CEDH · CASELAW;REPORTS;ENG — 23 avril 1999

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Camp and Sofian A. Bourimi     against     the Netherlands                     REPORT OF THE COMMISSION   (adopted on 23 April 1999) TABLE OF CONTENTS Page   I.   INTRODUCTION   (paras. 1-15) ................................................. 1     A.   The application     (paras. 2-4) .............................................. 1     B.   The proceedings     (paras. 5-10) ............................................. 1     C.   The present Report     (paras. 11-15) ............................................ 2     II.   ESTABLISHMENT OF THE FACTS   (paras. 16-35) ................................................ 4     A.   The particular circumstances of the case     (paras. 16-25) ............................................ 4     B.   Relevant domestic law     (paras. 26-35) ............................................ 5     III.   OPINION OF THE COMMISSION   (paras. 36-64) ................................................ 7     A.   Complaints declared admissible     (para. 36) ................................................ 7     B.   Points at issue     (para. 37) ................................................ 7     C.   As regards Article 8 of the Convention, taken alone     (paras. 38-46) ............................................. 7       CONCLUSIONS     (paras. 47-49) ............................................ 9     D.   As regards Article 14 of the Convention, taken together with Article 8     (paras. 50-59) ............................................. 9       CONCLUSION     (para. 60) ................................................ 11             TABLE OF CONTENTS   Page     E.   Recapitulation   (paras. 61-64) ................................................ 11     APPENDIX:   DECISION OF THE COMMISSION AS TO THE   ADMISSIBILITY OF THE APPLICATION ................... 12               I.   INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.   The application   2.     The applicants, Eveline Camp and Sofian Bourimi, are Dutch citizens, born in 1966 and 1992 respectively, and resident in Weert, the Netherlands. The first applicant is the mother of the second applicant. They were initially represented before the Commission by Messrs. J.W. Winter and R.J. Theissen, lawyers practising in Amsterdam and The Hague respectively, and subsequently by Ms P.M.M. van der Grinten, a lawyer practising in The Hague.   3.   The application is directed against the Netherlands. The respondent Government were represented by their Agent, Mr R. Böcker, of the Netherlands Ministry of Foreign Affairs.   4.   The case concerns the applicants’ complaint that the recognition of the second applicant by his father, who died before the second applicant was born, through letters of legitimation did not have retroactive effect from the time of the second applicant’s birth. As a result the second applicant was unable to inherit from his father and did not have legally recognised family relationships with his father and his father’s relatives prior to the letters of legitimation being granted. The applicants invoke Articles 8 and 14 of the Convention.     B.   The proceedings   5.   The application was introduced on 18 August 1995 and registered on 29 August 1995.   6.   On 9 April 1996 the Commission decided, pursuant to Rule 48 § 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.     7.   The Government's observations were submitted on 21 June 1996 after an extension of the time-limit fixed for this 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 for the representation of their case.   8.   On 8 September 1997 the Commission declared the application admissible.   9.   The text of the Commission's decision on admissibility was sent to the parties on 18   September 1997 and they were invited to submit such further information or observations on the merits as they wished. Neither party availed itself of this possibility.   10.   After declaring the case admissible, the Commission, acting in accordance with former Article 28 § 1 (b) of the Convention [1] , also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.   The present Report   11.   The present Report has been drawn up by the Commission in pursuance of former Article   31 of the Convention and after deliberations and votes, the following members being present:       MM.   S. TRECHSEL, President       E. BUSUTTIL       G. JÖRUNDSSON       A.S. GÖZÜBÜYÜK       A. WEITZEL       J.-C. SOYER       H. DANELIUS     Mrs   G.H. THUNE     Mr.   F. MARTINEZ     Mrs   J. LIDDY     MM.   L. LOUCAIDES       J.-C. GEUS       M.P. PELLONPÄÄ       B. MARXER       M.A. NOWICKI       I. CABRAL BARRETO     Sir   Nicolas BRATZA       I. BÉKÉS       D. ŠVÁBY       G. RESS       A. PERENIĆ       C. BÎRSAN       P. LORENZEN       K. HERNDL       E. BIELIŪNAS       E.A. ALKEMA       M. VILA AMIGÓ     Mrs   M. HION     MM.   R. NICOLINI       A. ARABADJIEV   12.   The text of this Report was adopted on 23 April 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 § 2 of the Convention.   13.   The purpose of the Report, pursuant to former Article 31 of the Convention, is:   (i)   to establish the facts, and   (ii)   to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.     II.   ESTABLISHMENT OF THE FACTS   A.   The particular circumstances of the case   16.   In May 1991 the first applicant went to live with her partner, Mr Bourimi, in a house owned by the latter. Early in 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.   17.       The parents of Mr Bourimi 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 fathered by Mr Bourimi. Consequently, they considered themselves to be Mr Bourimi’s heirs and were of the opinion that the second applicant had no entitlements whatsoever in this respect. 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.   18.       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.   19.       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.   20.       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.   21.       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.   22.       On 21 October 1994 the Supreme Court ( Hoge Raad ) issued advice in favour of 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.   23.       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 from 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.   24.       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.   25.       Despite the fact that Mr Bourimi was of Moroccan nationality, it has not been disputed that Dutch law is applicable, inter alia , on the ground that Mr Bourimi had lived in the Netherlands for eighteen years.   B.   Relevant domestic law   26.       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.   27.       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).   28.       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).   29.       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 the latter’s relatives if it has been recognised ( erkenning ) by the father, either before or after its birth (Section   1:222 CC). At the relevant time, moreover, a legally recognised family relationship would also be created by the granting of letters of legitimation (Section 1:215 CC). A request for such letters could be made by the child's mother or, after her death, by the child itself.   30.       Para. 2 of Section 1:215 provided:   <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."   31.       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, replaced the recognition required by Section 1:222 CC for the establishment of a legally recognised family relationship.   32.       No time-limit was attached to a request for letters of legitimation. According to Section 1:219 para. 1 CC, the legitimation pursuant to Section 1:215 took effect from the day on which the letters of legitimation were granted.   33.       On 1 April 1998 the Civil Code was changed. The option of letters of legitimation was replaced by a judicial declaration of paternity ( gerechtelijke vaststelling van vaderschap , Section 1:207). A declaration of paternity has retroactive force from the time of the child's birth but it does not affect adversely any rights acquired in good faith by third parties.   34.       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).   35.       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. If in the present case the second applicant was the sole direct descendant, the legally reserved portion would have amounted to 50% of the estate (Section 4:961 CC).       III.   OPINION OF THE COMMISSION   A.   Complaints declared admissible   36.       The Commission has declared admissible the applicants’ complaints:   - that, as a result of the ties of the second applicant with his father and the latter’s relatives not being legally recognised until the granting of the letters of legitimation, they were hindered in the development of family life with each other;   - that the first applicant was hindered in the development of family life with the relatives of the second applicant’s father;   - that the second applicant was hindered in the development of family life with the relatives of his father; and   - that the second applicant is the victim of an unjustified difference of treatment in that, unlike legitimate or recognised children, he was unable to inherit from his father.   B.   Points at issue   37.       The points at issue in the present case are as follows:   - whether there has been a violation of Article 8 of the Convention, taken alone, in respect of the family life between both applicants;   - whether there has been a violation of Article 8 of the Convention, taken alone, in respect of the first applicant’s family life with the relatives of the second applicant’s father;   - whether there has been a violation of Article 8 of the Convention, taken alone, in respect of the second applicant’s family life with the relatives of his father; and   - whether there has been a violation of Article 14 of the Convention, taken together with Article 8, in respect of the second applicant.   C.   As regards Article 8 of the Convention, taken alone   38.       Article 8 of the Convention, in so far as relevant, provides as follows:   “1.     Everyone has the right to respect for his … 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.”   39.       The applicants maintain 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. This affected the relationship between the applicants as well as the relationship of both applicants with the relatives of the second applicant's father. As a result of the fact that the letters of legitimation lacked retroactive force the second applicant did not obtain his father's family name until the granting of those letters and he has not been able to inherit from his father.   40.       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 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).   41.       The fact that the Dutch authorities, by issuing letters of legitimation, created legal paternity for children in such circumstances stemmed 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.   42.       The Government argue that it is difficult to see to what extent granting retroactive force to the letters of legitimation would have fostered a better social and emotional relationship between the first and second applicant 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.   43.       The Commission notes that it is the applicants’ claim that they were hindered in the normal development of family life with each other and with the relatives of Mr Bourimi as a result of the manner in which the second applicant’s paternal affiliation was established.   44.     As regards the relationship between the two applicants, firstly, there can be no doubt that this constitutes family life within the meaning of Article 8. However, the Commission fails to see how this could have been affected to an appreciable extent, either prior to or after the granting of the letters of legitimation, by the fact that the family ties between the second applicant and his deceased father and the latter’s relatives were not legally recognised upon the second applicant’s birth.   45.     Insofar as the alleged interference with the family life of the first applicant with the relatives of the second applicant’s father is concerned, even assuming that these relationships can be characterised as constituting ‘family life’ within the meaning of Article 8, the Commission finds that it has not been substantiated in what way this was adversely affected through any action or lack of action by the Dutch authorities.   46.     Given the nature of the complaints brought by the second applicant, finally, the Commission deems it more appropriate to examine these under Article 14 taken together with Article   8. Accordingly, it is unnecessary to deal with these complaints under Article 8 taken alone.     CONCLUSIONS   47.       The Commission concludes, unanimously, that in the present case there has been no violation of Article 8 of the Convention, taken alone, in respect of the family life between the two applicants.   48.       The Commission concludes, unanimously, that in the present case there has been no violation of Article 8 of the Convention, taken alone, in respect of the first applicant’s family life with the relatives of the second applicant’s father.   49.       The Commission concludes, unanimously,   that it is not necessary to examine the second applicant’s complaints relating to family life with the relatives of his father under Article 8 of the Convention, taken alone.   D.   As regards Article 14 of the Convention, taken together with Article 8     50.       Article 14 of the Convention provides as follows:   “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.”   51.       On behalf of the second applicant it is further alleged that he has been the victim of an unjustified difference of treatment. Children who, at the time of the death of their father, had legally recognised family relationships with their father could inherit from him, whereas children not having such legally recognised ties, like the second applicant, could not. According to the applicants, issues such as inheritance matters should 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.   52.       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 a child is born which, if its father had not died before the birth, would have been his father’s heir. 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 relatives of Mr Bourimi may be assumed to have been aware of the imminent birth of the second applicant and his subsequent claim to his father’s estate.   53.       The Government argue that the difference of treatment at issue 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 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.   54.       The Commission reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, p.   32, para. 22).   55.       In its judgment in the Marckx case, cited above, the Court held that the scope of the concept of family life extends to inheritance rights and that accordingly Article 14 can apply to differential treatment of succession on intestacy (op. cit., paras. 52 and 54).     In the present case the Commission observes that the second applicant was unable to inherit from his father whereas a child born in wedlock would so inherit, even if its father, like Mr Bourimi, had died before that child’s birth. Consequently, there was a difference of treatment (cf. the Vermeire v. Belgium judgment of 29 November 1991, Series A no. 214-C, pp. 82-83, para. 25).   56.       The Commission further recalls that for the purposes of Article 14 a difference of treatment 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”. Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify differential treatment. However, very weighty reasons would have to be put forward before the Convention organs could regard a difference of treatment on the ground of birth out of wedlock as compatible with the Convention (cf. Eur. Court HR, Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 18, para. 41).   57.       The Commission is not persuaded by the justification for the impugned differential treatment advanced by the Government. It finds that their argument is based on the general and abstract consideration that heirs should be safeguarded from claims on the inheritance they have lawfully received by a previously unknown child of the deceased. Although the protection of the rights of such heirs may in itself constitute a legitimate aim, the Commission considers that the method employed to achieve it - the exclusion from their father’s inheritance of children in the position of the second applicant - was disproportionate in the circumstances of the present case. As the applicants rightly point out, the second applicant could hardly be regarded as an unexpectedly turned up descendant of Mr Bourimi. At the latest upon the latter’s death his relatives were made aware of the first applicant’s claim that she was carrying Mr Bourimi’s child.   58.       It is true that Dutch legislation provided for an action to be instigated by, or on behalf of, the child against the heirs, imposing an obligation on those heirs to make a lump sum available for the child’s care and upbringing (see para. 35 above). In the Commission’s opinion, however, the limitations attached to the procedure and the scope of this action rendered it insufficient to remedy the disproportionality found. Thus, such an action had to be instituted within one year of the death of the father. The Commission notes in the present case that in the year following Mr   Bourimi’s death the applicants believed the second applicant to be his father’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 if the letters of legitimation were to be granted this would entail that the second applicant was Mr   Bourimi's sole heir. Moreover, Section 1:406 para. 5 CC also limited the amount which the second applicant would have been permitted to claim but which would not even be bound to be granted as the provision left the fixing of the amount to the discretion of the court dealing with the request.   59.       Accordingly, the Commission considers that the distinction complained of lacks proportionality.     CONCLUSION   60.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 14 of the Convention, taken together with Article 8 in respect of the second applicant.     E.   Recapitulation   61.     The Commission concludes, unanimously, that in the present case there has been no violation of Article 8 of the Convention, taken alone, in respect of the family life between the two applicants (para. 47).   62.   The Commission concludes, unanimously, that in the present case there has been no violation of Article 8 of the Convention, taken alone, in respect of the first applicant’s family life with the relatives of the second applicant’s father (para. 48).   63.       The Commission concludes, unanimously, that it is not necessary to examine the second applicant’s complaints relating to family life with the relatives of his father under Article 8 of the Convention, taken alone (para. 49).   64.       The Commission concludes, unanimously, that in the present case there has been a violation of Article 14 of the Convention, taken together with Article 8 in respect of the second applicant (para. 60).         M.-T. SCHOEPFER   S. TRECHSEL     Secretary   President   to the Commission   of the Commission   [1]   The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.