CASE "RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM" v. BELGIUM
Preliminary objection rejected (incompatibility)
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 First Protocol (P1-2). The Commission’s provisional submissions on the merits of the case are set out in paragraph 33 of its first memorial. 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. 3. Though the six Applications differ on a number of points, they are similar in many respects. For the purposes of this judgment 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. In the main the Applicants complain that they and their children have suffered violation of certain Articles of the Convention and the Protocol as a result of 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 "on language regulations in education" and the Act of 2nd August 1963 "on the use of languages in administrative matters". 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. Before the Commission, the Applicants complained of violations of Articles 8, 9, 10 and 14 (art. 8, art. 9, art. 10, art. 14) of the Convention and Article 2 of the Protocol (P1-2). The Belgian Government, for its part, pleaded that the legislation in dispute fully respects or respected those Articles, and it therefore asked the Commission to declare the Applications inadmissible as being manifestly ill-founded (Article 27 (2) of the Convention) (art. 27-2). The Commission did in fact, for that reason, reject the complaints which the Applicants (with the exception of those of Vilvorde) based on Articles 9 and 10 (art. 9, art. 10); on the other hand, it considered the six Applications admissible in so far as they alleged violations of Articles 8 and 14 (art. 8, art. 14) of the Convention and Article 2 of the Protocol (P1-2). The decisions on this point were given on various dates between 26th July 1963 and 29th June 1964. 5. The Commission having decided to join the six Applications, a single Sub-Commission ascertained the facts by examining the Applications together with the parties and tried to arrange a friendly settlement between the parties (Articles 28 and 29) (art. 28, art. 29). This attempt failed, and the plenary Commission therefore drew up a report as required under Article 31 (art. 31). The report was adopted on 24th June 1965 and transmitted to the Committee of Ministers of the Council of Europe on 25th June. That same day the Commission brought the case before the Court under Article 48 (a) (art. 48-a) of the Convention. 6. Summarising the opinion expressed in its report, the Commission recalled in paragraph 7 of its first memorial 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, on the periphery of Brussels, is one; - 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." Altogether, of the 12 members of the Commission concerned in the adoption of the report, three found no breach by the Belgian State of its obligations, while the majority considered that there had been a breach on three counts, but none on the others. The size and composition of the majorities on the various questions varied appreciably; moreover, the majorities on some questions embodied more than one point of view. Therefore the Commission’s report also sets out a number of individual opinions - some concurring, some dissenting. 7. In its first memorial the Commission pointed out that its decision to refer the matter to the Court had been unanimous. Among its reasons for taking this step it particularly stressed the legal importance and complexity of the case and its human and social aspects. 8. During the written proceedings the following submissions were made with regard to the preliminary objection raised by the Belgian Government: - by the Government in its first memorial: "1. The European Convention for the Protection of Human Rights and Fundamental Freedoms and Protocol secure the enjoyment of the rights and freedoms expressly mentioned in Articles 2-13 (art. 2, art. 3, art. 4, art. 5, art. 6, art. 7, art. 8, art. 9, art. 10, art. 11, art. 12, art. 13) of the Convention and Articles 1-3 of the Protocol (P1-1, P1-2, P1-3). 2. The idea of "national minority" within the meaning of Article 14 (art. 14) of the Convention may benefit the members of a specified social group where there is a violation of a right of freedom guaranteed in the Convention or the Protocol. 3. However, in these cases, the Convention affords no such protection, since (a) the right to education in one’s own language is not included among the rights and freedoms enshrined in the Convention and the Protocol; a fortiori there is no guarantee of the right to subsidies for education in one’s own language or to admission to all occupations on the strength of such education; (b) as a subsidiary argument, the "Applicants" do not belong to a "national minority" within the meaning of Article 14 (art. 14) of the Convention; (c) it follows that the Court is ratione materiae not competent to examine the merits of the dispute submitted to it. May it please the Court (a) to admit the Belgian Government’s preliminary objection and dismiss the legal action brought against the Government; (b) alternatively, to join the preliminary objection to the merits." - by the Commission in its second memorial "The Commission invites the Court to reject the objection raised by the Belgian Government"; - by the Government in its second memorial "The Belgian Government confirms the submissions stated by it at the end of its first memorial and reserves the right to supplement and amend them in subsequent proceedings". 9. At the hearing on 21st November 1966, the following submissions were made: - by the Commission: "The Commission ... requests the Court to reject the preliminary objection". - by the Belgian Government: "The Government’s preliminary objection should be accepted and the Applicants’ complaints rejected. Purely subsidiary, the Government requests that its preliminary objection be joined to the merits. It reserves the right to supplement and amend its submissions in the course of these proceedings". At the hearing on 22nd November 1966 the Commission made the following submissions: ‘The Commission upholds its request that the Court now reject the preliminary objection raised by the Belgian Government. "With regard to the Government’s alternative submission that the objection be joined to the merits we do not wish to express an opinion. We leave this point to the wisdom of the Court". At the hearing on 23rd November 1966, the Belgian Government asked the Court by way of final submissions: - to accept the preliminary objection and - alternatively, to join it to the merits. The Commission for its part stated, before the hearing closed, that it upheld its submission "in full".