Abstract
As part of a comparative legal study by the European Union Fundamental Rights Agency, the report examines how the rule of law is guaranteed in Belgium through the protection of fundamental rights. After consulting three experts, seven decisions (four from judicial bodies and three from non-judicial bodies, all dating from after the entry into force of the Charter of Fundamental Rights of the European Union) were selected, explained and analysed in this area. These decisions show that in Belgium, the rule of law is prominently guaranteed through the protection of fundamental rights. For example, the judicial backlog is addressed almost exclusively from the perspective of the right to a fair trial. This dynamic can be explained by the absence of an explicit anchoring of the rule of law in the Belgian Constitution and the presence of strong protection of fundamental rights. Based on the analysis of the decisions, the report puts forward five observations. Firstly, Belgian constitutional law facilitates the protection of the rule of law through fundamental rights by providing various mechanisms to respect those fundamental rights. Secondly, the emphasis here is mainly on the fundamental rights enshrined in the Belgian Constitution and the European Convention on Human Rights. Thirdly, the decisions cover all kinds of areas of law and policy. The (non-)judicial bodies regularly take decisions in politically and socially sensitive and controversial cases, where the line between law and politics is thin. Fourthly, it is noted that the intensity of the fundamental rights review varies. The bodies involved, and in particular the judicial bodies, take into account considerations other than the mere protection of fundamental rights or the rule of law in their decisions, and regularly grant – explicitly or implicitly – a margin of discretion to other public bodies. The latter observation points to a larger problem with regard to the state of the rule of law in Belgium: decisions regularly remain without effective implementation. The other public bodies point to the far-reaching consequences of those decisions, which they cannot and/or do not want to meet. This is highly criticisable on the grounds of respect for the rule of law. However, it leads to the conclusion that, paradoxically, the protection of the rule of law through the protection of fundamental rights in Belgium seems in some cases to undermine that very rule of law.
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