Extract from the IHF report

Human Rights in the OSCE Region: Europe, Central Asia and North America,

Report 2006 (Events of 2005)

BELGIUM[1]

IHF FOCUS: anti-terrorism measures; freedom of expression, free media and information; freedom of religion and religious tolerance; national minorities; racism, intolerance and xenophobia; migrants, asylum seekers and refugees.

The main human rights concerns in Belgium in 2005 were racial discrimination and intolerance and violations of the rights of asylum seekers and immigrants.

In May, Belgium signed Protocol No. 7 to the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which extends the list of protected rights to include the right of aliens to procedural guarantees in the event of expulsion from the territory of a state; the right of a person convicted of a criminal offence to have the sentence reviewed by a higher tribunal; the right to compensation in the event of a miscarriage of justice; the right not to be tried or punished for an offence for which one has already been acquitted or convicted; as well as equality of rights and responsibilities between spouses.

In its annual report published in June, the Centre for Equal Opportunities and Fights against Racism (CECLR) reported that it received a growing number of complaints about discrimination. Complaints about discrimination on grounds of origin, nationality and religion were frequent in the areas of employment, housing and public service.

In October, the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 1469 (2005), calling on Belgian authorities to encourage communication and cultural cooperation across the linguistic borders of the country as well as to ratify the Framework Convention for the Protection of National Minorities. Belgium also still has to ratify Protocol No. 12 to the ECHR, which contains general anti-discrimination provisions.

In December, the Council of Ministers adopted new legislation to simplify and accelerate asylum procedures, a reform that was long overdue.

New anti-terrorism legislation adopted during the year broadened the powers of police and public prosecutors to engage in surveillance and control, which gave rise to concern about violations of privacy rights and freedom of expression.

Anti-Terrorism Measures[2]

On 28 October, the Council of Ministers submitted to the Chamber of Representatives a draft law that envisaged changes to the criminal code and judicial code concerning special forms of investigation in the fight against terrorism and organized crime.[3] New legislation on this topic was necessary because the Court of Arbitration partially revoked existing legislation in a decision of 21 December 2004. The court had found that some of the existing provisions were not in conformity with the constitution and pointed to the need to make some measures, especially those directly related to private life, subject to approval by an independent and impartial judicial body. The draft law was expedited in a fast-track procedure by the Chamber of Representatives and the Senate, and was adopted by the Senate on 23 December, two months after it was first proposed.[4]

Human rights organizations and civil groups criticized the draft law for infringing fundamental rights. Concerns were expressed that the bill granted the public prosecutor’s office the right to enter into private places, except for places of residence, on its own initiative and without any control. This provision was at variance with the jurisprudence of the European Court for Human Rights (ECtHR).[5] The League for Human Rights also found that the bill appeared to be aimed at establishing “an ideology of permanent control.”[6]

Senators from both ruling and opposition parties expressed concern that the application area of the law was not sufficiently defined, which may lead to abuse. In response to such concerns, Justice Minister Laurette Onkelinx stated that the law would be applied only in cases related to the fight against terrorism and organized crime.

Freedom of Expression, Free Media and Information

The rights of freedom of speech and freedom of the press were generally respected. However, the principle of confidentiality of journalistic sources remained a topic of discussion. In 2003, two bills regarding the protection of journalists’ sources of information were submitted to the Chamber of Representatives, one of which was taken up for further debate.[7] The Senate amended and passed the bill on 27 January, 2005 and the Chamber finally adopted it on 17 March, 2005,[8] following lively debates, which were due to the sensitivity of the issue as well as the difference in approach.[9]

The new law provides that journalists have the right not to reveal their sources. They are explicitly protected against home searches, seizures, phone tapping and other investigations. Under the new law, journalists cannot be held responsible for exercising their right not to divulgate the contents of the documents in their possession or for complicity in the violation of professional secrecy by a third party. Article 4 of the law envisages exceptions to the right of journalists not to reveal their sources in cases where it is considered necessary that they disclose their sources “to prevent crimes that represent a serious attack on the physical integrity of one or several parties.” Any exceptions must be approved by a judge.[10]

The European Federation of Journalists welcomed the law as a “landmark victory” for Belgian journalists as well as for “European journalists who still do not have a legal guarantee for the protection of sources.”[11]

  • On 25 January, three days before the Senate vote on the bill on the protection of journalists’ sources of information, reporter Anne de Graaf and editor Yves Desmet of the Flemish-language newspaper De Morgen were interrogated as witnesses in an investigation by federal prosecutors into unauthorized leaks. In particular, they were asked about calls made on De Graaf’s phone between 23 March and 8 May 2004. Media monitoring NGOs condemned this as an attack on journalists’ right to confidentiality of sources.[12]

A draft resolution on the protection of the rights of journalists and editors in the exercise of their profession was also submitted to the Senate in February 2004. This draft resolution would expand the scope of protection of journalists and editors and of access to sources of information.[13] Senate discussions on this issue were pending at the end of 2005.

The new anti-terrorism bill was viewed by some as undermining the protection of the right of journalists not to reveal their sources that was established by the March law. A provision on “discreet visual controls” included in the billrevived debates on the protection of journalistic sources. The Association of Professional Journalists in Belgium (AGJPB) addressed a letter to the Senate members, demanding a revision of the draft.[14] The AGJPB was mainly concerned about the lack of legal guarantees in cases of controls in professional places such as media offices and demanded the re-establishment of the role of a judge in authorizing the enforcement of such measures. The European Federation of Journalists stated that the draft law was “out of proportions” and expressed concern that the presence of police officers in press-rooms and media offices could become a routine practice under the law.

Freedom of Religion and Religious Tolerance

State and Religion

The relationship between the state and religions in Belgium is historically rooted in the principle of recognition and non-recognition of religions. However, recognition criteria have never been enshrined in the constitution, in decrees or in other laws. Six religions (Catholicism, Protestantism, Anglicanism, Judaism, Islam and Orthodoxy) and secular humanism (laïcité) are recognized by the state. This system of hierarchy of religions generates various forms of institutional discrimination. As in previous years, the state only financed recognized religious communities in 2005, although state subsidies were provided by all taxpayers, including those who professed a non-recognized religion or who did not adhere to any religion or belief.

Relations between the state and the representative bodies of the Muslim community have been strained over the past few years and tensions lingered on in 2005. In July 2004, the government introduced a law requiring that new general elections be held to fully renew the membership of the Muslim General Assembly and the Executive, despite the fact that the members of these bodies were duly elected for a ten-year period in December 1998. The government-imposed decision was strongly criticized by the Muslim representative bodies, which viewed it as interference in the internal affairs of the Muslim community. A number of complaints were lodged, but they were turned down both by the Council of the State and the Court of Arbitration. The elections were held on 20 March 2005, and some 69,500 voters registered. The elections brought about a major shift in the composition of the 68-member General Assembly as Muslims of Turkish descent won the absolute majority. Muslims of Moroccan descent, who had held the majority in the previous General Assembly, boycotted the election in response to the government’s policies. The General Assembly designated 17 candidates for the Executive, who were appointed only after being screened and approved by the Ministry of Interior.

Discussions about the wearing of headscarves (hijabs) in public institutionsabated after a peak in 2004 and a proposal made by two senators in 2005 to introduce new federal legislation banning the wearing of religious symbols in public places garnered little political support.

The governments of the French and Flemish community had granted public schools the right to ban the wearing of headscarves. By late 2005, about 70% of secondary schools under the authority of the French community had introduced such a ban, compared with 41% in 2000.

A number of complaints were filed with regard to school bans on headscarves.

  • In June, in a case involving a complaint about the policies of a school in Hasselt in the Province of Limbourg, the Appeal Court of Antwerp ruled that the Belgian anti-discrimination law did not prohibit school bans for headscarves. The court acknowledged the right of public school students to wear headscarves, but concluded that this right is not absolute. The court stated that public schools can limit this right in cases where such a measure is considered necessary to ensure proper organization of school work and/or to guarantee the safety or the rights of other students.

The CELCR issued a statement stressing the importance of a constructive dialogue between all sides, in particular between students concerned and school authorities. The center tried to act as a mediator between the parties at the school in Hasselt, albeit unsuccessfully.

Also, the wearing of the burqa[15]in public gained momentum in recent years. Since 2003, several communes have introduced a ban on wearing the burqa, as well as the niqab[16], in public places into their police regulations. By the end of 2005, the number of communes where such ban applied reached a total of more than 20, including the towns of Antwerp, Ghent, Lebbeke, and Maaseik. A fine of EUR 150 is foreseen for violations of these bans.

Members of the Sikh community were also affected by changing policies regarding conspicuous religious insignia.

  • In the course of the year, two Sikh boys, Pawandeep Singh (aged 15) and Jaswant Singh (aged 16), were given a choice either to remove their turbans or to be expelled from a public professional school in Sint-Truiden.

The “Sect” Issue

The state had in place mechanisms and agencies – the Center for Information and Advice on Harmful Sectarian Organizations (the Sect Observatory) and the Inter-Ministerial Coordination Agency for the Fight against Harmful Sectarian Organizations – to identify so-called “harmful cults,” warn the public and fight against them. In October, the Sect Observatory published its bi-annual report.

  • In an unprecedented move, on 28 June,[17]the Brussels Appeals Court condemned the Belgian House of Representatives for damaging the image of an organization blacklisted in a 1997 report published by the parliamentary inquiry commission on “sects.” The plaintiff was the Universal Church of God's Kingdom, a small religious group mainly active in Antwerp. The court found that the parliamentary investigation commission acted carelessly when compiling the report and ruled that the parliament could not escape responsibility under article 58 of the constitution, which protects parliamentary immunity. The parliament was ordered to pay the church and three of its directors a symbolic amount of one euro in damages and to publish the court decision in the leading newspapers De Standaard and Le Soir. The Belgian parliament announced plans to appeal to the Cassation Court.
  • Belgian citizenship was denied to two persons who were considered potentially dangerous solely because they belonged to one of the 189 movements listed as sects by the parliamentary inquirycommission on sects. One of them was a Romanian Raelian who had been living in Belgium for 13 years, and the other one was an Indian Sahaja Yoga member who had been married to a Belgian citizen for 14 years and lived in Belgium since 1993. Both cases were brought to court. While the Raelian applicant was finally granted Belgian citizenship, the other case was still pending at the end of the year.[18]

National Minorities

Linguistic Issues

Belgium signed the Council of Europe’s Framework Convention on National Minorities in 2001. However, the convention was not ratified due to the fact that the federated entities were not in a position to agree on the concept of “national minority.”

Belgium as a federal state comprises of three regions – the Walloon region, the Flemish region, and the Brussels Capital region, three linguistic communities, and four linguistic regions (three monolingual and one bilingual). The 1962-1963 language laws set out the language boundaries, which were still valid as of the end of 2005.

According to the language laws, the language of the region was to be used in the public administration in monolingual regions. The inhabitants of 27 linguistically mixed communes, however, had the right, in their dealings with public authorities, to request to use a language other than that of the region where their communes were located. Six of the 27 communes with so-called linguistic facilities located on Flemish territory in the Brussels periphery had a large share – sometimes a majority – of French-speaking inhabitants. Though the official language in these communes was Dutch, the inhabitants had the right to request to use French in their dealings with public authorities. This right, however, has repeatedly been challenged by Flemish politicians. Brussels is officially a bilingual region, with a majority of French-speaking inhabitants.

In 2002, PACE adopted a resolution (1301(2002)) stating that Belgium is a country with “significant minorities who need to be protected and whose rights are not officially recognized.”[19] The assembly spelled out their proposals for groups in Belgium that should be considered national minorities under the Framework Convention: at the federal level, German-speakers should be considered a minority; at local and regional levels, French-speakers should be considered a minority in the Dutch-language and German-language regions; while Dutch-speakers and German-speakers should be considered minorities in the French-language region.

In October 2002, five Dutch-speaking members of the parliament of the Brussels Capital region and local councillors petitioned the Council of Europe concerning the right to health care of Dutch-speakers in Brussels. The petition was referred to the Committee on Legal Affairs and Human Rights, which appointed Boriss Cilevics (Latvia, Socialist Group) as rapporteur. In the Opinion (doc. 10009) issued by the committee on 3 December 2003, Cilevics noted that the problem posed in Brussels was not one of legislation guaranteeing Dutch-speakers' rights, but rather the application of already recognized rights.

On 20 January 2004, 12 persons living in communes with linguistic facilities in the vicinity of Brussels lodged another (“counter”) petition with the Council of Europe, in which they complained of “real health discrimination against French-speaking citizens by the Flemish region." The PACE bureau joined this petition with the one from 2002 and referred both to the Social, Health and Family Affairs Committee. Minodora Cliveti (Romania, Socialist Group) was appointed as rapporteur. During her visit to Belgium on 13-15 April 2005, the rapporteur held meetings with the authors of both petitions, representatives of the authorities responsible for public hospital administration in the Brussels Capital region, the relevant Dutch-speaking and French-speaking ministers within the government of the Brussels-Capital region, and the president of the Commission for Language Supervision. The rapporteur’s report on Language problems in access to public health care in the Brussels-Capital region in Belgium was submitted to PACE in July.[20]

The debates during the autumn PACE plenary session in October led to the adoption of Resolution 1469 (2005), which concluded that the solution of the linguistic problem did not lie in modification of legislation, but rather in its application in practice. To this end, the resolution recommended, inter alias, the increase of administrative and judicial measures to ensure bi-lingual services in Brussels hospitals as well as to improve the language skills of medical students. The resolution called on Belgian authorities to encourage communication and cultural cooperation across linguistic borders as well as the ratification of the Framework Convention.

Negotiations about language rights in the electoral district of Brussels-Halle-Vilvoorde, close to Brussels, led to heated debates in parliament and even to a parliamentary vote of confidence in the government. The electoral district of Vilvoorde includes parts of the Flemish region and parts of the Brussels Capital region, and the issue at stake was whether to retain the current borders of the district or to divide it. Negotiations failed and the issue was deferred for two years.

Racism, Intolerance and Xenophobia