Judgments

It is unjustifiable and contrary to the constitutional principle of equality and non-discrimination ( Articles 10 and 11 of the Constitution) for a person who, after being sentenced to at least one year’s imprisonment, is convicted of attempted murder less than five years after serving his/her sentence or after the time-limit for enforcement of the sentence expired, to be treated differently, as regards the possibility of parole, depending on whether he/she is committed for trial before the Assize Court and convicted of a serious crime or whether, the offence having been downgraded owing to mitigating circumstances or a ground of excuse, he/she is convicted of a lesser offence by the tribunal correctionnel (Criminal Court for less serious offences) or the Court of Appeal.

Discouraging travel by car between home and work in the Brussels-Capital Region by restricting parking spaces for office buildings in order to preserve the environment is not inconsistent with the right to property (Article 16 of the Constitution and Article 1 Protocol 1 ECHR).

The Constitutional Court referred several preliminary questions to the Court of Justice of the European Union in the interests of establishing whether Council Directive 2006/112/EC of 28 November 2006 relating to the common system of value added tax, which makes the provision of lawyers’ services subject to VAT, without considering, in connection with the right to assistance of counsel and the principle of equality of arms, whether litigants not entitled to legal aid are subject to VAT or not, is compatible with Article 47 of the Charter of Fundamental Rights of the European Union. The Court also considered whether it was consistent with Article 14 of the International Covenant on Civil and Political Rights and Article 6 ECHR, in that this article guarantees everyone the right to a fair hearing, the right to counsel, to a defence and to representation, and the right to legal aid for those lacking sufficient means if such aid is necessary to ensure effective access to justice.The Court raised further issues relating to both the validity of the directive and its interpretation.

By establishing de facto enjoyment of status as an absolute bar to the admissibility of proceedings to contest recognition of paternity, the legislature gave precedence in all cases to the social and emotional reality of fatherhood over the biological reality. Given this absolute bar to admissibility, the man who acknowledged the child is completely deprived of any possibility of contesting his own recognition of paternity. It is therefore impossible for the Court to take account of the interests of all the parties concerned. Such a measure is not proportional to the legitimate aims pursued by the legislature. The impugned provision is therefore incompatible with Article 22 of the Constitution taken together with Article 8 ECHR.A legislative provision that does not establish an absolute bar to the admissibility of proceedings to contest the recognition of paternity, but sets a time limit to initiate proceedings to contest paternity, may be justified by a desire to safeguard legal certainty and maintain the permanence of family relationships.Unlike the establishment of a legal parent-child relationship in the case of a child born in wedlock, which results from the presumption of paternity of the husband, recognition implies an explicit expression of will on the part of the man acknowledging a child. Although this recognition creates a legal parent-child relationship, a man may acknowledge a child while knowing that there is no biological relationship between them.In principle, a condition of admissibility precludes the Court from considering the merits of the case and balancing the interests. Article 330 of the Civil Code does not, however, prevent a man who acknowledged a child because he was convinced at the time that he was the biological father from contesting that recognition if it subsequently emerges that he is not the biological father. In such a case, it has to be accepted that his consent to recognition was vitiated.

Subject to the condition that it may not take any manifestly unreasonable measure, or have the effect of depriving one category of persons of the right to a fair hearing before an impartial and independent tribunal, as guaranteed by Article 6.1 ECHR, it is for the legislature to determine whether it is desirable to compel courts to show severity when an offence is particularly detrimental to the general interest. This severity may, among other things, affect suspended sentences.It is discriminatory that the labour court should be unable to give a suspended sentence when imposing a penalty for an offence of a criminal nature, when the defendant can be given a suspended sentence for the same offence in proceedings before a criminal court. However, the fact that the labour court is unable to give a suspended sentence does not violate the principle of equality and non-discrimination ( Articles 10 and 11 of the Constitution).

Article 1382 of the Civil Code violates Articles 10 and 11 of the Constitution if it is interpreted as precluding the State from incurring liability for a fault committed, in the exercise of the judicial function, by a court ruling at last instance until the decision has been withdrawn or set aside, even though the fault is a patent violation of the applicable legal rules but, because of the limited remedies available, does not constitute a basis for annulling the decision.

It is not contrary to the principle of equality and non-discrimination ( Articles 10 and 11 of the Constitution) to categorise as a criminal offence the fact of «belonging, consciously and willingly» to a criminal organisation, even where the person concerned had no intention of committing an offence as part of this organisation or of being involved in the offence, whereas in order to classify as a criminal offence involvement with an association of criminals or the fact of belonging to a terrorist group, it was necessary to establish a closer link between the perpetrator and the crimes committed by the group.

The freedom of education guaranteed by Article 24.1 of the Constitution secures the right to establish – and therefore to choose – schools founded on a given religious or non-religious philosophy. It also implies that private individuals may – without prior authorisation and subjection to compliance with fundamental rights and freedoms ? organise and provide education in line with their own ideas in terms of both form and substance, for example by establishing schools the particular nature of which is to be found in their specific approach to teaching or education.Freedom of education comprises parents’ free choice of the form of education, and in particular the choice of home education provided by the parents, or group home education provided in an establishment that is neither accredited, nor funded nor subsidised within the meaning of the decree of 19 July 2013. However, this free choice available to parents must be interpreted taking account, firstly, of the best interests of the child and his or her fundamental right to education, and secondly, of compliance with the compulsory schooling requirement.The child’s right to education may therefore restrict the parents’ freedom of choice and the freedom of teachers with regard to the teaching they wish to provide to a child who is subject to compulsory schooling.

The possibility of consultation between the tax authority and the prosecution in order to establish whether administrative or criminal proceedings should be brought in a case of tax evasion is not contrary to the Constitution.In accordance with the general principle of law «non bis in idem», any person penalised for evasion by final ruling of the tax authority cannot undergo criminal punishment or prosecution for a second time where essentially identical acts are concerned and where the first penalty is of a criminal character.

The stipulation in the impugned law of a systematic body search without specific justification pertaining to the detainee’s conduct is a discriminatory breach of the prohibition of degrading treatment.