CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 28369/95                       by Eveline E.C.H. CAMP and Sofian A. BOURIMI                       against the Netherlands        The European Commission of Human Rights sitting in private on 8 September 1997, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA            Mrs.   M. HION            MM.    R. NICOLINI                  A. ARABADJIEV              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 18 August 1995 by Eveline E.C.H. CAMP and Sofian A. BOURIMI against the Netherlands and registered on 29 August 1995 under file No. 28369/95;      Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      21 June 1996 and the observations in reply submitted by the      applicant on 30 September 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are Dutch citizens, born in 1966 and 1992 respectively, and reside in Weert, the Netherlands. The first applicant is the second applicant's mother. Before the Commission the applicants are represented by Ms P.M.M. van der Grinten, a lawyer practising in The Hague.   A.    The particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows.        In May 1991 the first applicant went to live with her partner, Mr Bourimi, in a house owned by the latter. In the spring of 1992 the first applicant became pregnant and she and Mr Bourimi intended to marry. The wedding was postponed as a result of the fact that the first applicant's mother died on 4 April 1992. On 24 September 1992, Mr Bourimi died, prior to the birth of the second applicant and without having recognised (erkenning) his child. He did not leave a will.        The parents of Mr Bourimi considered themselves to be his heirs. They did not accept that the first applicant had been living in the house of their son or that their son had had any intention of marrying the first applicant. They furthermore did not believe that the child she was carrying had been conceived by Mr Bourimi. On 22 October 1992, contrary to the wishes of the first applicant, Mr Bourimi's parents moved into the house which had belonged to him.        On 2 November 1992, the first applicant requested the President of the Regional Court (Arrondissementsrechtbank) of Roermond in summary proceedings (kort geding) to grant an injunction ordering Mr Bourimi's parents to vacate the house pending the winding up of Mr Bourimi's estate. Furthermore, on 3 November 1992, she requested Her Majesty the Queen to grant letters of legitimation (brieven van wettiging) in respect of the child she was carrying.        The President of the Regional Court of Roermond refused to grant the injunction on 19 November 1992. He did not find it established that the first applicant had been living in the house for such a considerable time as to prevent Mr Bourimi's parents, who claimed to be his heirs, from lawfully moving into this house. Furthermore, in the opinion of the President, it was by no means certain that the letters of legitimation would be granted and it was therefore premature to consider the as yet unborn second applicant as sole heir to Mr Bourimi. The first applicant filed an appeal against this decision with the Court of Appeal (Gerechtshof) of Den Bosch.        The second applicant was born on 20 November 1992. Since he was illegitimate and had not been recognised by his father, he initially carried the family name of his mother.        On 2 June 1993, the Court of Appeal of Den Bosch quashed the decision of the Regional Court of 19 November 1992. It considered that the first applicant had adduced sufficient evidence to corroborate her claim that she had been living with Mr Bourimi in his house for a considerable time, that they had intended to get married and that Mr Bourimi was the father of the second applicant. In view of the fact that it seemed likely that the letters of legitimation would be granted and the second applicant would thus emerge as the sole heir to Mr Bourimi, the Court found that it was the first applicant's right and in her interest in her capacity of mother and guardian to be given possession of the house. The Court accordingly ordered Mr Bourimi's parents to vacate the house. They subsequently filed an appeal in cassation against the decision of the Court of Appeal.        On 21 October 1994 the Supreme Court (Hoge Raad) issued a positive advice as to the granting of the letters of legitimation. These letters were granted on 4 November 1994 and the second applicant obtained the family name of his father.        On 24 February 1995, the Supreme Court quashed the decision of the Court of Appeal of 2 June 1993. It considered that the letters of legitimation did not have retroactive force to the time of Mr Bourimi's death and that therefore the second applicant could not be Mr Bourimi's heir. As regards the first applicant's argument that this outcome was contrary to Article 8 taken alone or in conjunction with Article 14 of the Convention, the Supreme Court held that the establishment of the consequences of an incompatibility of Dutch law with these provisions of the Convention went beyond the task of the judiciary.        The Supreme Court referred the case back to the Court of Appeal which had to decide whether other circumstances existed justifying the injunction, such as the fact that the first applicant had been living in the house owned by Mr Bourimi for a considerable time. On 4 June 1996 the Court of Appeal struck the case out of its list in view of the fact that the parties to the proceedings had reached an agreement to the effect that the applicants would vacate the house.        Despite the fact that Mr Bourimi was of Moroccan nationality, it has not been disputed that Dutch law is applicable, inter alia, for the reason that Mr Bourimi had lived in the Netherlands for eighteen years.   B.    Relevant domestic law        Section 1:5 para. 2 of the Civil Code (Burgerlijk Wetboek; hereinafter referred to as "CC") provides that the family name of an illegitimate child is the family name of its father if the latter has recognised the child. If this is not the case, it will bear the family name of its mother.        Pursuant to Section 4:879 para. 1 of the Civil Code only those persons who have a legally recognised family relationship (familierechtelijke betrekking) with a person who has died intestate may inherit from this person. It is furthermore required for an heir to have existed at the time of death of the intestate (Section 4:883 CC).        A child who has been conceived but has not yet been born, is considered as having already been born when his or her interests so require (Section 1:2 CC).        Legally recognised family relationships between a father, his relatives and a child exist where a child is born to married parents or if it is born within 307 days following the dissolution of the marriage (Section 1:197 CC). An illegitimate child will have a legally recognised family relationship with its father (who does not have to be the biological father) and his relatives if it has been recognised (erkenning) by the father, either before or after its birth (Section 1:222 CC). Moreover, according to Section 1:215 CC, a legally recognised family relationship will also come into existence with the granting of letters of legitimation. A request for such letters may be made by the child's mother or, after her death, by the child itself.        Para. 2 of Section 215 provides:   <Dutch>      "Het verzoek om brieven van wettiging kan ook worden gedaan,      indien de man, die, kennis dragende van haar zwangerschap,      voornemens was met de moeder te huwen, voor de geboorte van het      kind is overleden zonder het te hebben erkend."   <Translation>      "The request for letters of legitimation may also be made if the      man, who, aware of her pregnancy, and intending to marry the      mother, died before the birth of the child without having      recognised it."        It appears from the Explanatory Memorandum (Memorie van Toelichting) to this provision that the intention to marry the mother, which, if carried out, would have resulted in the birth of a legitimate child, replaces the recognition required by Section 1:222 CC for the establishment of a legally recognised family relationship.        No time-limit is attached to a request for letters of legitimation. According to Section 1:219 para. 1 CC, the legitimation pursuant to Section 215 takes effect from the day on which the letters of legitimation have been granted.        According to the rules of intestacy, if a deceased does not leave any children with whom he has a legally recognised family relationship or a spouse, his parents and siblings will inherit from him (Section 4:901 CC). If there are such children or a spouse, the parents and siblings are excluded from the inheritance (Sections 4:899 and 4:899a   CC).        Within one year of the death of the father, the child with whom he had no legally recognised family relationship may request that an obligation be imposed on the heirs to make a lump sum available for his care and upbringing. In the determination of this amount, the court dealing with the request may not exceed the legally reserved portion of the estate (wettelijk erfdeel) to which the child would have been entitled had he had a legally recognised family relationship with his father (Section 1:406 para. 5 CC). This is an elaboration of the principle, enacted in Section 1:394 para. 1 CC, that where there is no legally recognised family relationship between a father and his child, the former is only bound to provide maintenance (levensonderhoud) for the child until the child has become of age. The legally reserved portion of an estate is that part of a person's estate which will be attributed, according to the rules of intestacy, to the heirs who are direct descendants or ascendants, and which the testator is unable to dispose of by way of donation when alive, or by will.        On 20 March 1996 a Bill was presented in parliament aimed at amending, inter alia, the law of parentage (afstammingsrecht; Lower House 1995-1996, 24 649, nos. 1-2). One of the amendments proposes replacing letters of legitimation by the option of a judicial declaration of paternity (gerechtelijke vaststelling van vaderschap). Such declaration can be seen as a last resort to create a legally recognised family relationship between a child and its biological father, in cases where the latter is not willing or did not manage during his lifetime to recognise the child. According to the Explanatory Memorandum to the Bill, the possibility of having paternity determined judicially exists in all neighbouring countries. The absence of this possibility could constitute a conflict with Article 8 (in conjunction with Article 14) of the Convention since it could lead to a situation where a child is deprived of a father if the latter is unwilling to recognise it. It was felt that this defect could not be remedied by the fact that a request for determination of a parental maintenance contribution could be made against the father pursuant to Section 1:394 para. 1 CC.        The proposed declaration of paternity would have retroactive force to the time of the child's birth but it would not affect adversely any rights acquired in good faith by third parties.     COMPLAINTS        The applicants complain in the first place under Article 8 of the Convention that they were hindered in the normal development of their family life. They submit that the ties of the second applicant with his father and his father's relatives were not legally recognised until the granting of the letters of legitimation. As a result he did not obtain his father's family name until that time and he has not been able to inherit from his father. The non-recognition of the legal ties also affected his relationship with the first applicant, his mother, and the relationship of both applicants with the relatives of the second applicant's father.        The applicants further complain under Article 14 in conjunction with Article 8 of the Convention of an unjustified difference in treatment between children who, at the time of death of their father, had legally recognised family relationships with him and those who did not. The first category of children are able to inherit from their father, whereas the second category are not.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 18 August 1995 and registered on 29 August 1995.        On 9 April 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 21 June 1996, after an extension of the time-limit fixed for that purpose. The applicants replied on 30 September 1996, also after an extension of the time-limit.        On 5 July 1996 the Commission granted the applicants legal aid.     THE LAW        The applicants complain under Article 8 (Art. 8) of the Convention that they were hindered in the development of their family life with each other and with the relatives of the second applicant's father in that the ties of the second applicant with his father and his father's relatives were not legally recognised until the granting of the letters of legitimation. They further complain of an unjustified difference in treatment in that, unlike legitimate or recognised children, the second applicant was unable to inherit from his father, in which respect they invoke Article 14 in conjunction with Article 8 (Art. 14+8) of the Convention.        Articles 8 and 14 (Art. 8, 14) of the Convention, insofar as relevant, provide as follows:        Article 8 (Art. 8)        "1.    Everyone has the right to respect for his private and      family life ...        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."        Article 14 (Art. 14)        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."   1.    The Government submit in the first place that the applicants failed to avail themselves of the possibility to take proceedings pursuant to Section 1:406 para. 5 CC which could, at least to some extent, have provided a highly effective means of remedying the disadvantage which the applicants feel they have suffered. In the Government's view, by ensuring that illegitimate children who have not been recognised also have a claim on the heirs of the deceased father pursuant to Section 1:406 para. 5 CC, the legislator has ensured that there is no question of an unnecessarily far-reaching interference, financially or otherwise, in the rights of a child such as the second applicant.        The applicants maintain that they have exhausted domestic remedies as the remedy indicated by the Government was not available to them. In the limited period during which they could have brought an action pursuant to Section 1:406 para. 5 CC (one year from the moment of Mr Bourimi's death), they believed the second applicant to be Mr Bourimi's heir. They were supported in this belief by the judgments of the President of the Regional Court of 19 November 1992 and of the Court of Appeal of 2 June 1993, both of which acknowledged that the granting of letters of legitimation would entail that the second applicant was Mr Bourimi's sole heir.        Even assuming that they had been able to institute proceedings pursuant to Section 1:406 para. 5 CC, the applicants submit that this would not have constituted an effective remedy since it would not eliminate the difference in treatment between legitimate or recognised children and illegitimate, unrecognised children. Thus, the introduction of an action of this kind would not result in the second applicant becoming his father's heir. The applicants, moreover, also refer to the time-limit within which the action has to be instituted, whereas as an heir the second applicant would be entitled to at least his legally reserved portion of the estate without any time-limit, apart from the normal rules of prescription, being applicable. Section 1:406 para. 5 CC also limits the amount which the second applicant would be permitted to claim but which would not be bound to be granted as the provision leaves the fixing of the amount to the discretion of the court dealing with the request.        The Commission recalls that the exhaustion of domestic remedies rule laid down in Article 26 (Art. 26) of the Convention requires the exhaustion of those remedies that relate to the breaches alleged and that are available and sufficient. To be effective, a remedy must be capable of remedying the criticised state of affairs directly, and not merely indirectly (cf. No. 13800/88, Dec. 1.7.91, D.R. 71, p. 94).        The Commission agrees with the applicants that the remedy invoked by the Government would not constitute an effective remedy for the applicants' complaints. It refers to the arguments put forward to this effect by the applicants, but also notes that in an Explanatory Memorandum to a Bill of Law, the Government themselves advanced as their opinion that the remedy pursuant to Section 1:406 para. 5 CC was not able to offer sufficient reparation for the situation where a father was unable or unwilling to recognise his child.        It follows that the application cannot be rejected on the ground that domestic remedies have not been exhausted.   2.    As regards the merits of the application, the Government submit that it would be going too far to speak of "family life" existing between an unborn child and its father while the latter was still alive. Similarly, it would go too far to posit the existence of family life with the father, at the time of his death, solely with a view to the consequences for the child under the law of succession, for no entitlements in succession matters can be derived from Article 8 (Art. 8) of the Convention. In this respect the Government make reference to the Marckx v. Belgium judgment (Eur. Court HR, judgment of 13 June 1979, Series A no. 31, p. 24, para. 53).        The fact that the Dutch authorities, by issuing letters of legitimation, create legal paternity for children in such circumstances stems from the authorities' responsibility to ensure that a child does not suffer because a father failed to recognise it, either before or after its birth, or to marry the mother, with the result that the child can never officially be his father's issue. The Government are of the opinion that any positive obligation that rested on the authorities in this regard has been fulfilled. The fact that legal paternity does not extend back to the child's birth results from the need to protect the rights and the legal certainty which third parties should enjoy.            The Government argue that it is difficult to see how far granting retroactive force to the letters of legitimation would have fostered a better social and emotional relationship between the first and second applicants on the one hand and the blood relations on the father's side on the other. As regards the development of family life with Mr Bourimi's relatives, the Government submit that in any event the applicants have failed to substantiate their claim that this development was hindered through any circumstance imputable to them.        In respect of the alleged differential treatment, the Government contend that any such difference in treatment has an objective and reasonable justification. The reason why a legitimate or recognised child can inherit from its father is that it has been established, at the child's birth within marriage or at the time of its recognition, that such a child will inherit from its father on the latter's death. However, as there is no time-limit attached to a request for letters of legitimation, such request can be made many years later. Although they concede that a child has an interest in being acknowledged as his father's issue, despite the fact that his father was himself unable to recognise him, the Government also put forward that the heirs have an interest in being able to have confidence that they need not spend years fearing that they will have to give up a lawful inheritance to some descendant of the deceased who may turn up unexpectedly. In the Government's view, the Dutch legislature has acquitted itself of its duty to protect both conflicting interests.        The applicants maintain that there was family life between the second applicant and his father prior to the latter's death. Even if this family life had come to an end as a result of the death of the father, it should be allowed a certain "after effect" which would in any event entail that issues such as the family name and inheritance matters be dealt with in the same fashion as they would be for legitimate or recognised children. After all, a child born from a marriage which has already been dissolved as a result of the death of the natural father does inherit.        They also maintain that the development of the applicants' family life with Mr Bourimi's relatives was hindered since Dutch law enabled these relatives to treat the second applicant in a manner worse than they would have treated a legitimate child.        Furthermore, the applicants submit that the interests of a child such as the second applicant should not be weighed against the interests of other heirs not to be confronted unexpectedly, years later, with another (and sole) heir. In their view, legal certainty is not prejudiced if a few months are allowed to elapse until it is established that the child is born and that it had family life with its father at the time of its birth and at the time of its father's death. In any event, the second applicant can hardly be said to be a descendant who has suddenly appeared. Long before the winding up of the estate, before he was born and even before his father died, the existence of the second applicant and his claim to his father's estate were known to the latter's relatives.   Having regard to the parties' submissions and the case-law of the Convention organs, the Commission considers that the present application raises complex questions of fact and law which require an examination of the merits. The Commission concludes, therefore, that the application is not manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.           H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission