A constitutional joke? Intrusions on (private) life and the role of Parliament in Belgium

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On Friday 22 November 2019, a celebration in honour of Paul Lemmens’ emeritus status was held, in the company of many of his friends and colleagues. For this occasion, a number of them wrote a contribution for the wonderful Liber amicorum Paul Lemmens. In this blog series we draw attention to several contributions in this book.  This post constitutes a warning from the social field on the practical consequences of theoretical human rights frameworks, authored by dr. Nathalie Van Leuven.

Should an interference with the right to private life be foreseeable by a formal law of Parliament? And should an interference with the right to life also be foreseeable by a formal law of Parliament? Formally, the answer is yes on the first but no on the second question, which results in a strange and sometimes very theoretical outcome. The Belgian Constitution thus does not demand a formal law for interferences in the right to life, but does so for interferences in the right to privacy. This blogpost fleshes out some of the practical and potentially dangerous consequences of the (differences in the) legal regime for both.

Firstly, this blogpost touches upon unprotected cases of privacy intrusions of very vulnerable job seekers in Flanders. Secondly, it questions the absence of the legality principle in interferences with the right to life. The issue of the NIPT (non-invasive prenatal testing) raises the question whether a Minister can decide on prenatal screening without Parliament.

Most vulnerable citizens seeking for a job: legality principle violated

Job seekers with serious psychosocial problems can work in social enterprises, called ‘Maatwerkbedrijven’. There are more candidates to take part in the Flemish ‘hard working’ population than there are vacancies in those social enterprises. According to the Flemish federate law, ‘called Maatwerkdecreet’, it is up to the Public employment service of Flanders (VDAB) to decide which candidate can start working in a social enterprise. A personality disorder test of this service (set down in a Ministerial decree) looks at factors such as good body care, good health care, establishment of relations, social activities, etc. It also tests for psychological stability, confidence, reliability, motivation, rage control, flexibility, etc. through intrusive testing and questioning.

In our opinion, this questioning, regulated in a Ministerial decree, contains  a serious violation of the legality principle applicable to the right to privacy (art. 22 of the Belgian Constitution). This decree ‘excels’ in vagueness and camouflage. It only mentions characteristics pointing to personality disorders or dysfunctioning in daily life but establishes no regulated procedure for this investigation. This issue should be questioned more often by lawyers. Nobody will get rich by doing so, but many will be better protected. Our poorest citizens will not go to court, a part of society to which they do not belong. They are afraid of the supervising authority and depend on it to obtain a job and in a way also a certain recognition within or by our society. What’s more, the law does not set any reasonable time guarantee (certain procedures take more than a year), neither appeal or information duties, nor the right to be accompanied by a person one can trust. Parliament should have taken up its role in safeguarding the privacy and the protection of our most vulnerable citizens yet it delegated its responsibility to the administration.

How to solve these kind of legal ‘bloopers’ in the future? Suggestions might include an indication of a human rights interference in the preamble of the law, an advice by the Council of State on the most important Parliamentary Bills and a human rights commission playing a role of democratic pitbull. All of these have in common that Parliament cannot simply abdicate responsibility in these cases but has to own up to potential interferences with human rights such as the one above.

Non-invasive prenatal testing: no legality requirements

A potentially even greater concern may be posed by the absence of a (formal) legality principle with regard to the right to life. In 2019-2020, a Guislain exposition in Ghent featured artists with and without a disability on non-invasive prenatal testing. Some organisations (Vormingplus MZW, Het Pakt, vzw Wit.h and  Konekt,  ) created an inclusive artistic movement, called “United Perfection”, in order to question, together with various others, the future and desirability of prenatal testing. On the 21st of March, 2019, the first Pilot with Down inaugurated the 21/3 –Meridian from Knokke to Tielt and Spiere-Helkijn  (Bloedtest-website) an act to make people think about and question the prenatal testing that checks for Down Syndrome or Trisomy 21 in the blood of the pregnant mother. “The use of prenatal testing […] becomes [an] indicator […] to be a fully-fledged human being”, as C. STEVENS puts it.

The reimbursement of this prenatal test is regulated by a governmental act of 15 October 2017. Is it not strange that Parliament does not deal with these life-bothering issues (cf. here at 202-203)?  According to the Soering-judgment of the ECtHR, a state can interfere with Article 3 ECHR  (prohibition of torture and inhuman or degrading treatment) in case of deportation or extradition with serious reasons to believe that the individual will be subjected to a treatment contrary to Article 3 ECHR. In that regard, I would question, albeit somewhat creatively relying on that judgment, whether the decision of a government to reimburse tests probing how fully-fledged a human being is and which is often followed by an abortion (Administration Report p. 142), can be seen as an indirect interference with the right to life.

Nevertheless, two points can not be overlooked. First, the active link is less close than in Soering. The State is only reimbursing a test with a lot of consequences….Secondly, the ECHR does – for diplomatic reasons- not confer any right to life unto the unborn life. The interference is thus less obvious and ECHR-protection less strong. Yet, from a democratic concern, I do worry: will future questions on bio and eugenic tests only be regulated in technical commissions and by a government or should we demand Parliament to make these difficult exercises after hearing the people and families involved? As you might have guessed, my preference undoubtedly is the latter. And should there never be a role for a European Court of Human Rights if prenatal testing goes far beyond human reasonable standards?

Through this post some questions were raised from the social field to future researchers to build up a society that might be more or less perfect yet certainly more human … inspired by the glasses I got from a very special motivating and admirable promotor.

Nathalie Van Leuven obtained her doctorate at KU Leuven (with a lot of gratitude to em. prof. dr. Paul Lemmens) and is currently an affiliated researcher at CIRC, Université Saint Louis-Bruxelles.

Nathalie VAN LEUVEN, "A constitutional joke? Intrusions on (private) life and the role of Parliament in Belgium", Leuven Blog for Public Law, 12 June 2020, https://www.leuvenpubliclaw.com/a-constitutional-joke-intrusions-on-private-life-and-the-role-of-parliament-in-belgium (geraadpleegd op 21 October 2021)

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