26
"RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES
IN EDUCATION IN BELGIUM" v. BELGIUM (MERITS) JUDGMENT
from interfering" into duties "to provide something": it means that when a
State "without being under any obligation to do so", takes positive action
with regard to the rights laid down in the Convention, it must do so without
discrimination. In the sphere of education, "the obligation not to
discriminate" is neither "positive" nor "negative" but "conditional": "If the
State assumes", quite freely, "functions" in this sphere, it "must carry them
out in a non-discriminatory manner".
The Commission, referring to "contemporary theory" and to its own
decisions is of the opinion that the Convention does not prohibit the
establishment of legitimate "differentiation" in the enjoyment of the rights
and freedoms guaranteed: an "extensive interpretation" based on the French
text of Article 14 (art. 14) ("sans distinction aucune"), "would lead to absurd
results". Article 14 (art. 14) condemns only "discrimination", and the
Commission makes a point of stating precisely how it understands this
word. In its opinion a State does not discriminate if it limits itself to
conferring an "advantage", a "privilege" or a "favour" on a particular group
or individual which it denies to others. The question of a possible
discrimination arises only if the difference in treatment in issue amounts to a
"hardship" inflicted on certain people. Further it is necessary that the so
termed "hardship" should not be justified by "considerations based on the
general interest" and, in particular, by "administrative or financial" needs.
The "motives" and the "philosophy" which have inspired the Government
are to be taken into account in this context but it is likewise necessary to see
whether such motives and philosophy as are regarded as "legitimate" have
inspired measures which are incompatible with the rights and freedoms
safeguarded including "the right to non-discrimination". "The appraisal" of
the "public interest" is not "exempt from review by the organs" established
"for the implementation of the Convention". "Several Articles" of the
Convention, for example, Articles 8-11 (art. 8, art. 9, art. 10, art. 11), and
Article 15 (art. 15) "are worded in such a way as to require what might be
called political judgments"; however, "the Commission has constantly taken
the view, with which the Court agreed in the Lawless case", that the organs
set up to ensure respect for the Convention are empowered to make "such
judgments"; if this were not so, "the international protection of human
rights" would lose "its effectiveness" and "its very meaning". The position
is the same with respect to Article 14 (art. 14): if it is accepted "that certain
differentiations may be justified on reasonable and legitimate grounds", the
idea of "international review" requires that the Commission and the Court
"attempt to verify the motives of the legislative body as well as the aims and
effects of the legislation". To examine whether those motives are
"reasonable", those aims "legitimate" and those effects "justifiable", in no
way amounts to placing under "tutelage" the Contracting States, to which
the Commission in any case reserves a "certain margin of discretion".