Judgments

The freedom of education, which is guaranteed under Article 24.1 of the Constitution, entitles education authorities to organise and propose teaching based on specific pedagogic or educational concepts, without reference to any given denominational or non- denominational philosophy, while remaining eligible for public funding and subsidies. It does not prevent the relevant legislator from taking measures in respect of schools to ensure the quality and equivalent standard of education provided with public funds, if these measures are generally applicable regardless of the specific educational ideology those schools apply.This freedom of, or right to, education according to fundamental rights and freedoms, as guaranteed in Article 24.3 of the Constitution - whether considered on its own or in conjunction with Article 13 of the International Covenant on Economic, Social and Cultural Rights or Article 2 Protocol 1 ECHR - is not infringed where a decree makes a school's authority to issue legally valid certificates and diplomas without any intervention by the public authorities, contingent on the achievement of certain minimum objectives, which, without attempting to interfere with the school's own teaching methods, are designed to guarantee and improve the quality of education, whether the school is part of the community's public education system or subsidised by the community.However, freedom of education is infringed where it appears that development objectives for nursery schools (2 1/2- to 5-year-olds) and final objectives for primary schools (6- to 12- year-olds) and secondary schools (12- to 18-year-olds) are so wide- ranging and detailed that they cannot reasonably be regarded as minimum objectives, with the result that they do not allow schools sufficient scope to realise the objectives of their own pedagogic approach.By ratifying these developmental and final objectives, without setting up a procedure allowing limited exemptions for schools that provide or wish to provide an education based on specific pedagogic concepts, which are respectful of fundamental rights and freedoms and do not interfere with either the quality of that education or its compulsory content, the parliament issuing the relevant decree encroaches upon the freedom of education guaranteed in Article 24.1 of the Constitution.

Article 142.3 of the Constitution provides that "The Court may be solicited, on an interlocutory basis, by any court". Sections 26 to 30 of the Special Law of 6 January 1989 regarding the Court of Arbitration are concerned with requests for preliminary rulings submitted to the Court of Arbitration by other courts.The Court has to define what is understood by the term "court" (11).

The French-speaking, Dutch-speaking and German-speaking communities in Belgium may take any initiative to promote culture and to give concrete effect to each person's right to cultural fulfilment. In doing so, they must comply with the distribution among the communities of exclusive territorial jurisdiction in cultural matters. Given the very nature of the promoting culture of the territorial delimitation does not mean that a community ceases to have jurisdiction in this sphere solely because initiatives taken may have an effect outside the territory for which it is competent in cultural matters. However, such potential extra-territorial effects of measures aimed at promoting culture must not run counter to another community's cultural policy. Nor does the delimitation restrict the right of every individual - irrespective of the linguistic region where they live - to make their own free choice regarding cultural fulfilment.The challenged provision, which allows the funding of French- speaking associations in municipalities of the Dutch-speaking region, cannot be considered as having the promotion of culture by the French-speaking community as its objective. In fact, it amounts to a protection measure in favour of the French-speaking minority living in those municipalities. A provision of that kind is contrary to the distribution of jurisdiction between the French- speaking and Dutch-speaking communities in Belgium.It is for the respective legislatures of the entities of the Belgian federal system to afford protection to minorities, within the limits of their powers, such protection being guaranteed, inter alia, by Article 27 of the International Covenant on Civil and Political Rights.

Freedom of expression is one of the fundamental requisites of a democratic society. It holds good not only for "information" or "ideas" that are received favourably or considered inoffensive or innocuous, but also for opinions that shock, disturb or go against the State or some fraction of the population. Freedom of expression is not, however, absolute. Furthermore, freedom of expression as guaranteed by Article 10 ECHR cannot be used as an argument when it goes against Article 17 ECHR.The activities established as offences by the Act of 23 March 1995, which was designed to make negation, minimisation, justification or approval of the genocide committed by the German national socialist regime during the second world war an offence, are similar in that it is hardly conceivable to engage in such activities without wanting, if only indirectly, to rehabilitate a criminal ideology hostile to democracy and to cause serious offence to one or more categories of human beings. The Act challenged can be considered as meeting an imperative need, because the expression of such opinions is dishonourable and offensive to the memory of the victims of genocide, its survivors and in particular the Jewish people themselves. The Act can also be regarded as necessary in a democratic society: it is punitive, does not provide for any preventive measure to hinder the circulation of opinions and only punishes opinions expressed in certain places and certain circumstances, not because of their content but because of their injurious consequences for others and for democratic society as such. The Act at issue certainly does not aim to hinder scientific and critical research into the historical reality of the genocide in question or to obstruct any form of factual information on the subject.The Act of 23 March 1995 does not violate the constitutional principle of equality and non- discrimination established in Articles 10 and 11 of the Constitution, when read either in isolation or in combination with Articles 10 and 17 ECHR and Article 19.3 of the International Covenant on Civil and Political Rights.

Article 319.3.2 of the Civil Code, which makes recognition of paternity subject to the consent of the child when the child is over the age of 15 and when paternity has not been established by marriage, means that late recognition can be avoided and gives the child a role, which is not in itself disproportionate, in view notably of Articles 3.1 and 7.1 of the New York Convention of 20 November 1989 on the Rights of the Child. But this possibility is only open to the child in the case of late recognition by the father, not in that of late recognition by the mother. This is contrary to the constitutional principle of equality and non-discrimination established in Articles 10 and 11 of the Constitution. The discrimination is the result of a loophole in the law which the Court cannot fill.

It is not up to the Court of Arbitration to settle a dispute about the exact scope of contested provisions on which a lower court has already ruled. However, in cases where the Court considers that a legal rule, as interpreted by the court below, violates the Constitution, and that another interpretation is possible according to which the legal rule would not be unconstitutional, the Court has a duty to draw attention, in the operative words of its ruling, to the interpretation that would avoid declaring the legal rule unconstitutional.

Any natural or legal person bringing an action before the Court of Arbitration to set aside a previous decision must demonstrate an interest. Only persons whose situation might be directly and adversely affected by the measure taken can establish an interest. When a measure favours a particular category of person, those who are not granted the advantage may have a sufficiently direct interest in challenging the measure. The fact that annulment of the measure may place the applicant in a more advantageous situation is sufficient to demonstrate the applicant's interest in an appeal.It is not contrary to the principles of equality and non- discrimination contained in Articles 10 and 11 of the Constitution that the circumstances in which the private communications and telephone conversations of lawyers and doctors can be monitored are more strictly limited than for other categories of people who are also bound by professional confidentiality. The law prohibits any surveillance activity aimed at premises used for professional purposes, or at the residence or means of communication and telecommunication of a lawyer or a doctor, except in exceptional circumstances (for instance, when the lawyer or doctor are themselves under suspicion). The legislator wished to take account of the fact that these persons have frequent contacts with suspects, that they maintain a relationship of trust with their clients which it is vital to protect and, finally, that they are responsible to bodies established by law which see to it that professional ethics are observed. Considering the nature of the principles at issue, the legislator could reasonably argue that the restrictions specifically laid down by the law with regard to lawyers and doctors are necessary in order to ensure that the rights of the defence and the right to respect for private life in its most intimate details are fully secured.

The principles of equality and non-discrimination contained in Articles 10 and 11 of the Constitution are not infringed by the distinction made by the legislator, regarding admission to Belgian for a period of more than three months with a view to family unification, between married foreigners who are not nationals of a member State of the European Union, to the effect that anyone married to a Belgian may automatically reside in Belgium, whereas anyone who is not married to a Belgian only receives authorisation to stay if their cohabitation is genuine and lasting. This difference in treatment reflects the legislator's aim to curb immigration whilst catering for the situation of foreigners who have ties with Belgians. It is not contrary to this objective to subject family unification of two foreign partners to more stringent conditions than family unification between two partners of whom one is Belgian. Interference in the private life of the persons concerned is not disproportionate, provided that the administrative authorities assess whether cohabitation is genuine and lasting within a reasonable time and that they do not consider a separation which is not genuine and lasting as a ground for refusing authority to reside in the country. Once granted, the right to reside cannot be withdrawn for reasons of divorce or separation.