Judgment (Merits) of European Court of Human Rights, March 02, 1987 (case CASE OF MATHIEU-MOHIN AND CLERFAYT v. BELGIUM)

Resolution DateMarch 02, 1987



(Application no. 9267/81)



2 March 1987

In the case of Mathieu-Mohin and Clerfayt[],

The European Court of Human Rights, taking its decision in plenary session in pursuance of Rule 50 of the Rules of Court and composed of the following judges:

             Mr.               R. Ryssdal, President,

             Mr.               J. Cremona,

             Mr.               Thór Vilhjálmsson,

             Mrs.               D. Bindschedler-Robert,

             Mr.               G. Lagergren,

             Mr.               F. Gölcüklü,

             Mr.               F. Matscher,

             Mr.               J. Pinheiro Farinha,

             Mr.               L.-E. Pettiti,

             Mr.               B. Walsh,

             Sir               Vincent Evans,

             Mr.               R. Macdonald,

             Mr.               C. Russo,

             Mr.               R. Bernhardt,

             Mr.               J. Gersing,

             Mr.               A. Spielmann,

             Mr.               N. Valticos,

             Mr.               W. Ganshof van der Meersch, ad hoc judge,

and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy Registrar,

Having deliberated in private on 26 September 1986 and on 27 and 28 January 1987,

Delivers the following judgment, which was adopted on the last-mentioned date:


  1.    The present case was referred to the Court by the European Commission of Human Rights ("the Commission") on 11 July 1985, within the three-month period laid down in Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The case originated in an application (no. 9267/81) against the Kingdom of Belgium lodged under Article 25 (art. 25) on 5 February 1981. The original application was made by fifteen members of the Belgian House of Representatives and Senate, but the Commission declared it admissible in respect of only two of the applicants, Mrs. Lucienne Mathieu-Mohin and Mr. Georges Clerfayt (see paragraphs 40-41 below).

  2.    The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Belgium recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision from the Court as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 3 of Protocol No. 1 (P1-3), taken either alone or together with Article 14 (art. 14+P1-3) of the Convention.

  3.    In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicants stated that they wished to take part in the proceedings pending before the Court and designated the lawyers who would represent them (Rule 30).

  4.    The Chamber of seven judges to be constituted included, as ex officio members, Mr. W. Ganshof van der Meersch, the elected judge of Belgian nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 2 October 1985, in the presence of the Registrar, the President drew by lot the names of the other five members, namely Mr. J. Cremona, Mrs. D. Bindschedler-Robert, Mr. D. Evrigenis, Mr. R. Macdonald and Mr. J. Gersing (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).

  5.    On 22 October 1985, the Chamber decided unanimously, pursuant to Rule 50 of the Rules of Court, to relinquish jurisdiction forthwith in favour of the plenary Court.

  6.    Through the Registrar, the President of the Court consulted those who would be appearing before the Court on the need for a written procedure (Rule 37 § 1). On 21 January 1986, he decided that the Agent of the Belgian Government ("the Government") and the applicants’ lawyers should have until 21 March to file memorials, and that the Commission’s Delegate should be entitled to file a memorial in reply within two months. On 18 March, he agreed to extend to 21 May the period granted to the Government and the second applicant’s lawyers.

    The memorials from Mrs. Mathieu-Mohin’s lawyers, Mr. Clerfayt’s lawyers and the Government reached the registry on 19 March, 28 May and 3 June 1986 respectively. On 18 July, the Secretary to the Commission indicated that the Delegate would submit his observations at the hearing.

  7.    Having been elected a member of the Court on 29 January 1986 in succession to Mr. Ganshof van der Meersch, whose term of office had just expired, Mr. J. De Meyer was called upon to sit on the case by reason of his nationality (Article 43 of the Convention and Rule 2 § 3) (art. 43), but in a letter of 12 February 1986 to the President he said he wished to withdraw as he had taken part in the preparation of the impugned Act (Rule 24 § 2). On 27 March 1986, the Government’s Agent notified the Registrar of the appointment of Mr. Ganshof van der Meersch as an ad hoc judge (Article 43 of the Convention and Rule 23 § 1) (art. 43).

  8.    After consulting, through the Registrar, the Agent of the Government, the Commission’s Delegate and the applicants’ lawyers, the President directed on 1 July 1986 that the oral proceedings should open on 24 September (Rule 38).

  9.    The hearing was held in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting immediately beforehand.

    There appeared before the Court:

    -  for the Government

                 Mr. J. Niset, Legal Adviser,

                                             Ministry of Justice,               Agent,

                 Mr. E. Jakhian, avocat,               Counsel;

    -  for the Commission

                 Mr. J.A. Frowein,               Delegate;

    -  for Mrs. Mathieu-Mohin

                 Mr. J.-J. Pegorer, avocat,               Counsel;

    -  for Mr. Clerfayt

                 Mr. B. Maingain,

                 Mr. J.-P. Lagasse, avocats,               Counsel.

    The Court heard addresses by Mr. Jakhian for the Government, by Mr. Frowein for the Commission and by Mr. Lagasse, Mr. Maingain and Mr. Pegorer for the applicants, as well as their replies to questions put by the Court and several of its members individually.

  10.    On 17, 23 and 24 September 1986, the Commission, the applicants and the Government variously produced a number of documents, either at the President’s request or of their own accord.



    A.   Mrs. Mathieu-Mohin

  11.    Mrs. Mathieu-Mohin, who is a French-speaking Belgian citizen, currently lives in Brussels but was living in Vilvoorde (Vilvorde) at the time she made her application to the Commission. Vilvoorde is in the administrative district of Halle-Vilvoorde (Hal-Vilvorde), in the Flemish Region, and in the electoral district of Brussels (see paragraphs 19, 21 and 37-38 below).

    The applicant had been elected by direct universal suffrage in the latter constituency and at the time sat in the Senate, one of the two Houses of the national Parliament. As she had taken the parliamentary oath in French, she could not be a member of the Flemish Council (see paragraphs 16, 27 and 30 below). She was, on the other hand, a member of the French Community Council, but not of the Walloon Regional Council (see paragraphs 27 and 30 below).

    She was not re-elected on 8 November 1981 and did not stand in the general election of October 1985.

    B.   Mr. Clerfayt

  12.    Mr. Clerfayt, who is likewise a French-speaking Belgian national, was living - and still lives - in Sint-Genesius-Rode (Rhode-Saint-Genèse). Like Vilvoorde, this municipality is in the administrative district of Halle-Vilvoorde and the electoral district of Brussels. Together with five other localities on the outskirts of the capital, however, it was given a "special status" by Parliament because of its large number of French-speaking inhabitants (see paragraph 37 below).

    Mr. Clerfayt was from the outset active in the ranks of the Brussels French-Speakers’ Democratic Front. Since 1968 he has sat in the national Parliament - in the House of Representatives - as a member for the electoral district of Brussels. He took the parliamentary oath in French, which prevents him from belonging to the Flemish Council; on the other hand, he was and is a member of the French Community Council, but not of the Walloon Regional Council.

  13.    On 28 November 1983, Mr. Clerfayt sought leave from the Speaker of the House of Representatives to put a question to the member of the Flemish Executive (see paragraph 27 below) responsible for matters relating to regional planning, land policy, subsidised housing and compulsory purchase in the public interest, on a number of relevant issues arising in Sint-Genesius-Rode and in other municipalities in the electoral district of Brussels. The next day, leave was refused him on the ground that his request was inadmissible. He accordingly approached the Speaker of the Flemish Council on 13 December, who gave him a similar reply on 15 December.


  14.    The Kingdom of Belgium was initially conceived, in 1831, as a unitary State although divided into provinces and municipalities with a large degree of autonomy (Articles 1, 31 and 108 of the Constitution of 7 February 1831), but it is gradually moving towards a federal pattern of organisation.

    This process of change, in which the main landmarks have been the constitutional reforms of 24 December 1970 and 17 July 1980, is not yet over. Apart from a number of repercussions on central national institutions, it has been reflected in the creation of Regions and Communities; and the position of elected representatives and electors resident in the administrative district of Halle-Vilvoorde has not remained unaffected.

    A.   Development of central national institutions

  15.    Legislative power at national level is exercised jointly by the King and both Houses of...

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