Judgments

Refugees and stateless persons have in common the fact of being granted a status on the basis of international conventions geared to protecting them in Belgian territory, which means that their situations are comparable.Where stateless persons are found to have been granted this status because they have involuntarily lost their nationality and they can prove their inability to obtain a legal long-term residence permit in any other State with which they have links, their situation may be open to discrimination and therefore liable to infringe their fundamental rights.Consequently, there is no reasonable justification for differentiated treatment in terms of residence rights between a stateless person who is in such a situation in Belgian territory and a recognised refugee.

The legislative provision allowing a political party to be temporarily deprived of part or all of the public subsidy to which it would normally be entitled on the grounds of its manifest hostility to the rights and freedoms secured by the European Convention on Human Rights and its additional protocols in force in Belgium is not contrary to the Constitution.

Parliament may establish conditions for and forms of oversight of private home schooling without infringing the freedom of instruction inherent in the freedom of education provided for in Article 24.1 of the Constitution, so long as these measures do not go beyond what is necessary to achieve objectives of general interest, namely to maintain certain general educational standards.

The Court will dismiss challenges to judges if the applicants are unable to adduce concrete evidence that the subjective impartiality of the judges whose withdrawal they are requesting is likely to be compromised. In this case, the applicants failed to show that the judges in question had openly adopted positions at any time and in a way that demonstrated an unlawful negative attitude to one of the parties to the case, which concerned questions of constitutionality referred to the Court.The applicants' allegations concerning publications, would-be political sympathies and past or present affiliation to research centres or associations and the management committee of a nature park were not enough to objectively justify the applicants' concerns about the ability of the president and judges of the Court to carry out an impartial review of the constitutionality of the legislation in question.

Under Article 5.1 ECHR mentally ill persons can only be deprived of their liberty if this takes place in establishments that are suited to their particular needs. The balance between the interests of the authorities and those of the individual concerned is upset if that individual is detained indefinitely in an establishment that the competent court has ruled to be unsuitable for securing that individual's rehabilitation.

Where the legislator considers that certain failures to fulfil the statutory obligations should be punished, it is within its discretionary power to decide which are more appropriate: criminal penalties sensu stricto or administrative penalties.It follows from Article 6 ECHR and from the guarantees deriving from the general principles of criminal law, which likewise apply to administrative fines that are predominantly punitive in nature, that the basic principle that penalties must be specific to the offender in person and the principle of the presumption of innocence should be respected.

Although freedom of education includes the freedom for parents to choose the type of education, and in particular the freedom for parents to home school, or to have their children educated in an institution that is neither organised nor subsidised, nor recognised by the public authorities, this parental freedom of choice must nevertheless be interpreted with due regard firstly to the best interests of the child and his or her fundamental right to education and, secondly, to the need to ensure school attendance.In the context of education, the freedom of expression guaranteed in Article 19 of the Constitution is an aspect of active freedom of education, understood as the freedom to provide education according to one's own ideological, philosophical and/or religious convictions.Like active freedom of education, however, this freedom of expression in education is not absolute, as it has to be balanced against children's right to education, and the need to foster in children the values of pluralism and tolerance that are essential for democracy.

The Constitutional Court asked the European Court of Justice to consider a preliminary question as to whether a provision in a directive of the Council of the European Communities which, exceptionally, allowed consideration to be given to gender when setting insurance premiums, was compatible with the principle of equality and non-discrimination guaranteed in Article 6.2 of the Treaty on European Union.

Given that the Belgian statutory pension scheme makes no provision for a pension to be paid in full to several beneficiaries, it is not disproportionate that, even when it comes to dealing with the effects of polygamous arrangements with respect to survivor's pension, there should be no provision that would allow a full survivor's pension to be paid to each surviving spouse.

The provisions of the Civil Code applicable to registered cohabitants institute a limited pecuniary protection partly inspired by the provisions applicable to spouses. This protection does not imply that the legislator is compelled to treat registered cohabitants as spouses in respect of survivors' pensions.However, a provision denying spouses the benefit of survivors' pension on the ground that they have not been married for a whole year discriminates against those spouses where the marriage has been preceded by registered cohabitation and the combined duration of this cohabitation and of marriage is at least one year.

In assenting to the Treaty of Lisbon amending the Treaty on European Union and the Treaty instituting the European Community, the Flemish Community legislator has neither infringed the constitutional provisions whose observance the Court may verify, nor the rules apportioning powers between Belgium's Federal State and federate entities.

Where administrative fines are of a criminal law nature within the meaning of Article 6 ECHR, the Court's review should take account of the guarantees embodied in this provision, in particular the guarantee of an independent and impartial tribunal's full jurisdiction in reviewing the imposition of a fine by the competent administrative authority.Where the legislator considers that certain breaches of legislative provisions should be punished, it is within the legislator's discretion to decide whether it is expedient to opt for criminal sanctions in the strict sense, or for administrative sanctions.Assessing the gravity of an infringement and the severity with which it can be punished is also a matter of the legislator's discretion.

In enforcing European directives, the legislator may prescribe civil and criminal law measures to combat discrimination between private individuals on a series of "grounds protected by statute", i.e. expressly stipulated criteria for which prohibition of discrimination is the strict principle (known as the "closed" system of grounds of discrimination)."Measures of affirmative action" (positive discrimination or corrective inequality) may be taken by the legislator under specific circumstances.The impugned criminal justice measures contain definitions and criteria whose precision, clarity and legal certainty suffice to comply with the principle that offences and punishments must be strictly defined by law ( Articles 12 and 14 of the Constitution), subject to certain concordant interpretations.Outlawing "incitement to discrimination" and "incitement to hatred" towards a person constitutes interference with freedom of expression, but in the case in point this interference can be deemed necessary in a democratic society within the meaning of Article 10.2 ECHR and does not disproportionately infringe the freedom of expression, nor the freedom of thought, conscience and religion, secured by Article 9 ECHR, nor freedom of association (Article 27 of the Constitution), freedom to petition (Article 28 of the Constitution) and the right of the cultural and social fulfilment ( Articles 23.3 and 23.5 of the Constitution).In non-criminal proceedings and in certain circumstances, reversing the burden of proof to place it on the defendant charged with discriminatory conduct according to sufficiently serious and cogent facts which seem to indicate that the unfavourable treatment was prompted by unlawful motives, does not mean that the legislator has disregarded either the balance between the parties to the proceedings, or the right of all parties to a fair trial, or the presumption of innocence.