Marckx v Belgium - 6833/74 [1979] ECHR 2 (13 June 1979)

DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE

I. The issue of applicability in general

1. I am obliged to call this a "dissenting" opinion because, although I have voted with the majority of the Court on a number of points [1], I disagree with it on all those that are fundamental to the main issues involved, and on which the Court has found in favour of the applicants’ claims - these being also the points on which the others for the most part depend.

2. Leaving aside the question of the status of each of the applicants as an alleged "victim" within the meaning of Article 25 (art. 25) of the European Convention on Human Rights - a question which I discuss in the postscript to the present opinion - the chief of the fundamental issues involved by the case is that of the applicability or scope of Article 8 (art. 8) of the Convention - of its applicability or relevance in any way at all to the particular complaints made by or on behalf of the applicants. Another principal issue is that of the applicability of Article 1 of Protocol No. 1 to the Convention (P1-1). These two issues automatically involve the question of the applicability of Article 14 (art. 14) of the Convention to which I shall come. As regards the claims made under other provisions, viz Articles 3, 12 and 50 (art. 3, art. 12, art. 50), either these also depend on the same, or similar, fundamental issues, or else they would not be worth pursuing in isolation - and in any case the Court has found against the applicants’ claims put forward under these three Articles (art. 3, art. 12, art. 50) - a finding in which I concurred.

3. The question of the applicability of a legal provision - it should hardly be necessary to say so - is quite distinct juridically from that of whether there has been a breach of that provision in any particular instance. Issues of applicability or scope are therefore strictly preliminary ones. A provision (rule, section, clause, article, etc) is applicable in any given case, at least prima facie, if it relates to the class, category, order, type or kind of subject-matter to which the claim or complaint itself, as made in that case, relates, and/or is concerned with the facts, events or circumstances involved in such case. If it does not - if it deals with something different or not so comprised - then clearly it is irrelevant to the claim or complaint, and the question of a possible breach of the Convention does not arise. There cannot, in the given case, be a breach of a provision that has no application in that case - i.e. whose scope, whose field of application is not the field to which the case relates.

4. At the same time, the fact that the provision concerned is applicable - in short that the question can properly be asked whether there has been a breach of it in the given case - a question that otherwise cannot be asked at all - in no way means that such a breach has in fact occurred. Thus, the defendant party to a claim must be absolved (a) if the clause or article invoked is not applicable, and (b) if it is applicable but there has been no breach of it. Only if it is both applicable, and also has been infringed, can the defendant party be held responsible and (as regards the Convention on Human Rights) a Convention-breaker.

5. The foregoing are elementary, standard propositions which should not need stating because they are such as everyone would assent to in principle, - but principle is easily lost sight of when eagerness for specific results - however meritorious they may be in themselves - overreaches the still, small voice of the juridical conscience. It has therefore seemed worth restating them, since their relevance to the present case constitutes the most important aspect of it; for it is not just a remote or synthetic connection between the subject-matter of a text or clause and that of the instant claim or complaint that will suffice to make the former applicable to the latter. The essential question is whether the two deal with the same class or category of juridical concept. Within certain limits almost anything can colourably be represented as connected with or related to some other given thing, or as belonging to the same sphere of ideas - as witness the attempt made in the present case (but rightly rejected by the Court) to claim a violation of Article 3 (art. 3) of the Convention on Human Rights[2]. But the kind of conjuring trick such a claim involves is not enough.

The Court rejected this claim, but in my view should have gone much further and held that such a provision as Article 3 (art. 3) was concerned with a wholly different class of subject-matter, and had no sort of applicability at all to such circumstances as those of the applicants.

II. The question of the applicability of article 8 (art. 8) of the Convention

6. This is the key question in the case, for not only do most of the others depend upon it in one way or another, but it is safe to say that without the expectation of an affirmative answer to it, the others would scarcely have been raised, or been susceptible of successful prosecution. The relevant parts of this provision read as follows:

"Article 8 (art. 8)

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 ..." [and here follows a list of exceptions that are not material to the present case[3].]

The Court took the view that the second paragraph of this Article (art. 8) was not material to the case, since it was not alleged that any Belgian authority had taken any positive or concrete step by way of "interference" with the applicants’ private and family life, etc. The indictment was really against Belgian law as such, which was said to be wanting in respect for these things as regards the applicants, because it created the situation that has been described in footnote 2 above, - q.v.[4]. In consequence of this, the Court based itself exclusively on paragraph 1 of Article 8 (art. 8-1). In my opinion, however, paragraph 2 (art. 8-2) is also material - not because there was any concrete interference with the applicants’ lives on the part of the Belgian authorities, but because the reference to such (possible) interference in paragraph 2 (art. 8-2) helps to elucidate paragraph 1 (art. 8-1) by suggesting the limits within which the Article as a whole was intended to operate - i.e., to be applicable. I shall revert to this point later - see footnote 5 to paragraph 7.

7. It is abundantly clear (at least it is to me) - and the nature of the whole background against which the idea of the European Convention on Human Rights was conceived bears out this view - that the main, if not indeed the sole object and intended sphere of application of Article 8 (art. 8), was that of what I will call the "domiciliary protection" of the individual. He and his family were no longer to be subjected to the four o’clock in the morning rat-a-tat on the door; to domestic intrusions, searches and questionings; to examinations, delaying and confiscation of correspondence; to the planting of listening devices (bugging); to restrictions on the use of radio and television; to telephone-tapping or disconnection; to measures of coercion such as cutting off the electricity or water supply; to such abominations as children being required to report upon the activities of their parents, and even sometimes the same for one spouse against another, - in short the whole gamut of fascist and communist inquisitorial practices such as had scarcely been known, at least in Western Europe, since the eras of religious intolerance and oppression, until (ideology replacing religion) they became prevalent again in many countries between the two world wars and subsequently. Such, and not the internal, domestic regulation of family relationships, was the object of Article 8 (art. 8), and it was for the avoidance of these horrors, tyrannies and vexations that "private and family life ... home and ... correspondence" were to be respected, and the individual endowed with a right to enjoy that respect – not for the regulation of the civil status of babies[5].

8. Now it is evident that the type of complaint made by the applicants in the present case has absolutely nothing to do with the sort of thing described in the previous paragraph above. They have not been subjected to any of the practices in question, nor did they live under a legal regime according to which such practices were lawful and could at any time be put into action by the authorities. So that (compare the recent Klass case before the Court[6]) the mere possibility of some of them being implemented, e.g. telephone-tapping, opening of correspondence, would have a concrete (because inhibiting) effect upon the applicants’ daily lives. Their complaint is the quite different one (a difference not merely of degree but of kind) that they lived under a legal regime whereby, in the case of illegitimate offspring, no legal relationship between mother and child was recognised as being automatically created by the fact of birth per se - (as opposed to the natural relationship by blood, which of course was duly recognised as existing). It was part of the complaint that this situation in various respects placed the unmarried mother and her "natural" child at a disadvantage as compared with legitimate parents and offspring, even though this could subsequently be corrected (i.e., converted into a relationship recognised in law) by means of steps easy to be taken by the mother, or taken on behalf of the child through the system of guardianship provided by Belgian law and covering such cases. Whether the existence of such a situation would involve a breach of Article 8 (art. 8) (assuming that this provision was applicable to this type of complaint) is a distinct question with which I am not at the moment concerned. But it serves to bring me to my next point.

9. It can quite correctly be maintained that although the primary, and probably at the time the only real, object of such a provision as Article 8 (art. 8), was as described in paragraph 7 above, yet on its wording it must have a wider application to comprise any situation in which both a lack of respect and (this being the operative condition) one that is genuinely directed to the class or category of concept that includes "private and family life ... home and ... correspondence", or any one or more of these alone, provided (and this is essential of course) they are understood according to normal ideas of what they involve, and not according to some self-serving interpretation designed to produce the result that should follow from, not inspire, that interpretation. Hence, in the present case, the rights for which a lack of respect is alleged must be rights that belong to the same juridical order as those that concern private and family life, etc. This, however, is not the case here.

10. In my opinion, the juridical class or category to which the subject-matter of the present case properly belongs is not that of "family life" at all; and the assimilation to the latter concept which the Court’s judgment effects, constitutes a distortion of both concepts. The present case is not at all about family "life" in the customary sense of that term. It essentially concerns a matter of affiliation, - and it is this, not family life, which constitutes its true character. Hence the basic category involved is one of civil status; and matters of civil status are not dealt with by Article 8 (art. 8): they do not come within its scope.

11. Matters of civil status, and matters of family life, respectively, relate to different orders of juridical concepts. It may indeed be true to say that certain matters of civil status, such as questions of affiliation, can have a private or family as well as a public aspect. But they do not in any way inherently or per fundamentum have it: they have no necessary or essential connection at all with private or family life, as such. The orders of concept involved are juridically quite independent of each other. Questions of affiliation, or other questions of civil status, can arise, and can exist, even where there is no family life at all and where the persons concerned are not living together as a family - (and this not infrequently happens). Similarly, family life can exist whatever the civil status of those resident in the common home, provided there is an inter-relationship between them by blood, adoption, or even, conceivably, of amity, convenience, or long-continued habit. In short, ties depending on legal affiliation are in no way essential in order to bring about "the child’s integration in his family", and to enable him "lead a normal family life"- these being the tests applied in paragraph 31 of the Court’s judgment.

12. But the reverse is not logically true: indeed, precisely because the one can exist irrespective of the situation in regard to the other, the former (i.e., family life) implies nothing about the latter (i.e., the civil status aspect), and Article 8 (art. 8) does not purport to regulate this, nor can it legitimately be considered to do so by any process of inference: it is inconceivable that a provision intended to regulate or include even one aspect of so important, but distinct, a matter as civil status, would not have been drafted in such a way as to make separate mention of it - or at least of the particular aspect of it concerned - alongside the specific mention of private and family life, home and correspondence. If the two latter heads, for instance, had to be given separate mention, as not being obviously attributable to the notions of private and family life, how much more would this have been required in order to ensure the inclusion (if that was the intention) of such matters as affiliation and civil status, to say nothing of the consequential patrimonial and other economic rights that the Court has read into a provision that is completely devoid of even an indirect indication of them.

13. It has at no time been suggested that there has ever been any lack of respect for the family life of the Marckxes (mother, daughter and blood relations) if the term "family life" is given the meaning it would normally convey (and be confined to) in the understanding of the "man-in-the-street", namely as meaning the day-to-day life of the family in the home, or (in regard to blood relations or friends) in one another’s homes in the course of visits or stays, - in short the notion of the family complex or ménage. The adjunction of the terms "private life", "home" and "correspondence" in the same context in Article 8 (art. 8), very much confirms this view. None of these terms, or that of family life itself, in the least suggests such concepts as those of civil status, doubtful affiliation, patrimonial and property rights, such as the judgment is exclusively concerned with, and which can only by a strained and artificial interpretation be regarded as included in the concepts of private life, family life, home, etc. These are matters belonging to a different order, class or category.

14. The foregoing considerations are strikingly confirmed by reference to the position under the Convention of the institution of marriage - also a matter of civil status, and far more directly related to family life than affiliation. Yet those who drafted the Convention deemed it necessary to devote not merely a separate form of words - not merely a separate sentence or a separate paragraph - but a whole separate provision (Article 12) (art. 12) to the right to marry – and not only the right to marry but also "to found a family". If the right to found a family could not be regarded as being automatically covered by the obligation to respect "private life", etc., how could a right on the part of a natural daughter to be regarded ipso facto as the child of her mother by reason of birth per se, and without specific registration, be considered as falling automatically within that same obligation (to respect private life, etc.), and without the inclusion of any expression clearly covering that idea, let alone directly indicating it? If marriage and the founding of a family required particularised treatment under the Convention, why not the much more recondite notions of affiliation and status in consequence of birth? The natural answer is that the one was intended to be included but the other not or at all events was not, - and this could be expected inasmuch as to deal properly with it, and its complications and consequences, clauses of a different and much more elaborate character would have been required.

15. This is vividly illustrated by what is said in extensive parts of the Court’s judgment. For instance, the attempts to demonstrate a contrary view made in those paragraphs of the judgment that come under the rubric lettered A - (concerning "Alexandra Marckx’s maternal affiliation") - are laboured and unconvincing. It suffices to say that, together with rubrics B and C - (concerning "Alexandra Marckx’s family relationships" and "the patrimonial rights relied on by the applicants") - they are little else but a misguided endeavour to read - or rather introduce - a whole code of family law into Article 8 (art. 8) of the Convention, thus inflating it in a manner, and to an extent, wholly incommensurable with its true and intended proportions. Family law is not family life, and this Article (art. 8) constitutes too slender and uncertain a foundation for any process of grafting the complexities and detail of the one onto the relative simplicities of the other. The pretension to do so, in order to force the case within the (actually) quite narrow limits of Article 8 (art. 8) is, as the French saying aptly puts it, "cousu de fil blanc" ("sticking out a mile")[7]. There is no need to comment further on rubrics B and C because the views expressed under those heads all come back to the same fundamental point discussed earlier in this opinion. Admittedly, questions of inheritance can have repercussions on family life, but so can many other things - (for instance they often cause friction or bad blood). But inheritance is nevertheless a separate juridical category. Also, in the present case, such questions do not arise sui juris, so to speak. They are derivative, arising as a consequence or sub-head of the basic question of the right of affiliation, which I consider is properly to be regarded as excluded from Article 8 (art. 8). Possible repercussions on family life are not enough to make a thing part of it. Questions of inheritance and the like therefore deal with matters that fall outside the scope of that provision as it is correctly to be understood. Article 8 (art. 8) does not confer rights of the kind reviewed in rubrics A to C.

16. It has to be concluded therefore that the principal provision invoked in the present case - Article 8 (art. 8) of the Convention - has no application to the type of complaint made, and certainly no application to the many elements, quite extraneous to Article 8 (art. 8), in regard to which the Court has found this provision not only to be applicable, but to have been infringed by reason of the situation existing under Belgian law. But having regard to the view I take about applicability or scope, it becomes unnecessary for me to consider that of infringement (see paragraphs 3 and 4 supra). Nevertheless, even if Article 8 (art. 8) were applicable, I believe that the Court has been unnecessarily harsh and lacking in charity and toleration in the view it has taken of Belgian law. However, this is a matter that involves other issues also, and I postpone discussion of it until Section V (paragraphs 27 to 31) below. In the meantime, I have to deal with the question of the applicability in this case of Article 1 of Protocol No. 1 (P1-1) to the Convention (see paragraph 2 above) and the repercussions of that question - together with that of the applicability of Article 8 (art. 8), already considered - on the further question of the correct role of Article 14 (art. 14) in the present context. This last is the provision that obliges the rights and freedoms provided for in the Convention to be afforded without discrimination as between those entitled to enjoy them. On the application of this Article a major part of the judgment of the Court is based.

III. The question of the applicability of article 1 of Protocol no. 1 (P1-1) to the Convention on Human Rights

17. In so far as the Court has felt that there would be too great an element of extravagance in reading certain patrimonial, inheritance and other economic topics in the notions of private and family life, it has had recourse to Article 1 of Protocol No. 1 (P1-1) to the Convention, into which it has perceived the existence of rights not only to possess but to dispose of property. The first sentence of the first paragraph of this provision, which is the governing one that shows what the Article is really about, reads as follows:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions [French: ‘biens’]."

There is no indication here of any concern with safeguarding rights of inheriting or disposing of property, and the view that these matters are not within the scope of the Article is confirmed by the second sentence of the paragraph which reads:

"No one shall be deprived of his possessions [French: ‘propriété’] except in the public interest and subject to the conditions provided for by law and by the general principles of international law."

Here again, there is no suggestion of concern over inheritance or disposal rights except in the purely negative sense that what has been unlawfully or arbitrarily confiscated or expropriated cannot in practice be inherited or otherwise disposed of. Even if, however, the paragraph could as a matter of pure inference be made to yield such a result, the language employed is obviously quite inappropriate for the purpose, and it is impossible to believe that if the paragraph had really been intended for this, it would have been expressed in that way. But the Article has a second paragraph, which has constituted a major plank in the construction which the Court has given to this provision. It reads as follows:

"The preceding paragraph shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use [French: ‘usage’] of property [French: ‘biens’] in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

The Court relies on the presence of the term "use" here as imparting to the whole Article a scope wider than the notion of possession, and extending to rights of inheritance and disposal. To my way of thinking "use" is use of what one still has or possesses, and "the use of property" is not the language that would normally be employed if use through disposal by testamentary means, gifts inter vivos and so forth were intended to be covered. Simply to refer to the use of property would definitely not be the method that any competent lawyer would resort to if he were asked to draft a clause that would bring these matters clearly within its scope.

18. The method by which the Court arrives at its conclusion (paragraph 63 of the judgment) is by a process of double assumption, neither element of which can be justified as a legitimate inference to be drawn from the text. First, it is postulated (and a postulate it is) that "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 already the language of hyperbole, although the obviously poor drafting of the text, both in the English and French versions, may to some extent condone it[8]. But onto the gratuitous assumption, that the right to enjoyment (of whatever possessions a man in fact has) necessarily includes the right to acquire them in the first place and to do so by any particular means, is grafted the quite untenable assumption represented by the further sentence in paragraph 63 of the judgment to the effect that "the right to dispose of one’s property constitutes a traditional and fundamental aspect of the right of property". This may be true in fact of many countries and legal systems, although many departures from it could be pointed to. But it is not a necessary truth. Rights of inheritance and disposal are not logical concomitants of the right to have and to hold. They constitute a different order of concept, - but the point is that for the purposes of any particular complaint involving an allegation of non-compliance with a particular clause, it is necessary that the language of that clause itself should justify the inference drawn from it or the assumption it is said to warrant; - and here it is abundantly clear that no draftsman intending to include, or instructed to include, within the scope of any clause, rights to inherit property, or dispose of it by will, deed or gift, would rest content with merely providing for the "peaceful enjoyment of ... possessions" or referring to the "use" of property - a very ambiguous and uncertain term.

19. Moreover - and this point is important enough to deserve a separate paragraph - the reference to the "use of property", in the second paragraph of Article 1 of the Protocol (P1-1), is not even made in connection with the conferment of a right, but on the contrary for the purpose of limiting the scope of a right - namely, the right of peaceful enjoyment of possessions that is conferred. The second paragraph of the Article in short grants no rights to the individual but withholds them. This alone is sufficient to destroy the validity of the reliance which the judgment places on the reference to the use of property as justifying an interpretation of the phrase "enjoyment of ... possessions" so as to impart to it a radical extension of its actual scope.

20. The truth of the matter - as would be obvious to anyone not intent on this scope-extending process - is that the chief, if not the sole object of Article 1 of the Protocol (P1-1) was to prevent the arbitrary seizures, confiscations, expropriations, extortions, or other capricious interferences with peaceful possession that many governments are - or frequently have been - all too prone to resort to. To metamorphose it into a vehicle for the conveyance of rights that go far beyond the notion of the peaceful enjoyment of possessions, even if they are connected with property, is to inflate it altogether beyond its true proportions. This is not a worthy or becoming basis on which to find a Government guilty of a violation of the Convention.

21. It has to be concluded therefore that, no more than in the case of Article 8 (art. 8) of the Convention, does Article 1 of the Protocol (P1-1), rationally interpreted, have any application to the type of complaint which is the subject of the present case; or to the elements, quite extraneous to its true meaning and intention, that the Court has seen fit to read into it.

22. The conclusion thus reached in regard to Article 8 (art. 8) of the Convention and Article 1 of the Protocol (P1-1) automatically entails that Article 14 (art. 14) of the Convention - (the no-discrimination- in-the-enjoyment-of-the-Conventional-rights-and-freedoms clause) - becomes inapplicable also, because the only conditions in which it could legitimately be applied turn out to be lacking. This however requires fuller explanation and I now come to that.

IV. The question of the applicability of article 14 (art. 14) of the Convention

23. Article 14 (art. 14) is essentially an auxiliary and dependent provision that cannot function per se, but only in combination with some other Article of the Convention or Protocol[9]. The only phrase in it that signifies for present purposes is the opening one, which is quite short and reads:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination ..." [10]

I have elsewhere[11] stated fully my view as to the correct – and only correct - conditions under which this Article (art. 14) can become operative. Because it has no autonomous field of application of its own - i.e. does not suo motu alone convey any substantive rights, but does so only in combination with some provision of the Convention or Protocol that does convey substantive rights, it can only operate in those cases where some such other provision is in the first place applicable to the claim or complaint made in the case. Consequently, before Article 14 (art. 14) can come into play, even in combination with any other provision of the Convention or Protocol, it must first be shown that rights conferred by these other provisions are involved. Article 14 (art. 14) by its very terms does not forbid discrimination generally but, on the contrary, solely in the context of the enjoyment of the "rights and freedoms set forth in this Convention". Unless therefore some other provision grants or includes the rights claimed by the applicants in the present case, Article 14 (art. 14) can have no sphere of operation. It is not necessary that there should have been an actual breach of such other provision, - only that it be applicable to the case so that the question whether there has been a breach of it can properly be raised - (see paragraphs 3 and 4 above). If it is applicable, then, even if there has been no infringement of it, and it has been duly complied with - nevertheless, if there has been discrimination in the way in which it has been applied, if the claimant in the case has been afforded the rights concerned in a less favourable manner compared with the manner in which other persons or entities have been afforded the same rights, the necessary conditions for the application of Article 14 (art. 14) will be fulfilled; and it can then be considered whether the discrimination was justified or not - (for of course not all differences of treatment amount to "discrimination" within the intention of Article 14 (art. 14), - there may be good grounds for them).

24. It has seemed necessary to insist on this because I have the impression - (and I do not state it as higher than that, or as a fact) - that the Court, owing to a natural dislike of any kind of unjustified discrimination, has tended to regard any case of such discrimination as potentially contrary to the Convention on the basis of Article 14 (art. 14) alone, without always first satisfying itself of the existence and applicability of some other Article duly granting the rights that are alleged to have been afforded in a discriminatory manner. The National Union of Belgian Police case (see footnote 11 supra) was a possible example of this. Alternatively, there may be a temptation too readily to reach this necessary conclusion precisely in order to pave the way for the application of Article 14 (art. 14) "in combination with" such other (assumed to be applicable) provision.

25. I repeat, therefore, that unless the rights, the infringement of which is complained of in this case, are rights that rank as "rights set forth in this Convention" as specified by Article 14 (art. 14), the latter Article (art. 14) lacks any authentic field of application; and, even if there has been discrimination, it cannot come into play. Article 14 (art. 14) does not prohibit discrimination as such, or in the absolute sense, even where it is wanting in justification, but prohibits it only "in the enjoyment" of certain particular rights, viz. those provided for by the Convention. The judgment does indeed affect to recognise this where it says (paragraph 32) that "Article 14 (art. 14) safeguards individuals ... from any discrimination in the enjoyment of the rights and freedoms set forth in ... other provisions" (of the Convention). But unfortunately, it reaches the conclusion that such other provisions are applicable in the present case on grounds which I regard as wholly insufficient.

26. This being so, and having regard to my view that the provisions of the Convention and Protocol No. 1 (P1) invoked by the applicants are devoid of any applicability (relevance) to their specific complaints, I am bound to conclude that Article 14 (art. 14) is inapplicable also - "in combination with" such another provision - for there is none with which it can combine so as to become operative itself.

V. The inculpation of Belgian law: the "in abstracto" question: the "margin of appreciation" question

27. In view of the (to me) total inapplicability of the provisions invoked by the applicants to the class of complaints they make against the defendant Government, it would be otiose, and indeed inappropriate, for me to consider whether, if those provisions were relevant, there would, on the facts and legal grounds pleaded, have been a breach of the Convention. Nevertheless, I want to say something of a more general character involving certain important points of principle on which my attitude in some measure differs from that of the Court.

28. Basically, the Court’s judgment constitutes a denunciation of a particular part of Belgian law as such, and in abstracto, because that law fails to provide a natural child with the civil status of being the child of its mother as from the moment and by the mere fact of birth, without the necessity of any concrete step on the part of the mother or guardian to bring that about. Although, speaking generally, it is not part of the Court’s legitimate function to incriminate the laws of member States merely because they are difficult to reconcile with the Convention, or may lead to breaches of it - (so that in the normal case it will only be the specific step taken under, or by reason of, the law, leading to a breach, rather than the law itself, that can properly be impugned) - yet I accept that where it is the law itself, acting directly, that produces, ex opere operato, the breach (if there is one), it (the law) may be impugned even though there has been no specific act or neglect on the part of the authorities, or step taken under the law: it will be the law itself that, by its very existence, constitutes the act or neglect concerned.

29. It is evidently the situation just described that would obtain in the present case if the invoked Articles of the Convention and Protocol No. 1 (P1) were applicable. The relevant part of Belgian law, by its mere existence, prevents the mother-child relationship from arising juridically - (of course it is there by blood) - as a result of birth per se, and requires certain concrete steps to be taken by the mother, or by guardians acting on behalf of the child, to bring that about. As I have already fully explained, I do not think any breach of the Convention is involved by this, because I do not think these matters are matters of family life, but of affiliation and civil status with which the Convention does not deal. However, even if this were not my opinion, and even if I subscribed to the view taken on this matter in the judgment, I should still feel strongly that the Belgian Government ought not to be condemned for the operation of a law which, while some may consider it defective or inequitable, has in fact (as clearly emerged in the course of the proceedings) much that can be urged in favour of it, and in any event lies well within the margin of appreciation or discretion that any Government, acting bona fide, ought to be accorded. I fail to see how States can possibly be required to have uniform laws in matters of this kind. It is I think an exaggeration to say, as was maintained on behalf of the applicants, that the old forms of family relationships, and in particular the old distinction between legitimate and illegitimate children, are in the process of obliteration. But, in any event, States must be allowed to change their attitudes in their own good time, in their own way and by reasonable means, - States must be allowed a certain latitude.

30. Belgian law is not unreasonable: it gives the mother the chance to convert the status situation by a formal act of recognition of the child. Or this can be done on behalf of the child under the Belgian guardianship system. Recognition is an inexpensive, ordinary and simple procedure and the Belgian authorities have what I consider perfectly reasonable grounds for requiring this formality. One has to consider the interests of the mother as well as those of the child. As I pointed out in the course of some questions I asked during the hearing, there are situations where it is most unfair to saddle the mother with the consequences of the birth of her child. Is it right and reasonable that in no circumstances should the mother be given in law the right to choose? For example, what about the woman who has a child against her will? It seems perfectly reasonable for a law to provide that the mother shall have the option and that, where a mother for whatever reason refuses to assume her responsibilities, the authorities will assume them for her. The answer that the birth of unwanted children may also occur in marriage is beside the point. Unwanted or accidentally conceived children are an occupational hazard of marriage, and the whole case is quite different.

31. In my opinion, it is quite wrong and a misuse of the Convention - virtually an abuse of the powers given to the Court in relation to it - to hold a Government, or the executives or judicial authorities of a country, guilty of a breach of the Convention merely by virtue of the existence, or application, of a law which is not itself unreasonable or manifestly unjust, and which can even be represented as desirable in certain respects. That there may be grounds for disagreeing with or disliking the law concerned or its effects in given circumstances is not, juridically, a justification. No Government or authority can be expected to operate from within a strait-jacket of this sort and without the benefit of a faculty of discretion functioning within defensible limits. Equally, breaches of the Convention should be held to exist only when they are clear and not when they can only be established by complex and recondite arguments, at best highly controversial, - as much liable to be wrong as right.

POSTSCRIPT

The question of who is a "victim" according to Article 25 (art. 25) of the Convention

(1) Before any case can come to the Court, it must have been before the European Commission of Human Rights; and under Article 25 (art. 25) of the Convention the Commission can only receive (i.e. accept) a petition from a person, entity or group "claiming to be a victim of a violation" of the Convention by one of the States Parties to it. This could be regarded as a preliminary issue concerning the Commission alone; but the Court has treated it as a point of quasi-substance that has to be established to its own satisfaction as well. It could also be maintained that so long as the applicant in the case duly "claims" to be a victim of the violation alleged, the requirement is satisfied. But since, ex hypothesi, an applicant necessarily does that, this would be to remove all content from the requirement.

(2) The case is evidently distinct from that of whether the complainant has suffered any concrete or other (e.g. moral) damage for which he would be entitled to compensation or other appropriate satisfaction under Article 50 (art. 50) of the Convention. There may well be cases where he has not, but where there has nevertheless been a breach of the Convention of which he has been the object, or which has affected him or his interests. The requirement in question, considered as a preliminary issue, whether of admissibility or of quasi-substance, must therefore mean that the claim shall not be a purely theoretical or hypothetical one, but that, if the alleged violation were established, the complainant would be the object or one of the objects of it, or that it would affect him or his interests.

(3) But, in my opinion, it is also necessary that the complainant, or his interests, should not have been affected in a purely or largely formal, nominal, remote, or trivial way. It was for this reason that in the present case I voted against the Court’s finding that the applicants were "victims" within the intention of Article 25 (art. 25). The mother moved within fourteen days of the birth to have her child legally recognised as her daughter, and this was done. Later she carried through a legal adoption of the child, thus placing it on the same footing in law as a legitimate child except, so it seems, as regards intestacy rights in the estates of the mother’s relatives - a defect that could easily be cured by testamentary means. Had these acts of recognition or adoption not taken place or been prevented by death or otherwise, the applicants, or one or other of them, would have been the "victims" of any violation of an applicable provision of the Convention or Protocol that could have been established. But they did not fail to take place, and the mere fact that they hypothetically might not have done so does not seem to me to constitute the applicants "victims" in respect of what never happened or could only have had remote results - at least in a sufficiently substantial sense to regard them as fulfilling this condition as required by Article 25 (art. 25) of the Convention.

PARTLY DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

I. The scope of article 8 (art. 8), taken alone, and of article 14, taken in conjunction with article 8 (art. 14+8), as regards the establishment of maternal affiliation

I entirely agree with the principle underlying the reasoning on which the Court’s judgment is based: the "respect for family life" guaranteed by Article 8 para. 1 (art. 8-1) of the Convention is not limited to a duty on the part of the State to abstain from certain interferences by the public authorities which might constitute an obstacle to the development of what we consider belongs to "family life"; it also implies that the State has an obligation to prescribe in its domestic legal system rules which allow those concerned to lead a normal family life.

Indeed, one may consider it as generally accepted that the implementation of many fundamental rights - and notably family rights - calls for positive action by the State in the shape of the enactment of the substantive, organisational and procedural rules necessary for this purpose.

On the other hand, it must also be stressed that this positive obligation, flowing from Article 8 (art. 8) of the Convention, is limited to what is necessary for the creation and development of family life according to the ideas which contemporary European societies have of this concept. Furthermore, States enjoy a certain power of appreciation as regards the means by which they propose to fulfil this obligation. In no case does Article 8 (art. 8) impose on the Contracting States a duty to adopt a family code comprising rules which go beyond this requirement.

It is precisely in the determination of the scope of the duties deriving from Article 8 (art. 8) or, what comes to the same thing, in the assessment of what is necessary for family life within the meaning of the Convention or of what might constitute an obstacle to its creation and development that, to my great regret, I must differ from the reasoning of the majority of the Court; this necessarily leads me to different conclusions in the instant case.

1. Respect for family life under Article 8 (art. 8) of the Convention as a positive obligation binding the Contracting States in the sense we have just given the expression does not require that the legal bond of affiliation should be regulated in any particular manner. In this connection the only obligation which can be derived from Article 8 (art. 8) is that domestic law should prescribe rules which permit establishment of this legal bond under conditions which are reasonable and easily met by those concerned.

It follows that those States which, like Belgium, regulate civil status in such a way that the establishment of the maternal affiliation of an "illegitimate" child does not follow merely from the entry of the birth at the registry office but requires in addition a declaration by the mother recognising this affiliation do not thereby violate Article 8 para. 1 (art. 8-1) of the Convention.

Of course, personally, I see no need for this double formality (entry on the register and recognition of affiliation) and I find the arguments put forward by the respondent Government to support it (protection of mother and child) scarcely convincing. In my view, however, the inconvenience of this formality is so small - particularly since the declaration of recognition by the mother can be included in the birth certificate itself - that no one can regard it as an appreciable hardship for those concerned or as an interference calculated to hinder the "development of family relations".

I accept that this reasoning applies principally to the unmarried mother and that, as far as the child is concerned, the only method of establishing her affiliation available to her under Belgian law, failing voluntary recognition by the mother, was to take legal proceedings for the purpose. However, this problem did not arise in the instant case as the mother voluntarily recognised her child fourteen days after birth, with the result that on this account the child cannot really be considered as a victim. This hypothesis can therefore be disregarded unless one wishes to pass judgment on Belgian law in abstracto, a course which the Court has quite rightly excluded (paragraphs 26 and 27 of the present judgment).

Moreover, the reasoning in the judgment contains nothing which could be taken as convincing proof that the Belgian system for establishing the maternal affiliation of "illegitimate" children has the adverse consequences complained of for the creation and development of a family life between the mother and her child born out of wedlock.

I can therefore find no violation of Article 8 (art. 8) taken alone.

2. It is true that Belgian law only requires a mother to recognise the affiliation in the case of children born out of wedlock. This undoubtedly constitutes differential treatment as compared with legitimate children.

However, and even if one firmly supports the theory of the autonomy of Article 14 (art. 14) (paragraph 32 of the present judgment), in order to constitute discrimination within the meaning of this provision the unequal treatment must be such as might be deemed to be an appreciable interference with the enjoyment of a fundamental right recognised by the Convention. For I do not believe that a difference of treatment with respect to a fundamental right which, even though lacking in our opinion objective and reasonable justification (that is, not appearing to us to be necessary), does not really interfere with a right that the Convention intends to protect constitutes, by itself, discrimination within the meaning of Article 14 (art. 14).

As I have stated above, the requirement of a recognition of affiliation, which can take the form of a simple declaration accompanying the entry of the birth on the register, does not amount to an appreciable hardship and is in no way humiliating for those concerned.

It follows that in the instant case there is also no violation of Article 14 taken in conjunction with Article 8 (art. 14+8) of the Convention.

II. The scope of articles 8 (art. 8) of the Convention and 1 of Protocol no. 1 (P1-1), taken alone, and of 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), as regards certain patrimonial rights

There seems to me to be no doubt that the rules on voluntary dispositions and inheritance between near relatives are an important aspect of family life within the meaning of Article 8 (art. 8). On the other hand, it would be difficult to maintain that respect for family life requires that these rules should be so organised as to leave the persons concerned unlimited freedom to dispose of their property. In fact, in all the Contracting States these matters are subject to restrictions, which in some cases are considerable.

However, the imposition of special restrictions as regards children born out of wedlock constitutes, in the absence of objective and reasonable grounds, discrimination within the meaning of Article 14 taken in conjunction with Article 8 (art. 14+8) of the Convention. On this point I fully approve of the Court’s reasoning and agree with its conclusions in the present case.

On the other hand, I have doubts as to whether the rules on voluntary dispositions and inheritance between relatives, that is the freedom to dispose of property inter vivos or mortis causa, are also covered by the right to the peaceful enjoyment of possessions within the meaning of Article 1 of Protocol No. 1 (P1-1).

I incline to the view that this provision has completely different aims (the protection of the right of property against interference by the public authorities, the form of expropriation or other restrictions on the use of property similar in their effects). Moreover - and contrary to the opinion expressed on this matter in the reasons set out in the judgment (paragraph 63) -, the travaux préparatoires on Article 1 of Protocol No. 1 (P1-1), although not very explicit in this respect, also seem to confirm this opinion.

It follows that, as Article 1 (P1-1) is not applicable, there can also be no question in the instant case of a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1).

Furthermore, once the applicability of Article 8 (art. 8) of the Convention and the violation of Article 14, taken in conjunction with Article 8 (art. 14+8), are established I see no advantage in ascertaining whether the provisions of Belgian law complained of could be assessed under Article 1 of Protocol No. 1 (P1-1) as well; this is particularly so since the applicants themselves also seem to have considered the position primarily from the point of view of family life and felt themselves aggrieved by the obstacle which the provisions of Belgian law complained of constitute for its normal development.

[1] viz. (referring to the concluding, operational and vote-recording paragraph of the Court's judgment), on points 8, 9, 11 and 16, in respect of which the Court's finding was unanimous in rejection of the applicants' claims; and also on point 17, in respect of which there was a majority in favour of such rejection.

[2] Article 3 (art. 3) is the provision which forbids "torture or ... inhuman or degrading treatment or punishment". The claim of the applicants under this head was that they suffered "degrading treatment" - not by reason of anything done to them, or measures taken against them - but simply by reason of the fact that Belgian law did not recognise a legal (not merely a blood) tie of parenthood as automatically existing between unmarried mother and illegitimate child, arising from birth alone (and as from the date of birth) without either of them having to take the specific steps provided by Belgian law for the creation subsequently of such a legal (not merely blood) relationship. This, the applicants claimed, constituted a "degrading treatment" of them.

[3] These exceptions are such as are to be found in several of the provisions of the Convention, in favour of e.g., national security, public safety, order, health or morals, economic well-being, etc. None of them was invoked by the defendant Government.

[4] In that footnote the situation has been described in relation to the applicants' claim of having suffered "degrading treatment"; but it was exactly the same situation that gave rise to their claim of a lack of respect for their family life in Belgian law.

[5] This view is indirectly supported by the reference in paragraph 2 of Article 8 (art. 8-2) to "interference" by a public authority, - for while there is of course a distinction between interference and lack of respect (inasmuch as the latter does not necessarily imply the former), the existence of laws permitting, and therefore carrying a latent threat of resorting to, the practices described in paragraph 7 above, would - even if these laws were not in fact acted upon - involve a lack of respect for private and family life, home and correspondence which, if the measures concerned were put into execution, would amount to actual interferences in that sphere. The pointer is a very clear one.

[6] Judgment of 6 September 1978, Series A no. 28.

[7] For the benefit of English readers, this idea is that of a dark garment sewn with white cotton so that all the tacking shows.

[8] The apparent interchangeability of the terms "possessions", "property", "biens" and "propriété" in different contexts and without evident reason is confusing. The French "biens" is best translated into English by "assets" not "possessions". But the best French rendering of the English "assets" is "avoirs". In addition, there is no really satisfactory French equivalent of "possessions" as such, and in the plural. These anomalies of translation add to the difficulties. But they also thereby reduce the value of the Court's interpretation.

[9] Article 5 (P1-5) of the Protocol provides that its substantive clauses (i.e. its Articles 1 to 4) (P1-1, P1-2, P1-3, P1-4), shall be deemed to be "additional Articles to the Convention", and that "all the provisions of the Convention shall apply accordingly".

[10] Article 14 (art. 14) continues "on any ground such as ...", and there follows a list of the usual possible bases of discrimination, by reason of the individual's status or opinions, with general inclusions of "or other status", "or other opinion". The Court has in consequence treated this list as one that only indicates prominent examples, and has regarded every ground of discrimination as covered by the Article, of whatever kind or origin, provided only that it was unjustifiable.

[11] Notably in the National Union of Belgian Police case (Judgment of 27 October 1975, Series A no. 19); see paragraphs 18 to 26 of my separate opinion.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Marckx v Belgium - 6833/74 [1979] ECHR 2 (13 June 1979) URL: http://www.bailii.org/eu/cases/ECHR/1979/2.html Cite as: 2 EHRR 330, [1979] ECHR 2, (1980) 2 EHRR 330, [1979] 2 EHRR 330, (1979) 2 EHRR 330

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