INDIVIDUAL OPINION, PARTLY DISSENTING (POINT I OF THE OPERATIVE PROVISIONS OF THE JUDGMENT), OF JUDGE G. MARIDAKIS

(Translation)

1. In 1830, when she gained her independence, Belgium consisted of two de facto zones, the Flemish and the Walloon. The Walloons spoke French and the Flemings Dutch.

The higher civil service spoke French. All judicial business was transacted in French. As far as education was concerned there were no special problems in the Walloon area. In the Flemish region primary education was given in Dutch, secondary education was bilingual and university education was entirely in French.

In the years 1900-1930 a "Flemish separatist movement" came into being.

Then came the 1932 legislation. This placed the two languages on an equal footing and adopted the territorialist solution. The 1932 Acts did not fix the language boundary immutably: the boundary could change as a result of the decennial language censuses. The last such census was held in 1947, and the results, which were published in 1954, showed that the Flemish were advancing demographically and the Walloons geographically.

2. Under the 1963 Acts the national territory is divided into four linguistic regions, the Flemish, French and German regions and that of the Brussels conurbation.

In the first three regions the Acts require the exclusive use of Flemish, French and German respectively.

Under the 1963 Acts, unlike those of 1932, each linguistic region has stable boundaries drawn in such a way as to give preponderance in the region to one language.

The immutability of the language boundary and territorial unilingualism are the foundations on which the 1963 Acts are based. It is clearly with the intention of strengthening these foundations that under the Acts:

(1) Transmutation classes are abolished.

(2) The Belgian State refuses in the unilingual regions to establish State schools or subsidise private schools in which instruction is given in a language other than that of the region.

(3) The State refuses to subsidise schools which give instruction in non-subsidised classes in a language other than that of the region.

(4) The State refuses to homologate leaving certificates issued by schools that do not conform to the language legislation.

(5) The State makes special arrangements for the bilingual communes on the outskirts of Brussels .

3. The Applicants are French-speaking and live in predominantly Flemish-speaking areas. They complain in effect that the Belgian State :

- does not provide any French education in the communes where they live or, in the case of Kraainem, provides it only within limits which they consider inadequate,

- withholds grants from those schools in the communes in question that do not conform with the linguistic clauses of the school legislation,

- refuses to homologate leaving certificates issued by such schools,

- denies the Applicants ' children entry to the French classes existing in certain places,

- thereby obliges the Applicants either to enrol their children in a local school - which they consider contrary to their aspirations – or to send them to school either in Greater Brussels, where instruction is given in Dutch or French depending on the child ' s mother tongue or usual language, or in the "French-speaking region" (Wallonia). Such "scholastic emigration" is said to entail serious dangers and hardships.

The Applicants allege violations of Articles 8 and 14 (art. 8, art. 14) of the Convention and Article 2 of the Protocol (P1-2).

4. Article 2 of the Protocol (P1-2) reads:

"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."

The Applicants maintain that the term "religious and philosophical convictions" covers language. Philosophical convictions are said necessarily to include, inter alia, parents ' cultural and linguistic preferences, and it is considered inconceivable that a State that observes Article 2 (P1-2) should allow fathers to bring their children up in a particular religion or philosophy while denying them the choice of education in one of the national languages rather than the other.

5. In the sentence "No person shall be denied the right to education" the Contracting States intended to express a conviction common to all the peoples of Europe, namely that man, as a being gifted with reason (logos), has an innate desire for knowledge. ("All men naturally desire knowledge", Aristotle, The Metaphysics I.) Since knowledge is acquired by instruction, it necessarily follows that instruction, as a concomitant to reason, is coexistent with it and is an inalienable and intangible right of every man. ("No person shall be denied the right to education" is a directive (a legal standard or Richtliniennorm) which the State must follow "in the exercise of any functions which it assumes in relation to education and to teaching".

As man ' s innate desire for knowledge, and consequently for the instruction that leads to it, cannot be obstructed in any way, the Contracting States simply add that "in the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions".

By "religious and philosophical convictions" are meant those ideas on the world in general and human society in particular that each man considers the most true in the light of the religion he professes and the philosophical theories he adopts.

Those ideas make up each man ' s interior life. As that life develops, it has to resort to a specific language in order to express itself, but it nevertheless exists in its own right irrespective of the idiom by which it tries to externalise itself.

On this understanding of Article 2 of the Protocol (P1-2), the 1963 Acts are in no way concerned with the content of education whatever be the language in which instruction is given – whether French or Dutch; it follows that the Acts in no way prevent parents from bringing their children up in accordance with their religious and philosophical convictions.

6. Article 8 (art. 8) of the Convention reads:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Applicants complain that they are obliged to send their children either to a French school in Greater Brussels or to a school in the French-speaking region and that such "scholastic emigration" entails serious dangers and hardships.

Seen from this angle the question whether or not the 1963 Acts are in accordance with Article 8 (art. 8) is a question of fact: in each particular case it will be necessary to establish the effect on private and family life of whether the French-language school is near to or far from the parents ' place of residence and of the dangers of daily "scholastic emigration".

However, the question is general in nature and may be thus formulated: is the content of the Belgian Acts of 1963 contrary to Article 8 (art. 8)?

In the immutability of the language boundaries and the territorial unilingualism laid down, the Acts have more general aims designed to benefit the entire Belgian nation; they in no way affect private and family life based on ties of blood and on family traditions. Private and family life would be violated if the authorities intervened to force a person to shape that life in a way that departed from his traditions and thus from the spirit that, by virtue of blood ties, predominated in relations between parents and their children and between members of the same family in general.

But neither family traditions nor ties of blood are disturbed by the fact that, because of the immutability of the language boundary and territorial unilingualism, both of which principles were introduced in the general interest of the Belgian nation, the Applicants, as French-speaking persons resident in a region where education is given solely in Dutch, are obliged to send their children to French-language schools far from their homes.

The 1963 Acts withhold from persons attending schools where education is not in the regional language that which is granted to those who attend schools where the education is given in that language; in particular homologation and grants are denied (see No. 3 above).

But the reasons for this denial is to give effect to the principles of immutability of the language boundary and territorial unilingualism, on which Belgian legislation has placed its language policy in consideration of the general interests of the Belgians. Thus if, for reasons of the public interest of the whole of the Belgian nation, French-speaking parents are obliged to send their children to French-language schools far from their homes, this entails no dangers other than those to which schoolchildren are exposed daily in their journeys between school and home, and which can be eliminated by a little more vigilance on the part of parents.

Thus the fact that French-speaking parents feel obliged to send their children to schools in which education is given in French, i.e. in the language of the French-speaking region, is a mere inconvenience; it is not interference by the authorities with private and family life within the meaning of Article 8 (art. 8) of the Convention. Such inconvenience may be described as the price paid for a legislative measure inspired by national and social considerations (see Section 5 (2) of the Act of 30th July 1963 on the use of languages in education: "... while respecting the right of parents to send their children to a school of their choice at a reasonable distance").

7. The true meaning of Article 14 (art. 14) of the Convention becomes clear if it is added to Article 1 (art. 1), which then reads:

"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention and the enjoyment of the said rights and freedoms shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".

The Belgian legislative power thought a just settlement of the violent linguistic dispute between Flemings and Walloons could be achieved if the language boundary were drawn immutably once and for all, territorial unilingualism being introduced at the same time.

They also thought that such immutability and unilingualism could never be enforced unless the restrictions mentioned under paragraph 3 were introduced.

Discrimination (distinction in the French text) contrary to Article 14 (art. 14) must be understood to mean any open or disguised discrimination introduced with the manifest intention and sole aim of escaping the State ' s obligations under the Convention.

In the present case the restrictions mentioned under paragraph 3 above apply in both the Flemish-speaking and the French-speaking regions. Their justification is their specific object, that of giving effect to, instead of leaving as mere words, territorial unilingualism and the immutability of the language frontier, in order to put an end to the violent dispute between Walloons and Flemings and to restore normal and calm living conditions for the entire Belgian nation.

These restrictions, especially the denial of homologation and grants, are similar in nature to the "sanctions" listed in Chapter VII, Section 50, of the (parallel) Act of 2nd August 1963 "on the use of languages in administration".

These restrictions ("sanctions"), taken collectively and individually, have the same object, which is not to leave in the air but to give reality and effect to the regional immutability and territorial unilingualism on which Belgium ' s linguistic policy in administration and education is based.

But if all these restrictions are of the same kind and all have the same object, i.e. the interest of the Belgian nation as a whole, and the same value, it follows that it is inconsistent to describe some as "favours" and others as "hardships" towards Walloons or Flemings. They are rather a way of adapting the law to a pre-existing de facto difference resulting from deeply rooted historical realities.

The restrictions might be described, by analogy with the provisions of Articles 8, 9, 10, 11 and 1 8 (art. 8, art. 9, art. 10, art. 11, art. 18) of the Convention, as "necessary measures" to ensure a normal and prosperous life in the Belgian State for the benefit of the entire Belgian nation.

Moreover, according to the general principles of interpretative technique, the various provisions of an Act form a whole. Their unity derives from the fact that they all express a single intention. Thus a single provision must not be interpreted in a way that is not in accordance with the intention behind the whole text. This is expressed in the celebrated Roman adage: "Incivile est nisi tota lege perspecta una aliqua particula ejus judicare vel respondere".

Thus any specific provision of the Belgian legislation in question conflicts with the Convention only if, following interpretation in the light of the intention behind that legislation as a whole, it conflicts with a specific provision of the Convention interpreted according to the intention behind the Convention as a whole.

According to the intention behind the Convention, in particular as manifested in Articles 8, 9, 10, 11 and 18 (art. 8, art. 9, art. 10, art. 11, art. 18) each Contracting State may, for reasons of the public interest, take the measures "necessary in a democratic society" to protect that interest as it appears from the circumstances of the case; but it may do so only to the extent that, while protecting the public interest, the State does not repudiate or appreciably limit its obligations, as laid down in the Convention, to respect the human rights safeguarded by the Convention.

In the present case the Belgian legislation, considered as a whole and in the light of its intention, has the specific object of restoring to the Belgian nation the calm and order so deeply disturbed by the language question.

Thus if, in order to achieve this object of the public interest, the Belgian legislative power thought that the measures necessary in a democratic society meant the denial of homologation, the abolition of grants, etc., those measures, being in accordance with the intention behind the legislation taken as a whole, do not conflict with the intention behind the Convention taken as a whole and thus involve no "discrimination" contrary to the Convention.

It follows from the foregoing considerations that the restrictions mentioned under No. 3 above involve no "discrimination" between French-speaking and Dutch-speaking persons as understood and prohibited by Article 14 (art. 14).