102 "RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES
IN EDUCATION IN BELGIUM" v. BELGIUM (MERITS) JUDGMENT
INDIVIDUAL OPINION, PARTLY DISSENTING (POINT I OF THE OPERATIVE PROVISIONS
OF THE JUDGMENT), OF JUDGE TERJE WOLD
each Article shall be secured without discrimination for instance on the
ground of language.
I also agree that the object of Article 2 and Article 14 (art. 14+P1-2) read
in conjunction is to ensure that the right to education shall be secured by
each Member State without discrimination on the ground of language. But
still the question remains - what is the content of the right to education? In
that respect I refer to what I have said in regard to the interpretation of
Article 2 (P1-2).
The majority of the Court maintains that it is possible to visualise a
measure which, while in itself in conformity with the requirements of a
certain article of the Convention, nevertheless infringes the same article
because it is of a discriminatory nature. In my opinion, this method of
interpretation is both illogical and confusing. If a measure infringes a
human right because it is of a discriminatory nature, the reason always will
be that the measure in question is not in conformity with the Article, and in
itself contains a violation. I shall not go into details on this point, I only
want to state that I cannot see that the construction introduced by the
majority in any way casts any light on the problem before us. The question
will always be the same and only one: Is there a violation of a certain article
of the Convention? But, in deciding this question the Court may have to
decide if a discrimination has taken place. This is the simple solution of the
relation between Article 14 (art. 14) and the other articles of the
Convention.
Neither are the examples mentioned by the majority of the Court
especially convincing. For instance, if a State takes discriminatory
measures in laying down entrance requirements to educational
establishments, this constitutes no violation of the Convention if a right of
access to the educational establishment in question is not laid down as an
individual right in the Convention (cf. Article 1) (art. 1). The same applies
to the example regarding the application of Article 6 (art. 6) which the
majority has cited.
The question if a discrimination has taken place must be decided on the
concrete facts in every individual case. It is almost impossible to lay down
general principles. The majority has, however, tried to do so, and that
makes it necessary for me to make some observations.
In all our countries we speak about the principle of equality, which we
maintain shall govern our legislation; and even if this principle is not
expressly laid down in words in our Constitutions, we take it as a matter of
fact that it exists and can be applied. It is also not infrequently referred to.
But if the principle of legality before the law is applied within the
separate States, in the entire field of the national legislation, it goes without
saying that it must be applied and even more strongly or more strictly with
regard to Human Rights in the limited field of the European Convention.