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.
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