CASE LAW: Rights in Family – Marckx v. Belgium

*330 Marckx v. Belgium
Series A, No. 31

Before the European Court of Human Rights (ECHR)
(The President, Judge Balladore Pallieri ; JudgesWiarda, Zekia, O’Donoghue, Pedersen, Vilhjàlmsson, Ganshof van der Meersch, Fitzmaurice, Bindschedler-Robert, Evrigenis, Lagergren, Gölcüklü, Matscher, Pinheiro Farinha and GarcÍa de EnterrÍa.)

13 June 1979

The applicants, Paula Marckx and her infant daughter Alexandra, complained that certain aspects of the illegitimacy laws in Belgium --including the requirement that maternal affiliation could be established only by a formal act of recognition, and the existence of limitations on the mother’s capacity to give or bequeath, and the child’s capacity to take or inherit, property-- infringed Article 8 of the European Convention on Human Rights (right to respect for family life) taken alone and in conjunction with Article 14 (rights to be secured without discrimination) and Article 1 of the First Protocol (right to peaceful enjoyment of possessions) alone and together with Article 14. It was also claimed that Articles 3 (prohibition of degrading treatment) and 12 (right to marry and found a family) had been infringed. By a majority, the Commission formed the view that there had been violations of all the articles relied on except for Articles 3 and 12, and referred the case to the Court.

Held, (by the plenary Court), that the legislation failed to respect the applicants’ family life, as protected by Article 8, and constituted discrimination in violation of Article 14 by virtue of the lack of any objective and reasonable justification for the differences of treatment between the legitimate and illegitimate family. The limitations on the mother’s right to dispose of her property amounted to a violation of Article 1 of the First Protocol taken in conjunction with Article 14.

Procedure. Preliminary plea. Existence of law relevant to applicants but not implemented against them. Whether applicants prejudiced. Issue relevant to merits but not to Article 25.

1.
(a) Article 25 entitled individuals to contend that a law violated their rights by itself, in the absence of an individual measure of implementation [27].
(b) Whether or not the applicants were in fact prejudiced by the law was not a matter under Article 25, but went to the merits [27].

Meaning of ‘family life’ (Art. 8). Whether illegitimate family covered.
2.
(a) Article 8 made no distinctions between legitimate and illegitimate family [31].
*331

Right to respect for family life (Art. 8). Positive obligation of State. Laws to integrate illegitimate child into family essential.

3.
(a) Article 8 did not merely compel a State to abstain from interference in family life, but might also impose positive obligations [31].
(b) Domestic laws relating to certain family ties, such as those between an unmarried mother and her child, must allow those concerned to lead a normal life, which implied in particular that there should be legal safeguards for the child’s integration into the family [31]

Prohibition of discrimination (Art. 14). Relationship of Article 14 to substantive provisions of Convention. Meaning of discrimination. Application to family life of unmarried mother and child.

4.
(a) A measure which was discriminatory under Article 14 although in conformity with the requirements of a particular right or freedom in the Convention constituted a violation of Article 14 together with the particular article taken in conjunction [32].
(b) A distinction was discriminatory if it had no objective and reasonable justification, i.e. if it pursued no legitimate aim or there was no reasonable relationship of proportionality between the means employed and the aim sought to be realised [33].
(c) With respect to the family life of an unmarried mother and her child, Article 14 taken in conjunction with Article 8 dictated that a State had to avoid any discrimination grounded on birth [34].

Illegitimate child. Recognition of maternal affiliation by mother’s optional declaration. Consequence of recognition. Limitations on capacity to give or bequeath property to child. Whether compatible with the right to respect for family life (Art. 8).

5.
(a) The necessity for a mother to resort to a voluntary act of recognition by declaration in order to establish a maternal affiliation, coupled with the fact that such a declaration limited the mother’s capacity to give or bequeath property to her illegitimate child, thwarted and impeded the normal development of family life and accordingly constituted a violation of Article 8 [36].

Illegitimate child. Establishing maternal affiliation by child. Necessity of legal action. Whether compatible with Article 8.

6.
(a) The necessity for an illegitimate child to resort to legal action in order to establish its maternal affiliation, which required the consent of the family council if the child was under age, involved a risk that the establishment of affiliation would be time-consuming, which resulted in a lack of respect for the child’s family life in violation of Article 8 [37].

Illegitimate child. Need to recognise maternal affiliation by act of recognition. Whether discrimination between married and unmarried mothers contrary to Article 14. Evolution of standards. Interpretation of Convention in light of present-day conditions.

7.
(a) The fact that some unmarried mothers did not wish to take *332 care of their child could not justify the Belgian law making the establishment of maternity conditional on voluntary recognition [39].
(b) While the support and encouragement of the traditional family was in itself legitimate and even praiseworthy, it should not be obtained by measures which prejudiced the illegitimate family, whose members enjoyed the guarantees of Article 8 equally with the members of the traditional family [40].
(c) Although it was regarded as permissible when the Convention was drafted in 1950 to distinguish between the legitimate and the illegitimate family, the domestic law of the great majority of the Council of Europe member States had since evolved towards full recognition of the maxim mater semper certa est, and the Convention had to be interpreted in the light of present-day conditions [41].
(d) Since the distinction complained of lacked objective and reasonable justification, the manner of establishing maternal affiliation violated Article 14 taken in conjunction with Article 8 [43].

Extent of ‘family life’. Grandparents and grandchildren. Illegitimate child. Relationship with mother’s relatives.

8.
(a) ‘Family life’ included at least the ties between near relatives, e.g. between grandparents and grandchildren [45].
(b) Respect for family life implied an obligation on the State to allow these ties to develop normally [45].
(c) Since an illegitimate child under Belgian law remained in principle a stranger to its parents’ families, there was a violation of Article 8 as regards both the mother and child
[44 and 47].

Differences in treatment between legitimate and illegitimate children. Violation of Article 8 (right to respect for family life). Whether discrimination contrary to Article 14.

9.
(a) There was no objective and reasonable justification for the differences of treatment [48].
(b) That the ‘tranquillity’ of legitimate families might sometimes be disturbed by including an illegitimate child in its mother’s family on the same footing as a legitimate child did not justify depriving the former of fundamental rights [48]. (c) Both mother and child had accordingly suffered a violation of Article 14 taken in conjunction with Article 8 [48.]

Illegitimate child. Patrimonial rights. Restrictions on receiving and inheriting property. Whether covered by Article 8 (respect for family life). Whether difference in treatment amounted to discrimination (Art. 14). Resort to adoption to eliminate differences.

10.
(a) Matters of intestate succession and of disposition between near relatives were intimately connected with family life so as to attract the protection of Article 8 [52].
(b) Since Article 8 did not require either that a child should be entitled to some share in its parents’ or other relatives’ estates, or that a mother should have complete freedom to give or bequeath her property to her child, the restrictions *333 in Belgium on an illegitimate child’s inheritance rights on intestacy and on the mother’s capacity to make dispositions in her illegitimate child’s favour were not of themselves in conflict with Article 8 considered alone [53 and 61].
(c) But, as there was no objective and reasonable justification for (i) limiting the capacity of an illegitimate child to receive property from its mother, (ii) its total lack of inheritance rights on intestacy over the estates of its near relatives on its mother’s side, and (iii) limiting the mother’s capacity to give or bequeath property to the child, both the mother and child were the victims of breaches of Article 14 taken in conjunction with Article 8 [55, 59 and 62].
(d) It was discriminatory to require recourse to adoption in order to eliminate this difference of treatment; it amounted to disregarding the tie of blood and to using the institution of adoption for an extraneous purpose [55].

Right to inherit and acquire possessions. Relevance of Article 1 of First Protocol (right to peaceful enjoyment of possessions).

11.
(a) Article 1 of the First Protocol merely enshrined the right of everyone to the peaceful enjoyment of his possessions, which thus applied only to a person’s existing possessions and did not guarantee the right to acquire possessions on intestacy or otherwise [50].

Right to make gifts or legacies. Right of property. Restrictions on unmarried mother benefiting her child. Right to enjoyment of possessions (Art. 1 of Protocol 1). Discrimination between married and unmarried mothers. Article 14.

12.
(a) Article 1 of the First Protocol guaranteed the right of property [63].
(b) The right to dispose of one’s property constituted a traditional and fundamental aspect of the right of property [63].
(c) The limitations on an unmarried mother’s right to make gifts or legacies in favour of her child were discriminatory, resulting in a breach of Article 14 taken in conjunction with Article 1 of Protocol 1 [65].

Effects of judgment of Court. Retrospective effect. Obligation of State in event that violations found.

13.
(a) The principle of legal certainty, necessarily inherent in the law of the Convention, dispensed the Belgian State from re-opening legal acts or situations that antedated the delivery of the present Judgment [58].

Whether challenged laws pertaining to illegitimacy involved ‘degrading treatment’ (Art. 3).

14.
(a) While the legal rules at issue probably presented aspects which the applicants might have felt to be humiliating, they did not constitute degrading treatment within the ambit of Article 3 [66].

Parents of illegitimate child. Denial of rights of married couple. Whether breach of Article 2 (right to marry and found a family).

15.
(a) Article 12 did not require that all the legal effects attaching *334 to marriage should apply equally to situations comparable to marriage [67].
Case referred to the Court by the European Commission of Human Rights arising out of an application lodged with the Commission in 1974 by Ms. Paula Marckx (‘the first applicant’) acting on behalf of herself and her infant daughter Alexandra (‘the second applicant’), alleging that various aspects of the Belgian legislation on illegitimacy contravened the following articles of the Convention: Article 8 (right to respect for family life); Article 14 (rights to be secured without discrimination); Article 3 (prohibition of degrading treatment); Article 12 (right to marry and to found a family); and Article 1 of the First Protocol (right to peaceful enjoyment of possessions). The Commission, by majority votes, found violations of Article 8 taken alone and in conjunction with Article 14 and of Article 1 of the Protocol in conjunction with Article 14. The chamber of seven judges appointed to hear the case decided under Rule 48 of the Rules of Court to relinquish jurisdiction in favour of the plenary Court as the case raised ‘serious questions affecting the interpretation of the Convention’.

Representation

J. Niset, Legal Adviser, Ministry of Justice (Agent), G. van Hecke, avocat à la Cour de cassation (Counsel), and P. Van Langenaeken, Director-General, Ministry of Justice (Adviser), for the Government.
C. A. Norgaard (Principal Delegate), J. Custers and K. Klecker (Delegates), for the Commission, assisted by Mrs. L. Van Look, counsel for the applicants before the Commission, under Rule 29 (1).
Messrs. van Hecke, Norgaard and Custers and Mrs. Van Look addressed the Court.

The following cases are cited in the Judgments:
Belgian Linguistic Case (Merits) (1968), Series A, No. 6.
De Becker v. Belgium (1962), Series A, No. 4; 1 E.H.R.R. 43.
Defrenne v. SABENA [1976] E.C.R. 455; [1976] 2 C.M.L.R. 98.
De Wilde, Ooms and Versyp v. Belgium (1972), Series A, No. 14.
Engel v. Sweden (1976), Series A, No. 22.
Golder v. U.K. (1975), Series A, No 18
Handyside v. U.K. (1974), Series A, No. 24.
Klass v. Federal Republic of Germany (1978), Series A, No. 28; 2 E.H.R.R. 214.
National Union of Belgian Police v. Belgium (1975), Series A, No. 19.
Tyrer v. U.K. (1978), Series A, No. 26; 2 E.H.R.R. 1.

The Facts

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 *335 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 bisof the Belgian 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 so 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 para. 14 below). He also drew her attention to certain provisions of the Civil Code, including Article 756 which concerns ‘exceptional’ forms of inheritance (successions ‘rreguli2eres’).

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 (Art. 395 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 its mother. The applicants also put in issue the necessity for the mother to adopt the child if she wishes to increase its rights.

B. Current law

(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 register office suffices to prove the maternal affiliation of the married woman’s children (Art. 319 *336 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 its mother’s name which must appear on the birth certificate (Art. 57). The appointment of its 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 (Art. 339). Many unmarried mothers--about 25 per cent. 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 its attainment of majority or, whilst it is still a minor, by its legal representative with the consent of the family council (Arts. 341a%60341c).

(2) Effects of the establishment of maternal affiliation

15. The establishment of maternal affiliation of an ‘illegitimate’ child has limited effects as regards both the extent of its family relationships and the rights of the child and its 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 its mother’s family. The law excludes it from that family as regards inheritance rights on intestacy (see para. 17 below). Furthermore, if the child’s parents are dead or under an incapacity, it cannot marry, before attaining the age of 21, without consent, which has to be given by its guardian (Art. 159) and not, as is the case for a ‘legitimate’ child, by his grandparents (Art. 150); the law does not expressly create any maintenance obligations, etc., between the child and its grandparents. However, certain texts make provision for exceptions, for example as regards the impediments to marriage (Arts. 161 and 162). According to a judgment of the Belgian Court of Cassation, [FN1] *337 these texts ‘place the bonds existing between an illegitimate child and its 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.

FN1 Pasicrisie I, 1967, pp. 78-79 (22 September 1966).

(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 its parent who dies intestate, the status of heir, but solely that of ‘exceptional heir’ (successeur irrégulier ): it has to seek a court order putting it in possession of the estate (envoi en possession). It is the sole beneficiary of its deceased mother’s estate only if she leaves no relatives entitled to inherit (Art. 758); otherwise, its maximum entitlement—which arises when its mother leaves no descendants, ascendants, brothers or sisters--is three-quarters of the share which it would have taken if ‘legitimate’ (Art. 757). Furthermore, its mother may, during her life-time, reduce that entitlement by one-half. Finally, Article 756 denies to the ‘illegitimate’ child any rights on intestacy in the estates of its 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 it 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 it 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 it; or she renounces establishing with it a family relationship in the eyes of the law, in order to retain the possibility of leaving all her estate to it just as she might to a stranger.

*338 (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 its status, namely, ‘simple’ adoption. In such cases, the age requirements for this form of adoption are eased by Article 345 (2) (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 its mother’s relatives (Art. 365).

Only legitimation (Art. 331-333) and legitimation by adoption (Arts. 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. 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 *339 a capitis deminutio incompatible with Articles 3 and 8 of the Convention;
-- this capitis deminutio also violates the said articles with respect to Paula Marckx;
-- there are instances of discrimination, contary to Article 14 taken in conjunction with Article 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;
-- Article 1 of Protocol No. 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 of the Convention.

In its report of 10 December 1977, the Commission expresses the opinion:
-- by 10 votes to four, ‘that the situation’complained of ‘constitutes a violation of Article 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 with respect to the applicants’;
-- by 12 votes with two abstentions, ‘that the legislation as applied constitutes a violation of Article 8 in conjunction with Article 14 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 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 of the Convention; and
-- unanimously, that Article 12 is not relevant.
The report contains one separate opinion.

*340 JUDGMENT
[FN2] FN2 Drawn up in French and English, the French text being authentic.

I. 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 of the Convention and Article 1 of Protocol No. 1.

26. In reply, the Government first 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 13 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. [FN3] 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.
FN3 Golder v. U.K. (1975), Series A, No. 18, p. 19, para. 39.

27. The Court does not share the Government’s view. Article 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. [FN4] 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 *341 25. [FN5]: they are challenging a legal position--that of an unmarried mothers and of children born out of wedlock—which affects them personally.
FN4 See, mutatis mutandis, Klass v. Federal Republic of Germany (1978), 2 E.H.R.R. 214, 227, para. 33.
FN5 See, in addition to the cases cited in notes 2 and 3 supra, De Becker v. Belgium (1962), 1 E.H.R.R. 43, 49, and De Wilde, Ooms and Versyp v. Belgium (1972), Series A, No. 14, p. 10, para, 22.

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 which, in its use of the word ‘victim’, denotes ‘the person directly affected by the act or omission which is in issue’. [FN6]
FN6 De Wilde, Ooms and Versyp v. Belgium (1972), Series A, No. 14, p. 11, paras. 23-24; see also Engel v. Sweden(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.

II. The merits

28. The applicants rely basically on Articles 8 and 14 of the Convention. Without overlooking the other provisions which they invoke, the Court has accordingly turned primarily to these two articles 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 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. [FN7]
FN7 Belgian Linguistic Case (Merits), Series A, No. 6, pp. 32-33, para. 7; Klass v. Federal Republic of Germany (1978), 2 E.H.R.R. 214, 230, 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. By guaranteeing the right to respect for family life, Article 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 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 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. [FN8]
FN8 Res. (70) 15 of 15 May 1970 on the social protection of unmarried mothers and their children, paras. I-10, II-15, etc.

*342 Article 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 signifies first that the State cannot interfere with the exercise of that right otherwise than in accordance with the strict conditions set out in paragraph 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. [FN9] 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.
FN9 (1968), Series A, No. 6, p. 33, para. 7.

This means, amongst other things, that when the State determines in its domestic legal system the régime 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, 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 its 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 without there being any call to examine it under paragraph 2.

Article 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 provides:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground *343 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 has no independent existence, it may play an important autonomous rôle by complementing the other normative provisions of the Convention and the Protocols: Article 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, therefore violates those two articles taken in conjunction. It is as though Article 14 formed an integral part of each of the provisions laying down rights and freedoms. [FN10]
FN10 Ibid.,pp. 33-34, para. 9; National Union of Belgian Police v. Belgium (1975), Series A, No. 19, p. 19, para. 44.

Accordingly, and since Article 8 is relevant to the present case (see para. 31 above), it is necessary also to take into account Article 14 in conjunction with Article 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’. [FN11]
FN11 See, inter alia, the Belgian Linguistic Case(1968), Series A, No. 6, 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 para. 31 above), the State must avoid any discrimination grounded on birth: this is dictated by Article 14 taken in conjunction with Article 8.

A. The manner of establishing Alexandra Marckx’s maternal affiliation

35. Under Belgian law, the maternal affiliation of an ‘illegitimate’ child is established neither by its 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 register office (see para. 14 above).

The applicants see this system as violating, with respect to them, Article 8 of the Convention, taken both alone and in conjunction with Article 14. This is contested by the Government. The Commission, for its part, finds a breach of Article 8, taken both alone and in conjunction with Article 14, with respect to Alexandra, *344 and a breach of Article 14, taken in conjunction with Article 8, with respect to Paula Marckx.

1. The alleged violation of Article 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 register office (see para. 14 above).

Nevertheless, the necessity to have recourse to such an expedient derived from a refusal fully to acknowledge 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 it since her capacity to give or bequeath her property to it 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 it in law (see para. 18 above). Admittedly, that possibility, which is now open to her in the absence of recognition, would disappear entirely under the current Civil Code [FN12] 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 para. 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 and with Article 1 of Protocol No. 1.
FN12 Art. 908. The Court thus concludes that there has been a violation of Article 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). [FN13]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 *345 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 itself (see para. 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 its 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 with respect to the second applicant.
FN13 Civil Code, arts. 341a%60341c.

2. The alleged violation of Article 14 of the Convention, taken in conjunction with Article 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.

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’, [FN14] 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 it, the law is prompted by a concern for protection of the child, for it would be dangerous to entrust it to the custody and authority of someone who has shown no inclination to care for it; many unmarried mothers do not recognise their child (see para. 14 above).
FN14 Ibid., art. 203.

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, it has only one expedient, namely, an action to establish *346 maternal affiliation (see para. 14 above). [FN15]A married woman’s child also is entitled to institute such an action, [FN16] but in the vast majority of cases the entries on the birth certificate [FN17] or, failing that, the constant and factual enjoyment of the status of a legitimate child (une possession d’état constante [FN18]) render this unnecessary.
FN15 Ibid., arts. 341a%60341c.
FN16 Ibid., arts. 326-330.
FN17 Ibid., art. 319.
FN18 Ibid., art. 320.

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 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 para. 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. [FN19] 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.
FN19 Tyrer v. U.K. (1978), 2 E.H.R.R. 1, 10, para. 31.

Admittedly, of the 10 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 10 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 (Art. 2).

*347 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 para. 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. [FN20] It adds that ‘lawyers and public opinion are becoming increasingly convinced that the discrimination against [illegitimate] children should be ended’.
FN20 Constitution, art. 6.

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 *348 Alexandra Marckx’s maternal affiliation violated, with respect to both applicants, Article 14 taken in conjunction with Article 8.

B. The extent in law of Alexandra Marckx’s family relationships

44. Under Belgian law, a ‘legitimate’ child is fully integrated from the moment of its birth into the family of each of its parents, whereas a recognised ‘illegitimate’ child, and even an adopted ‘illegitimate’ child, remains in principle a stranger to its parents’ families (see para. 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 its father’s or mother’s relatives, [FN21] it does not expressly create any maintenance obligations between it and those relatives, and it empowers its guardian rather than those relatives to give consent, where appropriate, to its marriage, [FN22] etc.
FN21 Civil Code, art. 756 in fine.
FN22 Ibid.,art. 159 as compared with art. 150.

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 para. 12 above).

The applicants regard this situation as incompatible with Article 8 of the Convention, taken both alone and in conjunction with Article 14. This is contested by the Government. The Commission, for its part, finds a breach of the requirements of Article 8, taken both alone and in conjunction with Article 14, with respect to Alexandra, and a breach of Article 14 taken in conjunction with Article 8, with respect to Paula Marckx.

1. The alleged violation of Article 8 of the Convention, taken alone

45. In the Court’s opinion, ‘family life’, within the meaning of Article 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, para. 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.

*349 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, taken alone, with respect to both applicants.

2. The alleged violation of Article 14 of the Convention, taken in conjunction with Article 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. One of the differences of treatment found in this area between ‘illegitimate’and ‘legitimate’ children concerns inheritance rights on intestacy; [FN23] 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 paras. 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.
FN23 Ibid., art. 756 in fine.

The distinction complained of therefore violates, with respect to both applicants, Article 14 taken in conjunction with Article 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 its unmarried mother as regards both inheritance on intestacy and dispositions inter vivos or by will (see paras. 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). [FN24] It was only Alexandra’s adoption, on 30 October 1974, *350 that conferred on her the rights of a ‘legitimate’ child over Paula Marckx’s estate. [FN25] Moreover, Alexandra has never had any inheritance rights on intestacy as regards the estate of any member of her mother’s family. [FN26]
FN24 Ibid., arts. 756-758, 760 and 773.
FN25 Ibid., art. 365.
FN26 Ibid., arts. 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’. [FN27] 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.
FN27 Ibid., art. 908.

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 of the Convention, taken both alone and in conjunction with Article 14, and also, in Paula Marckx’s case, Article 1 of Protocol No. 1, taken both alone and in conjunction with Article 14. 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, with respect to Paula Marckx.

1. The patrimonial rights relied on by Alexandra

50. As concerns the second applicant, the Court has taken its stand solely on Article 8 of the Convention, taken both alone and in conjunction with Article 14. The Court in fact excludes Article 1 of Protocol No. 1: like the Commission and the Government, it notes that this Article 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 proves to be inapplicable, Article 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. 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 *351 parents, and between grandchildren and grandparents, to be so closely related to family life that it comes within the sphere of Article 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 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 in principle leaves to the Contracting States the choice of the means calculated to allow everyone to lead a normal family life (see para. 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 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 para. 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.

*352 This argument represents, in essence, no more than one branch of the preliminary plea that has already been set aside (see paras. 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 para. 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 para. 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 para. 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 30 years.

*353 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 para. 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.

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’. [FN28] 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 , para. 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)--and rejected de plano [FN29]--another application [FN30] 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. [FN31]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 effects of those decisions of that court that annul legislation.
FN28 Defrenne v. SABENA [1976] E.C.R. 455, 480; [1976] 2 C.M.L.R. 98, 128.
FN29 R. 45 (3) (a) of its then Rules of Procedure.
FN30 No. 2775/67.
FN31 Paula and Alexandra Marckx (No. 6833/74).

59. To sum up, Alexandra Marckx was the victim of a breach of Article 14, taken in conjunction with Article 8, by reason both of *354 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. 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 para. 49 above). She complains of this situation, relying on Article 8 of the Convention and on Article 1 of Protocol No. 1, taken in each case both alone and in conjunction with Article 14.

(a) The alleged violation of Article 8 of the Convention, taken both alone and in conjunction with Article 14

61. As the Court has already noted, Article 8 of the Convention is relevant to the point now under consideration (see paras. 51 and 52 above). However, Article 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 para. 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.

(b) The alleged violation of Article 1 of Protocol No. 1, taken both alone and in conjunction with Article 14 of the Convention

63. Article 1 of Protocol No. 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 *355 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 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. Indeed, the right to dispose of one’s property constitutes a traditional and fundamental aspect of the right of property. [FN32]
FN32 Cf. Handyside v. U.K. (1976), Series A, No. 24, p. 29, para. 62.

64. The second paragraph of Article 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. [FN33] 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.
FN33 Ibid.

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 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, with respect to Paula Marckx.

D. The alleged violation of Articles 3 and 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. The Government contest this. The Commission, for its part, did not consider that it had to examine the case under this Article.

*356 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.