Relating To Certain Aspects Of Laws On Use Of Languages In Education In Belgium (Meri

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Relating To Certain Aspects Of Laws On Use Of Languages In Education In Belgium (Meri
[align=left] COURT (PLENARY)
CASE "RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM"v. BELGIUM (MERITS)
(Application no 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64)
JUDGMENT
STRASBOURG23 July 1968

In the case "relating to certain aspects of the 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. <LI value=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 against the Kingdom of Belgium lodged with the Commission under Article 25 (art. 25) of the Convention for the Protection of Human 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.
  <LI value=2>The Belgian Government, Party, raised a preliminary objection which was rejected by the Court in a judgment on 9th February 1967. That judgment includes a summary of proceedings prior to its delivery.
2. On 9th February 1967, the President of the Court ascertained the views of the Agent for the Belgian Government, and of the Delegates of the Commission, on the procedure to be followed 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 May 1967 to file a first memorial;
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  1. that the Commission would be entitled to file a memorial in reply within the two months following the receipt of the memorial of the Government;
  2. - that the Belgian Government would have, in order to file a second and last memorial, until 15th September 1967.
  3. 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).<LI value=4>The Belgian Government's first memorial was received by the Registry of the Court on 9th May 1967, the Commission's memorial on 12th July 1967 and the Government's second memorial on 2nd October 1967.
    <LI value=5>On 6th June 1967, the Secretary of the Commission informed the Registrar that the Commission had instructed its President, Mr. M. Sørensen, to represent it as principal Delegate in subsequent proceedings before the Court, Mr. S. Petrén having been relieved of this function at his own request.
    <LI value=6>By a letter of 22nd November 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.
    <LI value=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 Building; the hearing continued on 27th, 29th and 30th November.
    There appeared before the Court:
    - for the Commission:
    Mr M. Sørensen, Principal Delegate, assisted by:
    Mr. G. Janssen-Pevtschin and Mr. F. Welter, Delegates;
    - for the Belgian Government:
    Mr. A. de Granges de Surgères, Directeur général
    de l'administration de la Législation at the Belgian Ministry
    of Justice, Agent, assisted by:
    Me. A. Bayart, Barrister at
    the Belgian Court of Cassation, Counsel,
    and
    Mr. P. Guggenheim, Honorary Professor
    at the University of Geneva, and Professor at the
    University Institute of Advanced International Studies,
    Geneva, Counsel;
    Mr. A. Vander 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. Bayart, Mr. P. Guggenheim and Mr. A. de Granges de Surgères.
    The Court also put a number of questions 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.
    <LI value=8>The Court met in private on 30th November and 1st December 1967. On 1st December, it instructed the Registrar - 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 Belgian Government and the Commission reached the Registrar on 10th January 1968. The Government made certain additions to its reply in March 1968.
    <LI value=9>After further deliberation the Court pronounced the present judgment.
    THE FACTS
    <LI value=1>The object of the Commission's request is to submit the case to the Court, so that the Court may decide whether or not certain provisions of the Belgian linguistic legislation relating to education are in conformity with the requirements of Articles 8 and 14 (art. 8, art. 14) of the Convention and Article 2 of the Protocol of 20th March 1952 (hereinafter referred to as "the Protocol") (P1-2).
    <LI value=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 express 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 administrative district with a "special status". In all of these districts ("communes"), part of the population - in some cases a large part - is French-speaking.
    <LI value=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 institutions in the said municipalities which may fail to comply with the linguistic provisions of the legislation for schools;
    - refuses to homologate leaving certificates 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 Brussels district", where the language of instruction is Dutch or French according to the child's mother-tongue or usual language or in the "French-speaking region" (Walloon area). Such "scholastic emigration" is said to entail serious risks and hardships.
    <LI value=4>The Applications in so far as they 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) have been violated. The violation is said to be a result of the Applicants and their children being subjected to various provisions of the Act of 14th July 1932 "on language regulations in primary and intermediate education", the Act of 15th July 1932 "on the conferring of academic degrees", 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", etc. 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 Commission, and those Applicants still challenge these Acts while at the same time attacking the present legislation.
  4. Summarising the opinion expressed in its Report of 24th June 1965 (hereinafter referred to as "the Report"), the Commission recalled in paragraph 7 of its memorial of 17th 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 isolation or in conjunction with Article 14 (art. 14+P1-2) of the Convention;
    - 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 conjunction 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 live 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 French-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 secondary schooling not in accordance with the language requirements."
  5. 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 Convention, in so far as they forbid the establishment or subsidising by the State of any schools which do not comply with the language legislation.
    (4) The 1963 Acts are not contrary to Article 2, first sentence, of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as they result in the total withdrawal of subsidies from schools that, while they have sections in which tuition is given in the regional language, also provide complete or partial education in another language.
    (5) The system introduced by the Act of 2nd August 1963 in the communes on the periphery of Brussels, including Kraainem, is not incompatible with Article 2, first sentence, of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention.
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  1. 6) The residence conditions laid down in the 1963 Acts for admission to the French-language schools at Louvain and in the communes on the periphery of Brussels, including Kraainem, are compatible with Article 2, first sentence, of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention.
    (7) The provisions of the 1932 and 1963 Acts are compatible with Article 2, first sentence, of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as they result in the refusal of homologation of secondary school leaving certificates for the sole reason that the schooling covered by them has not been in accordance with the requirements of the language legislation.
  2. The Belgian Government reserves the right to add to or modify these conclusions in the course of the proceedings".
  3. - by the Commission in its memorial of 12th July 1967 and, in almost identical terms, in that of 17th December 1965, prior to the judgment of 9th February 1967:
    "As it recalled in its memorial of 17th December 1965, the Commission acts in the general interest and not, strictly speaking, as plaintiff vis-à-vis the High Contracting Party against which the Applications submitted to it for appraisal are directed.
  4. It therefore once more formulates its conclusions interrogatively and invites the Court to decide whether or not the legislation of which the Applicants complain satisfies the requirements of:
    (a) the first sentence of Article 2 of the Protocol (P1-2), considered in isolation;
    (b) the second sentence of that Article (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 Protocol 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;
    (f) Article 8 of the Convention, read in conjunction with Article 14 (art. 14+8).
  5. In particular the Commission requests the Court to decide whether or not, in the case of the Applicants, there is violation 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:
  6. - the establishment, or
  7. - the subsidisation
  8. 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 residence, 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 absolute refusal to homologate certificates relating to secondary schooling not in conformity with the language requirements in education.
  9. For the reasons stated at the end of its report (...), 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."
  10. - 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.
  11. 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.
  12. The Government wishes to point out:
  13. - 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);
  14. - 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 Parties have expressly declared that they did not intend to enter into any obligation;
  15. - 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;
  16. - 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;
  17. - that the Applicants' complaints are unfounded."<LI value=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 Applicants complain, whether the provisions invoked by the Applicants concerning them are considered in isolation or in conjunction, do not interfere with the rights 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 Article (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 Protocol, 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;
    (f) Article 8 of the Convention, read in conjunction with Article 14 (art. 14+8).
    In particular the Belgian Government requests 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 residence, 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 secondary 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 complained of is in accordance with that requirement as it provides for no unlawful 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."
    - 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
    <LI value=8>The laws on the use of languages 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 particular, 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 principal laws on language in education which have been passed in Belgium between 1914 and the present day.
    <LI value=9>Article 17 of the Belgian Constitution of 7th February 1831 provides:
    
    "Education shall be unrestricted; all measures of restriction are prohibited; crimes may be punished only in accordance with the 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.
    <LI value=10>The earliest linguistic laws concerned not education but criminal procedure (Acts of 1870 and 1908) as well 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 compulsory. According to Section 15, a child's maternal or usual language, determined 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, some 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 secondary education was provided sometimes in French, sometimes half in French and half in Dutch (paragraphs 138 and 345 of the Report).
  18. A fundamental change was made to this system by the Act of 14th July 1932 "on language regulations in primary and intermediate education".
    The Bill submitted by the then Government introduced the concept of territoriality, but left families of the minority in each region with a certain freedom of choice. The explanatory memorandum stressed that the maternal language should merit the same respect as religious or philosophical convictions.
    During the parliamentary debate, many members of the House of Representatives and Senators, and in particular Walloon representatives, showed a marked preference for a more "territorial" solution. The Bill was amended to that effect and approved by the House of Representatives by 81 votes to 12 with 63 abstentions, and by the Senate by 82 votes to 25 with 13 abstentions.
    The territorial principle was likewise established in the Act of 28th June 1932 "on the use of languages in administrative matters" and in the Act of 15th June 1932 "on the use of languages in judicial matters".
  19. The Act of 14th July 1932 was applicable to "nursery schools and municipal adopted or adoptable primary schools", to "establishments governed by the organic law on secondary education" (upper and lower secondary schools) and to "primary classes (preparatory sections) attached to secondary schools" (Sections 1, 8, 14 and 18).
    This law established a distinction between the regions considered to be unilingual and the areas recognised as bilingual.
    In the former, "the Flemish area", "the Walloon area" and "the German-speaking communes", the language of education was in principle that of the region (Sections 1, 8 and 14), while study of a second language (whether national or not) was compulsory only in secondary classes (Sections 3, 10, 11 and 16). This rule was, however, mitigated to a certain extent. Sections 2, 4, 15 and 17 provided that children whose maternal or usual language was not that of the region were entitled to receive their primary education in their own language. But the competent authorities remained the judges of the "reality of this need" and the "expediency of meeting it" by setting up "transmutation" classes; pupils enrolled in these classes were obliged to learn the language of the region from the second grade of primary schooling (third year) so that they would be able to derive profit, either from the fourth primary grade, or from technical or secondary education given in that language. Section 9 also provided that the "existing special language classes" in upper and lower secondary schools should be maintained for as long as they were attended by a sufficient number of pupils of three strictly defined categories.
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  1. In the Brussels urban area and bilingual communes on the linguistic boundary, the language of instruction was to be the child's maternal or usual language; teaching of the second national language was to be compulsory (Sections 5, 6, 12, 13, 18, 19 and 22). The Act of 28th June 1932 on the use of languages in administrative matters, referred to in Section 21 of the Act of 14th July 1932, defined the Brussels urban area in Section 2 paragraph 5.
  2. Each head of family was required to make a declaration stating his children's maternal or usual language in so far as that determined which system was applicable, but the correctness of the declaration might be subject to verification (Sections 7 and 20 of the Act of 14th July 1932).
  3. The Act of 14th July 1932 (Section 28), supplemented by Section 13 of an Act of 27th July 1955 and by Section 24 of an Act of 29th May 1959 ("schooling agreement"), introduced a penalty for non-observance of the Act: the refusal or withdrawal, as the case may be, of the school subsidies.
  4. Another penalty was introduced by the Act of 15th July 1932 on the conferring of academic degrees (cf. infra). The State refused to "homologate" leaving certificates issued by establishments which did not fully conform to the language laws on education. Pupils whose leaving certificates were not admissible for homologation could still obtain a legally recognised degree by taking an examination before the "Central Board".<LI value=13>Section 22 of the Act of 14th July 1932 laid down that "in every commune where the decennial census" establishes that "more than 20 % of the population habitually speaks a language other than that of the region, the teaching of this second language" may "begin in the second grade", "if the communes or the managers of adopted or adoptable schools" so "decide". For its part, the Act of 28th June 1932 on the use of languages in administrative matters provided in Section 3 (1) that:
    
    "Subject to the provisions of Section 2 with regard to the communes of the Brussels area, communes in which the last decennial census showed a majority of the inhabitants usually speaking a language different from that of the language group to which they are attached by virtue of Section 1 shall adopt the language of the said majority in their internal services and correspondence."
    After 1846, a general census of the population took place periodically in Belgium (Royal Decree of 30th June 1846, Act of 2nd June 1856, Royal Decree of 5th July 1866, Act of 25th May 1880); under a Ministerial Decree of 18th November 1880 its purpose was to ascertain not only the number, *** and age of the inhabitants of the Kingdom, but also their language.
    The last language census was in 1947. Although it revealed a certain percentage of French-speaking persons in the Flemish provinces (paragraph 349 of the Report), it also showed that the number of Flemish-speaking Belgians was increasing but that a large number of French-speaking Belgians had settled in the Flemish area, especially around Brussels. This dual tendency which seems to have become more marked since then provoked a serious reaction; the Walloons charged the Flemings with "demographic imperialism", and the Flemings charged the Walloons with "geographical imperialism" (Report of the hearing held on the morning of 27th November 1967).
    The results of the language census of 1947 were not published until 1954. An Act of 2nd July 1954 attenuated the consequences which the census results should have entailed by virtue of the Acts of 28th June and 14th July 1932.
    A new population census was held at the end of 1961, but it included no questions concerning the use of languages (Section 3 of the Act of 24th July 1961 and the Royal Decree of 3rd November 1961).
    More recently an Act of 8th November 1962 changed the boundaries of provinces, districts and communes, and amended certain provisions of the Acts of 28th June and 14th July 1932. It had the effect of fixing the linguistic boundary permanently: thus, no matter what the extent of any changes that may occur in the language spoken by the population, such changes will not affect in any way the language regulations in the various communes.
    <LI value=14>The Acts of 14th and 15th July 1932 were repealed by that of 30th July 1963 "relating to the use of languages in education". For their part the Acts of 28th June 1932 on the use of languages in administrative matters and of 15th June 1935 on the use of languages in judicial matters have been replaced, the first by an Act of 2nd August 1963, the second by an Act of 9th August 1963.
    The Act of 30th July 1963 was adopted by a large majority in both the House of Representatives (157 votes to 33) and the Senate (120 votes to 17 with 7 abstentions). Although it lays down the same principles as the Act of 14th July 1932, it differs from the former on a number of points, some of which are important.
    The new Act applies (Section 1) to official teaching establishments and independent establishments subsidised or recognised by the State and covers all levels of education with the exception of universities, which moreover are not involved in the present case. With regard to the status of six communes on the periphery of Brussels, it refers to Section 7 of the Act of 2nd August 1963 on the use of languages for administrative matters. Section 2 also refers to that Act for the definition of linguistic regions. Section 3 completes the list of these regions specifying that the 25 communes on the linguistic boundary, the communes in the German-speaking area, the "Malmédy communes" and nine communes in Eastern Belgium have been assigned "a special system to protect their minorities". The boundaries of these areas are fixed permanently.
    Section 4 of the Act of 30th July 1963 is concerned with the unilingual regions. It lays down that the language of education shall be Dutch in the Dutch-speaking region, French in the French-speaking region and German in the German-speaking region, but makes provision for mitigation of this principle in the latter case (Section 8). In these regions, the study of the second language is optional at the primary level (Section 9); the Act of 30th July 1963 provides no express regulations on this matter for secondary schools (paragraphs 176, 211 and 367 (d) of the Report).
    The 19 communes of the Greater Brussels district (Sections 5 and 21) are governed by bilingual arrangements based on the criterion of the child's maternal or usual language; study of the second national language is compulsory in the primary classes and optional at the secondary level (Sections 10 and 11).
    Six communes on the outskirts of Brussels, including Kraainem, "enjoy a special status" (Section 7 paragraph 3 of the Act of 2nd August 1963). The normal language there is Dutch. However, children may receive nursery and primary education - but not secondary education - in French if this is the child's maternal or usual language and provided the head of the family is resident in one of these communes. Such education must be organised by the commune if asked to do so by 16 heads of family residing in that commune. In the Dutch-language schools in the six communes in question, teaching of French is optional, whereas teaching of Dutch is compulsory in the French-language schools.
    Lastly, the Act of 30th July 1963 introduced several special systems. The Louvain system (cf. infra) is the only one of these which needs to be analysed here; as far as the others are concerned it is enough merely to refer to Sections 3, 6, 7, 10 and 20 of the Act and to the relevant passages of the Commission's Report (communes "assigned a special system to protect their minorities"; the children of military servicemen stationed at Ostend, Bourg-Léopold and Arlon; children who leave the commune where they were resident for reasons of health or such children whose parents have no permanent residence; European schools).
    Chapter V of the Act of 30th July 1963 institutes "linguistic control". In unilingual areas children are, without any control, admitted to schools which teach in the language of the region, but this does not apply when the child's maternal or usual language determines the linguistic system applicable (Greater Brussels, French classes at Louvain and the six communes on the outskirts of Brussels, etc). In the latter case a headmaster may only enrol a pupil under a specific system on production of one of the following documents: a certificate by the head of the child's last school that his previous schooling has been in the language of that system; a language declaration by the head of the family endorsed by the language inspectorate, provided that it does not challenge the correctness of the declaration; a decision by the language commission or language board mentioned in Section 18 (Section 17, paragraph 2; see also the 3rd, 4th and 5th paragraphs of the Royal Decree of 30th November 1966 establishing models for the linguistic certificate and declaration). Language inspection is conducted by two inspectors, one on each language list; in case of disagreement between them the case is submitted to a commission constituted by the King; the head of family may appeal against the decision of the inspectors or the commission to a board appointed by the King (Section 18, and Royal Decrees of 30th November 1966 on the status and functioning of the language inspectorate) without prejudice to a subsequent appeal to the Conseil d'État (paragraph 210 of the Report). For the Greater Brussels district and the six communes on the outskirts of Brussels the Act of 2nd August 1963 (Sections 6 and 7 paragraphs 1 and 5) instituted a supplementary control authority: a "Government commissioner who shall be the Vice-Governor of the province of Brabant".
    Penalties have been laid down for failure to comply with the provisions of the Act of 30th July 1963. Under paragraph 6 of Section 17 "any false or incorrect enrolment of a pupil by the head-master may entail disciplinary action" - in official schools – or in the case of private, provincial, or commune schools "withdrawal of subsidies for a period of not more than six months" in respect of each infringement. More generally, it appears from Section 1 of the Act that private establishments which do not observe the provisions with regard to the languages to be used in education may not receive State subsidies; besides, the Act of 30th July 1963 rescinds neither Section 13 of the Act of 27th July 1955 nor Section 24 of the Act of 29th May 1959. Moreover, the 1963 legislation results 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 (Sections 1 and 4 of the Act of 20th July 1963, ministerial circulars of 9th and 29th August 1963, etc.).
    A further penalty is imposed under Section 19 of the Act of 30th July 1963 which provides that "only school-leaving certificates that have been issued by the educational establishments referred to in Section 1 or in other independent educational establishments in accordance with the provisions of this Act may be subject to homologation". Under paragraph 2 an exception may be made to this principle but does not appear to be applicable to the present case. The 1963 legislation, like that of 1932, leaves intact the possibility of remedying the refusal of homologation by an examination taken before the Central Board.
    <LI value=15>Articles 17 and 23, cited above, of the Belgian Constitution, have not been revised and are therefore still in force. Consequently, children of the Dutch-language area, including Flemish-speaking children, may be taught in their area in French - or in any other language - by their parents, a private tutor or an unsubsidised private School. A head of family who takes advantage of this facility incurs no punishment and is complying with the obligations to have his children educated (see for example Section I of the consolidated Acts of 20th August 1957 on primary education) provided the education given meets academic and technical requirements laid down by law. The same applies, mutatis mutandis, throughout the Kingdom of Belgium. The 1932 and 1963 Acts have not changed the earlier situation in this respect.
    THE LAW
    Beyond the six specific questions enumerated in the respective submissions of the Commission and the Belgian Government, the present case raises problems of a more general character concerning the meaning and scope of Article 2 of the Protocol (P1-2) and of Articles 8 and 14 (art. 8, art. 14) of the Convention. The Court will pronounce upon these problems before ruling upon the above-mentioned questions, as the reply to be given to the latter depends to a certain degree on the solution of the former.
    I. THE MEANING AND SCOPE OF ARTICLE 2 OF THE PROTOCOL (P1-2) AND OF ARTICLES 8 AND 14 (art. 8, art. 14) OF THE CONVENTION
    
    A. Summary of the arguments presented by the Applicants before or through the Commission and of those presented before the Court by the Belgian Government and by the Commission
    B. Interpretation adopted by the Court
    <LI value=1>The Court, in examining the complaints which have been referred to it, is at the outset confronted with the general question as to the extent to which any of the Articles of the Convention or Protocol may contain provisions touching the rights or freedoms of a child with respect to his education or of a parent with respect to the education of his child, and more especially in the matter of the language of instruction.
    The Court notes that although certain further Articles (Articles 9 and 10 of the Convention) (art. 9, art. 10) were invoked by the Applicants before the Commission, it is Article 2 of the Protocol (P1-2) and Articles 8 and 14 of the Convention (art. 8, art. 14) alone which are dealt with in the arguments and submissions both of the Commission and the Belgian Government. While the provisions of the Convention and Protocol must be read as a whole, the Court considers that it is essentially upon the content and scope of these three Articles that the decision which it has to take turns.
    <LI value=2>The Court will address itself first to Article 2 of the Protocol (P1-2) because the Contracting States made express provision with reference to the right to education in this Article.
    <LI value=3>By the terms of the first sentence of this Article (P1-2), "no person shall be denied the right to education".
    In spite of its negative formulation, this provision uses the term "right" and speaks of a "right to education". Likewise the preamble to the Protocol specifies that the object of the Protocol lies in the collective enforcement of "rights and freedoms". There is therefore no doubt that Article 2 (P1-2) does enshrine a right.
    It remains however to determine the content of this right and the scope of the obligation which is thereby placed upon States.
    The negative formulation indicates, as is confirmed by the "preparatory work" (especially Docs. CM/WP VI (51) 7, page 4, and AS/JA (3) 13, page 4), that the Contracting Parties do not recognise such a right to education as would require them to establish at their own expense, or to subsidise, education of any particular type or at any particular level. However, it cannot be concluded from this that the State has no positive obligation to ensure respect for such a right as is protected by Article 2 of the Protocol (P1-2). As a "right" does exist, it is secured, by virtue of Article 1 (art. 1) of the Convention, to everyone within the jurisdiction of a Contracting State.
    To determine the scope of the "right to education", within the meaning of the first sentence of Article 2 of the Protocol (P1-2), the Court must bear in mind the aim of this provision. It notes in this context that all member States of the Council of Europe possessed, at the time of the opening of the Protocol to their signature, and still do possess, a general and official educational system. There neither was, nor is now, therefore, any question of requiring each State to establish such a system, but merely of guaranteeing to persons subject to the jurisdiction of the Contracting Parties the right, in principle, to avail themselves of the means of instruction existing at a given time.
    The Convention lays down no specific obligations concerning the extent of these means and the manner of their organisation or subsidisation. In particular the first sentence of Article 2 (P1-2) does not specify the language in which education must be conducted in order that the right to education should be respected. It does not contain precise provisions similar to those which appear in Articles 5 (2) and 6 (3) (a) and (e) (art. 5-2, art. 6-3-a, art. 6-3-e). However the right to education would be meaningless if it did not imply in favour of its beneficiaries, the right to be educated in the national language or in one of the national languages, as the case may be.
    <LI value=4>The first sentence of Article 2 of the Protocol (P1-2) consequently guarantees, in the first place, a right of access to educational institutions existing at a given time, but such access constitutes only a part of the right to education. For the "right to education" to be effective, it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which he has completed. The Court will deal with this matter in greater detail when it examines the last of the six specific questions listed in the submissions of those who appeared before it.
  5. The right to education guaranteed by the first sentence of Article 2 of the Protocol (P1-2) by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals. It goes without saying that such regulation must never injure the substance of the right to education nor conflict with other rights enshrined in the Convention.
    The Court considers that the general aim set for themselves by the Contracting Parties through the medium of the European Convention on Human Rights, was to provide effective protection of fundamental human rights, and this, without doubt not only because of the historical context in which the Convention was concluded, but also of the social and technical developments in our age which offer to States considerable possibilities for regulating the exercise of these rights. The Convention therefore implies a just balance between the protection of the general interest of the Community and the respect due to fundamental human rights while attaching particular importance to the latter.
  6. The second sentence of Article 2 of the Protocol (P1-2) does not guarantee a right to education; this is clearly shown by its wording:
    
    "...
    In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."
    This provision does not require of States that they should, in the sphere of education or teaching, respect parents' linguistic preferences, but only their religious and philosophical convictions. To interpret the terms "religious" and "philosophical" as covering linguistic preferences would amount to a distortion of their ordinary and usual meaning and to read into the Convention something which is not there. Moreover the "preparatory work" confirms that the object of the second sentence of Article 2 (P1-2) was in no way to secure respect by the State of a right for parents to have education conducted in a language other than that of the country in question; indeed in June 1951 the Committee of Experts which had the task of drafting the Protocol set aside a proposal put forward in this sense. Several members of the Committee believed that it concerned an aspect of the problem of ethnic minorities and that it consequently fell outside the scope of the Convention (see Doc. CM (51) 33 final, page 3). The second sentence of Article 2 (P1-2) is therefore irrelevant to the problems raised in the present case.
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07-19-2009, 01:22 AM
هيثم الفقى
1. <LI value=7>[align=left]
  1. <LI value=7>According to the express terms of Article 8 (1) (art. 8-1) of the Convention, "everyone has the right to respect for his private and family life, his home and his correspondence".
    
    This provision by itself in no way guarantees either a right to education or a personal right of parents relating to the education of their children: its object is essentially that of protecting the individual against arbitrary interference by the public authorities in his private family life.
    However, it is not to be excluded that measures taken in the field of education may affect the right to respect for private and family life or derogate from it; this would be the case, for instance, if their aim or result were to disturb private or family life in an unjustifiable manner, inter alia by separating children from their parents in an arbitrary way.
    As the Court has already emphasised, the Convention must be read as a whole. Consequently a matter specifically dealt with by one of its provisions may also, in some of its aspects, be regulated by other provisions of the Convention.
    The Court will therefore examine the facts of the case in the light of the first sentence of Article 2 of the Protocol (P1-2) as well as of Article 8 (art. 8) of the Convention.
  2. According to Article 14 (art. 14) of the Convention, the enjoyment of the rights and freedoms set forth therein shall be secured without discrimination ("sans distinction aucune") on the ground, inter alia, of language; and by the terms of Article 5 of the Protocol (P1-5), this same guarantee applies equally to the rights and freedoms set forth in this instrument. It follows that both Article 2 of the Protocol (P1-2) and Article 8 (art. 8) of the Convention must be interpreted and applied by the Court not only in isolation but also having regard to the guarantee laid down in Article 14 (art. 14+P1-2, art. 14+8).
  3. While it is true that this guarantee has no independent existence in the sense that under the terms of Article 14 (art. 14) it relates solely to "rights and freedoms set forth in the Convention", a measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe this Article when read in conjunction with Article 14 (art. 14) for the reason that it is of a discriminatory nature.
    Thus, persons subject to the jurisdiction of a Contracting State cannot draw from Article 2 of the Protocol (P1-2) the right to obtain from the public authorities the creation of a particular kind of educational establishment; nevertheless, a State which had set up such an establishment could not, in laying down entrance requirements, take discriminatory measures within the meaning of Article 14 (art. 14).
    To recall a further example, cited in the course of the proceedings, Article 6 (art. 6) of the Convention does not compel States to institute a system of appeal courts. A State which does set up such courts consequently goes beyond its obligations under Article 6 (art. 6). However it would violate that Article, read in conjunction with Article 14 (art. 14+6), were it to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions.
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07-19-2009, 01:23 AM
هيثم الفقى
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2. In such cases there would be a violation of a guaranteed right or freedom as it is proclaimed by the relevant Article read in conjunction with Article 14 (art. 14). It is as though the latter formed an integral part of each of the Articles laying down rights and freedoms. No distinctions should be made in this respect according to the nature of these rights and freedoms and of their correlative obligations, and for instance as to whether the respect due to the right concerned implies positive action or mere abstention. This is, moreover, clearly shown by the very general nature of the terms employed in Article 14 (art. 14): "the enjoyment of the rights and freedoms set forth in this Convention shall be secured".<LI value=10>In spite of the very general wording of the French version ("sans distinction aucune"), Article 14 (art. 14) does not forbid every difference in treatment in the exercise of the rights and freedoms recognised. This version must be read in the light of the more restrictive text of the English version ("without discrimination"). In addition, and in particular, one would reach absurd results were one to give Article 14 (art. 14) an interpretation as wide as that which the French version seems to imply. One would, in effect, be led to judge as contrary to the Convention every one of the many legal or administrative provisions which do not secure to everyone complete equality of treatment in the enjoyment of the rights and freedoms recognised. The competent national authorities are frequently confronted with situations and problems which, on account of differences inherent therein, call for different legal solutions; moreover, certain legal inequalities tend only to correct factual inequalities. The extensive interpretation mentioned above cannot consequently be accepted.
  It is important, then, to look for the criteria which enable a determination to be made as to whether or not a given difference in treatment, concerning of course the exercise of one of the rights and freedoms set forth, contravenes Article 14 (art. 14). On this question the Court, following the principles which may be extracted from the legal practice of a large number of democratic States, holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 (art. 14) is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.
  In attempting to find out in a given case, whether or not there has been an arbitrary distinction, the Court cannot disregard those legal and factual features which characterise the life of the society in the State which, as a Contracting Party, has to answer for the measure in dispute. In so doing it cannot assume the rôle of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention. The national authorities remain free to choose the measures which they consider appropriate in those matters which are governed by the Convention. Review by the Court concerns only the conformity of these measures with the requirements of the Convention.
  <LI value=11>In the present case the Court notes that Article 14, even when read in conjunction with Article 2 of the Protocol (Art. 14+P1-2), does not have the effect of guaranteeing to a child or to his parent the right to obtain instruction in a language of his choice. The object of these two Articles (art. 14+P1-2), read in conjunction, is more limited: it is to ensure that the right to education shall be secured by each Contracting Party to everyone within its jurisdiction without discrimination on the ground, for instance, of language. This is the natural and ordinary meaning of Article 14 read in conjunction with Article 2 (art. 14+P1-2). Furthermore, to interpret the two provisions as conferring on everyone within the jurisdiction of a State a right to obtain education in the language of his own choice would lead to absurd results, for it would be open to anyone to claim any language of instruction in any of the territories of the Contracting Parties.
  The Court notes that, where the Contracting Parties intended to confer upon everyone within their jurisdiction specific rights with respect to the use or understanding of a language, as in Article 5 (2) and Article 6 (3) (a) and (e) (art. 5-2, art. 6-3-a, art. 6-3-e) of the Convention, they did so in clear terms. It must be concluded that if they had intended to create for everyone within their jurisdiction a specific right with respect to the language of instruction, they would have done so in express terms in Article 2 of the Protocol (P1-2). For this reason also, the Court cannot attribute to Article 14, when read in conjunction with Article 2 of the Protocol (art. 14+P1-2), a meaning which would secure to everyone within the jurisdiction of a Contracting Party a right to education conducted in the language of his own choice.
  It remains true that, by virtue of Article 14 (art. 14), the enjoyment of the right to education and the right to respect of family life, guaranteed respectively by Article 2 of the Protocol (P1-2) and Article 8 (art. 8) of the Convention, are to be secured to everyone without discrimination on the ground, inter alia, of language.
  <LI value=12>In order to determine the questions referred to it, the Court will therefore examine whether or not there exist in the present case unjustified distinctions, that is to say discriminations, which affect the exercise of the rights enshrined in Article 2 of the Protocol and Article 8 of the Convention, read in conjunction with Article 14 (art. 14+P1-2, art. 14+8). In this examination, the Court will take into account the factual and legal features that characterise the situation in Belgium, which is a plurilingual State comprising several linguistic areas.
  II. THE SIX QUESTIONS REFERRED TO THE COURT
  <LI value=1>Having thus pronounced upon the meaning and scope of Article 2 of the Protocol (P1-2) and Articles 8 and 14 (art. 8, art. 14) of the Convention, the Court has examined the six particular questions enumerated in the submissions of those appearing before it (cf. pages 9-10 and 11-12 supra). The decision to which it has come on each of the questions is preceded by a summary of the relevant facts - in so far as they have not been stated above - and of the respective arguments of the Applicants, the Belgian Government and the Commission.
  
  A. As to the first question
  <LI value=2>The first question concerns the laws on the use of languages in education in the regions considered by the law as being unilingual, except for two aspects which are dealt with under the second and sixth questions. It relates, more precisely, to whether or not in the case of the Applicants, there is a violation of Article 2 of the Protocol (P1-2) and Articles 8 and 14 (art. 8, art. 14) of the Convention, or of any of those Articles :
  
  "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".
  <LI value=3>On this point the facts of the case appear sufficiently from the general outline of the Acts in issue which the Court has given above (pages 13-19).
  
  1. Arguments presented by the Applicants before or through the Commission
3. According to the Applicants, the laws on the use of languages in education in the unilingual regions infringe Article 2 of the Protocol (P1-2) and Articles 8 and 14 (art. 8, art. 14) of the Convention.
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07-19-2009, 01:24 AM
هيثم الفقى
1. [align=left]
  1. The Acts of 1932 and 1963 do not, in the first place, comply with the two sentences of Article 2 of the Protocol (P1-2). The Belgian State denies the children of the Applicants a complete education in their maternal language. This refusal is made even more rigid since the Act of 30th July 1963 has, in spite of the increase in the French-speaking population, brought about the progressive abolition of transmutation classes and special language classes which in the view of the Applicants constituted "a lesser evil". The parents' linguistic aspirations are moreover disregarded; primary education being compulsory, many of the Applicants are obliged, in practice, to send their children to schools where the teaching is given in Dutch. Admittedly, the legislation under attack does not prohibit children from pursuing their studies in French but the loopholes open to them are utopian and illusory. It is beyond the power of the Applicants to have their children taught at home. As for sending them to Brussels, Wallonia or abroad, there are material and moral obstacles to this solution which are often insuperable. Lastly, the establishment of private French-language schools in Flanders likewise offers only a rather theoretical remedy by reason of the high costs resulting from the absence of subsidies.
  2. The complaints founded on Article 8 (art. 8) of the Convention are essentially based on the same facts. The Belgian legislation on the use of languages threatens the children's intellectual and emotional development, prevents the head of the family from deciding in what language his children shall be taught, and interferes with the unity of the family by making the Applicants send their children either to local schools where teaching is conducted in Dutch, "instruments of forced depersonalisation", or to schools far from their homes. The inconveniences of "scholastic emigration", although not dictated by the Act, are nevertheless a direct consequence of it. The Applicants and their children are thus victims of various acts of interference in their private and family life.
  3. Finally the Acts in issue involve a series of discriminations contrary to Article 14 (art. 14) of the Convention which are founded, inter alia, on the language and financial assets of parents. Thus French-speaking children in Flanders are denied a public or subsidised education in their mother tongue while Flemish-speaking children do have such an education there. "Scholastic emigration" for its part redresses certain inequalities only to replace them by others: extra expense, dangers inherent in public transport, the rupture of the family, etc. This is not a question of "legitimate differentiations" but of "discriminations" and what is more, of "active" as opposed to "static" discriminations. The "parallelism" established by the law between the two main regions of the country is "more apparent than real"; moreover, it cannot redress the discriminations committed, in Flanders as well as in Wallonia, to the detriment of those speaking a different language, for the Convention proclaims "equality between men and not between inorganic communities". Admittedly the "Flemish movement" originally fought "for the promotion of the Flemish man", which could perhaps possibly explain certain discriminatory measures of a temporary character: however it is today still "in full career" and is being transformed into "an instrument of authoritarian imperialism" aiming at binding the individual to the soil. Indeed, the present purpose of the legislation consists in "assimilating part of the population by compulsion" and especially in "liquidating the French-speaking minorities" in Flanders by obliging their members to become "Flemicised" or to "move away". The incontrovertible "abuses" of "the last century" were remedied a "long time ago" and in no way justify "the opposite abuse" introduced "by the 1932 legislation and markedly aggravated by that of 1963". Under the pretence of "safeguarding national unity", "the country has been divided" thus producing, despite the official intentions, a "revival of the separatist and federalist tendencies". The Applicants from Alsemberg, Beersel, Kraainem and Louvain also attack the suppression of the linguistic part of the population census (Act of 24th July 1961 and Royal Decree of 3rd November 1961).
    2. Arguments presented before the Court by the Belgian Government and by the Commission
  4. Before the Commission, the Belgian Government held that the laws on the use of languages in education in the unilingual regions violate none of the three Articles (art. 8, art. 14, P1-2) invoked by the Applicants. While its principal argument was that the Articles were totally inapplicable (cf. supra), it presented several subsidiary arguments.
    Concerning Article 2 of the Protocol (P1-2) and Article 8 (art. 8) of the Convention, the Belgian Government in substance observed that the inconveniences resulting from the system in dispute had been over-estimated by the Applicants. The interests involved are those of "a small minority of the Belgian people". Furthermore there is "nothing catastrophic" in the possible sending of a French-speaking pupil to a Dutch-language school. He will thus have the opportunity of becoming "perfectly bilingual"; the best solution of the linguistic problem in Belgium lies in bilingualism. Besides, there exist in Flanders private schools where education is conducted in French; it is true that they enjoy "fewer advantages" and in particular they do not receive subsidies but the cost falling upon parents is in no way ruinous, the more so in that the Applicants are said to be comfortably off financially. For the same reasons, the expenses inherent in "scholastic emigration" are "not in the least prohibitive"; the distances to be covered do not exceed a few kilometres or dozens of kilometres and the exceptional frequency of the Belgian railway system allows journeys to be accomplished quickly.
    The differential treatment of which the Applicants complain does not in any way amount to discrimination contrary to Article 14 (art. 14) of the Convention. The legislation which has been criticised ensures "a strict parallelism between the regulations for the Dutch-speaking and French-speaking areas". Furthermore, it was passed by very large majorities of chambers elected by universal suffrage. In spite of some "inevitable imperfections", it represents a democratic compromise between "values of liberty and social values". The Belgian Parliament in no way seeks the "liquidation" of French-speaking minorities in Flanders. In reality it succeeded in its attempt to exorcise "the grave national crises" caused by "Flemish separatism" (1932 Acts) and Flemish and Walloon federalism (Act of 24th July 1961 and 1963 Acts), to rehabilitate "Flemish language and Flemish culture" by developing an "intelligentsia with a good knowledge of Dutch", able to play a formative rôle and, in a more general sense, to give to the country a stable structure based mainly on two large homogeneous regions and a bilingual capital. More especially the Act of 24th July 1961, which suppressed the linguistic part of the population census - the accuracy of which gave rise to discussion - aimed at avoiding the hurling of the two communities "periodically into a confrontation so bitter as to be an undoubted political danger". Such aims are in no way arbitrary or discriminatory. Indeed the whole of the Belgian language legislation may be analysed as a "refusal to discriminate".
    The Belgian Government returned to some of those arguments before the Court but without pressing them strongly; it observed that its thesis coincided for the most part, on the question under consideration, with the opinion of the Commission to which it expressly referred.
  5. The Commission is of the view that the laws on the use of languages in education in the unilingual regions do not conflict with the requirements of the Convention and Protocol; before the Court it confirmed the opinion expressed by the majority on this point in the Report.
    The absence of any violation of Article 2 of the Protocol (P1-2) follows, in the view of the Commission (cf. supra), from the fact that the first sentence of this provision obliges States neither to establish nor to subsidise any teaching whatsoever (seven votes against five) and that the second does not safeguard respect for the cultural or linguistic preferences of parents (unanimity). The Commission recalls however that in the opinion of five of its members, the first sentence of Article 2 (P1-2) gives rise to duties to take positive steps. Two of these members nevertheless arrive at the same conclusion as the majority; for the other three, however, "the refusal (...) to organise or subsidise French education at the compulsory primary level in the Flemish areas cannot be reconciled with Article 2 of the Protocol (P1-2)".
    The laws on the use of languages in education in the unilingual regions likewise do not disregard Article 8 (art. 8) of the Convention. Certainly it is possible to imagine that they affect the "private and family life" of the Applicants, causing it "grave and unjustified disturbances" (cf. supra). The question arises however only in relation to primary education, which is the only compulsory education in Belgium. Some of the various solutions open to the Applicants, namely having their children taught at home, sending them to school abroad, or sending them to a private school in Flanders providing education in French, are out of the question for "the immense majority of heads of families" by reason of their "high cost". There remain therefore recourse to "scholastic emigration", and sending the children to a Dutch-language school. Scholastic emigration - daily "commuting" or boarding out - presents "very serious hardships", but these hardships are "not dictated by the Act itself", "otherwise they would represent a violation of Article 8 (art. 8)": they result from the "wishes of the parents" who are able to "avoid them by enrolling their children in local Flemish-speaking establishments". "The need to send children to a Flemish school" does not constitute "an interference in private or family life". Although the abolition of transmutation classes and special language classes (Act of 30th July 1963) seems "regrettable" in its view, the Commission thinks that "French-speaking parents will generally have the opportunity to react in their homes against the 'depersonalisation' or 'flemicisation' of their children", as the pupils "will usually after a short transitional period, be able to follow with profit the instruction they receive in Dutch" and the majority of parents "will be able to supervise their children's education": "it is difficult to imagine that people living permanently in the region will be totally ignorant of its language" which is "one of the national languages of Belgium". It may no doubt happen that "children may encounter serious difficulty in learning Dutch and that their parents may be totally ignorant of the language", but the Applicants have not cited "any case of this kind". Two members of the Commission are of the opinion that "the legislation in dispute" has "effects contrary to Article 8 (art. 8)", but "the Commission has not sufficient information to be able to judge in concreto whether the Applicants, or some of them at least, are victims of these effects"; the Commission draws the attention of the Court to their dissenting opinions.
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07-19-2009, 01:25 AM
هيثم الفقى
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  1. Finally, the Commission seeks to determine whether, on the point under consideration, there is a violation of Article 14 of the Convention, read in conjunction with Article 2 of the Protocol (art. 14+P1-2) or Article 8 (art. 14+8) of the Convention. After emphasising that "a language system for education, organised on a territorial basis", is not necessarily contrary to the Convention, as it "might be justified" by "administrative, financial or other considerations", it examines in detail the legislation criticised by the Applicants with a view to discovering its "general effect". In its view, this study shows that the legislation in dispute "has neither the object nor the effect of ensuring the qualifications thought necessary for the exercise of certain functions or professions, nor indeed of ensuring linguistic knowledge". It proves also that "the language reforms" aimed "initially at removing the abuses which had occurred in the nineteenth century under the system of absolute linguistic freedom, the whole brunt of which had been borne by the Dutch-speaking population", but that the Acts of 1932 and 1963 had "reversed the position". "The parallelism established between the Flemish and Walloon regions" is "not complete, at least under the 1963 Acts"; further still it operates in practice "against French-speaking people living in the Flemish region" while "it hardly affects the Flemish population of Wallonia". "In so far as it is real" it further has the effect of "introducing distinctions in each of the two regions" which "are not affected by their reciprocal character". "The loopholes provided for the French-speaking population", in particular scholastic emigration, entail "inconvenience and dangers" which make them "ineffective". "What is more, certain provisions in the Acts concerned" exceed their official purpose: "they can only be explained by a desire to halt the spread of the French language in the Flemish zone", indeed to assimilate the "French-speaking population of Flanders", against their will, "into the sphere of the language of the region". Although "The Commission readily understands the attachment of the Flemish population to their language and culture and their desire to preserve and develop them", and although "a policy which reflects such aspirations therefore appears quite legitimate in itself", it cannot consequently "find it illegitimate that French-speaking people living in Flanders should seek to protect their own language" which "has been established there for centuries". Without disputing the fact that the Belgian Government is "entitled to refrain from positive action to meet the wishes of the French-speaking population", the Commission questions "the result of a policy which thwarts them by measures of compulsion and by penalties". Is not such a policy in danger of "producing wrongs similar to those" which existed in the past, but "with the difference that this time it is the French-speaking population which would suffer"? "In any event" a reading of the documents shows "clearly, in the view of the majority of the Commission, the intention of the Belgian Government and of the Belgian legislature to place the French speaking population in the Flemish region at a disadvantage in relation to the Dutch-speaking inhabitants"; the 1932 legislation created "numerous inequalities which have been markedly aggravated by the 1963 legislation to the detriment of the former and the benefit of the latter".
  2. In the opinion of the Commission, the inequalities derived from the laws on the use of languages in education in the unilingual regions do not however constitute discrimination contrary to Article 14 (art. 14). Despite the fact that the Belgian Government has not shown the necessity for "these inequalities and disadvantages", that "a double system of education, both Dutch and French", would certainly be sufficient to remove the wrongs which existed in the past, that unilingualism is not based on "financial, technical or administrative" requirements, and that no account is taken of the "number or degree of French-speaking persons" living in Flanders, five members of the Commission "hesitate to consider" the system "discriminatory". They recall that the Convention and the Protocol do not oblige States to establish or to subsidise any education at all; from this they infer that the Belgian State, "in encouraging education in Dutch" and "discouraging education in French" grants "a privilege" to the Flemish-speaking inhabitants without inflicting "hardships" on French-speaking inhabitants. They add that the Contracting States "are generally content to provide or give support to education in their national language" and to throw it open to "all their inhabitants" on equal conditions; the Belgian State has not departed from this rule "of international conduct": "it has simply adapted it, certainly in a summary manner, to the fact that there are several linguistic groups in Belgium". This being so, the five members concerned "do not feel it necessary to dwell on criticisms made by the Applicants of certain matters of detail in the legislation", for example the rule relating to the teaching of the second national language: if "the State's refusal to establish or subsidise schools" does not constitute a discrimination "it necessarily follows that the State enjoys a (...) margin of discretion with regard to the organisation of curricula in official or subsidised education". Four other members also arrive, although for different reasons, at the conclusion that the system of language regulation in education in the unilingual regions is "not incompatible with the Convention". On the other hand, three members of the Commission do not accept this conclusion. Two of them in substance hold the opinion that "the refusal to organise or subsidise French education in localities where there is a sufficient number of French-speaking persons" is also covered by Article 14 (art. 14).
    3. Decision of the Court
  3. The first question concerns exclusively those provisions of the Acts of 1932 and 1963 which prevented, or prevent, in the regions which are by law deemed unilingual, the establishment or subsidisation by the State of schools not in conformity with the general linguistic requirements.
    In the present case, this question principally concerns the State's refusal to establish or subsidise, in the Dutch unilingual region, primary school education (which is compulsory in Belgium) in which French is employed as the language of instruction.
    Such a refusal is not incompatible with the requirements of the first sentence of Article 2 of the Protocol (P1-2). In interpreting this provision, the Court has already held that it does not enshrine the right to the establishment or subsidising of schools in which education is provided in a given language. The first sentence of Article 2 (P1-2) contains in itself no linguistic requirement. It guarantees the right of access to educational establishments existing at a given time and the right to obtain, in conformity with the rules in force in each State and in one form or another, the official recognition of studies which have been completed, this last right not being relevant to the point which is being dealt with here. In the unilingual regions, both French-speaking and Dutch-speaking children have access to public or subsidised education, that is to say to education conducted in the language of the region.
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07-19-2009, 01:25 AM
هيثم الفقى

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The legal provisions in issue, moreover, do not violate Article 8 (art. 8) of the Convention. It is true that one result of the Acts of 1932 and 1963 has been the disappearance in the Dutch unilingual region of the majority of schools providing education in French. Consequently French-speaking children living in this region can now obtain there education only in Dutch, unless their parents have the financial resources to send them to private French-language schools. This clearly has a certain impact upon family life when parents do not have sufficient means to enrol their children in a private school, or prefer that their children should avoid the inconvenience (see the sixth question below) which the application of the law entails as regards education received in a private school which is not in conformity with the linguistic requirements of the laws on education. Such children will complete their studies in Dutch in the locality, unless their parents send them to school in Brussels, Wallonia, or abroad.
Harsh though such consequences may be in individual cases, they do not involve any breach of Article 8 (art. 8). This provision in no way guarantees the right to be educated in the language of one's parents by the public authorities or with their aid. Furthermore, in so far as the legislation leads certain parents to separate themselves from their children, such a separation is not imposed by this legislation: it results from the choice of the parents who place their children in schools situated outside the Dutch unilingual region with the sole purpose of avoiding their being taught in Dutch, that is to say in one of Belgium's national languages.
It remains to be decided whether the legal provisions criticised violate the first sentence of Article 2 of the Protocol or Article 8 of the Convention, read in conjunction with Article 14 (art. 14+P1-2, art. 14+8).
Here again, the reply must be negative. It is true that the legislature has instituted an educational system which, in the Dutch unilingual region, exclusively encourages teaching in Dutch, in the same way as it establishes the linguistic homogeneity of education in the French unilingual region. These differences in treatment of the two national languages in the two unilingual regions are, however, compatible with Article 2 of the Protocol (P1-2), as the Court has interpreted it, and with Article 8 (art. 8) of the Convention, also when read in conjunction with Article 14 (art. 14+P1-2, art. 14+8).
Article 14 (art. 14) does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention.
In examining whether the legal provisions which have been attacked satisfy these criteria, the Court finds that their purpose is to achieve linguistic unity within the two large regions of Belgium in which a large majority of the population speaks only one of the two national languages. This legislation makes scarcely viable schools in which teaching is conducted solely in the national language that is not that of the majority of the inhabitants of the region. In other words, it tends to prevent, in the Dutch-unilingual region, the establishment or maintenance of schools which teach only in French. Such a measure cannot be considered arbitrary. To begin with, it is based on the objective element which the region constitutes. Furthermore it is based on a public interest, namely, to ensure that all schools dependent on the State and existing in a unilingual region conduct their teaching in the language which is essentially that of the region.
This part of the legislation does not violate the rights of the individual. On this point, the Court observes that the provisions which are challenged concern only official or subsidised education. They in no way prevent, in the Dutch-unilingual region, the organisation of independent French-language education, which in any case still exists there to a certain extent. The Court, therefore, does not consider that the measures adopted in this matter by the Belgian legislature are so disproportionate to the requirements of the public interest which is being pursued as to constitute a discrimination contrary to Article 14 of the Convention, read in conjunction with the first sentence of Article 2 of the Protocol (art. 14+P1-2) or with Article 8 (art. 14+8) of the Convention.
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07-19-2009, 01:26 AM
هيثم الفقى
1. 1. <B>[align=left]
    B. As to the second question
    <LI value=8>The second question concerns the issue of whether or not in the case of the Applicants, there is a violation of Article 2 of the Protocol (P1-2) and of Articles 8 and 14 (art. 8, art. 14) of the Convention, or of any of those Articles,
    
    "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".
    1. The Facts
    <LI value=9>By a circular of 9th August 1963, the Minister of National Education and Culture drew the attention of "heads of educational establishments" which comprised so-termed "transmutation classes" to the fact that by reason of the Act of 30th July 1963, they must "proceed as from 1st September 1963, to the suppression of all nursery classes (whether the language employed is Dutch or French) and of the first year of primary education (whether the language employed is Dutch or French)", "the other years" having to be "suppressed progressively year by year" and "no new pupils" being permitted to be "enrolled in these classes".
    A ministerial circular of 29th August 1963 supplementing the preceding one and intended for "the organising authorities of independent educational establishments", stated the following:
    
    "(...) In accordance with the declaration made during the debate on the Bill concerning the language regulations in education, subsidies will be withdrawn from schools which maintain, as unsubsidised classes, transmutation classes which must by law be abolished.
    If a school continues to provide nursery classes, or first-year primary school classes in a language other than that of the region, subsidies will be suspended in respect of the entire establishment."
    These circulars would seem to be based on Section 1 of the Act of 30th July 1963 in conjunction with Section 4. Section 1 states that "official nursery, primary and secondary schools, teacher's training, technical and artistic colleges and special educational establishments and similar private establishments subsidised or recognised by the State, shall be subject to the provisions of this Act". As regards Section 4, it provides, inter alia, that "the medium of education is Dutch in the Dutch-speaking region" and "French in the French-speaking region".
    Taken literally, the first paragraph of the circular of 29th August 1963 only applied to transmutation classes which have since disappeared by virtue of Section 22 of the Act of 30th July 1963. The second paragraph was, however, capable of a wider interpretation: it referred also to nursery classes, although there have never existed transmutation classes at the level of nursery education which is purely optional in Belgium. Furthermore, the circular of 29th August was addressed to all "the organising authorities of independent educational establishments" and no longer, as was that of 9th August, to "the heads of educational establishments which provide so-termed transmutation classes".
    Moreover the Commission is of the opinion that "since the continuance of preparatory classes means the loss of subsidies for the whole school", "the existence of a full system of education in a language other than that of the region" must without doubt, and indeed even more so, involve "the same penalty".
    The Belgian Government does not contest this assertion. On the contrary, its memorial of 9th May 1967 contains the following passage:
    
    "Ministerial circulars - in particular those of 9th and 29th August 1963 - drew the attention of headmasters of subsidised private schools to the fact that under the Act of 30th July 1963 the grant of subsidies was subject to their refraining from providing, in addition to education given in the regional language, parallel education given partly or entirely in another language.
    However, in primary education a transitional system of gradual abolition of the classes was permitted."
    From this the Court concludes that the withdrawal of subsidies is not applicable only to the case of the maintenance of transmutation classes, the closing of which the Act of 30th July 1963 must entail. It likewise observes that the measure in issue displays a permanent character: in the Dutch-speaking region, a "Dutch-language" school which opened classes either completely or partially in French at the nursery, primary or secondary level, would lose its right to subsidies; as regards the "bilingual" schools which, in the same region, formerly maintained such classes, they have been obliged to close them, or to split into two, in order to preserve the right to subsidies.
    
    2. Arguments presented by the Applicants before or through the Commission
  2. The Applicants, and especially those of Antwerp, Ghent and Vilvorde, are of the opinion that the withdrawal of subsidies constitutes one of the means utilised by the Belgian State to deprive French-speaking parents in Flanders, in effect, of the possibility of giving their children an education in French on the spot. This measure is in addition to the obstacles established by law (refusal of subsidies and refusal of homologation) and to certain extra-legal pressures (the case of the Public secondary school at Renaix, etc.).
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