Judgments

The ne bis in idem principle forbids a person s prosecution or trial for a second offence in so far as this originates in identical acts or acts which are the same in substance.

Article 5.1 ECHR does not deny states the «incontestable right» of sovereign control over the entry and residence of foreigners on their territory. The state has the right to deprive persons against whom expulsion proceedings are under way, if it considers this necessary on reasonable grounds. Deprivation of liberty can be effected «under procedures prescribed by law» only in so far as it is compatible with the «general principle of legal certainty», that is it stems from the predictable application of a sufficiently accessible and precise law clearly defining the conditions of deprivation of liberty, to avert any risk of arbitrariness and enable any individual, assisted by informed advice as required, to have reasonable foresight, according to the circumstances, of the possible consequences of an act.The propriety of detention depends, inter alia, on there being a link between the reason for it and the place and conditions thereof. There is no such link where an underage foreign child, whether or not accompanied by a parent, is detained in a closed centre designed for illegally resident foreign adults under the same conditions as those applying to the detention of an adult. Regard should also be had to the fact that the term of detention cannot exceed the reasonable time necessary for attaining the objective pursued.

It is not contrary to the Constitution and to several fundamental treaty-based rights to make general provision, without specifically targeting sects, for criminal sanctions against persons who fraudulently abuse a person s state of physical or psychological weakness to drive him or her to an act or omission seriously prejudicing his or her bodily or mental integrity or property.

Court action, interest / Application for setting aside, admissibility, interest / Court proceedings, collective action, rights and freedoms, protection / Law, absence of provision, unconstitutionality / Legislative omission.

By using concepts such as «vulnerable person», «physical or mental disability or deficiency», «minors» and «indications of a real and serious danger», the legislature which allows those bound by a professional duty of confidentiality to depart from the duty of confidentiality of which breaches are a criminal offence in order to inform the prosecution service of specific sexual offences committed against minors or vulnerable persons does not infringe the principle of legality in criminal matters.Where the lawyer s duty of confidentiality is concerned, account needs to be taken of the lawyer s particular role in the context of the administration of justice, which makes the situation of lawyers different from that of other persons who are bound by a professional duty of confidentiality in respect of information conveyed by their clients and likely to incriminate those clients. To this extent the legislature has disproportionately infringed the procedural guarantees afforded by Article 6 ECHR.

Although the case-law of the European Court of Human Rights shows that Article 8 ECHR does not guarantee a foreigner s right to live on the territory of a specific country, and although States are entitled, without prejudice to their commitments derived from treaties, to control the admission of non-nationals to their territory, the Constitutional Court considers that the impossibility, for a person living in Belgium, of living with the members of his or her family may constitute interference in the right to respect for family life (Article 22 of the Constitution and Article 8 ECHR). In order to comply with those provisions, such interference in this case restriction of the right to family reunification must be provided for by aprovision of law which is sufficiently precise, meets a pressing social need and is proportionate to the legitimate aim pursued.In the case concerned, the legislature had proper reasons for introducing a difference in treatment, making, in respect of certain points (such as the condition of a minimum age of 21), the conditions for the reunification of members of the families of Belgians who have not availed themselves of their right to freedom of movement on the territory of the European Union, whose situation is governed solely by domestic law, more stringent than the conditions for the reunification of members of the families of citizens of the European Union living in Belgium, which were imposed in implementation of the relevant European directives.

Asylum, request / Asylum, seeker / Asylum, safe countries of origin.

Lack of effective legal protection of unaccompanied foreign minors from a member state of the European Economic Area, if they are in a vulnerable situation, violates the principle of equality and non-discrimination ( Articles 10 and 11 of the Constitution) read jointly or severally in conjunction with Article 22bis of the Constitution, Article 14 ECHR and Article 2 of the Convention on the Rights of the Child. This discrimination originates in lack of legislative provisions.The authority hearing an unaccompanied foreign minor must take account of the child’s age and discernment together with his or her desire whether or not to be heard.A law with the aim of clarifying and enshrining in the law the status of unaccompanied foreign minors, prescribing an effort to find a lasting solution suited to the situation of each minor, and safeguarding the minor from a measure of removal for as long as a lasting solution is not found, is placed in the continuum of Article 22bis of the Constitution, Articles 3 and 10 of the Convention on the Rights of the Child and Article 5 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008.

Owing to the differences between adoption as provided for under Belgian civil law and the institution of kafalah as provided for under Moroccan law, Parliament is not obliged to award to persons in whose care a child is placed under the kafalah system the grant which it established for parents who adopt a child under the provisions of the Civil Code.Furthermore, the refusal of an adoption grant when a child is placed in a person’s care under kafalah does not have disproportionate consequences for the child because, as a member of the household of the adults caring for him or her under kafalah, the child is entitled to family allowances.

It is not inconsistent with the principle of equality and non-discrimination ( Articles 10 and 11 of the Constitution) to make provision, in the Road Traffic Act, for a right to a second expert opinion in the form of a blood test only in the case of driving under the influence of an alcohol level of at least 0.35 milligrams per litre of exhaled breath and not in the less severely punished case of an alcohol level of at least 0.22 milligrams.

Neither the principle of equality nor that of freedom of education prevents the legislature from limiting eligibility for enrolment in an adult education centre, which is subsidised for this purpose, to Belgian nationals and persons residing lawfully in Belgium, excluding persons residing unlawfully in the country.

The legislature, when devising legal regulations in the field of lawful descent, must allow the competent authorities to weigh up the interests of the different individuals concerned in actual cases, otherwise it risks adopting a measure disproportionate to the legitimate aims pursued.When weighing up these interests, those of the child take on special importance. Both Article 22bis.4 of the Constitution and Article 3.1 of the Convention on the Rights of the Child require the courts to attach overriding importance to the interests of the child in all actions concerning them, and this includes procedures for establishing lawful descent.Despite the overriding nature of the interests of the child, they are not absolute.

The principles of the legality and foreseeability of criminal proceedings set out in Article 12.2 of the Constitution are applicable to the whole procedure, including the fact-finding and investigatory phases.The required foreseeability of criminal proceedings ensures that citizens can only be the subjects of a search, investigation or prosecution under a procedure established by law, of which they must be able to be apprised before its implementation.Deprivation of liberty is liable to increase the vulnerability of the person under examination. The deprivation of liberty criterion on which the legislature based the differential treatment challenged vis-à-vis the right to assistance from a lawyer during the questioning is relevant to the legitimate goal of protecting more vulnerable persons.Owing to specific safeguards laid down in the Law on preventive custody, the situation of a defendant placed in preventive custody may be considered less vulnerable than that of a suspect who is questioned throughout the 24-hour period of deprivation of liberty preceding the possible issue of an arrest warrant.The vulnerability of persons suspected of having committed an offence and their correlative need for assistance by a lawyer in order to ensure respect for their fundamental rights increase with the gravity of the facts on which they are being questioned, as well as with the severity of the penalty incurred. This means that it is not unreasonable to establish a certain gradation in granting the right of access to a lawyer depending on the gravity of the offences attributable to the person under examination and the severity of the sentence.

The right to respect for private life, which also applies to data on tax-payers held by banks and other financial establishments, is not disproportionately infringed by entitling the tax administration to demand such data from the said financial institutions in specified cases, subject to compliance with a number of procedural rules.It is not contrary to the principle of equality and non-discrimination to make the possibility of conducting a transaction between the public prosecutor's office and a tax-payer suspected of a tax offence subject to the agreement of the tax administration.