgian Government: Mr. A. DE GRANGES DE SURGERES, Directeur général de l™administration de la Lé gislation at the Belgian Ministry of Justice, Agent, assisted by: Me. A. B AYART , Barrister at the Belgian Court of Cassation, Counsel, and Mr. P. G UGGENHEIM , Honorary Professor at the University of Gene va, and Professor at the
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“RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM” v. BELGIUM (MERITS) JUDGMENT 3 University Institute of Advanced International Studies, Geneva, Counsel; Mr. A. V ANDER STICHELE , Assistant to the Auditeur général of the Belgian Conseil d™État, Expert; The Court heard statements and submissions: – for the Commission by MM. F. WELTER and M. SØRENSEN ; – for the Belgian Government by Me. A. B AYART , Mr. P. G UGGENHEIM and Mr. A. DE GRANGES DE SURGERES. The Court also put a number of questi ons to those appearing before it, to which the latter replied verbally on 29th and 30th November. On 30th November, the President declared the hearing closed. 8. The Court met in private on 30t h November and 1st December 1967. On 1st December, it instructed the Regi strar – who carried out the order on 5th December – to ask the Belgian Government and Commission for additional information concerning, on the one hand, the situation with regard to unsubsidised establishments in the Dutch-language area which provide French-language education. The replies from both the Belgia n Government and the Commission reached the Registrar on 10th January 1968. The Government made certain additions to its reply in March 1968. 9. After further deliberation the Court pronounced the present judgment. THE FACTS 1. The object of the Commission™s reque st is to submit the case to the Court, so that the Court may decide wh ether or not certain provisions of the Belgian linguistic legislation relating to education are in conformity with the requirements of Articles 8 and 14 (a rt. 8, art. 14) of the Convention and Article 2 of the Protocol of 20th Marc h 1952 (hereinafter referred to as “the Protocol”) (P1-2). 2. The Applicants, who are parents of families of Belgian nationality, applied to the Commission both on their own behalf and on behalf of their children under age, of whom there are more than 800. Pointing out that they are French-speaking or that they expr ess themselves most frequently in French, they want their children to be educated in that language. Alsemberg, Beersel, Antwerp, Ghent, Louvain and Vilvorde, where the signatories of five of the six applications (Nos. 1474/62, 1691/62, 1769/63, 1994/63 and 2126/64) live, belong to the region considered by law as Dutch-speaking, whereas Kraainem (Application No. 1677/62) has since 1963 formed part of a separate administrativ e district with a “special status”.
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“RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM” v. BELGIUM (MERITS) JUDGMENT 4 In all of these districts (“communes”), part of the population – in some cases a large part – is French-speaking. 3. Though the six applications differ on a number of points, they are similar in many respects. For the time being it is sufficient to note that in substance they complain that the Belgian State: – does not provide any French-language education in the municipalities where the Applicants live or, in the case of Kraainem, that the provision made for such education is, in their opinion, inadequate; – withholds grants from any instituti ons in the said municipalities which may fail to comply with the linguisti c provisions of the legislation for schools; – refuses to homologate leaving certi ficates issued by such institutions; – does not allow the Applicants™ children to attend the French classes which exist in certain places; – thereby obliges the Applicants either to enrol their children in local schools, a solution which they consider contrary to their aspirations, or to send them to school in the “Greater Bru ssels district”, where the language of instruction is Dutch or French acco rding to the child™s mother-tongue or usual language or in the “French-speak ing region” (Walloon area). Such “scholastic emigration” is said to entail serious risks and hardships. 4. The Applications in so far as th ey have been declared admissible by the Commission, allege that Articles 8 and 14 (art. 8, art. 14) of the Convention and Article 2 of the Protocol (P1-2) ha ve been violated. The violation is said to be a result of the Applicants and their children being subjected to various provisions of th e Act of 14th July 1932 “on language regulations in primary and intermedia te education”, the Act of 15th July 1932 “on the conferring of academic degr ees”, the Acts of 27th July 1955 and 29th May 1959, the Act of 30th July 1963 “relating to the use of languages in education” and the Act of 2nd August 1963 “on the use of languages in administrative matters”, et c. The Acts of 14th and 15th July 1932 were repealed by the Act of 30th July 1963, but were still in force when the Alsemberg, Beersel, Kraainem, Antwerp and Ghent Applicants brought their cases before the Comm ission, and those Applicants still challenge these Acts while at the same time attacking the present legislation. 5. Summarising the opinion expresse d in its Report of 24th June 1965 (hereinafter referred to as “the Report”), the Commission recalled in paragraph 7 of its memorial of 17t h December 1965 that it took the view: “- by 9 votes to 3, that the legislation complained of was not incompatible with the first sentence of Article 2 of the Protocol (P1-2), considered in isolation; – unanimously, that the legislation was not incompatible with the second sentence of the said Article (P1-2), considered in isola tion or in conjunction with Article 14 (art. 14+P1-2) of the Convention;
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“RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM” v. BELGIUM (MERITS) JUDGMENT 5 – by 10 votes to 2, that the legislation was not incompatible, in the case of the Applicants, with Article 8 (art. 8) of the Convention, considered in isolation or in conjunction with Article 14 (art. 14+8); – by 9 votes to 3, that the general system of education in the areas which are unilingual by law was not incompatible with the first sentence of Article 2 of the Protocol, considered in conjunction with Article 14 (art. 14+P1-2) of the Convention; – by 11 votes to 1, that the same was true of the “special status” conferred by Section 7 of the Act of 2nd August 1963 on six bilingual communes, of which Kraainem is one, on the periphery of Brussels; – by 7 votes to 5, that the Acts of 1963 were incompatible with the first sentence of Article 2 of the Protocol, read in conjunc tion with Article 14 (art. 14+P1-2) of the Convention, in so far as they result in the total withdrawal of subsidies from provincial, commune and private schools providing, in the form of non-subsidised classes and in addition to instruction given in the language prescribed by the language legislation, complete or partial education in another language; – unanimously, that the conditions on which children whose parents liv e outside the Greater Brussels district may be enrolled in schools in that district (Section 17 of the Act of 30th July 1963) were not, in the case of the Applicants, incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention; – that the Acts of 1963 were incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as they prevent certain children, solely on the basis of their parents™ place of residence, from attending Fren ch-language schools at Louvain (8 votes to 4) and in the above-mentioned six communes on the periphery of Brussels (7 votes to 5); – by 8 votes to 4, that the legislation complained of was also incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as it has resulted, since 1932, in a refusal to homologate certificates relating to second ary schooling not in accordance with the language requirements.” 6. In the course of the written proceedings the following submissions were made on the merits of the case: – by the Belgian Government in its memorial of 9th May 1967: “The Belgian Government submits the following conclusions: (1) The Belgian legislation attacked in the Applications is incompatible neither with Article 2 of the Protocol (P1- 2) nor with Article 8 (art. 8) of the Convention if those provisions are considered in isolation. (2) Nor is it contrary to the first and second sentence of Article 2 of the Protocol or Article 8 of the Convention even if read in conjunction with Article 14 (art. 14+P1-2, art. 14+8) of the Convention. (3) Neither the 1963 Acts nor those of 1932 are incompatible with Article 2, first sentence, of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the
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“RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM” v. BELGIUM (MERITS) JUDGMENT 7 In particular the Commission requests the Court to decide whether or not, in the case of the Applicants, there is violatio n of all or some of the above-mentioned articles, inter alia: (a) in so far as the Acts of 1932 prevented, and those of 1963 prevent: – the establishment, or – the subsidisation by the State, of schools not in conformity with the general linguistic requirements; (b) in so far as the Acts of 1963 result in the complete withdrawal of subsidies from provincial, commune or private schools providing, in the form of non-subsidised classes and in addition to the instruction given in the language prescribed by the linguistic Acts, full or partial instruction in another language; (c) with regard to the special status conferred by Section 7, third paragraph, of the Act of 2nd August 1963 on six communes, of which Kraainem is one, on the periphery of Brussels; (d) with regard to the conditions on which children whose parents reside outside the Greater Brussels district may be enrolled in the schools of that district (Section 17 of the Act of 30th July 1963); (e) in so far as Section 7, last paragraph, of the Act of 30th July 1963 and Section 7, third paragraph, of the Act of 2nd August 1963 prevent certain children, solely on the basis of their parents™ place of resi dence, from attendi ng French-language schools at Louvain and in the six communes mentioned under (c) above; (f) in so far as the Acts of 1932 resulted, and those of 1963 result, in absolute refusal to homologate certificates relating to second ary schooling not in conformity with the language requirements in education. For the reasons stated at the end of its re port (), the Commission still refrains for the time being from putting forward conclusions on the claims for damages submitted by the Applicants of Alsemberg and Beersel, Kraainem and Louvain.” – by the Belgian Government in its memorial of 2nd October 1967: “Subsidiary, in case the Court should feel obliged to adopt the Commission™s viewpoint, the Belgian State points out the legitimate grounds that justify the legislation attacked. The Belgian Government maintains however as its main argument the conclusions set down in its first memorial on the merits and reserves its final conclusions. The Government wishes to point out: – first of all, that the distinctions of which the Applicants complain do not affect the rights laid down in Article 8 (art. 8) of the Convention, since the rights of parents and children with regard to education are defined not in that Article (art. 8) but in Article 2 of the Protocol (P1-2);
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“RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM” v. BELGIUM (MERITS) JUDGMENT 8 – that these distinctions do not affect the negative right and the freedom laid down in Article 2 of the Protocol (P1-2) but relate to positive benefits and favours, which the State may, of course, grant in order to facilitate the exercise of that right and freedom but concerning which the High Contracting Pa rties have expressly declared that they did not intend to enter into any obligation; – that the distinctions in question do not interfere with any desire of the Applicants simply to have their children educated but concern their wish to have them educated in accordance with their linguistic preferences, and that any such preferences held in educational matters were deliberately not included by the High Contracting Parties in the enumeration of rights and freedoms safeguarded by the Convention; – that the rule of non-discrimination in Article 14 (art. 14) of the Convention cannot apply to the distinctions of which the Applicants complain, since it relates only to rights and freedoms laid down in the Convention; – that the Applicants™ complaints are unfounded.” 7. The following submissions were made during the oral proceedings: – by the Commission, on 25th November 1967: “The Commission maintains the submissions it made to the Court at the end of its memorial on the merits of the case, while reserving the right to modify them or add to them in the light of subsequent proceedings.” – by the Belgian Government, on 27th November 1967: “I have the honour to read to the Court the submissions made by the Belgian Government at the present stage of proceedings, while reserving the right to make any necessary additions or amendments during subsequent proceedings. Principal submissions May it please the Court, To find that the measures of which the A pplicants complain, whether the provisions invoked by the Applicants concerning th em are considered in isolation or in conjunction, do not interfere with the righ ts or freedoms set forth in the European Convention on Human Rights and Protocol and, replying in greater detail to the questions submitted by the Commission: To rule that Belgian legislation is not incompatible with: (a) the first sentence of Article 2 of the Protocol (P1-2), considered in isolation; (b) the second sentence of that Artic le (P1-2), considered in isolation; (c) Article 8 (art. 8) of the Convention, considered in isolation; (d) the first sentence of Article 2 of the Pr otocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention; (e) the second sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention;
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“RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM” v. BELGIUM (MERITS) JUDGMENT 9 (f) Article 8 of the Convention, read in conjunction with Article 14 (art. 14+8). In particular the Belgian Government reques ts the Court to find that in the case of the Applicants none of those Articles, whether considered in conjunction or in isolation, has been violated, inter alia: (a) in so far as the Acts of 1932 prevented, and those of 1963 prevent: the establishment, or the subsidisation by the State, of schools not in conformity with the general linguistic requirements; (b) in so far as the Acts of 1963 result in the total withdrawal of subsidies from provincial, commune or private schools providing, in the form of non-subsidised classes and in addition to the instruction given in the language prescribed by the linguistic Acts, full or partial instruction in another language; (c) with regard to the special status conferred by Section 7 (1) and (3) of the Act of 2nd August 1963 on six communes, of which Kraainem is one, on the periphery of Brussels; (d) with regard to the conditions on which children whose parents reside outside the Greater Brussels district may be enrolled in the schools of that district (Section 17 of the Act of 30th July 1963); (e) in so far as the last paragraph of Section 7 of the Act of 30th July 1963 and Section 7 (1) and (3) of the Act of 2nd August 1963 prevent certain children, solely on the basis of their parents™ place of re sidence, from attending French-language schools at Louvain and in the six communes mentioned under (c) above; (f) in so far as the Acts of 1932 resulted, and those of 1963 result, in refusal to homologate certificates relating to secondar y schooling not in conformity with the language requirements in education. Auxiliary submission If the Court accepts the Commission™s opinion that the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, lays down an obligation not to discriminate, then May it please the Court: To rule that the Belgian legislation comp lained of is in acco rdance with that requirement as it provides for no unlawfu l or arbitrary discrimination against the Applicants within the meaning of Article 14 (art. 14) of the Convention: May it please the Court: To rule that the Applicants™ complaints are without foundation.” – by the Commission, on 29th November 1967: “It only remains for me to confirm the submissions made by the Commission in its memorial of 11th July 1967.”
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“RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM” v. BELGIUM (MERITS) JUDGMENT 10 – by the Belgian Government on 30th November 1967: “The submissions we had the honour to make to the Court (on 27th November 1967) may be considered as final ones.” THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM 8. The laws on the use of language s in education in Belgium have evolved considerably since the foundation of the Kingdom (1830), within the wider framework of the evolution of the “Belgian linguistic problem” on which the Commission and the Belgian Government have furnished detailed explanations to the Court (cf. in part icular, paragraph 344 of the Report, and the Note of the hearing of the morning of 27th November 1967). Before examining and deciding the six questions enumerated in the respective submissions of those appearing before it, the Court believes that it is useful to give a brief outline of the principa l laws on language in education which have been passed in Belgium between 1914 and the present day. 9. Article 17 of the Belgian Constitution of 7th February 1831 provides: “Education shall be unrestricted; all measur es of restriction are prohibited; crimes may be punished only in accordance with th e law. Public education provided at the expense of the State shall also be regulated by law.” Moreover, Article 23 provides: “The use of the languages spoken in Belgium is optional. This matter may be regulated only by law and only as regards the acts of the public authority and the judicial matters.” These two Articles have never been amended. 10. The earliest linguistic laws co ncerned not education but criminal procedure (Acts of 1870 and 1908) as we ll as the vote and the promulgation of laws (Act of 1898). Until 1932 parents in Belgium enjoyed a fairly wide freedom with regard to the language of education. An Act of 19th May 1914 made primary education compulso ry. According to Section 15, a child™s maternal or usual language, de termined on the declaration made by the head of the family, was the language of instruction in each grade throughout the country. If the head of the school considered that the child had not the ability to profit from the instruction in the language designated, the head of the family might appeal to the inspectorate. Thanks to fairly broad interpretation of the text, so me Dutch-speaking parents had their children educated in French. In some parts of Flanders there were, in addition to Dutch-language primary schools, State and private French- language primary schools, whilst s econdary education was provided
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