BELGIUM1 59

IHF FOCUS: judicial system; religious intolerance; intolerance, xenophobia, racial dis- crimination and hate speech; asylum seekers and immigrants; national minorities; women’s rights; rights of the child.

The judicial system in Belgium re- cially vulnerable to outside interference.2 mained at the centre of human rights con- There were cases, which no lawyer would cerns: judicial proceedings were excessive- take because they feared retaliation from ly long, the backlog of cases pending in the bar association. courts was huge, and the public’s trust in Theoretically, every citizen had the right the system - and particularly in the inde- to represent him/herself in court and ap- pendence of the judiciary - was low. Also, pear “pro se”- however, lawyers were de- the bar associations posed unnecessary re- nied that right. They were not even allowed strictions on the work of lawyers. to act on behalf of their family members. By law, the authorities enjoyed many Lawyers were also denied free access to the ways of interfering in the activities of reli- courts when they wished to summon a col- gious communities, ranging from registra- league for damage suffered through a tort tion matters to state subsidies. Members of or for breach of contract. These interdictions “non-traditional” minority communities were upheld by the bar associations. faced serious discrimination and harass- ment. Court Malfunctions Despite their formal commitment to In 2001, the Belgian State was convict- non-discrimination against “national minori- ed by the Court of First Instance in ties”, many Dutch-speaking communes vio- due to its failure to take adequate meas- lated the rights of their French-speaking in- ures to resolve the backlog of cases and habitants. the damage which individual litigants suf- 3 Intolerance and xenophobia remained fered as a consequence. a problem, and there still existed no gener- The Belgian judiciary and court system suffered from structural problems resulting al anti-discrimination law in Belgium. Other in the inability of the judiciary to manage its problems included trafficking in women caseload effectively, which was the main and the practice of the courts to automati- reason for the overwhelming backlog of cally grant rights of custody of the child in cases. However, it was usually claimed that divorce cases to only one parent, usually the backlog was caused by the high litiga- the mother, and to restrict free access by tion rate and dilatory tactics of parties and the other parent to the child. lawyers. Simple and straightforward cases could Judicial System drag on for years because courts post- Bar Associations and Lawyers poned cases and scheduled hearings for The independence of lawyers in far-off dates; it was no exception to witness Belgium remained a problem in 2001. courts setting a hearing date in a minor Lawyers continued to be obstructed and case to 1.5 years after the moment of re- even prevented from acting on behalf of a quest. client due to injunctions and commands of The malfunctioning of courts gave the the presidents of local bar associations. No citizens the impression that no justice measures were taken to prevent this kind could be obtained and that courts thwarted of abuse and manipulation of the judicial the exercise of their rights. As a result, citi- process. Lawyers dealing with sensitive is- zens lost confidence in the system and sues or politically tainted cases were espe- perceived it as corrupt. 60 BELGIUM

A case that significantly contributed to who filed complaints with the Council re- distrust towards courts was that of Marc ceived an answer. It therefore appears that Dutroux. the High Council for Justice does not pro- In 1996 Marc Dutroux was arrested for vide direct answers to the fundamental suspected murder and leading a pedophile problems and issues with which the and child pornography trafficking ring. As of Belgian judiciary is confronted with. the end of 2001, Mr Dutroux and four other Reporting on the administration of jus- suspects remained under investigation tice in Belgium was troublesome. The judi- ciary and the Government did not keep any pending trial that was scheduled to start in centralized records or statistics of the num- September 2002. Dutroux is a previously ber of complaints received or the actions convicted child sex offender who is serving a taken in disciplining magistrates.4 Available 5-year sentence for theft and assault. The reports were seriously biased, all official re- delays in proceeding with the pedophile and ports were prepared by the Government or trafficking charges against Mr Dutroux raised government institutions, a fact that serious- serious doubts about adequate investigation ly compromised the objectivity and inde- and the judicial system in general. pendence of these reports: the Belgian Concerns about the independence of Government acted both as an auditor and the judiciary were echoed by press reports the audited party. about judges being members of secret so- cieties such as Masonic lodges that tradi- Religious Intolerance tionally have a strong influence on the The relationship between the State Government and the judiciary in Belgium. and religions in Belgium is historically root- Some court cases were allegedly settled ed in the principles of recognition and non- and “arranged” within such societies. recognition of religions. However, recogni- In the aftermath of the paedophile tion criteria have never been enshrined in scandals and the “Dutroux scandal”, Bel- the Constitution, in decrees or in laws. gium had to take some measures to ap- Six religions – Catholicism, Protestan- pease the criticism and outrage of the pop- tism, Judaism, Anglicanism, and Orthodoxy ulation over the serious failure of the judi- – and secular humanism (laïcité) were re- cial system. However, some of these meas- cognized by the State in 2001. The Belgian ures appeared to be only window-dressing State has also used its discretionary power and did not bring about any real improve- to recognize movements within spiritual ments. One such measure was the creation families where diversity prevailed, thus ex- of a High Council for Justice (Conseil Supé- ercising a form of state interference in the rieur de la Justice) which was supposed to religious sphere.5 act as a watchdog for judicial correctness. Not all the movements within the The two main tasks of the Council are to Muslim community have joined the admin- supervise the appointment of judges and istrative representative body, which was to process complaints filed by citizens on recognised by the State as the spokes-or- abuses and miscarriages of justice. gan of Islam. In the secular humanist fami- The Council released its first report on ly, only the Centre d’Action Laïque (Centre 26 November 2001. Of the total amount of Laicist Action) was recognised by the of complaints filed with the Council during State in 2001. 2000 and 2001, 91% were declared inad- Eight Federal Ministries, the Ministries missible. Of the remaining complaints, only of the three linguistic communities, the 43% were processed. Thus, over the sur- Ministries of the three regions (Flanders, veyed period, less than 5% of the persons Wallonia and Brussels), the administrations BELGIUM 61 of the ten provinces and the 589 munici- The information and prevention bro- palities were involved in the financing of chure “Guru, you’d better watch out!”, recognised religions and secular human- which was widely distributed in 1999 by ism. The Federal State paid the salaries, re- the French Community in schools and in tirement and lodging costs of ministers public places, was still used as a reference. and also subsidised the construction and This practice reinforced and strengthened the renovation of places of worship - but negative stereotypes, intolerance and dis- also decided how many clerics would be crimination in society. paid in each religious group. Islam re- The Anthroposophic Society lost its mained dramatically under-financed by the case against the French Community of Bel- State. Also, the municipalities were obliged gium in a dispute over the above-mentio- to pay any debts incurred by the ecclesias- ned brochure, which presents Anthropo- tical administrations of recognised religions sophy as a dangerous esoteric sect. The without having the right to audit their ac- court declared that the grievances were un- counts. founded and that no fault could be imput- Although some political parties in pow- ed to the French Community, which only er openly raised the issue of the reform of had the information available in the parlia- the discriminatory financing system of reli- mentary report on sects. gions and secular humanism, no draft leg- islation was presented to the Parliament. In the case of a unilateral breaking of a Jehovah’s Witnesses and other minority rental contract for premises at the Cultural religions were denied the right to bring spir- and Congress Centre of Woluwé-St-Pierre itual assistance to their members in hospi- (Brussels) against the association Sahaja tals, detention places for asylum-seekers Yoga, the Centre’s lawyer demanded that and similar institutions, a right granted only the “sect” be legally dissolved on the basis to clerics of recognised religions and moral that its activities were allegedly damaging advisers of secular humanism. to the public order and contrary to general standards of behaviour. No hearing was The Cult Issue held in 2001. The 1997 list of 189 movements sus- For years, Jehovah’s Witnesses have pected by the Parliamentary Commission been holding their annual conventions at to be harmful sectarian organisations con- the Brussels Exhibition Centre, but in March tinued to be a source of discrimination by their leaders received a letter notifying private and public authorities, although the them that they could not use that facility for parliamentary report explicitly stated in its their 2001 meeting. The rejection letter introduction that being listed did not mean specifically mentioned the appearance of the movement was or was not a sect and Jehovah’s Witnesses on the parliamentary a fortiori that it was dangerous. Cases of in- list as the reason for the refusal. tolerance and discrimination towards indi- viduals and religious groups were recorded The Hare Krishna movement was a by Human Rights Without Frontiers (IHF particular target of public and private au- cooperating organization) in 2001, includ- thorities. After four years of activities in ing victimisation at school (Jehovah’s Liège, the city’s mayor banned the Hare Witnesses), at work and in the neighbour- Krishna community’s free distribution of hood; hate speech in the media; defama- vegetarian food to people in need. Also, tion; slander; professional damages; denial the director of the Housing Trust for large or loss of child custody or visiting rights in families in Wallonia refused to grant a loan divorce settlements, etc. to the International Society for Krishna 62 BELGIUM

Consciousness for the purchase and reno- each of the 27 judicial districts to monitor vation of a building on the grounds that “it cases involving sects. appears on the list of sectarian movements published in the report of the Parliamentary National Minorities Commission on sects.” On 31 July, Belgium signed the Euro- At the end of 2001, the sect observa- pean Framework Convention on the Pro- tory called Information and Advice Centre tection of National Minorities. However, be- on Harmful Sectarian Organizations re- fore the Convention can be ratified, the five leased its first biennial report. The Centre federated entities will have to define the opened its offices in September 2000. It concept of a “national minority”. collected open source information on a In September, Lili Nabholz-Haidegger, wide range of religious and philosophical Rapporteur for the Council of Europe, looked groups and upon request provided the into some minority issues in Belgium and public with information regarding the legal urged the authorities to ratify the Framework rights of freedom of association, freedom Convention. Her report was scheduled to be of privacy, and freedom of religion. Its li- debated in January 2002 in Strasbourg. brary was open to the public and contained The 1962-1963 language laws fixed information on religion in general as well as the language boundaries, which were still on specific religious groups. The library also valid in 2001. The principle of territoriality included publications provided by various was thereby introduced, stipulating that in religious organisations (Jehovah’s Witnes- monolingual regions the use of the lan- ses, Hare Krishna, Mormons, etc.). guage of that region is compulsory for all The Centre was authorised to propose public administrative acts. The same laws policy or legislation to the Government on provided for linguistic facilities for the inhab- the sect issue, but it was only authorised to itants of 27 communes contiguous to a dif- provide and publish assessments of sectar- ferent linguistic region, who have the right ian organisations on the request of public to request that, in their dealings with the au- authorities. In its first biennial report, the thorities (regarding i.e. administrative mat- Centre only published advice on the ters, education, and relations between em- Church of Jesus Christ of the Latter-Day ployers and their employees), language Saints, stating that it is not a harmful sec- other than that of the region in which the tarian organisation. The issuing of visas for communes are located should be used. Mormon missionaries, which was interrupt- Ever since the adoption of a constitutional ed for a time, resumed. The Centre also amendment in 1988, the linguistic facilities proposed to pass a law on the “abuse of in these 27 communes cannot be changed the state of weakness” by harmful sectarian except by a federal law with a special ma- organisations. jority. Six of the 27 communes with facilities A Coordination Cell for the Fight lie on Flemish territory in the Brussels pe- Against Harmful Sectarian Organisations riphery and have a large share, sometimes was created by law in October 1998 and it a majority, of French-speaking inhabitants. met on a quarterly basis. A subgroup of law Though the official language in these com- enforcement officials met bi-monthly to ex- munes is Dutch, these inhabitants have the change information on sect activities. Most right to request that French be used in their law enforcement agencies had an official dealings with the public authorities. specifically assigned to deal with sect is- In 1998, the Parliamentary Assembly sues. The Government has also designated of the Council of Europe sent for the first one national magistrate in the District Court time a rapporteur to Belgium to look into of First Instance and one local magistrate in the situation of the French-speaking popu- BELGIUM 63 lation living in the Brussels periphery ulated that children of parents not resident (about 120,000 people). His report focu- in the six communes with linguistic facilities sed on the six communes with linguistic fa- in the Brussels periphery should neverthe- cilities (about 40,000 people): , less be allowed to attend the French-speak- , , Rhode-Saint-Genèse, ing schools in these communes. and Wezembeek-Oppem, all situ- The language to be used in communal ated in the Brussels periphery but in the councils where the mayor and most coun- Flemish region. cillors were French-speaking was some- In 1998, a conflict arose when the Fle- times a source of controversy. According to mish Government started restricting as far the Flemish Government, the facilities only as was legally possible the use of the lin- applied to the administrated and not to the guistic facilities, with the aim of reinforcing administrators and therefore, only Dutch the Flemish, Dutch-speaking character of may be spoken in the councils of the com- the region. This included the six communes mune. According to the French Community, in question. The contested letter circulated citing a decision of the Court of Arbitration by the Minister of the Interior of the Fle- of 10 March 1998, the obligation to speak mish Government, Mr Leo Peeters, instruc- Dutch only extended to the mayor and his ted these communes only to issue docu- deputies, not to individual councillors. ments in French “every time an individual According to a decree of the Flemish has made the express demand”, which was Parliament, public libraries could only be contrary to the practice that the individual subsidized if at least 75% of the books inhabitant only had to demand once that were in Dutch. The result was the estab- all documentation be sent to him in French. lishment of private libraries in some of the Political conflicts between Flemish authori- communes with facilities (with more than ties and communal authorities have regu- 25% of French books). larly arisen in communes with facilities whi- Activities in French by youth associa- le there has usually been peaceful coexis- tions and cultural organizations based on tence between French- and Dutch-speak- Flemish territory posed a number of prob- ing inhabitants. lems. For example, the distribution of a Concrete problems have arisen in French language magazine, Carrefour, was communes with linguistic facilities in the last few years: very disputed. This magazine, Flemish Dutch language schools in principle ac- politicians alleged, was subsidized by 10.5 cepted all pupils, both from outside the million BEF (260,000 Euro) by the French commune in question and of French- Community, which they considered a fla- speaking parents. However, a child could grant violation of the territoriality principle. only be enrolled in a French language Several TV programmes from France school in the six communes on the condi- have been eliminated by the communal tion that the parents were residents of the cable-distributors. commune in question and that the head of At the end of 2001, the Finance Minis- family declared that the French language ter of the Flemish Government ordered the was the child’s mother tongue or everyday Mayor of Wezembeek-Oppem to reim- language. The language inspectorate could burse the residents of his commune a local challenge the correctness of this declara- tax because the invoice letter had been tion, as a result of which it seemed the drafted in French and not in Dutch. child could be expelled from the French- In the course of 25 years, the Perma- speaking school. This practice, however, nent Linguistic Control Commission pro- was not consistent with the 23 July 1968 cessed about 2,000 complaints. Only ten of decision of the European Court which stip- the Commission’s decisions were contested. 64 BELGIUM

Intolerance, Xenophobia, Racial computer lists of the company to find evi- Discrimination and Hate Speech dence that the abbreviation BBB (standing Belgium has ratified the International for white Belgian) had been used in its Convention on the Elimination of All Forms files. The audit stated that the abbreviation of Racial Discrimination, and the had been used in several of the Brussels International Covenant on Civil and Political offices of the company but no other evi- Rights (ICCPR). Article 20(2) of the ICCPR dence as to the existence of a systematic forbids any incitement to national, racial or discrimination policy was found. At the religious hatred. Further, in 1981 Belgium same time, however, the Centre registered adopted a separate law, known as the the disturbing fact that “only a small num- Moureaux Law, which aimed at cracking ber of the company’s personnel knew that down on acts inspired by racism or xeno- distinction on grounds of ethnicity is dis- 6 phobia. In practice, the application of this criminatory and punishable”. Anti-Racism law is limited by several defi- The audit on the ADECCO case and its ciencies, in particular, the difficulty of pro- findings further provoked discussion on the viding evidence of racially motivated acts in need to reinforce the already existing a criminal case. Agreement of 7 May 1996 concerning the To rectify this shortcoming, it has been code of conduct directed at the prevention proposed that a general anti-discrimination of racial discrimination in the work place law consisting of civil law and criminal law and to advance the work of a commission sections be adopted. This would provide made up of representatives of industries for a civil procedure under which claimants and members of the Centre to examine would be in a position to have their dam- concrete cases. ages redressed and compensated in cases Another relevant legislative act was the of discrimination on the basis of age, sex, 1989 law regulating the financing of politi- religion, civil status, sexual orientation and cal parties. It was further amended in 1999 handicap. Though it was expected to be fi- with the addition of Article 15, which pro- nalised in 2001, the law was still being de- vided for limitation or cessation of dona- bated in the Senate as of the end of 2001 tions to political parties hostile to human with no date set for its adoption. rights and freedoms. On 9 February 2001, The implementation of the provisions the Council of Ministers adopted a decree of the Anti-Racism Law is entrusted to the for the application of the 1989 law allowing Centre for Equality of Opportunities and the expropriation of public donations to Fight against Racism, established in 1993. parties “manifesting hostility towards hu- In 2001, the Centre acted as a civil party man rights”. in a number of cases covering a wide In 2001, a first-instance court ruled on scope, involving mainly trafficking in hu- the Vlaams Blok7 - an extreme right political man beings, physical aggression motivat- party - case. In October 2000, the Centre ed by racism, discrimination in housing, for Equality of Opportunities and Fight employment, education, and access to against Racism and the League for Human public places. Rights took three organisations to court on The case of the company ADECCO charges of collaborating and providing assis- provided an example of racial discrimina- tance to the Vlaams Blok. The Centre and tion in the work place in 2001. On 22 the League organizations wanted to prove February, at the request of the Centre for that racial discrimination underlay the Equality of Opportunities and Fight against Vlaams Blok political doctrine. The charges Racism, the Federal Police searched the were invoked on the basis of the party’s slo- BELGIUM 65 gan “Our people first” and its publications put off until 1 October 2001. According to inciting segregation and racial discrimina- the statistics of the Ministry of the Interior, tion. The court of first instance decided that as of 28 November, the French and Fle- the case fell within the scope of political of- mish chambers of the Regularisation Com- fences and as such had to be judged by mission had processed 28,794 out of the peoples’ jury. It thus precluded the possi- 36,910 files collected through the applica- bility of invoking the 7 May 1999 amend- tion process. Nearly 90% of the applicants ment of Article 15 of the Belgian Constitu- had received a positive answer. tion under which all press-committed cri- mes motivated by racism can be taken to a Women’s Rights penal criminal court without jury. This provi- On 8 March, Belgium’s Prime Minister sion does not apply to racially motivated and the Ministers of Justice and the Interior crimes committed by political parties. used the occasion of the International In 2001, there were no convictions un- Women’s Day to present a new govern- der the 1995 Law against Negationism. mental plan to combat violence against The decision of the Flemish Minister of women in three main fields: domestic vio- Culture, Bert Anciaux, to ban revisionist and lence, trafficking in women for sexual ex- negationist books from public libraries in ploitation, and cooperation and develop- Flanders provoked much debate. A number ment. of Belgian politicians and intellectuals Statistics demonstrated that 20% of raised their objections towards the decision women in Belgium were subjected to do- as an infringement on the right to freedom mestic violence. The Government commit- of expression. As stated by Yvan Mayeur, ted itself to carrying out a large information Member of Parliament and author of the campaign and to increasing the number of 1995 Law, “the Law against Negationism specialised aid centres from 84 to 196. Police officers will be further trained to deal exists for the purpose of avoiding all a pri- with cases of domestic violence. ori censorship”, as it provides for legal ac- In 2001, as in previous years, hun- tion against the book’s author, editor, pub- dreds of women were brought to Belgium lisher, and distributor.8 via mafia underground networks as victims of human trafficking. They came primarily Asylum Seekers and Immigrants from Central and Eastern European coun- In 2001, the primary issue as regards tries as well as from Asia and Sub-Saharan asylum and immigration was the comple- Africa. They were lured to the country by tion of the regularisation process initiated promises of well-paid work, but were treat- by the Parliament vote of 22 December ed as sexual slaves upon arrival. The plan 1999. For this purpose, an independent proposed by the Government envisages Regularisation Commission was set up to the consolidation of the existing three cen- examine applications on a case-by-case ba- tres for victims of trafficking as well as the sis for four categories of illegal immigrants establishment of a centre for information eligible for asylum. and analysis on trafficking. Further, the spe- The regularisation process was largely cialised centres will have the authority to criticized for its cumbersome bureaucratic act as a civil party for the victims or appear procedure, the divergent opinions on the in court on their behalf. The whole mecha- Commission’s functioning and as a result of nism is intended to help victims in terms of this, the delays in inspecting applications. their social and psychological rehabilitation The initial deadline of 1 July 2001 was mis- on the one hand, and dismantle the crimi- sed and the completion of the process was nal networks on the other. 66 BELGIUM

In March, the Senate adopted an ent. The court often did not give any clear amendment to Article 10 of the Constitu- reasons for discriminating against the fa- tion, which stipulated that “equality be- ther, other than “the best interest of the tween men and women is guaranteed”. child”. This policy led to the outrage of fa- The new Article 11 envisages that the Fe- thers and resulted in the establishment of deral Government as well as the govern- numerous organisations for the defence of ments of the federated entities be mixed. the rights of the non-custodial parent, Currently, ministerial teams have uniquely which in the majority of the cases was the male representation. This constitutional father.9 amendment will serve as a basis for a draft The Belgian legislator and judiciary law providing for alternation of men and have done nothing to abate this violation of women candidates on election lists. the child’s right to a family life and equal access to his parents. Also, in 2001, the Rights of the Child courts in effect sanctioned a non-custodial Belgium is a signatory to the Conventi- parent twice because first he (normally the on of the Rights of the Child. Although chil- father) was denied free access to his child, dren living in Belgium enjoy a comparably and then he had to pay financial support to fortunate position, many improvements are the custodial parent. This situation also led necessary before children’s rights are fully to a violation of the constitutional rights of guaranteed in Belgium. parents and the denial of the non-custodi- Children’s rights have particularly come al parent of its right to equal treatment. under pressure in family conflict situations Belgian authorities took measures in such as divorce proceedings. Courts tradi- some cases where one parent had kid- tionally have acted in a paternalistic man- napped the child and abducted it to a for- ner deciding in “the best interests of the eign country, by bringing the children back child” and granting custody of the children to Belgium. However, in cases in which one to the mother in 95% of the cases, also in parent removed a child from the family cases where the father would have been home and from the care of the other par- perfectly capable of caring properly for the ent and stayed in Belgium (e.g. in the wake children. of divorce proceedings), courts often grant- The policy of automatically granting ed custody of the child to the parent who custody rights to a single parent, the moth- had abducted the child. This practice was er, was biased. It violated the rights of the both unjust and also sent out the message other parent and especially the rights of the that the courts rewarded abductions and child to have equal access to the other par- even encouraged such misconduct. BELGIUM 67

Endnotes 1 Based on Human Rights Without Frontiers, Report on Human Rights in Belgium in 2001. 2 De Standaard, 24 April 2001, p. 9. 3 Tribunal of first instance of Brussels, 6 November 2001, Journal des Tribunaux, 1st De- cember 2001, p. 865. 4 UN Commission on Human Rights, Report of the Special Rapporteur on the Indepen- dence of Judges and Lawyers, 21 February 2000, E/CN.4/2000/61. 5 For historical details, see IHF, Human Rights in the OSCE Region, The Balkans, the Cau- casus, Central Asia and North America, Report 2001. 6 Le Soir, 8 March 2001, observation made by the Director of the Centre, Johan Leman. 7 Vlaams Blok received 30% of the vote in major Flemish cities in the 2000 municipal elections. 8 La Libre Belgique, 28 May 2001. 9 A large number of complaints filed with the High Council for Justice in 2000-2001 con- cerned custody battles. Report of the High Council for Justice, 26 November 2001, p. 22.