Judgments

Without it being necessary in the instant case to determine whether the interests of the child or of the social order may be prejudiced by disclosure of the "incestuous" nature of the union in which the child was conceived, even when the impediment to it was that the partners were related by affinity (by marriage) and not by consanguinity, the prohibition at issue is disproportionate when the bond of kinship by affinity is dissolved. While it may be injurious to certain persons that an acknowledgement of paternity at such a moment retrospectively discloses that they are the issue of a reputedly scandalous union, it need not follow that they forfeit all interest in asserting the fundamental right secured to children by Article 7.1 of the Convention on the Rights of the Child to be brought up by their (natural) parents.

In Belgium, parental authority is granted solely to persons to whom the child is related by descent. Children having only one parent from whom descent is proven but who have lived in a settled fashion in the household formed by that parent and a non-relation, both assuming responsibility for the child's maintenance, are thus subject to different treatment without acceptable justification. However, it is for the legislator to specify the form, the conditions and the procedure according to which parental authority might be extended in the child's interests to other persons not having this blood kinship with the child.

Natural persons who introduce an application to set aside before the Court must prove their interest in so doing, that is to say, must show in the petition that they are liable to be directly and adversely affected by the provisions challenged. The status of member of a parliamentary assembly does not suffice to validly claim an interest unless the measure interferes with prerogatives specific to the exercise of parliamentary office. The Court may determine such interest while examining the substance of the case.Parents' right to enrol their children in the school of their choice is not to be dissociated from the right to set up teaching establishments and the right of the latter to subsidisation. The impugned provisions, which secure each pupil's right to be enrolled and prescribe a deduction from the school's financial resources as a penalty for unjustified refusal of enrolment, do not constitute disproportionate interference with freedom of education, having regard to the provisions of the impugned decree which, taken together, imply that a school may exclude a pupil subject to certain conditions.

While the administration has its own power to exercise discretion when imposing an administrative sanction, nothing within the scope of its discretion must elude judicial review where a party incurring an administrative sanction classed as criminal within the meaning of Article 6 ECHR appeals against it in court.

Under Article 191 of the Constitution, differences of treatment that place aliens at a disadvantage may only be introduced by law. This provision does not dispense the legislature, when introducing such differences, from observing the fundamental principles enshrined in the Constitution. Article 191 can therefore on no account be considered to dispense the legislature, when introducing a difference of treatment to the detriment of aliens, from ensuring that the difference is not discriminatory, whatever the nature of the principles at issue.A law is in breach of Articles 10 and 11 of the Constitution, taken in conjunction with Articles 2, 3, 24, 26 and 27 of the Convention on the Rights of the Child, when it fails to grant social assistance even where the competent authorities have found that the parents are not fulfilling, or are unable to fulfil, their duty of support, where it has been established that the application concerns expenses essential to the development of the child on whose behalf the application was made, and where the public welfare centre makes sure that the assistance will be used solely to cover those expenses.

The decree of the Flemish Region (a federated entity of federal Belgium with its own legislative powers) by virtue of which, under parliamentary supervision and 'for compelling reasons of public interest', derogations may be made from the normal rules for granting building permits (one effect of which has been that a number of cases pending before the court have been left unresolved) does not violate the constitutional principle of equality and non-discrimination ( Articles 10 and 11 of the Constitution), taken alone or in conjunction with the right of access to a judge, the right to own property and the right to protection of the environment, protection of private life and the free choice of a profession and an activity.In the view of the Court, the fact that the decree-issuing authority provided for an exception to the ordinary regional planning rules was not discriminatory in this specific case, bearing in mind all the objectives set out in the preparatory documents and the economic and budgetary consequences that would jeopardise the urgent continuation of this project of great and compelling general and strategic interest. It is not unreasonable to introduce a special procedure under the supervision of the Flemish Parliament and confirmed by the requisite decree, which can in turn be challenged by way of an application to the Court.

The fact that the commune of Rhode-Saint-Genèse is located in the Dutch-speaking region may justify the decision by the authority responsible for issuing decrees that the commune's public library should, as in the other communes in the Dutch-speaking region, devote a specific percentage of its budget to the purchase of Dutch-language publications if it wishes to qualify for a subsidy from the Flemish Community. From this point of view, a percentage of 75% cannot be considered disproportionate to the aim pursued.

By empowering the legislature, firstly, to determine in which circumstances and in what form criminal proceedings are possible and, secondly, to pass a law pursuant to which a penalty can be laid down and applied, Articles 12.2 and 14 of the Constitution guarantee all citizens that no conduct shall constitute an offence and no penalty shall be imposed except under rules adopted by a democratically elected deliberative assembly.Parliament may regard use of telecommunications infrastructure as a specific means of communication making it possible to enter into contact rapidly with a large number of people, who may be very far distant from the author of the communication, and establish a specific offence. However, it cannot punish the perpetrator of an offence that is defined in vague terms, is devoid of specific legal content or lends itself to extensive definitions without violating the principle that criminal offences and the corresponding punishments must be strictly defined by law, taken together with Articles 10 and 11 of the Constitution (equality and non-discrimination).

Ratification of the Convention on the Rights of the Child under a law of 25 November 1991 and passing of a law providing that children capable of discernment should be entitled to be heard in proceedings show parliament's desire to make it compulsory that a child's interests be taken into account in judicial proceedings affecting him or her, if appropriate by seeking the child's own opinion, where he or she is capable of expressing it with discernment, and, at all events, by requiring the judge to pay special heed to them.There may be instances where establishing a child's paternity under a judicial procedure harms the child's interests. Although, as a general rule, it can be deemed to be in the child's interest to have his or her descent from both parents established, there can be no indisputable presumption that this is always the case.Lack of a procedure enabling the courts to take into consideration the consent of a minor under the age of fifteen, given either in person if he or she is capable of discernment or through the child's representation by the persons responsible for him or her, breaches the constitutional principle of equality and non-discrimination ( Articles 10 and 11 of the Constitution).

Noise caused by aircraft may infringe the right to respect for private and family life (Article 22 of the Constitution and Article 8 ECHR) of residents living near an airport.In performing their functions, regions (entities of the federal state) must guarantee respect for private life notwithstanding the federal parliament's powers under Article 22.1 of the Constitution to lay down, in general, how and in what cases that basic right may be restricted.None of the reports by various specialists had found that residents living alongside an airport could occupy their homes without excessive interference with their private lives when subjected to noise of between 65 and 70 dB (A). Those residents therefore could not be treated differently from residents of an area in which 70 dB (A) was exceeded.

The Court, in principle, is not competent to express a view on the composition or functioning of Parliament.The federal parliament, by special majority, may, without altering the Constitution, transfer powers to the regions in relation to subordinate authorities.Neither a difference in treatment as between municipalities nor identical treatment of municipalities with regard to arrangements for such transfer of powers, depending on the language position in the particular municipality, is contrary to the constitutional principle of equality and non-discrimination ( Articles 10 and 11 of the Constitution).Allowing parties to join their lists so as to pool their remaining votes for allocation of seats in elections is not discriminatory.In the bilingual Brussels-Capital Region a ratio is permissible for election of members to the region council (72 French-speakers to 17 Dutch-speakers). This interference with the principle of proportional representation is not disproportionate in terms of the aim pursued, which is to enable representatives of the smaller language group to perform their work, thus preserving normal democratic functioning of the institutional machinery.Members of a representative body must, as a rule, be elected by the citizens affected by that body's decisions. Attempting to prevent a "non-democratic" party's causing institutional paralysis is not adequate justification for bringing in, contrary to the aforementioned principle, a number of non-elected candidates on the basis of election results in another constituency.

With regard to bankrupt persons convicted of certain offences, it is clearly disproportionate and, consequently, contrary to the constitutional principles of equality and non-discrimination ( Articles 10 and 11 of the Constitution), to automatically rule out, for an indefinite period of time and without any possibility of judicial review, any discharge measure which would, by cancelling their debts, have enabled them to resume their activities.

If the principle of freedom of education (Article 24.1 of the Constitution) is to be put into practice, education authorities which are not directly answerable to the Community (the federated entity responsible for educational affairs) must be entitled, under certain conditions, to apply to the Community for subsidies. The right to subsidies is restricted both by the fact that the Community may make subsidies subject to public interest requirements, for example the need for a high standard of education and to observe the rules governing pupil numbers, and by the need for balanced allocation of available financial resources to the Community's different tasks.Freedom of education therefore has limits, and it is possible for the authority responsible for issuing decrees to impose conditions with regard to funding and subsidies which restrict this freedom. Such measures cannot in themselves be considered a violation of the principle of freedom of education, though this would be the case if the specific limits placed on freedom of education were inappropriate or disproportionate to the objectives pursued.There is no disproportionate infringement of schools' freedom to dispense education if existing measures give these institutions substantial freedom in applying the rules laid down by the relevant Community body on grounds of public interest.