Judgments

The Court may only criticise a case of identical treatment where both categories of individuals finding themselves in situations which are fundamentally different in the light of the measure under consideration have been treated identically for no apparent justifiable reason.It is for legislation to determine the nature and conditions of marriage. However, such legislation must comply with the constitutional principle of equality and non-discrimination.Given that the legislator now regards marriage as an institution having the main aim of creating a lasting conjugal life between two individuals, the effects of which are governed by law, the difference between persons wishing to form a conjugal life with a person of the opposite sex and those wishing to form such a life with a person of the same sex is not such as to preclude the possibility of marriage for the latter.

The Law stipulating that no police reports should be drawn up in cases of possession by a person of full age of a given quantity of cannabis for personal use, where such possession does not involve a public nuisance or problem use of the drug, comprises a number of concepts which are so vague and imprecise that it is impossible to ascertain their exact scope, so that this text does not comply with the requirements of the principle of mandatory prosecution in criminal cases.

In cases where legislation has expressly opted for an (open) system of protection against discrimination among individuals (horizontal effect), it is inadmissible to exclude certain grounds of discrimination (political opinions or language, in the instant case) from the scope of the law.The principle that offences and punishments must be strictly defined by law (nullum crimen, nulla poena sine lege) is not infringed by the use of the word "discrimination" in the definition of an offence if a judge can verify that the conditions listed by the Court have been fulfilled.Freedom of expression is one of the main foundations of a democratic society. Open incitement to discrimination may be punished, but not the fact of publicising one's intention to resort to discrimination, hatred or violence, because such a prohibition would stifle debate. The general ban on publishing discriminatory statements infringes freedom of expression.So-called "positive" discrimination and corrective inequality of treatment are acceptable under certain conditions, compliance with which must be verified by the courts.

The review of the Court of Arbitration is more stringent where the fundamental principle of equality of birth is at issue. Children cannot be disadvantaged by the fact that their parents have chosen not to marry.

Since the legislative amendment of 9 March 2003, the Court of Arbitration has been competent to review the constitutionality of laws directly with reference to all provisions of Title II of the Constitution, including Articles 12 and 14 embodying the principle of "nulla poena, nullum crimen sine lege". It is also competent to take into account those provisions of international law which secure analogous rights or freedoms (Article 7 ECHR and Article 15 of the International Covenant on Civil and Political Rights).Notwithstanding the principle that there can be no penalty or offence except as provided by law, the law may assign a degree of discretion to the court, and criminal law may show some flexibility to allow for change in the circumstances. The specific requirements of precision, clarity and predictability must nevertheless be fulfilled.No circumstance can justify a legislative provision that would impinge on final judicial decisions.

Ceasing to produce a printed version of the Moniteur belge (Official Gazette), and publishing it on a website instead, constitutes disproportionate interference with a right inherent in a law-governed state, since it deprives certain persons of effective access to official texts, unless related measures, enabling them to consult it, are taken.

The constitutional principle of equality and non-discrimination ( Articles 10 and 11 of the Constitution), possibly taken in conjunction with Article 191 of the Constitution, Article 14 ECHR and Article 1 Protocol 1 ECHR, is not violated if certain foreigners are refused disability allowances, provided that they are entitled to social assistance if they require it.

The civil-law right of habitation is enjoyed by the holder of the right and his or her family; there can be no distinction according to whether the family already existed before or has only come into existence since the right was established. The holder of the right may therefore, according to his or her needs, establish his or her family life in the property to which the right relates. There are no valid grounds for allowing the spouse of the holder of the right to live in the property and to deny that possibility to the unmarried partner with whom the holder cohabits.

The aim of preventing congestion in the courts does not justify certain categories of subjects being deprived of judicial protection of the statutory rights conferred on them.Where a measure has the effect that grandparents are prevented from exercising their right to have personal relationships with their grandchild, they must be able to challenge that decision before the Youth Court, which will decide, on the basis of the situation of the child and of the measures that must be taken in regard to him or her, whether, taking the child's interests into account, there are grounds for limiting or suspending the grandparents' right to personal relationships with the child.

Since the legislative amendment of 9 March 2003, the Court no longer has jurisdiction to give a preliminary ruling on the constitutionality of the laws, decrees and orders assenting to treaties establishing the European Union, to the European Convention on Human Rights and to the protocols thereto. That unequivocal intention of the special legislature removes from the Court all jurisdiction to answer the preliminary question, even though the question was referred to the Court before the entry into force of the Special Law of 9 March 2003.