CASE OF MARCKX v. BELGIUM

1. The Marckx case was referred to the Court by the European Commission of Human Rights ("the Commission"). The case originated in an application against the Kingdom of Belgium lodged with the Commission on 29 March 1974 by Ms. Paula Marckx ("the first applicant"), acting on behalf of herself and of her infant daughter Alexandra ("the second applicant"), under Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").
2. The Commission ’ s request, to which was attached the report provided for under Article 31 (art. 31) of the Convention, was filed with the registry of the Court on 10 March 1978, within the period of three months laid down by Articles 32 para. 1 and 47 (art. 32-1, art. 47). The request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration made by the Kingdom of Belgium recognising the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the Commission ’ s request is to obtain a decision from the Court as to whether or not the contested Belgian legislation and the legal situation it creates for the applicants are compatible with the Convention, especially its Articles 8 and 14 (art. 8, art. 14), and with Article 1 of Protocol No. 1 (P1-1).
3. On 11 March 1978, the President of the Court drew by lot, in the presence of the Deputy Registrar, the names of five of the seven judges called upon to sit as members of the Chamber; Mr. W. Ganshof van der Meersch, the elected judge of Belgian nationality, and Mr. G. Balladore Pallieri, the President of the Court, were ex officio members under Article 43 (art. 43) of the Convention and Rule 21 para. 3 (b) of the Rules of Court respectively. The five judges thus designated were Mr. J. Cremona, Mr. P. O ’ Donoghue, Mrs. D. Bindschedler-Robert, Mr. D. Evrigenis and Mr. F. Matscher (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Mr. Balladore Pallieri assumed the office of President of the Chamber in accordance with Rule 21 para. 5.
4. On 13 March 1978, the Chamber decided under Rule 48 to relinquish jurisdiction forthwith in favour of the plenary Court, "considering that the case raise(d) serious questions affecting the interpretation of the Convention ...".
5. The President of the Court ascertained, through the Deputy Registrar, the views of the Agent of the Belgian Government ("the Government") and the Delegates of the Commission regarding the procedure to be followed. By an Order of 3 May 1978, he decided that the Agent should have until 3 July 1978 to file a memorial and that the Delegates should be entitled to file a memorial in reply within two months from the date of the transmission of the Government ’ s memorial to them by the Registrar.
The Government ’ s memorial was received at the registry on 3 July 1978.
On 13 July 1978, the Secretary to the Commission advised the Deputy Registrar that the Delegates did not propose to file a memorial in reply but that they reserved the right to expound their views at the hearings. At the same time, the Secretary to the Commission notified the Deputy Registrar of the observations of Mrs. Van Look, the applicant ’ s counsel, on the Commission ’ s report.
6. After consulting, through the Deputy Registrar, the Agent of the Government and the Delegates of the Commission, the President directed by an Order of 14 September 1978 that the oral hearings should open on 24 October.
7. The oral hearings were held in public at the Human Rights Building, Strasbourg, on 24 October 1978. The Court had held a short preparatory meeting earlier that morning.
There appeared before the Court:
the Ministry of Justice, Agent,
Mr. P. VAN LANGENAEKEN, Director General at
the Ministry of Justice, Adviser;
Mr. C.A. NØRGAARD, Principal Delegate,
Mr. J. CUSTERS and Mr. N. KLECKER, Delegates,
Mrs. L. VAN LOOK, the applicants ’ counsel
before the Commission, assisting the Delegates under
Rule 29 para. 1, second sentence.
The Court heard addresses by Mr. Nørgaard, Mr. Custers and Mrs. Van Look for the Commission and by Mr. van Hecke for the Government, as well as their replies to questions put by several judges.
A. Particular circumstances of the case
8. Alexandra Marckx was born on 16 October 1973 at Wilrijk, near Antwerp; she is the daughter of Paula Marckx, a Belgian national, who is unmarried and a journalist by profession.
Paula Marckx duly reported Alexandra ’ s birth to the Wilrijk registration officer who informed the District Judge ( juge de paix ) as is required by Article 57 bis of the Belgian Civil Code ("the Civil Code") in the case of "illegitimate" children.
9. On 26 October 1973, the District Judge of the first district of Antwerp summoned Paula Marckx to appear before him (Article 405) so as to obtain from her the information required to make arrangements for Alexandra ’ s guardianship; at the same time, he informed her of the methods available for recognising her daughter and of the consequences in law of any such recognition (see paragraph 14 below). He also drew her attention to certain provisions of the Civil Code, including Article 756 which concerns "exceptional" forms of inheritance (successions" irrégulières ").
10. On 29 October 1973, Paula Marckx recognised her child in accordance with Article 334 of the Code. She thereby automatically became Alexandra ’ s guardian (Article 396 bis); the family council, on which the sister and certain other relatives of Paula Marckx sat under the chairmanship of the District Judge, was empowered to take in Alexandra ’ s interests various measures provided for by law.
11. On 30 October 1974, Paula Marckx adopted her daughter pursuant to Article 349 of the Civil Code. The procedure, which was that laid down by Articles 350 to 356, entailed certain enquiries and involved some expenses. It concluded on 18 April 1975 with a judgment confirming the adoption, the effect whereof was retroactive to the date of the instrument of adoption, namely 30 October 1974.
12. At the time of her application to the Commission, Ms. Paula Marckx ’ s family included, besides Alexandra, her own mother, Mrs. Victorine Libot, who died in August 1974, and a sister, Mrs. Blanche Marckx.
13. The applicants complain of the Civil Code provisions on the manner of establishing the maternal affiliation of an "illegitimate" child and on the effects of establishing such affiliation as regards both the extent of the child ’ s family relationships and the patrimonial rights of the child and of his mother. The applicants also put in issue the necessity for the mother to adopt the child if she wishes to increase his rights.
1. Establishment of the maternal affiliation of an "illegitimate" child
14. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth: whilst the birth certificate recorded at the registry office suffices to prove the maternal affiliation of a married woman ’ s children (Article 319 of the Civil Code), the maternal affiliation of an "illegitimate" child is established by means either of a voluntary recognition by the mother or of legal proceedings taken for the purpose (action en recherche de maternité ).
Nevertheless, an unrecognised "illegitimate" child bears his mother ’ s name which must appear on the birth certificate (Article 57). The appointment of his guardian is a matter for the family council which is presided over by the District Judge.
Under Article 334, recognition, "if not inserted in the birth certificate, shall be effected by a formal deed". Recognition is declaratory and not attributive: it does not create but records the child ’ s status and is retroactive to the date of birth. However, it does not necessarily follow that the person effecting recognition is actually the child ’ s mother; on the contrary, any interested party may claim that the recognition does not correspond to the truth (Article 339). Many unmarried mothers - about 25 % according to the Government, although the applicants consider this an exaggerated figure - do not recognise their child.
Proceedings to establish maternal affiliation (action en recherche de maternité ) may be instituted by the child within five years from his attainment of majority or, whilst he is still a minor, by his legal representative with the consent of the family council (Articles 341a-341c of the Civil Code).
2. Effects of the establishment of maternal affiliation
15. The establishment of the maternal affiliation of an "illegitimate" child has limited effects as regards both the extent of his family relationships and the rights of the child and his mother in the matter of inheritance on intestacy and voluntary dispositions.
a. The extent of family relationships
16. In the context of the maternal affiliation of an "illegitimate" child, Belgian legislation does not employ the concepts of "family" and "relative". Even once such affiliation has been established, it in principle creates a legal bond with the mother alone. The child does not become a member of his mother ’ s family. The law excludes it from that family as regards inheritance rights on intestacy (see paragraph 17 below). Furthermore, if the child ’ s parents are dead or under an incapacity, he cannot marry, before attaining the age of twenty-one, without consent which has to be given by his guardian (Article 159 of the Civil Code) and not, as is the case for a "legitimate" child, by his grandparents (Article 150); the law does not expressly create any maintenance obligations, etc., between the child and his grandparents. However, certain texts make provision for exceptions, for example as regards the impediments to marriage (Articles 161 and 162). According to a judgment of 22 September 1966 of the Belgian Court of Cassation (Pasicrisie I, 1967, pp 78-79), these texts "place the bonds existing between an illegitimate child and his grandparents on a legal footing based on the affection, respect and devotion that are the consequence of consanguinity ... (which) creates an obligation for the ascendants to take an interest in their descendants and, as a corollary, gives them the right, whenever this is not excluded by the law, to know and protect them and exercise over them the influence dictated by affection and devotion". The Court of Cassation deduced from this that grandparents were entitled to a right of access to the child.
(b) Rights of a child born out of wedlock and of his mother in the matter of inheritance on intestacy and voluntary dispositions
17. A recognised "illegitimate" child ’ s rights of inheritance on intestacy are less than those of a "legitimate" child. As appears from Articles 338, 724, 756 to 758, 760, 761, 769 to 773 and 913 of the Civil Code, a recognised "illegitimate" child does not have, in the estate of his parent who dies intestate, the status of heir but solely that of "exceptional heir" (" successeur irrégulier "): he has to seek a court order putting him in possession of the estate (envoi en possession). He is the sole beneficiary of his deceased mother ’ s estate only if she leaves no relatives entitled to inherit (Article 758); otherwise, its maximum entitlement - which arises when his mother leaves no descendants, ascendants, brothers or sisters – is three-quarters of the share which he would have taken if "legitimate" (Article 757). Furthermore, his mother may, during her lifetime, reduce that entitlement by one-half. Finally, Article 756 denies to the "illegitimate" child any rights on intestacy in the estates of his mother ’ s relatives.
18. Recognised "illegitimate" children are also at a disadvantage as regards voluntary dispositions, since Article 908 provides that they "may receive by disposition inter vivos or by will no more than their entitlement under the title ‘ Inheritance on Intestacy ’ ".
Conversely, the mother of such a child, unless she has no relatives entitled to inherit, may give in her lifetime or bequeath to him only part of her property. On the other hand, if the child ’ s affiliation has not been established, the mother may so give or bequeath to him the whole of her property, provided that there are no heirs entitled to a reserved portion of her estate ( héritiers réservataires ). The mother is thus faced with the following alternative: either she recognises the child and loses the possibility of leaving all her estate to him; or she renounces establishing with him a family relationship in the eyes of the law, in order to retain the possibility of leaving all her estate to him just as she might to a stranger.
3. Adoption of "illegitimate" children by their mother
19. If the mother of a recognised" illegitimate" child remains unmarried, she has but one means of improving his status, namely, "simple" adoption. In such cases, the age requirements for this form of adoption are eased by Article 345 para. 2, sub-paragraph 2, of the Civil Code. The adopted child acquires over the adopter ’ s estate the rights of a "legitimate" child but, unlike the latter, has no rights on intestacy in the estates of his mother ’ s relatives (Article 365).
Only legitimation (Articles 331-33 3) and legitimation by adoption (Articles 368-370) place an "illegitimate" child on exactly the same footing as a "legitimate" child; both of these measures presuppose the mother ’ s marriage.
C. The Bill submitted to the Senate on 15 February 1978
20. Belgium has signed, but not yet ratified, the Brussels Convention of 12 September 1962 on the Establishment of Maternal Affiliation of Natural Children, which was prepared by the International Commission on Civil Status and entered into force on 23 April 1964. Neither has Belgium yet ratified, nor even signed, the Convention of 15 October 1975 on the Legal Status of Children born out of Wedlock, which was concluded within the Council of Europe and entered into force on 11 August 1978. Both of these instruments are based on the principle "mater semper certa est"; the second of them also regulates such questions as maintenance obligations, parental authority and rights of succession.
21. However, the Belgian Government submitted to the Senate on 15 February 1978 a Bill to which they referred the Court in their memorial of 3 July 1978 and subsequently at the hearings on 24 October. The official statement of reasons accompanying the Bill, which mentions, inter alia, the Conventions of 1962 and 1975 cited above, states that the Bill "seeks to institute equality in law between all children". In particular, maternal affiliation would be established on the mother ’ s name being entered on the birth certificate, which would introduce into Belgian law the principle "mater semper certa est". Recognition by an unmarried mother would accordingly no longer be necessary, unless there were no such entry. Furthermore, the Civil Code would confer on children born out of wedlock rights identical to those presently enjoyed by children born in wedlock in the matter of inheritance on intestacy and voluntary dispositions.
PROCEEDINGS BEFORE THE COMMISSION
22. The essence of the applicants ’ allegations before the Commission was as follows:
- as an "illegitimate" child, Alexandra Marckx is the victim, as a result of certain provisions of the Belgian Civil Code, of a "capitis deminutio" incompatible with Articles 3 and 8 (art. 3, art. 8) of the Convention;
- this "capitis deminutio" also violates the said Articles (art. 3, art. 8) with respect to Paula Marckx;
- there are instances of discrimination, contrary to Article 14 taken in conjunction with Article 8 (art. 14+8), between "legitimate" and "illegitimate" children and between unmarried and married mothers;
- the fact that an "illegitimate" child may be recognised by any man, even if he is not the father, violates Articles 3, 8 and 14 (art. 3, art. 8, art. 14);
- Article 1 of Protocol No. 1 (P1-1) is violated by reason of the fact that an unmarried mother is not free to dispose of her property in favour of her child.
23. By partial decision of 16 March 1975, the Commission declared the penultimate complaint inadmissible. On 29 September 1975, it accepted the remainder of the application and also decided to take into consideration ex officio Article 12 (art. 12) of the Convention.
In its report of 10 December 1977, the Commission expresses the opinion:
- by ten votes to four, "that the situation" complained of "constitutes a violation of Article 8 (art. 8) of the Convention with respect to the illegitimate child" as far as, firstly, the "principle of recognition and the procedure for recognition" and, secondly, the "effects" of recognition are concerned;
- by nine votes to four with one abstention, that the "simple" adoption of Alexandra by her mother "has not remedied" the situation complained of in that "it maintains an improper restriction on the concept of family life", with the result that "the position complained of constitutes a violation of Article 8 (art. 8) with respect to the applicants";
- by twelve votes with two abstentions, "that the legislation as applied constitutes a violation of Article 8 in conjunction with Article 14 (art. 14+8) with respect to the applicants";
- by nine votes to six, that the "Belgian legislation as applied violates Article 1 of the First Protocol in conjunction with Article 14 (art. 14+P1-1) of the Convention" with respect to the first, but not to the second, applicant;
- that it is not "necessary" to examine the case under Article 3 (art. 3) of the Convention;
- unanimously, that "Article 12 (art. 12) is not relevant".
The report contains one separate opinion.
FINAL SUBMISSIONS MADE TO THE COURT
24. At the hearings on 24 October 1978, the Government confirmed the submission appearing in their memorial, namely:
"That the Court should decide that the facts related by the Commission in its report do not disclose a violation by the Belgian State, in the case of the applicants Paula and Alexandra Marckx, of the obligations imposed by the Convention."
The Delegates of the Commission, for their part, made the following submission at the hearings:
"May it please the Court to decide whether the Belgian legislation complained of violates, in the case of the applicants, the rights guaranteed to them by Article 8 of the Convention and Article 1 of Protocol No. 1 (art. 8, P1-1), taken alone or in conjunction with Article 14 (art. 14+8, art. 14+P1-1) of the Convention."
I. ON THE GOVERNMENT ’ S PRELIMINARY PLEA
25. The application of the Civil Code provisions concerning children born out of wedlock and unmarried mothers is alleged by the applicants to contravene, with respect to them, Articles 3, 8, 12 and 14 (art. 3, art. 8, art. 12, art. 14) of the Convention and Article 1 of Protocol No. 1 (P1-1).
26. In reply, the Government firstly contend - if not by way of an objection of lack of jurisdiction or inadmissibility as such, at least by way of a preliminary plea - that the issues raised by the applicants are essentially theoretical in their case. The Government illustrate this by the following points: the child Alexandra Marckx did not suffer from the fact that her maternal affiliation was not established as soon as she was born (16 October 1973) but only thirteen days later, when she was recognised, since at the time she was unaware of the circumstances of her birth; her mother, Paula Marckx, was acting of her own accord, and not under duress, when she recognised Alexandra (29 October 1973) and when she adopted her (30 October 1974); there is nothing to indicate that, during the interval of a year and a day between these two latter dates, Paula Marckx had any wish to make, by will or by gift inter vivos, a provision for her daughter more generous than that stipulated by Article 908 of the Civil Code; a very substantial proportion of the expenses incurred by Paula Marckx for the adoption could have been avoided; since 30 October 1974, Alexandra ’ s position vis-à-vis her mother has been the same as that of a "legitimate" child. Briefly, the applicants are overlooking, in the Government ’ s submission, the fact that it is not the Court ’ s function to rule in abstracto on the compatibility with the Convention of certain legal rules (Golder judgment of 21 February 1975, Series A no. 18, p. 19, para. 39).
The Commission ’ s response is that it did not examine the impugned legislation in abstracto since the applicants are relying on specific and concrete facts.
27. The Court does not share the Government ’ s view. Article 25 (art. 25) of the Convention entitles individuals to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it (see, mutatis mutandis, the Klass and others judgment of 6 September 1978, Series A no. 28, pp. 17-18, para. 33). Such is indeed the standpoint of the applicants: they raise objections to several Articles of the Civil Code which applied or apply to them automatically. In submitting that these Articles are contrary to the Convention and to Protocol No. 1, the applicants are not inviting the Court to undertake an abstract review of rules which, as such, would be incompatible with Article 25 (art. 25) (see, in addition to the two judgments cited above, the De Becker judgment of 27 March 1962, Series A no. 4, p. 26 in fine, and the De Wilde, Ooms and Versyp judgment of 10 March 1972, Series A no. 14, p. 10, para. 22): they are challenging a legal position - that of an unmarried mothers and of children born out of wedlock - which affects them personally.
The Government appear, in short, to consider that this position is not or is barely detrimental to the applicants. The Court recalls in this respect that the question of the existence of prejudice is not a matter for Article 25 (art. 25) which, in its use of the word "victim", denotes "the person directly affected by the act or omission which is in issue" (above-cited De Wilde, Ooms and Versyp judgment, p. 11, paras. 23-24; see also the Engel and others judgments of 8 June and 23 November 1976, Series A no. 22, p. 37, para. 89, and p. 69, para. 11).
Paula and Alexandra Marckx can therefore "claim" to be victims of the breaches of which they complain. In order to ascertain whether they are actually victims, the merits of each of their contentions have to be examined.
28. The applicants rely basically on Articles 8 and 14 (art. 8, art. 14) of the Convention. Without overlooking the other provisions which they invoke, the Court has accordingly turned primarily to these two Articles (art. 8, art. 14) in its consideration of the three aspects of the problem referred to it by the Commission: the manner of establishing affiliation, the extent of the child ’ s family relationships, the patrimonial rights of the child and of her mother.
29. Article 8 (art. 8) of the Convention provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
30. The Court is led in the present case to clarify the meaning and purport of the words "respect for ... private and family life", which it has scarcely had the occasion to do until now (judgment of 23 July 1968 in the "Belgian Linguistic" case, Series A no. 6, pp. 32-33, para. 7; Klass and others judgment of 6 September 1978, Series A no. 28, p. 21, para. 41).
31. The first question for decision is whether the natural tie between Paula and Alexandra Marckx gave rise to a family life protected by Article 8 (art. 8).
By guaranteeing the right to respect for family life, Article 8 (art. 8) presupposes the existence of a family. The Court concurs entirely with the Commission ’ s established case-law on a crucial point, namely that Article 8 (art. 8) makes no distinction between the "legitimate" and the "illegitimate" family. Such a distinction would not be consonant with the word "everyone", and this is confirmed by Article 14 (art. 14) with its prohibition, in the enjoyment of the rights and freedoms enshrined in the Convention, of discrimination grounded on "birth". In addition, the Court notes that the Committee of Ministers of the Council of Europe regards the single woman and her child as one form of family no less than others (Resolution (70) 15 of 15 May 1970 on the social protection of unmarried mothers and their children, para. I-10, para. II-5, etc.).
Article 8 (art. 8) thus applies to the "family life" of the "illegitimate" family as it does to that of the "legitimate" family. Besides, it is not disputed that Paula Marckx assumed responsibility for her daughter Alexandra from the moment of her birth and has continuously cared for her, with the result that a real family life existed and still exists between them.
It remains to be ascertained what the "respect" for this family life required of the Belgian legislature in each of the areas covered by the application.
By proclaiming in paragraph 1 the right to respect for family life, Article 8 (art. 8-1) signifies firstly that the State cannot interfere with the exercise of that right otherwise than in accordance with the strict conditions set out in paragraph 2 (art. 8-2). As the Court stated in the "Belgian Linguistic" case, the object of the Article is "essentially" that of protecting the individual against arbitrary interference by the public authorities (judgment of 23 July 1968, Series A no. 6, p. 33, para. 7). Nevertheless it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective "respect" for family life.
This means, amongst other things, that when the State determines in its domestic legal system the regime applicable to certain family ties such as those between an unmarried mother and her child, it must act in a manner calculated to allow those concerned to lead a normal family life. As envisaged by Article 8 (art. 8), respect for family life implies in particular, in the Court ’ s view, the existence in domestic law of legal safeguards that render possible as from the moment of birth the child ’ s integration in his family. In this connection, the State has a choice of various means, but a law that fails to satisfy this requirement violates paragraph 1 of Article 8 (art. 8-1) without there being any call to examine it under paragraph 2 (art. 8-2).
Article 8 (art. 8) being therefore relevant to the present case, the Court has to review in detail each of the applicants ’ complaints in the light of this provision.
32. Article 14 (art. 14) provides:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
The Court ’ s case-law shows that, although Article 14 (art. 14) has no independent existence, it may play an important autonomous role by complementing the other normative provisions of the Convention and the Protocols: Article 14 (art. 14) safeguards individuals, placed in similar situations, from any discrimination in the enjoyment of the rights and freedoms set forth in those other provisions. A measure which, although in itself in conformity with the requirements of the Article of the Convention or the Protocols enshrining a given right or freedom, is of a discriminatory nature incompatible with Article 14 (art. 14) therefore violates those two Articles taken in conjunction. It is as though Article 14 (art. 14) formed an integral part of each of the provisions laying down rights and freedoms (judgment of 23 July 1968 in the "Belgian Linguistic" case, Series A no. 6, pp. 33-34, para. 9; National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, p. 19, para. 44).
Accordingly, and since Article 8 (art. 8) is relevant to the present case (see paragraph 31 above), it is necessary also to take into account Article 14 in conjunction with Article 8 (art. 14+8).
33. According to the Court ’ s established case-law, a distinction is discriminatory if it "has no objective and reasonable justification", that is, if it does not pursue a "legitimate aim" or if there is not a "reasonable relationship of proportionality between the means employed and the aim sought to be realised" (see, inter alia, the above-cited judgment of 23 July 1968, p. 34, para. 10).
34. In acting in a manner calculated to allow the family life of an unmarried mother and her child to develop normally (see paragraph 31 above), the State must avoid any discrimination grounded on birth: this is dictated by Article 14 taken in conjunction with Article 8 (art. 14+8).
A. On the manner of establishing Alexandra Marckx ’ s maternal affiliation
35. Under Belgian law, the maternal affiliation of an "illegitimate" child is established neither by his birth alone nor even by the entry - obligatory under Article 57 of the Civil Code - of the mother ’ s name on the birth certificate; Articles 334 and 341a require either a voluntary recognition or a court declaration as to maternity. On the other hand, under Article 319, the affiliation of a married woman ’ s child is proved simply by the birth certificate recorded at the registry office (see paragraph 14 above).
The applicants see this system as violating, with respect to them, Article 8 (art 8) of the Convention, taken both alone and in conjunction with Article 14 (art. 14+8). This is contested by the Government. The Commission, for its part, finds a breach of Article 8 (art. 8), taken both alone and in conjunction with Article 14 (art. 14+8), with respect to Alexandra, and a breach of Article 14, taken in conjunction with Article 8 (art. 14+8), with respect to Paula Marckx.
1. On the alleged violation of Article 8 (art. 8) of the Convention, taken alone
36. Paula Marckx was able to establish Alexandra ’ s affiliation only by the means afforded by Article 334 of the Civil Code, namely recognition. The effect of recognition is declaratory and not attributive: it does not create but records the child ’ s status. It is irrevocable and retroactive to the date of birth. Furthermore, the procedure to be followed hardly presents difficulties: the declaration may take the form of a notarial deed, but it may also be added, at any time and without expense, to the record of the birth at the registry office (see paragraph 14 above).
Nevertheless, the necessity to have recourse to such an expedient derived from a refusal to acknowledge fully Paula Marckx ’ s maternity from the moment of the birth. Moreover, in Belgium an unmarried mother is faced with an alternative: if she recognises her child (assuming she wishes to do so), she will at the same time prejudice him since her capacity to give or bequeath her property to him will be restricted; if she desires to retain the possibility of making such dispositions as she chooses in her child ’ s favour, she will be obliged to renounce establishing a family tie with him in law (see paragraph 18 above). Admittedly, that possibility, which is now open to her in the absence of recognition, would disappear entirely under the current Civil Code (Article 908) if, as is the applicants ’ wish, the mere mention of the mother ’ s name on the birth certificate were to constitute proof of any "illegitimate" child ’ s maternal affiliation. However, the dilemma which exists at present is not consonant with "respect" for family life; it thwarts and impedes the normal development of such life (see paragraph 31 above). Furthermore, it appears from paragraphs 60 to 65 below that the unfavourable consequences of recognition in the area of patrimonial rights are of themselves contrary to Article 14 of the Convention, taken in conjunction with Article 8 (art. 14+8) and with Article 1 of Protocol No. 1 (art. 14+P1-1).
The Court thus concludes that there has been a violation of Article 8 (art. 8), taken alone, with respect to the first applicant.
37. As regards Alexandra Marckx, only one method of establishing her maternal affiliation was available to her under Belgian law, namely, to take legal proceedings for the purpose ( recherche de maternité; Articles 341a-341c of the Civil Code). Although a judgment declaring the affiliation of an "illegitimate" child has the same effects as a voluntary recognition, the procedure applicable is, in the nature of things, far more complex. Quite apart from the conditions of proof that have to be satisfied, the legal representative of an infant needs the consent of the family council before he can bring, assuming he wishes to do so, an action for a declaration as to status; it is only after attaining majority that the child can bring such an action himself (see paragraph 14 above). There is thus a risk that the establishment of affiliation will be time-consuming and that, in the interim, the child will remain separated in law from his mother. This system resulted in a lack of respect for the family life of Alexandra Marckx who, in the eyes of the law, was motherless from 16 to 29 October 1973. Despite the brevity of this period, there was thus also a violation of Article 8 (art. 8) with respect to the second applicant.
2. On the alleged violation of Article 14 of the Convention, taken in conjunction with Article 8 (art. 14+8)
38. The Court also has to determine whether, as regards the manner of establishing Alexandra ’ s maternal affiliation, one or both of the applicants have been victims of discrimination contrary to Article 14 taken in conjunction with Article 8 (art. 14+8).
39. The Government, relying on the difference between the situations of the unmarried and the married mother, advance the following arguments: whilst the married mother and her husband "mutually undertake ... the obligation to feed, keep and educate their children" (Article 203 of the Civil Code), there is no certainty that the unmarried mother will be willing to bear on her own the responsibilities of motherhood; by leaving the unmarried mother the choice between recognising her child or dissociating herself from him, the law is prompted by a concern for protection of the child, for it would be dangerous to entrust him to the custody and authority of someone who has shown no inclination to care for him; many unmarried mothers do not recognise their child (see paragraph 14 above).
In the Court ’ s judgment, the fact that some unmarried mothers, unlike Paula Marckx, do not wish to take care of their child cannot justify the rule of Belgian law whereby the establishment of their maternity is conditional on voluntary recognition or a court declaration. In fact, such an attitude is not a general feature of the relationship between unmarried mothers and their children; besides, this is neither claimed by the Government nor proved by the figures which they advance. As the Commission points out, it may happen that also a married mother might not wish to bring up her child, and yet, as far as she is concerned, the birth alone will have created the legal bond of affiliation.
Again, the interest of an "illegitimate" child in having such a bond established is no less than that of a "legitimate" child. However, the "illegitimate" child is likely to remain motherless in the eyes of Belgian law. If an "illegitimate" child is not recognised voluntarily, he has only one expedient, namely, an action to establish maternal affiliation (Articles 341a-341c of the Civil Code; see paragraph 14 above). A married woman ’ s child also is entitled to institute such an action (Articles 326-330), but in the vast majority of cases the entries on the birth certificate (Article 319) or, failing that, the constant and factual enjoyment of the status of a legitimate child ( une possession d ’ état constante; Article 320) render this unnecessary.
40. The Government do not deny that the present law favours the traditional family, but they maintain that the law aims at ensuring that family ’ s full development and is thereby founded on objective and reasonable grounds relating to morals and public order ( ordre public).
The Court recognises that support and encouragement of the traditional family is in itself legitimate or even praiseworthy. However, in the achievement of this end recourse must not be had to measures whose object or result is, as in the present case, to prejudice the "illegitimate" family; the members of the "illegitimate" family enjoy the guarantees of Article 8 (art. 8) on an equal footing with the members of the traditional family.
41. The Government concede that the law at issue may appear open to criticism but plead that the problem of reforming it arose only several years after the entry into force of the European Convention on Human Rights in respect of Belgium (14 June 1955), that is with the adoption of the Brussels Convention of 12 September 1962 on the Establishment of Maternal Affiliation of Natural Children (see paragraph 20 above).
It is true that, at the time when the Convention of 4 November 1950 was drafted, it was regarded as permissible and normal in many European countries to draw a distinction in this area between the "illegitimate" and the "legitimate" family. However, the Court recalls that this Convention must be interpreted in the light of present-day conditions (Tyrer judgment of 25 April 1978, Series A no. 26, p. 15, para. 31). In the instant case, the Court cannot but be struck by the fact that the domestic law of the great majority of the member States of the Council of Europe has evolved and is continuing to evolve, in company with the relevant international instruments, towards full juridical recognition of the maxim "mater semper certa est".
Admittedly, of the ten States that drew up the Brussels Convention, only eight have signed and only four have ratified it to date. The European Convention of 15 October 1975 on the Legal Status of Children born out of Wedlock has at present been signed by only ten and ratified by only four members of the Council of Europe. Furthermore, Article 14 (1) of the latter Convention permits any State to make, at the most, three reservations, one of which could theoretically concern precisely the manner of establishing the maternal affiliation of a child born out of wedlock (Article 2).
However, this state of affairs cannot be relied on in opposition to the evolution noted above. Both the relevant Conventions are in force and there is no reason to attribute the currently small number of Contracting States to a refusal to admit equality between "illegitimate" and legitimate" children on the point under consideration. In fact, the existence of these two treaties denotes that there is a clear measure of common ground in this area amongst modern societies.
The official statement of reasons accompanying the Bill submitted by the Belgian Government to the Senate on 15 February 1978 (see paragraph 21 above) provides an illustration of this evolution of rules and attitudes. Amongst other things, the statement points out that "in recent years several Western European countries, including the Federal Republic of Germany, Great Britain, the Netherlands, France, Italy and Switzerland, have adopted new legislation radically altering the traditional structure of the law of affiliation and establishing almost complete equality between legitimate and illegitimate children". It is also noted that "the desire to put an end to all discrimination and abolish all inequalities based on birth is ... apparent in the work of various international institutions". As regards Belgium itself, the statement stresses that the difference of treatment between Belgian citizens, depending on whether their affiliation is established in or out of wedlock, amounts to a "flagrant exception" to the fundamental principle of the equality of everyone before the law (Article 6 of the Constitution). It adds that "lawyers and public opinion are becoming increasingly convinced that the discrimination against (illegitimate) children should be ended".
42. The Government maintain, finally, that the introduction of the rule "mater semper certa est" should be accompanied, as is contemplated in the 1978 Bill, by a reform of the provisions on the establishment of paternity, failing which there would be a considerable and one-sided increase in the responsibilities of the unmarried mother. Thus, for the Government, there is a comprehensive problem and any piecemeal solution would be dangerous.
The Court confines itself to noting that it is required to rule only on certain aspects of the maternal affiliation of "illegitimate" children under Belgian law. It does not exclude that a judgment finding a breach of the Convention on one of those aspects might render desirable or necessary a reform of the law on other matters not submitted for examination in the present proceedings. It is for the respondent State, and the respondent State alone, to take the measures it considers appropriate to ensure that its domestic law is coherent and consistent.
43. The distinction complained of therefore lacks objective and reasonable justification. Accordingly, the manner of establishing Alexandra Marckx ’ s maternal affiliation violated, with respect to both applicants, Article 14 taken in conjunction with Article 8 (art. 14+8).
B. On the extent in law of Alexandra Marckx ’ s family relationships
44. Under Belgian law, a "legitimate" child is fully integrated from the moment of his birth into the family of each of his parents, whereas a recognised "illegitimate" child, and even an adopted "illegitimate" child, remains in principle a stranger to his parents ’ families (see paragraph 16 above). In fact, the legislation makes provision for some exceptions - and recent case-law is tending to add more - but it denies a child born out of wedlock any rights over the estates of his father ’ s or mother ’ s relatives (Article 756 in fine of the Civil Code), it does not expressly create any maintenance obligations between him and those relatives, and it empowers his guardian rather than those relatives to give consent, where appropriate, to his marriage (Article 159, as compared with Article 150), etc.
It thus appears that in certain respects Alexandra never had a legal relationship with her mother ’ s family, for example with her maternal grandmother, Mrs. Victorine Libot, who died in August 1974, or with her aunt, Mrs. Blanche Marckx (see paragraph 12 above).
The applicants regard this situation as incompatible with Article 8 of the Convention (art. 8), taken both alone and in conjunction with Article 14 (art. 14+8). This is contested by the Government. The Commission, for its part, finds a breach of the requirements of Article 8 (art. 8), taken both alone and in conjunction with Article 14 (art. 14+8), with respect to Alexandra, and a breach of Article 14 taken in conjunction with Article 8 (art. 14+8), with respect to Paula Marckx.
1. On the alleged violation of Article 8 (art. 8) of the Convention, taken alone
45. In the Court ’ s opinion, "family life", within the meaning of Article 8 (art. 8), includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life.
"Respect" for a family life so understood implies an obligation for the State to act in a manner calculated to allow these ties to develop normally (see, mutatis mutandis, paragraph 31 above). Yet the development of the family life of an unmarried mother and her child whom she has recognised may be hindered if the child does not become a member of the mother ’ s family and if the establishment of affiliation has effects only as between the two of them.
46. It is objected by the Government that Alexandra ’ s grandparents were not parties to the case and, furthermore, that there is no evidence before the Court as to the actual existence, now or in the past, of relations between Alexandra and her grandparents, the normal manifestations whereof were hampered by Belgian law.
The Court does not agree. The fact that Mrs. Victorine Libot did not apply to the Commission in no way prevents the applicants from complaining, on their own account, of the exclusion of one of them from the other ’ s family. Besides, there is nothing to prove the absence of actual relations between Alexandra and her grandmother before the latter ’ s death; in addition, the information obtained at the hearings suggests that Alexandra apparently has such relations with an aunt.
47. There is thus in this connection violation of Article 8 (art. 8), taken alone, with respect to both applicants.
2. On the alleged violation of Article 14 of the Convention, taken in conjunction with Article 8 (art. 14+8)
48. It remains for the Court to determine whether, as regards the extent in law of Alexandra ’ s family relationships, one or both of the applicants have been victims of discrimination in breach of Article 14 taken in conjunction with Article 8 (art. 14+8). One of the differences of treatment found in this area between "illegitimate" and "legitimate" children concerns inheritance rights on intestacy (Article 756 in fine of the Civil Code); the Court ’ s opinion on this aspect appears at paragraphs 56 to 59 below. With respect to the other differences, the Government do not put forward any arguments beyond those they rely on in connection with the manner of establishing affiliation (see paragraphs 39 to 42 above). The Court discerns no objective and reasonable justification for the differences of treatment now being considered. Admittedly, the "tranquillity" of "legitimate" families may sometimes be disturbed if an "illegitimate" child is included, in the eyes of the law, in his mother ’ s family on the same footing as a child born in wedlock, but this is not a motive that justifies depriving the former child of fundamental rights. The Court also refers, mutatis mutandis, to the reasons set out in paragraphs 40 and 41 of the present judgment.
The distinction complained of therefore violates, with respect to both applicants, Article 14 taken in conjunction with Article 8 (art. 14+8).
C. On the patrimonial rights relied on by the applicants
49. The Civil Code limits, in varying degrees, the rights of an "illegitimate" child and his unmarried mother as regards both inheritance on intestacy and dispositions inter vivos or by will (see paragraphs 17 and 18 above).
Until her recognition on 29 October 1973, the fourteenth day of her life, Alexandra had, by virtue of Article 756, no inheritance rights on intestacy over her mother ’ s estate. On that date she did not acquire the status of presumed heir ( héritière présomptive ) of her mother, but merely that of "exceptional heir" (" successeur irrégulier ") (Articles 756-758, 760 and 773). It was only Alexandra ’ s adoption, on 30 October 1974, that conferred on her the rights of a "legitimate" child over Paula Marckx ’ s estate (Article 365). Moreover, Alexandra has never had any inheritance rights on intestacy as regards the estate of any member of her mother ’ s family (Articles 756 and 365).
In the interval between her recognition and her adoption, Alexandra could receive from her mother by disposition inter vivos or by will no more than her entitlement under the Code under the title "Inheritance on Intestacy" (Article 908). This restriction on her capacity, like that on Paula Marckx ’ s capacity to dispose of her property, did not exist before 29 October 1973 and disappeared on 30 October 1974.
On the other hand, the Belgian Civil Code confers on "legitimate" children, from the moment of their birth and even of their conception, all those patrimonial rights which it denied and denies Alexandra; the capacity of married women to dispose of their property is not restricted by the Code in the same way as that of Paula Marckx.
According to the applicants, this system contravenes in regard to them Article 8 (art. 8) of the Convention, taken both alone and in conjunction with Article 14 (art. 14+8), and also, in Paula Marckx ’ s case, Article 1 of Protocol No. 1 (P1-1) taken both alone and in conjunction with Article 14 (art. 14+P1-1). This is contested by the Government. The Commission, for its part, finds only a breach of Article 14, taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1), with respect to Paula Marckx.
1. On the patrimonial rights relied on by Alexandra
50. As concerns the second applicant, the Court has taken its stand solely on Article 8 (art. 8) of the Convention, taken both alone and in conjunction with Article 14 (art. 14+8). The Court in fact excludes Article 1 of Protocol No. 1 (P1-1): like the Commission and the Government, it notes that this Article (P1-1) does no more than enshrine the right of everyone to the peaceful enjoyment of "his" possessions, that consequently it applies only to a person ’ s existing possessions and that it does not guarantee the right to acquire possessions whether on intestacy or through voluntary dispositions. Besides, the applicants do not appear to have relied on this provision in support of Alexandra ’ s claims. Since Article 1 of the Protocol (P1-1) proves to be inapplicable, Article 14 (art. 14) of the Convention cannot be combined with it on the point now being considered.
51. The applicants regard the patrimonial rights they claim as forming part of family rights and, hence, as being a matter for Article 8 (art. 8). This reasoning is disputed by the Government. Neither does the majority of the Commission agree with the applicants, but, as the Principal Delegate indicated at the hearings, a minority of six members considers the right of succession between children and parents, and between grandchildren and grandparents, to be so closely related to family life that it comes within the sphere of Article 8 (art. 8).
52. The Court shares the view of the minority. Matters of intestate succession - and of disposition - between near relatives prove to be intimately connected with family life. Family life does not include only social, moral or cultural relations, for example in the sphere of children ’ s education; it also comprises interests of a material kind, as is shown by, amongst other things, the obligations in respect of maintenance and the position occupied in the domestic legal systems of the majority of the Contracting States by the institution of the reserved portion of an estate ( réserve héréditaire ). Whilst inheritance rights are not normally exercised until the estate-owner ’ s death, that is at a time when family life undergoes a change or even comes to an end, this does not mean that no issue concerning such rights may arise before the death: the distribution of the estate may be settled, and in practice fairly often is settled, by the making of a will or of a gift on account of a future inheritance ( avance d ’ hoirie ); it therefore represents a feature of family life that cannot be disregarded.
53. Nevertheless, it is not a requirement of Article 8 (art. 8) that a child should be entitled to some share in the estates of his parents or even of other near relatives: in the matter of patrimonial rights also, Article 8 (art. 8) in principle leaves to the Contracting States the choice of the means calculated to allow everyone to lead a normal family life (see paragraph 31 above) and such an entitlement is not indispensable in the pursuit of a normal family life. In consequence, the restrictions which the Belgian Civil Code places on Alexandra Marckx ’ s inheritance rights on intestacy are not of themselves in conflict with the Convention, that is, if they are considered independently of the reason underlying them. Similar reasoning is to be applied to the question of voluntary dispositions.
54. On the other hand, the distinction made in these two respects between "illegitimate" and "legitimate" children does raise an issue under Articles 14 and 8 (art. 14+8) when they are taken in conjunction.
55. Until she was adopted (30 October 1974 ), Alexandra had only a capacity to receive property from Paula Marckx (see paragraph 49 above) that was markedly less than that which a child born in wedlock would have enjoyed. The Court considers that this difference of treatment, in support of which the Government put forward no special argument, lacks objective and reasonable justification; reference is made, mutatis mutandis, to paragraphs 40 and 41 above.
However, the Government plead that since 30 October 1974 the second applicant has had, vis-à-vis the first applicant, the patrimonial rights of a "legitimate" child; they therefore consider it superfluous to deal with the earlier period.
This argument represents, in essence, no more than one branch of the preliminary plea that has already been set aside (see paragraphs 26 and 27 above). Moreover, in common with the Commission, the Court finds that the need to have recourse to adoption in order to eliminate the said difference of treatment involves of itself discrimination. As the applicants emphasised, the procedure employed for this purpose in the present case is one that usually serves to establish legal ties between one individual and another ’ s child; to oblige in practice an unmarried mother to utilise such a procedure if she wishes to improve her own daughter ’ s situation as regards patrimonial rights amounts to disregarding the tie of blood and to using the institution of adoption for an extraneous purpose. Besides, the procedure to be followed is somewhat lengthy and complicated. Above all, the child is left entirely at the mercy of his parent ’ s initiative, for he is unable to apply to the courts for his adoption.
56. Unlike a "legitimate" child, Alexandra has at no time before or after 30 October 1974 had any entitlement on intestacy in the estates of members of Paula Marckx ’ s family (see paragraph 49 above). Here again, the Court fails to find any objective and reasonable justification.
In the Government ’ s submission, the reason why adoption in principle confers on the adopted child no patrimonial rights as regards relatives of the adopter is that the relatives may not have approved of the adoption. The Court does not have to decide this point in the present proceedings since it considers discriminatory the need for a mother to adopt her child (see paragraph 55 above).
57. As regards the sum total of the patrimonial rights claimed by the second applicant, the Court notes that the Bill submitted to the Senate on 15 February 1978 (see paragraph 21 above) advocates, in the name of the principle of equality, "the abolition of the inferior status characterising, in matters of inheritance, the lot of illegitimate children" as compared with children born in wedlock.
58. The Government also state that they appreciate that an increase in the "illegitimate" child ’ s inheritance rights is considered indispensable; however, in their view, reform should be effected by legislation and without retrospective effect. Their argument runs as follows: if the Court were to find certain rules of Belgian law to be incompatible with the Convention, this would mean that these rules had been contrary to the Convention since its entry into force in respect of Belgium (14 June 1955); the only way to escape such a conclusion would be to accept that the Convention ’ s requirements had increased in the intervening period and to indicate the exact date of the change; failing this, the result of the judgment would be to render many subsequent distributions of estates irregular and open to challenge before the courts, since the limitation period on the two actions available under Belgian law in this connection is thirty years.
The Court is not required to undertake an examination in abstracto of the legislative provisions complained of: it is enquiring whether or not their application to Paula and Alexandra Marckx complies with the Convention (see paragraph 27 above). Admittedly, it is inevitable that the Court ’ s decision will have effects extending beyond the confines of this particular case, especially since the violations found stem directly from the contested provisions and not from individual measures of implementation, but the decision cannot of itself annul or repeal these provisions: the Court ’ s judgment is essentially declaratory and leaves to the State the choice of the means to be utilised in its domestic legal system for performance of its obligation under Article 53 (art. 53).
Nonetheless, it remains true that the Government have an evident interest in knowing the temporal effect of the present judgment. On this question, reliance has to be placed on two general principles of law which were recently recalled by the Court of Justice of the European Communities: "the practical consequences of any judicial decision must be carefully taken into account", but "it would be impossible to go so far as to diminish the objectivity of the law and compromise its future application on the ground of the possible repercussions which might result, as regards the past, from such a judicial decision" (8 April 1976, Defrenne v. Sabena, Reports 1976, p. 480). The European Court of Human Rights interprets the Convention in the light of present-day conditions but it is not unaware that differences of treatment between "illegitimate" and "legitimate" children, for example in the matter of patrimonial rights, were for many years regarded as permissible and normal in a large number of Contracting States (see, mutatis mutandis, paragraph 41 above). Evolution towards equality has been slow and reliance on the Convention to accelerate this evolution was apparently contemplated at a rather late stage. As recently as 22 December 1967, the Commission rejected under Article 27 (2) (art. 27-2) - and rejected de plano (Rule 45 (3) (a) of its then Rules of Procedure) - another application (No. 2775/67) which challenged Articles 757 and 908 of the Belgian Civil Code; the Commission does not seem to have been confronted with the issue again until 1974 (application no. 6833/74 of Paula and Alexandra Marckx). Having regard to all these circumstances, the principle of legal certainty, which is necessarily inherent in the law of the Convention as in Community Law, dispenses the Belgian State from re-opening legal acts or situations that antedate the delivery of the present judgment. Moreover, a similar solution is found in certain Contracting States having a constitutional court: their public law limits the retroactive effect of those decisions of that court that annul legislation.
59. To sum up, Alexandra Marckx was the victim of a breach of Article 14, taken in conjunction with Article 8 (art. 14+8), by reason both of the restrictions on her capacity to receive property from her mother and of her total lack of inheritance rights on intestacy over the estates of her near relatives on her mother ’ s side.
2. On the patrimonial rights relied on by Paula Marckx
60. From 29 October 1973 (recognition) to 30 October 1974 (adoption), the first applicant had only limited capacity to make dispositions in her daughter ’ s favour (see paragraph 49 above). She complains of this situation, relying on Article 8 (art. 8) of the Convention and on Article 1 of Protocol No. 1 (P1-1), taken in each case both alone and in conjunction with Article 14 (art. 14+8, art. 14+P1-1).
(a) On the alleged violation of Article 8 (art. 8) of the Convention, taken both alone and in conjunction with Article 14 (art. 14+8)
61. As the Court has already noted, Article 8 (art. 8) of the Convention is relevant to the point now under consideration (see paragraphs 51 and 52 above). However, Article 8 (art. 8) does not guarantee to a mother complete freedom to give or bequeath her property to her child: in principle it leaves to the Contracting States the choice of the means calculated to allow everyone to lead a normal family life (see paragraph 31 above) and such freedom is not indispensable in the pursuit of a normal family life. In consequence, the restriction complained of by Paula Marckx is not of itself in conflict with the Convention that is if it is considered independently of the reason underlying it.
62. On the other hand, the distinction made in this area between unmarried and married mothers does raise an issue. The Government put forward no special argument to support this distinction and, in the opinion of the Court, which refers mutatis mutandis to paragraphs 40 and 41 above, the distinction lacks objective and reasonable justification; it is therefore contrary to Article 14 taken in conjunction with Article 8 (art. 14+8).
(b) On the alleged violation of Article 1 of Protocol No. 1 (P1-1), taken both alone and in conjunction with Article 14 (art. 14+P1-1) of the Convention
63. Article 1 of Protocol No. 1 (P1-1) reads as follows:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
In the applicants ’ submission, the patrimonial rights claimed by Paula Marckx fall within the ambit of, inter alia, this provision. This approach is shared by the Commission but contested by the Government.
The Court takes the same view as the Commission. By recognising that everyone has the right to the peaceful enjoyment of his possessions, Article 1 (P1-1) is in substance guaranteeing the right of property. This is the clear impression left by the words "possessions" and "use of property" (in French:" biens "," propriété ", "usage des biens "); the" travaux préparatoires ", for their part, confirm this unequivocally: the drafters continually spoke of "right of property" or "right to property" to describe the subject-matter of the successive drafts which were the forerunners of the present Article 1 (P1-1). Indeed, the right to dispose of one ’ s property constitutes a traditional and fundamental aspect of the right of property (cf. the Handyside judgment of 7 December 1976, Series A no. 24, p. 29, para. 62).
64. The second paragraph of Article 1 ( P1-1) nevertheless authorises a Contracting State to "enforce such laws as it deems necessary to control the use of property in accordance with the general interest". This paragraph thus sets the Contracting States up as sole judges of the "necessity" for such a law (above-mentioned Handyside judgment, ibid). As regards "the general interest", it may in certain cases induce a legislature to "control the use of property" in the area of dispositions inter vivos or by will. In consequence, the limitation complained of by the first applicant is not of itself in conflict with Protocol No. 1.
65. However, the limitation applies only to unmarried and not to married mothers. Like the Commission, the Court considers this distinction, in support of which the Government put forward no special argument, to be discriminatory. In view of Article 14 (art. 14) of the Convention, the Court fails to see on what "general interest", or on what objective and reasonable justification, a State could rely to limit an unmarried mother ’ s right to make gifts or legacies in favour of her child when at the same time a married woman is not subject to any similar restriction. In other respects, the Court refers, mutatis mutandis, to paragraphs 40 and 41 above.
Accordingly, there was on this point breach of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1), with respect to Paula Marckx.
D. On the alleged violation of Articles 3 and 12 (art. 3, art. 12) of the Convention
66. The applicants claim that the legislation they complain of entails an affront to their dignity as human beings; they contend that it subjects them to "degrading treatment" within the meaning of Article 3 (art. 3). The Government contest this. The Commission, for its part, did not consider that it had to examine the case under this Article (art. 3).
In the Court ’ s judgment, while the legal rules at issue probably present aspects which the applicants may feel to be humiliating, they do not constitute degrading treatment coming within the ambit of Article 3 (art. 3).
67. In its report of 10 December 1977, the Commission expresses the opinion that Article 12 (art. 12), which concerns "the right to marry and to found a family", is not relevant to the present case.
The applicants, on the other hand, maintain their view that the Belgian Civil Code fails to respect, in the person of Paula Marckx, the right not to marry which, in their submission, is inherent in the guarantee embodied in Article 12 (art. 12). They argue that in order to confer on Alexandra the status of a "legitimate" child, her mother would have to legitimate her and, hence, to contract marriage. The Court notes that there is no legal obstacle confronting the first applicant in the exercise of the freedom to marry or to remain single; consequently, the Court has no need to determine whether the Convention enshrines the right not to marry.
The fact that, in law, the parents of an "illegitimate" child do not have the same rights as a married couple also constitutes a breach of Article 12 (art. 12) in the opinion of the applicants; they thus appear to construe Article 12 (art. 12) as requiring that all the legal effects attaching to marriage should apply equally to situations that are in certain respects comparable to marriage. The Court cannot accept this reasoning; in company with the Commission, the Court finds that the issue under consideration falls outside the scope of Article 12 (art. 12).
Accordingly, Article 12 (art. 12) has not been infringed.
E. On the application of Article 50 (art. 50) of the Convention
68. At the hearing on 24 October 1978, Mrs. Van Look asked the Court to award each applicant, under Article 50 (art. 50) of the Convention, one Belgian franc as compensation for moral damage. The Government did not advert to the matter.
The Court regards the question as being ready for decision (Rule 50 para. 3, first sentence, of the Rules of Court, read in conjunction with Rule 48 para. 3). In the particular circumstances of the case, the Court is of the opinion that it is not necessary to afford Paula and Alexandra Marckx any just satisfaction other than that resulting from the finding of several violations of their rights.
I. ON THE GOVERNMENT ’ S PRELIMINARY PLEA