Does a student assembly ban violate the constitutional principle of equality?
Contested measure Leuven municipality
A fuss arose in late March about a COVID-19 measure in Leuven. A number of students who allegedly congregated in the outdoor area of a student residence after 10 p.m. were checked by Leuven police. For each of them, a minutes Have been prepared for the Violation of a COVID-19 measure..
However, at that time the federal measure that stated that the outer bubble from ten people was allowed to exist, which meant that people were allowed to meet in the outdoors (including, therefore, the garden) with a maximum of ten people.
In Leuven at that time, however, another local measure. By a police ordinance [1] After all, in October, a ban enacted for students to congregate between 10 p.m. and 6 a.m. in the common (outdoor) areas of their student quarters.
The measure was still in effect at the time the students met, and based on that measure, the students would have been in violation, according to police.
The police ordinance (which has since been repealed) punished violating this measure with police penalties.
Is the Leuven police ordinance constitutional?
Through social media, the measure found itself in the eye of a storm and the question was raised whether this measure was constitutional. Indeed, the measure only applied to a very specific situation, namely the common parts in student residences, such as the gardens, regardless of their size. Thus, the question of whether persons were allowed to congregate in the garden with a number of other persons after 10 p.m. depended entirely on whether the house in question qualified as a student residence or not.
One might ask whether or not our Constitution and the right to equality allow such distinctions?
The Constitution and the jurisprudence of the Constitutional Court allow a distinction to be made between two similar situations only if the following four questions can be answered in the affirmative:
1. Is the distinction made based on an objective criterion?
The Leuven police ordinance made a distinction based on the status of the residence in which a gathering would take place. Gatherings in gardens of houses serving as student dormitories would fall under the rules of the police ordinance while the gardens of non-student dormitories would not. Such a criterion could be considered as objective be considered, and this first question can consequently positive answered.
2. Is the purpose of the distinction legitimate?
The Leuven police ordinance stated in justification of its regulation:
"In the outside area of the dorm (e.g. in the garden), a maximum of four people can get together (whether they are fellow dorm mates or external people) provided they keep a distance of one and a half meters. Due to the increasing number of nocturnal noises from students, these gatherings are only allowed between 8 am and 10 pm. This implies that cot parties are not allowed."
Consequently, the purpose of the police ordinance was to protect public health and curb nighttime noise. These two objectives can plainly be considered as legitimate objectives are considered and, consequently, the answer to the second question is also positive.
3. Is the measure imposing the challenged standard appropriate for the purpose it seeks?
In answering this question, one should look purely at whether a particular measure serves a particular purpose can achieve. Given the contagiousness of COVID-19 virus, banning gatherings may prevent the spread of the virus and protect public health. That noise pollution can also be reduced by banning meetings seems to be beyond dispute. Consequently, this third question positive to be answered.
4. Is the disparity proportional to the intended purpose?
It is on this last question that the shoe might seem to pinch. Both the right of association and the student's right to freedom are compromised by the Leuven police regulation. These rights were restricted by the Leuven measure to the extent that they were considered by a judge as disproportionate could be labeled.
The judge will make a specifically-assessment in which he will have to weigh the above fundamental rights against the objectives pursued.
After all, it seems hard to justify the fact that since October the City of Leuven has prohibited students from congregating in the garden after ten o'clock, while their neighbors, if already professionally active, would be allowed to do so.
Effect of possible unconstitutionality
What might be the consequences of such unconstitutionality for Leuven students?
For the Leuven students, it was no longer possible to challenge the Leuven Police Ordinance itself due to the fact that such a challenge must be made within a period of sixty days after the publication of the measure.
However, without such a deadline having to be observed, application may be made to the exception of illegality provided for in Article 159 of the Constitution. That article states:
"The courts and tribunals apply general, provincial and local decrees and ordinances only insofar as they conform to the laws."
This plea of illegality is a special application of the more general principle of law, according to which the court may not apply a norm, which violates a higher provision of law [2].
In the case of the Leuven measure, the question arises as to whether the principle of equality, which is enshrined, inter alia, in Articles 10 and 11 of the Constitution (a higher provision of law), by the police ordinance was violated.
If a court, when faced with the question of whether such an assembly could be punished, finds that the police ordinance was unconstitutional, it should disregard the unconstitutional police ordinance. Consequently, he should consider the punishment that the police ordinance imposed as non-existent and rule that no punishment could be imposed without it. An acquittal would impose itself in that case.
Influence of the judgment of the Brussels Court of First Instance?
Also, the judgment of March 31, 2021 In which a Brussels judge ruled that the current Belgian corona measures not lawful be, could have an impact on the legality of the Leuven police ordinance. After all, the Leuven police regulation was founded on those Belgian coronagraphs. It remains to be seen whether the verdict of the first instance judge will also be upheld on appeal.
Would you like more information about a potentially discriminatory penalty or to be assisted by a specialized lawyer? Please feel free to contact us at info@bannister.be or at 03.369.28.00.
April 11, 2021
[1] Police Ordinance City of Louvain Oct. 21, 2021.
[2] Cass. April 8, 2003, P.02.1165.N, Arr.Cass. 2003, 815, no. 233.
