Judgments

The constitutional and international legal rules (European Convention on Human Rights and International Covenant on Civil and Political Rights) guaranteeing access to equitable justice without discrimination are not violated by the Belgian legislation introducing, for the first time in Belgium, the principle of the recoverability of lawyer's fees permitting the winning party to obtain a lump-sum contribution to expenses from the losing party.It is not discriminatory to extend such a system to criminal cases, confining it to relations between the accused and the party claiming damages.

The right to respect for one's home has a civil-law nature within the meaning of Article 6.1 ECHR. Given that the exercise of the right to enter inhabited premises constitutes interference with this right, disputes regarding the latter must be dealt with in accordance with the guarantees laid down in this provision.The guarantees set out in Article 6.1 ECHR include respect for the principle of adversarial proceedings. This principle generally involves the right of litigants to take cognisance of and discuss all items of evidence or observations produced in court.However, the rights of the defence must be weighed against the interests covered by Article 8 ECHR. For instance, exceptional situations may arise in which specific items in the case-file should be exempt from the adversarial principle.

Parents' freedom of choice in respect of education implies not only that they are free to choose an educational establishment, but also that they may change this choice.When a parent asserts that he or she can no longer agree with an establishment's educational project for reasons of religious or philosophical belief, Articles 19 and 20 of the Constitution, in conjunction with Article 24.1 of the Constitution, with Article 9 ECHR and with Article 18 of the International Covenant on Civil and Political Rights, require that he or she may, in principle, change his or her choice of school.

In the social housing field, regional Flemish law may prescribe, as a condition, that tenants must be willing to learn Dutch to a minimum level. It must in this respect take account of the safeguards from which French speakers benefit in a number of municipalities on the language border and around the Brussels-Capital Region (the municipalities defined as being on the periphery and on the language border), where, on the basis of the legislation on the use of languages in administrative matters, public authorities - such as the companies which rent out social housing - have in certain cases to use French in their dealings with French speakers who so request.The possibility for the social housing lessor to terminate a lease at any time in the event of a serious or persistent failure by the social tenant, without prior judicial supervision in pursuance of a cancellation clause (clause résolutoire) in the lease providing for termination in specified circumstances, is not reasonably justified in relation to the right to decent accommodation guaranteed by Article 23 of the Constitution.

The law does not violate the Constitution by restricting the right to family reunification of spouses united by a form of conjugal union (polygamy) which is contrary not only to Belgian international public policy, but also to the international public policy of the other European Union member states, as is clear from Council Directive no. 2003/86/EC of 22 September 2003 on the right to family reunification.On the other hand, it is contrary to the constitutional principle of equality and non-discrimination ( Articles 10 and 11 of the Constitution) also to exclude from family reunification with a parent resident in Belgium all the children who are the issue of polygamous unions, since the children concerned are in no manner responsible for their parents' conjugal situation, and since the family reunification, where they are concerned, is not an effect of their parents' marriage, but an effect of the relationship by descent which links them to their parent settled or authorised to reside in Belgium.

No constitutional provision secures the right to obtain Belgian nationality. However, it is inimical to Article 22 of the Constitution, read in conjunction with Article 8 ECHR, for anyone to be arbitrarily deprived of Belgian nationality where this decision interferes with their private and family life.

If a change of policy is deemed imperative, the federal legislator may decide to give it immediate effect and in principle is not required to make transitional provisions. But the legislator may not interfere unduly with the principle of legitimate trust. There is such interference when the rightful expectations of a category of persons amenable to justice are frustrated without a compelling ground of public interest being capable of justifying the want of transitional provisions. That is the position in the instant case, because of a measure limiting to at least 65 years the age of eligibility for the lifetime retirement pension as from 1 January 2007, even for persons affiliated to optional old age insurance before 1 January 2007 and having contributed to the insurance for 20 years, whom the former law permitted to draw a retirement pension at 55 years of age.

In pursuance of first sentence of Article 24.3.1 of the Constitution and Articles 2.1 and 13.2.c of the International Covenant on Economic, Social and Cultural Rights, equality of access to higher education must be progressively introduced, with account being taken of the economic possibilities and the public finance situation specific to each of the Contracting States. Article 13.2.c of the Covenant does not give rise to a right of free access to higher education. It nevertheless prevents Belgium, subsequent to the entry into force of the Covenant in respect of Belgium (21 July 1983), from taking measures which would run counter to the objective of completely equal access to higher education, which has to be achieved, inter alia, through the progressive introduction of free access.

The Constitutional Court has no jurisdiction to determine compliance with the "minimum rules for the administration of juvenile justice", set out in United Nations General Assembly Resolution 40/33 of 29 November 1985, because these rules are not embodied in a normative instrument with binding force.It is inadmissible in the light of Article 6 ECHR for the presumption of innocence to be renounced except by free (i.e. unconstrained) consent.The legislator has aptly considered it expedient that in order to protect the privacy of minors and their families, decisions and judgments delivered in open court be notified as a matter of course only to the parties directly concerned by the protective measures, and not to the civil parties whose interest in the case is of a different kind. Such a measure does not disproportionately interfere with the right of the latter to publicity of judicial decisions, as they can obtain a copy of the decisions from the registry of the court concerned.

Compulsory parenting courses are likely to be a means enabling the youth court to call to order parents who have manifested a clear disinterest in their child. However, they present all the characteristics of a supportive, and not a criminal measure.The principle of lawfulness in criminal matters (Article 12 of the Constitution) does not prevent the law from assigning discretion to the Court. Account must in fact be taken of the general nature of legislation, of the diversity of the situations to which it applies and of changes in the behaviour that it exists to punish.Not having included provisions guaranteeing that a juvenile will be judged by a court comprising judges selected for their training or acknowledged experience in the field of the law as it relates to young people, the legislature deals differently with juveniles in respect of whom jurisdiction has been relinquished, according to whether they are suspected of having committed an offence or crime which may be reduced to a misdemeanour, or a crime which may not be reduced to a misdemeanour. While this difference in treatment is based on an objective criterion, insofar as the offences in the second category are more serious than those in the first, this criterion cannot, where juveniles are concerned, justify this different treatment.

The Constitutional Court asked the Court of Justice of the European Communities whether the Treaty establishing the European Community prevented an autonomous community of a member State, responsible for higher education and facing an influx of students from a neighbouring member State into several training courses in the medical field which were mainly publicly funded, from taking measures restricting the enrolment of "non-resident" applicants, when the said community relied on valid reasons for stating that this situation might well impose an excessive burden on public finances and jeopardise the quality of the education provided.

In the cases, and in the circumstances, in which lawyers are subject to the legislative measures taken in the context of the fight against money laundering and the financing of terrorism, and are required to report their clients' laundering activities to the responsible authority, they must nevertheless be exempted from this requirement in respect of information obtained when defending or representing in court clients who are making use of their services as legal advisers, even outside the context of judicial proceedings.