CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 juin 2002

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Costa , President ,   Mr   L. Loucaides ,   Mr   C. Bîrsan ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   W. Thomassen ,   Mrs   A. Mularoni , judges , and Mrs S. Dollé , Section Registrar , Having regard to the above application lodged with the European Commission of Human Rights on 20 December 1995 and registered on 22   July 1997, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant,   Pieter Jelle Haas, is a Dutch national, who was born in 1964 and lives in Hilversum. He was represented before the Court first by Mrs A.L. Beck-Klijn, later by Mr A.A. van der Meulen, both lawyers practising in Hilversum, and most recently by Mr A.W.M. Willems, a lawyer practising in Amsterdam. The respondent Government were represented by their Agent, Mr R. Böcker, of the Ministry of Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant states that he was born from a relationship between his mother and a certain Mr P., a civil law notary ( notaris ). Although his mother had wanted to marry, Mr P. had not; neither had the two ever lived together. Mr P. had not recognised ( erkenning ) the applicant. Nevertheless, Mr P. made regular payments towards the applicant’s care and upbringing, gave the applicant presents for his birthday, visited him and, together with the applicant’s mother, went on day trips with him. The applicant called Mr P. ‘Daddy’. Mr P. died on 19 August 1992 without leaving a will. His body was cremated. A nephew, Mr K., was his sole heir. The applicant instigated civil proceedings against Mr K., seeking an order that Mr K. hand over Mr P.’s estate. The applicant argued that he had had “family life” within the meaning of Article 8 of the Convention with Mr P. and that the Netherlands legal provisions relating to the position of the “illegitimate” and unrecognised child infringed Article 14. The Arnhem Regional Court ( arrondissementsrechtbank ) rejected the applicant’s claim by a judgment of 23 December 1993. It considered that the difference contained in Netherlands legislation on succession between children with and children without legally recognised family relationships ( familierechtelijke betrekkingen ) did not constitute an unjustified interference in the “family life” of an “illegitimate” unrecognised child. In view of the rights and interests of third parties in relation to an inheritance, legal certainty required that only persons with a demonstrable legal family connection with the deceased be able to inherit. An “interference” with any “family life” the applicant might have had with Mr P. was thus “in accordance with the law” and “necessary in a democratic society”. In the light of these considerations, the Regional Court did not find it necessary to determine whether or not Mr P. was the applicant’s biological father. The applicant appealed to the Arnhem Court of Appeal ( gerechtshof ), complaining of the Regional Court’s interpretation of Articles 8 and 14 of the Convention, as well as of the fact that the Regional Court had declined to rule on the issue of paternity. Before the Court of Appeal four witnesses were heard: the applicant, his mother, a friend of his mother and the person who had been the applicant’s co-guardian ( toeziend voogd ). The latter two stated that they were convinced that Mr P. was the applicant’s biological father and that Mr P. had never denied this fact to them but had, on the contrary, assured them that the applicant would be well provided for. The applicant’s mother stated that she had not known any man other than Mr P. until nine years after the applicant’s birth, and that Mr P. had referred to the applicant in public as “my son” or “my little boy”. In reply to Mr K.’s argument that he had not been aware of the applicant’s existence, the applicant stated that Mr K.’s mother, who was a sister of Mr P., had been so aware and had met with the applicant. In the proceedings before the Court of Appeal the applicant also submitted a number of photographs showing himself in the company of Mr   P. and his mother. On 20 June 1995 the Court of Appeal gave judgment, rejecting the appeal. Although it acknowledged that a situation where a court was unable to pronounce itself upon a case like the present one led to an unsatisfactory outcome for the applicant, the Court of Appeal saw no possibility to depart from recent case-law of the Supreme Court ( Hoge   Raad ). The Supreme Court had held in a previous case that it went beyond the jurisprudential task of the judiciary to determine the consequences of the possible incompatibility of Netherlands law with Article 14 of the Convention in conjunction with Article 8 (judgment of 24   February   1995, reported in Nederlandse Jurisprudentie [Netherlands Law Reports] 1995, 468 [1] ). The applicant lodged an appeal on points of law ( cassatie ) with the Supreme Court which was rejected on 17 January 1997. The Supreme Court held that, although an inability to inherit based solely on the ground of illegitimacy would be contrary to Article 8 in conjunction with Article 14, objective and reasonable grounds could exist to justify other kinds of restrictions on the intestate succession of “illegitimate” children. It then recalled that in 1982 a law had come into force aimed at bringing the position of the “illegitimate” recognised child into line with the requirements enunciated by the Court in its judgment in the case of Marckx v. Belgium (13 June 1979, Series A no.   31). In the debate on this bill by Parliament, the then Minister of Justice had declared that the question of the position of the “illegitimate” unrecognised child in relation to its biological father was a valid one, but that it fell to be dealt with in the planned reform of the law of succession. Since then a number of attempts had been made to bring about this reform and, at the time of the Supreme Court’s examination of the present case, a bill was before Parliament. It thus appeared that the legislator was of the view that a reform of the law of succession required the making of important political choices and that the legislative process had not yet come to an end. From this, the Supreme Court concluded in the first place that the then absence in Netherlands law of a rule making the “illegitimate” unrecognised child heir of its biological father was not based solely on illegitimacy but on the difficulty, inherent in a reform of legislation, of reaching a sound balance between all the interests involved in the law of succession. Secondly, it followed that the choices to be made fell beyond the scope of the judiciary’s jurisprudential tasks and that it was not possible to anticipate legislative developments by judgment. The judgment of the Supreme Court was published in Nederlandse Jurisprudentie 1997, no. 483, with a critical annotation by a learned author. B.     Relevant domestic law Pursuant to Article 4:879 § 1 of the Civil Code ( Burgerlijk Wetboek ; hereinafter referred to as the “CC”) only those persons who have a legally recognised family relationship ( familierechtelijke betrekking ) with a person who has died intestate may inherit from this person. Legally recognised family relationships between a father and a child exist where a child is born to a married couple or if it is born within 307 days following the dissolution of the marriage (Article 1:197 of the CC). An “illegitimate” child will have a legally recognised family relationship with its father (who does not have to be the biological father) if it has been recognised ( erkenning ) by the father, either before or after its birth (Article   1:222 of the CC). Moreover, according to Article 1:215 of the CC, a legally recognised family relationship will also come into existence with the granting of letters of legitimation if it is established that the father, who died before the child was born and without having recognised it, was aware of the pregnancy and had intended to marry the mother.   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 (or their descendants) will inherit from him (Article 4:901 of the CC). If there are such children or a spouse, the parents and siblings are excluded from the inheritance (Articles 4:899 and 4:899a of the CC). Within one year of the death of the father, a minor child with whom the late father had no legally recognised family relationship may request that an obligation be imposed on the father’s 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 (Article   1:406   §   5 of the CC). This is an elaboration of the principle, enacted in Article 1:394 §1 of the 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 come 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 succession ( afstammingsrecht ; Tweede Kamer (Lower House) 1995-1996, 24 649, nos. 1-2), and on 1   April 1998 a change to the Civil Code entered into force. It introduced a judicial declaration of paternity ( gerechtelijke vaststelling van vaderschap , Article   1:207) which may be requested by the mother or the child. A declaration of paternity has retroactive force to the time of the child’s birth, but it does not adversely affect any rights acquired in good faith by third parties. Such declarations 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 was unwilling or unable 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 was deprived of a father if the latter were 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 Article 1:394 § 1 of the CC. COMPLAINT The applicant complains under Article   14 of the Convention taken together with Article 8 that unlike “legitimate” or recognised children he was unable to inherit from his father. THE LAW 1.     Article 8 of the Convention provides insofar as relevant as follows: “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 ... for the protection of the rights and freedoms of others.” Article 14 of the Convention provides insofar as relevant as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... birth or other status.” The applicant alleges discrimination in the enjoyment of his right to respect for his “family life” in that, unlike “legitimate” offspring or “illegitimate” offspring who have been recognised by their father, as an “illegitimate” child who has not been so recognised he is unable to inherit from his father. The Government denied that a relationship amounting to “family life” existed between the applicant and Mr P.. First of all, they considered themselves not in a position to confirm that Mr P. was the applicant’s biological father: the domestic courts having failed to resolve this issue, it remained in dispute. DNA testing was possible in principle. However, the body of Mr P. had been cremated and Mr P. had left no known offspring. Consequently, the only person whose DNA could usefully be compared with that of the applicant would be Mr K., who was too distant a relative, if relative he was, for the outcome of such a test to be conclusive. In the Government’s view, other circumstances did not bear out the existence of “family life” either. Mr P. had never lived together with the applicant and his mother. Moreover, Mr P. had never wished to establish “family life” with the applicant. This was borne out by Mr P.’s consistent refusal until his death, twenty-eight years after the applicant was born, to recognise the applicant as his son, whatever his reason for such refusal may have been. On this point there was a distinction between the present case and that of Camp and Bourimi v. the Netherlands (no. 28369/95, judgment of 3 October 2000, ECHR 2000-X). The existence of “family life” between Mr P. and the applicant sufficient to bring the case within the ambit of Article 8 could therefore not be established. Moreover, even assuming that the case came within the ambit of Article   8 and that consequently Article 14 could apply, there was “objective and reasonable justification” for the difference in treatment. The difference was not between “legitimate” and “illegitimate” offspring. It was between those who did not have “family life” with their natural fathers and those who – demonstrably – did. It prevented the imposition of “family life” on unwilling parties and served the interest of legal certainty in matters of inheritance. It could thus reasonably be considered “necessary in a democratic society” in pursuit of the “legitimate aim” of protecting “the rights of others”. It made no difference, in the Government’s submission, that the legislature had subsequently changed its mind and enacted legislation making possible the establishment of a man’s paternity of an unrecognised “illegitimate” child against his will. This development had been occasioned by more recent technical and legal developments which were not relevant to the applicant’s case. In short, the Government was of the opinion that no violation of Article   8, whether taken alone or in conjunction with Article 14, could be found on the facts of the present case. The applicant recognised that the domestic courts had not determined whether or not Mr P. was his biological father. This, however, had been due to their assessment that, as a matter of domestic law, the applicant could not in any case inherit from Mr P., whether or not Mr P. had fathered him, so that the question was beside the point. However, the evidence before the domestic courts left no room for doubt in this regard. A DNA test would not have been necessary. The applicant further pointed to the new legislation allowing the establishment of paternity irrespective of the will of the biological father, with the attending consequences on inheritance cases, as evidence of altered views on such matters. Taken together with the factual relationship between Mr P., on the one hand, and the applicant and his mother, on the other, this necessarily meant that “family life” in the sense of Article 8 of the Convention existed between Mr P. and the applicant. Moreover, if the child intended to establish “family life” but the father did not, the former’s intentions were more worthy of protection than the latter’s. In any case, for the purpose of establishing inheritance rights, biological fatherhood ought to be considered sufficient; it ought not to be required in addition that the father and the child must also have had “effective family life”. The difference in treatment could not, in the applicant’s submission, be justified in his case. He noted in this respect that he was competing for the inheritance not with the wife of the deceased or with a “legitimate” or recognised “illegitimate” sibling, but with a nephew of Mr P. – a person whose relationship with the de cuius was more remote, not closer, than his. Having regard to the parties’ submissions and to its case-law, the Court considers that the applicant’s complaint under Article 8 of the Convention, whether taken alone or together with Article 14, raises complex questions of fact and law which require an examination on the merits. It cannot, therefore, be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. 2.     The Court, of its own motion, raised the question whether the applicant had had the benefit of an effective remedy as required by Article   13 of the Convention. That Article provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” The Government were of the opinion that the applicant had had available an effective remedy. His complaints under the Convention had been heard by the domestic courts at three levels of jurisdiction, and his arguments had been considered. The fact that the domestic courts failed to decide in his favour did not mean that the remedy they offered was ineffective. The Government also drew attention to the case-law of the Convention organs, according to which Article 13 did not require a legal remedy allowing the compatibility of domestic legislation with the Convention as such to be challenged before a domestic tribunal. The applicant, for his part, was of the opinion that the domestic courts had denied him an effective remedy. They had not even established the facts. So far from deciding the substance of his case, they had ruled that the legislature would have to step in before claims such as his could be decided on the merits. Having regard to the parties’ submissions and to its case-law, the Court considers that the applicant’s complaint under Article 13 of the Convention raises complex questions of fact and law which require an examination on the merits. It cannot, therefore, be declared inadmissible as manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. For these reasons, the Court unanimously Declares the application admissible, without prejudging the merits of the case.     S. Dollé   J.-P. Costa   Registrar   President [1] This judgment concerned the case of Camp and Bourimi, no.   28369/95, judgment of the Court of 3   October   2000.