Belgian Linguistic Case (Nos. 1 & 2)
Name of Case
Belgian Linguistic Case (Nos. 1 & 2)
Language, discrimination, accessibility, European Court of Human Rights, European Convention on Human Rights, residence, Belgium, entrance requirements, objective aims, proportionality, regional court
European Court of Human Rights
(No.1) (1967), Series A, No.5 (1979-80) 1 EHRR 241 (No.2) (1968), Series A, No.6 (1979-80) 1 EHRR 252
French-speaking residents of certain Flemish-speaking areas of Belgium, who wanted their children to be educated through French. While Dutch-speaking children in a particular French-speaking area were allowed to be educated in Dutch-speaking schools in a bilingual district outside the neighbourhood, French-speaking children in an equivalent Flemish area could not attend the French-speaking schools in the same bilingual district but were compelled to attend their local Dutch-language schools.
The Applicants argued that Section 4 of the Belgian Act of 30th July 1963 "relating to the use of languages in education" breached Articles 8 (right to private and family life) and 14 (non-discrimination) of the European Convention of Human Rights and Article 2 of Additional Protocol 1 (right to education) to the Convention.
Section 4 of the Belgian Act states that the language of education shall be Dutch in the Dutch-speaking region, French in the French-speaking region and German in the German-speaking region.
The Applicants, inhabitants of Alsemberg, Beersel, Kraainem, Antwerp and environs, Ghent and environs, Louvain and environs and Vilvorde, submitted, between 1962 and 1964, six applications to the European Commission, both on their own behalf and on behalf of their children under age, Belgium. The Commission referred the case to the European Court of Human Rights.
The Applicants complained that the Belgian State:
- does not provide or subsidise any French-language education in the municipalities where the Applicants live or, in the case of Kraainem, that the provision made for such education is, in their opinion, inadequate;
- withholds grants from any institutions in these municipalities which may fail to comply with the linguistic provisions of the legislation for schools;
- refuses to acknowledge the validity of certificates issued by such institutions;
- does not allow the Applicants' children to attend the French classes
which exist in certain places.
No breach of Article 2 of Protocol 1 as the Court decided that the right to education does not extend to require States to establish at their own expense, or to subsidise, education of any particular type or at any particular level, in other words it does not guarantee children or parents a right to obtain instruction in a language of his choice.
Note. For more on the how flexible education must be, see section on the website on adaptability in education.
See also the cases on budget interfering for what governments have been ordered to spend money on by the courts.
For the right of education to be effective, there must be a right to official recognition of the studies a student has successfully completed.
Although Article 2 of Protocol 1 does not guarantee a right to ensure that public authorities create a particular kind of educational establishment, a State which had set up an establishment is prohibited from laying down entrance requirements that are discriminatory. As such, there had though been a violation of Article 14 of the Convention (anti-discrimination) in conjunction with Article 2 of Protocol 1 as the legislation prevented children from having access to French-language schools in certain communes of Brussels, solely on the basis of the residence of their parents. This was not the case for Dutch-language schools and thus constituted discriminatory treatment.
The Court noted that not all types of differential treatment in the provision of rights and freedoms constitute prohibited discrimination under the Convention. The Court decided the following would indicate prohibited discrimination had taken place:
a. the facts disclose a differential treatment;
b. the distinction does not have an aim, that is, it has no objective and reasonable justification having regard to the aim and effects of the measure under consideration; and
c. there is no reasonable proportionality between the means employed and the aim sought to be realised.
NB. b. and c. are typical justifcations for differential treatment and are often built into anti-discrimination laws. See section in website on discrimination.
Other cases that considered the principal of reasonable justification (b. above) in differential treatment include Khosa & Others v Minister of Social Development and Others found in the discrimination on the basis of nationality section of cases and Traeger Park School v. Minister of Education Northern Territory of Australia.
This was one of the first cases at international level to consider how broad the principal of non-discrimination is in practice. Even if certain children are being treated differently, those bringing a case would normally need to prove points b. and c. above as well.