1. This is the first case on Article 8 ECHR that has appeared before the European Court of Human Rights; it is the first case on Article 14 ECHR; it is the third case ever before the Court; it is the first case ever in which the Court has found a violation of the Convention
2. It is standard practice that the country against which a case is brought will have ‘its’ judge sitting ex officio on the case. Each country assigned to the Convention has the right to suggest a judge; for reasons of knowledge of the legal system and the national language, as well as the facts of the case, this judge is always included in the composition of the Court. There has been criticism on this point, because ‘national’ judges would be inclined to vote in favour of their government. This criticism is even more intense with respect to ad hoc judges. When the national judge is sick, dead or has a specific reason not to sit on a case (e.g. because a conflict of interest), the state can appoint an ad hoc judge, a national judge that will sit on that case. While appointed judges have been scrutinised and are appointed permanently, ad hoc judges are scrutinised to a lesser extent and sit on one or a few cases only, before going back to their ‘normal’ job. Fears have been expressed that these judges are biased to vote in favour of their own government even more often than elected national judges. Indeed, in this case, an ad hoc judge is appointed and he has voted in favour of the decisions dismissing the claims, but has joined the dissenting opinion on the point on which the majority found a violation of the Convention.
3. Although the Court stresses that the provisions of the Convention and Protocol must be read as a whole, it also considers that it is essentially upon the content and scope of Articles 8 and 14 ECHR and Article 2 of the Protocol that the decision which it has to take turns, and not, as invoked inter alia by the applicants, Articles 9 and 10 ECHR.
4. It finds a violation of Article 2 of the Protocol.
5. It stresses that, as has become a standard doctrine later, Article 14 ECHR has no independent status, and can only be invoked in combination with other (substantial) provisions in the Convention and Protocols. Thus, discrimination as such is not prohibited, but only if discrimination arises within the material scope of one of the provisions in the Convention. This means that when a policy would in itself be in conformity with that provision, it may still be deemed in violation with the Convention if it is found to be discriminatory. This means that being free from discrimination is no in itself a human right, which has been criticised. Although this doctrine is less problematic now, because the material scope of the rights under the Convention have
6. With respect to Article 14 ECHR, it stresses that the English text of the Convention must prevail over the French version. “In spite of the very general wording of the French version (“sans distinction aucune”), Article 14 (art. 14) does not forbid every difference in treatment in the exercise of the rights and freedoms recognised. This version must be read in the light of the more restrictive text of the English version (“without discrimination”). In addition, and in particular, one would reach absurd results were one to give Article 14 (art. 14) an interpretation as wide as that which the French version seems to imply. One would, in effect, be led to judge as contrary to the Convention every one of the many legal or administrative provisions which do not secure to everyone complete equality of treatment in the enjoyment of the rights and freedoms recognised. The competent national authorities are frequently confronted with situations and problems which, on account of differences inherent therein, call for different legal solutions; moreover, certain legal inequalities tend only to correct factual inequalities. The extensive interpretation mentioned above cannot consequently be accepted.”
7. The Court sets out its standard interpretation, namely that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification, regard being had to the principles which normally prevail in democratic societies, or when it is disproportional.
8. The Court underlines it subsidiary role. Inter alia, it stresses that in finding out whether there has been an arbitrary distinction or not, it cannot disregard those legal and factual features which characterise the life of the society in the State which, as a Contracting Party, has to answer for the measure in dispute. “In so doing it cannot assume the rôle of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention. The national authorities remain free to choose the measures which they consider appropriate in those matters which are governed by the Convention. Review by the Court concerns only the conformity of these measures with the requirements of the Convention.”
8. The Court treats this case as a discrimination case, stressing that the right to have one’s child educated in the language is not included ratione materiae under the Convention, but that ‘the enjoyment of the right to education and the right to respect of family life, guaranteed respectively by Article 2 of the Protocol (P1-2) and Article 8 (art. 8) of the Convention, are to be secured to everyone without discrimination on the ground, inter alia, of language.’ In addition, the effects of the measures, in practical sense, do not lead to an interference of the applicants’ right to private or family life: ‘Harsh though such consequences may be in individual cases, they do not involve any breach of Article 8.’ And ‘To require a child to study in depth that national language which is not his own, cannot be characterised as an act of “depersonalisation”. As regards the decision of certain Applicants to send their children to a French-language school in Greater Brussels, rather than to a school governed by Section 7 (3) (B) of the Act of 2nd August 1963, this is the result of their own choice and not of an interference by the authorities in their private and family life.’