"RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES
IN EDUCATION IN BELGIUM" v. BELGIUM (MERITS) JUDGMENT
19
economic and social circumstances, as indeed in those of the other countries
that have signed the Protocol", one cannot imagine that Article 2 (P1-2) is
limited to the safeguarding of the right to a purely humanist education or to
education "purely for the love of it". In other respects "the exact scope" of
the first sentence of Article 2 (P1-2) may be disputed; "it may be asked, for
example, whether once it has set up a system of public education, a State
may abandon the entire system and throw the burden on to private
enterprise".
The Commission finally recalls that in the opinion of five of the twelve
members who were present at the adoption of its Report of 24th June 1965,
Article 2 of the Protocol (P1-2) gives rise to positive obligations; it draws
the attention of the Court to the individual opinions given on the matter.
2. The wording of the second sentence of Article 2 of the Protocol (P12) is as follows: "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 asserted before the Commission that the "family" right of
parents, guaranteed by this text, has "the same legal force as the other rights
and freedoms guaranteed"; the words "shall respect", which during the
course of the "preparatory work" replaced the phrase "shall have regard to",
which was adjudged to be too vague by the Consultative Assembly, require
"positive direct action" on the part of the State. According to the Applicants
of Antwerp, Ghent and Vilvorde, moreover, the second sentence of Article 2
(P1-2) does not concern the education and teaching organised by the parents
themselves but applies to "that in relation to which the State assumes
functions"; it concerns therefore "official teaching and independent teaching
subsidised, regulated and controlled" by the public authorities. As regards
the "philosophical convictions" they include the "personalist doctrine"
which these Applicants "profess"; for the Applicants of Alsemberg, Beersel,
Kraainem and Louvain they necessarily include the cultural and linguistic
preferences of the parents.
The Belgian Government maintains, on the other hand, that the second
sentence of Article 2 (P1-2) gives rise, like the first (P1-2), to a "purely
negative obligation". Enshrining "the right of parents to provide education
for their children in conformity with their wishes", the sentence implies that
the State must not "impede" the exercise of this right; on the other hand, the
State remains free to "regulate admission to the education which it itself
organises or subsidises" and moreover is not required to place education
"organised by parents" "on exactly the same footing as official education, so
far as concerns the granting of subsidies and the homologation of
diplomas". A study of the "preparatory work" furthermore proves that "the
European organs concerned never thought about linguistic problems", but
"simply about conflicts on ideological and denominational matters".