Judgments

On account of its absolute nature, the legislation banning marriage between all ascendants and descendants and relatives by marriage in the same line has disproportionate effects in that it imposes an absolute bar on marriage between a parent-in-law and a child-in-law after the death of the spouse who created the relationship by marriage. It accordingly breaches the constitutional principle of equality and non-discrimination ( Articles 10 and 11 of the Constitution).

With regard to the protection of the environment, Article 23 of the Constitution contains a "standstill obligation". It prevents the legislator from significantly reducing the level of protection afforded by applicable law, if there are no public interest grounds for doing so.

The conditions governing the right to stand for election must reflect a concern to maintain the integrity and effectiveness of an electoral procedure intended to establish the will of the people via universal suffrage.Eligibility is a fundamental right intended to enable individuals to stand as a candidate for an elected office representing the people. It follows that this right may be governed by stricter requirements than those governing the right to vote, especially where such requirements are intended to guarantee that the electorate's vote has a useful effect.

Article 16.2 of the Convention of 28 July 1951 relating to the status of refugees has direct effects in the Belgian legal system: it is sufficiently precise and complete to be applied without any further implementing measure. Being directly applicable, it acted as a barrier to relinquishment of jurisdiction, by Belgian courts, over complaints lodged by individuals recognised as refugees at the time when proceedings were initiated, giving them the same treatment as individuals holding Belgian nationality at that time.By organising the relinquishment of jurisdiction by Belgian courts over complaints lodged on the basis of the Law of 18 June 1993 by individuals recognised as refugees in Belgium at the time when criminal proceedings were initiated, whereas complaints lodged by individuals holding Belgian nationality at that time could not be removed from the jurisdiction of courts, the legislator violated Articles 10, 11 and 191 of the Constitution, together with Article 16.2 of the Convention of 28 July 1951 relating to the status of refugees.The setting aside of the provision by the Court does not give rise to any incrimination and exerts no coercive pressure, its aim being solely to determine the jurisdiction of Belgian courts. The setting aside of the provision does not have the effect of giving rise to a new incrimination or establishing a penalty, nor does it restore incrimination or a penalty previously repealed. The effect of the setting aside concerns only the jurisdiction of Belgian courts, and its effect is to restore a jurisdictional rule which had been adopted by an elected deliberative assembly before the acts challenged were committed.

Anyone working as a journalist is entitled to keep his or her sources of information secret. Confining protection of the confidentiality of sources to persons who regularly work as journalists and who carry on the occupation in a self-employed capacity or as paid employees violates freedom of expression and freedom of the press, as guaranteed in the Constitution and conventions.The Court, which has no jurisdiction to perform a direct review of statute law's compliance with the terms of a convention, can nonetheless take into consideration provisions of international law guaranteeing rights and freedoms similar in scope to the constitutional provisions effectively coming within its powers of review.It is not discriminatory nor does it breach the right to respect for private and family life that the legislator has provided that the courts can waive confidentiality of sources where this makes it possible to prevent the commission of offences involving a serious threat of physical harm to one or more individuals, but they are not authorised to do so where individuals' reputation, good name and/or privacy could be jeopardised.Allowing the courts to waive confidentiality of journalists' sources solely if there is a serious threat of physical harm to individuals, but not where an offence has already taken place, does not infringe the right to life.

The principle that criminal offences and the corresponding punishments must be strictly defined by law (nullum crimen, nulla poena sine lege) derives from the idea that criminal law must be framed in terms enabling everyone to know, upon adopting a form of conduct, whether it is punishable. The requirement that an offence must be clearly defined by law is met where it is possible for people to infer from the wording of the relevant provision, if necessary based on its interpretation by the courts, which acts or omissions render them criminally liable.Choosing a scale of penalties is a matter for legislative discretion but the constitutional principle of equality and non-discrimination ( Articles 10 and 11 of the Constitution) may be breached where the choice made by parliament entails an inconsistency resulting in a clearly unreasonable difference in treatment between comparable offences.

In Belgium, any party to proceedings must defray its own counsel's fees and expenses. In the opinion of the Court of Arbitration, it may be appropriate to amend this rule to the advantage of parties who have suffered a contractual or non-contractual tort (new Court of Cassation precedent), but the issue exceeds the scope of civil liability and bears on the actual principle of the rights of the defence and equality of arms. The party who must defend the suit may also need a lawyer. A respondent (at civil law) or defendant (in criminal proceedings where damages are claimed) who win the liability suit against them undergo discrimination in that counsel's fees and expenses needing to be paid for their defence cannot be charged to the claimant (at civil law) or complainant (in criminal proceedings) who loses the case. However, this difference in treatment does not stem from the provisions of the Civil Code mentioned in the preliminary questions, but is due to the lack of provisions enabling the court to charge the lawyer's fees and expenses to the unsuccessful party. It rests with the legislator to determine how and to what extent the recoverability of lawyer's fees and expenses is to be regulated, it being understood that the legislator may be guided by the regulation of the recoverability of lawyer's expenses particularly in the Netherlands, France and Germany, and by Council of Europe Committee of Ministers' Recommendation no. R(81)7 on measures facilitating access to justice.

When the Constitutional Court, in answering a preliminary question (effect inter partes, ex nunc) has found a statutory provision unconstitutional, the organic law on the Court of Arbitration provides that an action can be brought by persons who have an interest, and by certain authorities, for the annulment of the provision in question (with erga omnes effect, ex tunc).When the Constitutional Court, in answering a preliminary question, has found a statutory provision as construed by the judge a quo to be unconstitutional, but when there is another interpretation in keeping with the Constitution, this interpretation is binding on all courts. Having regard to this interpretation of the provision, the application to have it annulled is dismissed.

Article 25 of the Constitution provides that the press shall be free and that censorship may never be introduced. In providing that, where the author is known and resident in Belgium, neither the editor, nor the printer nor the distributor may be prosecuted, the second paragraph establishes the principle of "responsabilité en cascade" (liability chain), which is a key element in the constitutional protection of freedom of the press.Since the legislator cannot be presumed to have intended to violate Article 25.2 of the Constitution, Article 18 of the Law of 3 July 1978 on contracts of employment, which limits workers' civil liability, has to be interpreted as not applying to journalists who exercise their profession under a contract of employment.The Court does not have jurisdiction to rule on a difference of treatment resulting from a choice by the drafters of the Constitution.

The European Union member states form a community which has a specific legal order and which has established a citizenship of its own characterised by a number of rights and obligations. A difference of treatment founded on membership of this community, whereby nationals of a member state of the community are given advantages on the basis of reciprocity, is based on an objective criterion.In requiring a non-EU foreigner whose visa has expired and who has married a non-EU national holding a residence permit in Belgium to return to his or her country of origin to request the required authorisation, the provisions in question do not interfere disproportionately with that foreigner's right to respect for family life and do not constitute interference that cannot be justified on the general interest grounds set out in Article 8.2 ECHR.As regards the application of the provisions in question, it is not for the Court, but, where appropriate, for the competent judge, if necessary sitting in chambers, to assess whether or not a negative decision is contrary to the legal provisions or whether the unreasonably long absence of an authorisation decision would constitute unjustified interference with family life.

The Constitution guarantees to women and men the equal exercise of their rights and freedoms, and promotes in particular their equal access to elective and public office (Article 11bis of the Constitution).No legislative provision empowers the Court of Arbitration to rule on an application for annulment which would lead to judgment being passed on an obligation imposed by the drafters of the Constitution.