FIRST SECTION

CASE OF CAMP AND BOURIMI v. THE NETHERLANDS

(Application no. 28369/95)

JUDGMENT

STRASBOURG

3 October 2000

In the case of Camp and Bourimi v. the Netherlands ,

The European Court of Human Rights ( First Section ), sitting as a Chamber composed of:

Mrs E. Palm , President , Mrs W. Thomassen , Mr L. Ferrari Bravo , Mr R. Türmen , Mr J. Casadevall , Mr B. Zupančič , Mr T. Panţîru , judges , and Mr M. O'Boyle , Section Registrar ,

Having deliberated in private on 6 June and 12 September 2000,

Delivers the following judgment , which was adopted on the last-mentioned date:

PROCEDURE

1 . The case was referred to the Court by the applicants on 12 August 1999 and by the European Commission of Human Rights (“the Commission”) on 15 September 1999, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no. 28369/95) against the Kingdom of the Netherlands lodged with the Commission under former Article 25 of the Convention by two Netherlands nationals, Ms Eveline E.C.H. Camp and Mr Sofian A. Bourimi (“the applicants”) , on 18 August 1995. The applicants were represented by their counsel . The Netherlands Government (“the Government”) were represented by their Agents, Mr R. Böcker and Ms J. Schukking , of the Netherlands Ministry of Foreign Affairs.

The Commission's request referred to former Articles 44 and 48 of the Convention and to the declaration whereby the Netherlands recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 8 of the Convention or Article 14 taken in conjunction with Article 8.

2 . On 20 September 1999 a panel of the Grand Chamber decided, pursuant to Article 5 § 4 of Protocol No. 11 to the Convention and Rules 100 § 1 and 24 § 6 of the Rules of Court, that the application would be examined by one of the Sections. It was, thereupon, assigned to the First Section.

3 . The Chamber constituted within that Section included ex officio Mrs W. Thomassen , the judge elected in respect of the Netherlands (Article 27 § 2 of the Convention and Rule 26 § 1 (a)), and Mrs E. Palm, President of the Section (Rules 12 and 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr L. Ferrari Bravo, Mr R. Türmen , Mr J. Casadevall , Mr B. Zupančič and Mr T. Panţîru .

4 . From October 1999 to January 2000 friendly-settlement negotiations took place between the parties which proved unsuccessful.

5 . On 14 March 2000 the Chamber decided to hold a hearing (Rule 59 § 2).

6 . In accordance with Rule 59 § 3, the President of the Chamber invited the parties to submit memorials on the issues arising in the application. The Registrar received the applicants' and the Government's memorials on 29 March and 21 April 2000 respectively.

7 . The hearing took place in public in the Human Rights Building, Strasbourg, on 6 June 2000 .

There appeared before the Court:

(a) for the Government Mr R. B öcker , Agent , Mr J. S truyker Boudier , Ms H. L enters , Advisers ;

(b) for the applicants Ms P. van der Grinten , Ms E. D osker , both of The Hague Bar, Counsel .

The Court heard addresses by Ms Dosker , Ms van der Grinten and Mr Böcker .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8 . On 24 September 1992 Ms Camp's partner, Mr Abbie Bourimi , died without having recognised ( erkenning ) the child she was carrying at that time and without leaving a will. Ms Camp and Mr A. Bourimi had been living together in a house owned by the latter. They had been intending to marry, but a wedding scheduled for April 1992 had been postponed due to the death of Ms Camp's mother.

9 . The parents of Mr A. Bourimi believed neither that the child Ms Camp was carrying had been fathered by their son nor that their son had intended to marry Ms Camp. Consequently, they considered themselves and their other children to be their son's heirs. On 22 October 1992, contrary to the wishes of Ms Camp, Mr A. Bourimi's parents, together with five other relatives, moved into the house which had belonged to their son. Thereupon, Ms Camp moved out of the house.

10 . On 2 November 1992 Ms Camp requested the President of the Roermond Regional Court ( Arrondissementsrechtbank ) in summary proceedings ( kort geding ) to grant an injunction ordering the parents to vacate the house pending the winding up of Mr A. Bourimi's estate. Furthermore, on 3 November 1992, she requested the Queen to grant letters of legitimation ( brieven van wettiging – see paragraphs 16-18 below) in respect of the child she was carrying.

11 . The President of the Regional Court refused to grant the injunction on 19 November 1992 but this decision was quashed by the 's ‑ Hertogenbosch Court of Appeal ( Gerechtshof ) on 2 June 1993. The Court of Appeal considered that Ms Camp had adduced sufficient evidence to corroborate her claim that she had been living with Mr A. Bourimi in his house for a considerable time, that they had intended to get married and that Mr A. Bourimi was Sofian's father. In view of the fact that it therefore seemed likely that letters of legitimation would be granted and Sofian would thus emerge as Mr A. Bourimi's sole heir, the Court of Appeal found that it was Ms Camp's right and in her interest in her capacity of mother and guardian to be given possession of the house. The Court of Appeal accordingly ordered the parents of Mr A. Bourimi to vacate the house. The parents subsequently filed an appeal on points of law ( beroep in cassatie ) to the Supreme Court ( Hoge Raad ).

12 . Meanwhile, on 20 November 1992, Sofian Bourimi was born. Since he was illegitimate and had not been recognised by his father, he was initially given the family name of his mother. On 21 October 1994 the Supreme Court issued advice in favour of the granting of letters of legitimation . Such letters were granted on 4 November 1994 and Sofian took on the family name of his father.

13 . 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 A. Bourimi's death and that therefore Sofian could not inherit from him. As regards Ms Camp's argument that this outcome was contrary to Article 8 of the Convention and Article 14 taken in conjunction with Article 8, the Supreme Court held that the establishment of the consequences of an incompatibility of Netherlands law with these provisions of the Convention went beyond the task of the judiciary.

14 . The Supreme Court referred the case back to the Court of Appeal, which was to examine whether other circumstances existed justifying a judicial order to the effect that Mr A. Bourimi's parents vacate the house – such as the fact that Ms Camp had been living in the house for a considerable time. On 4 June 1996 the Court of Appeal struck the case out in view of the fact that the parties to the proceedings had reached an agreement to the effect that Ms Camp and Sofian would vacate the house.

15 . The estate of Mr A. Bourimi was distributed amongst the heirs (that is, his parents and siblings) on 9 February 2000 by a notary ( notaris ).

II. RELEVANT DOMESTIC LAW

16 . Legally recognised family ties ( familierechtelijke betrekkingen ) 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 (Article 1:197 of the Civil Code ( Burgerlijk Wetboek – “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 (Article 1:222 CC). At the relevant time, moreover, a legally recognised family relationship would also be created by the granting of letters of legitimation (Article 1:215 CC).

17 . Paragraph 2 of Article 1:215 provided as follows:

“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.”

18 . 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 Article 1:222 CC for the establishment of a legally recognised family relationship.

A request for letters of legitimation could be made by the child's mother or, after her death, by the child itself. No time-limit was attached to a request for such letters. According to Article 1:219 § 1 CC, legitimation pursuant to Article 1:215 took effect from the day on which letters of legitimation were granted.

19 . On 1 April 1998 the Civil Code was amended. The option of letters of legitimation was replaced by a judicial declaration of paternity ( gerechtelijke vaststelling van vaderschap , Article 1:207 CC). 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.

20 . According to Article 4:879 § 1 CC only those persons who have a legally recognised family relationship with a person who has died intestate may inherit from this person. Furthermore, the heir must have existed at the time of death. (Article 4:883 CC). However, according to Article 1:2 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.

21 . 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 (Article 4:901 CC). If there are such children or a spouse, the parents and siblings are excluded from the inheritance (Articles 4:899 and 4:899a CC).

proceedings before the commission

22 . The applicants applied to the Commission on 18 August 1995. They complained that, contrary to Article 8 of the Convention and Article 14 taken in conjunction with Article 8, the letters of legitimation did not have retroactive force from the time of Mr A. Bourimi's death.

23 . On 8 September 1997 the Commission declared the application admissible.

24 . In its report of 23 April 1999 (former Article 31 of the Convention) [ Note by the Registry . The report is obtainable from the Registry.], the Commission expressed the unanimous opinion that there had been no violation of Article 8 either in respect of the family life between the two applicants or in respect of Ms Camp's family life with the relatives of Mr A. Bourimi , that it was not necessary to examine under Article 8 of the Convention the complaint relating to Sofian's family life with the relatives of his father, and that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian .

THE LAW

I. alleged violation of article 8 of the Convention

25 . The applicants complained that they were hindered in the development of a family life with each other and with the relatives of Mr A. Bourimi . They relied on Article 8 of the Convention, which 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.”

26 . The applicants maintained that the legal framework in place meant that no legally recognised family ties existed between Sofian and his father and the latter's relatives until the granting of letters of legitimation . As a result, Sofian's integration into his family – including that of his father – from birth was not rendered possible. This affected the development of normal family ties between Ms Camp and Sofian but also between each of the applicants and the relatives of Mr A. Bourimi . The impossibility for Sofian to take on his father's family name until the granting of letters of legitimation and the impossibility of inheriting from his father created a situation where Sofian was treated less favourably than a legitimate child.

27 . The Government agreed with the Commission in that they failed to see how the relationship between Ms Camp and Sofian could have been affected to an appreciable extent, either prior to or after the granting of letters of legitimation , by the fact that the family ties between Sofian and his deceased father were not legally recognised when Sofian was born. Similarly, the Government were of the opinion that it had not been substantiated in what way the relationship between Ms Camp and the relatives of Mr A. Bourimi – even assuming this could be characterised as constituting “family life” within the meaning of Article 8 – had been adversely affected.

28 . The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities (see, for example, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 25, § 55). It considers that the absence of legally recognised family ties between Sofian and his father did not constitute an interference by the public authorities with the family life of Sofian and his mother who, as far as the Court is aware, have always lived together. Furthermore, and without embarking on an examination of the question whether the ties between Ms Camp and the relatives of Mr A. Bourimi are to be equated with “family life”, the Court does not find that obstacles to the development of those ties were imputable to an action or lack of action on the part of the authorities.

Accordingly, the Court finds that there has been no violation of Article 8 of the Convention in respect of family life either between Ms Camp and Sofian or between Ms Camp and the relatives of Mr A. Bourimi .

29 . The Court further observes that the complaint in respect of the family life between Sofian and his father's relatives is closely related to the applicants' contention that the law in force allowed these relatives to treat Sofian differently from a child who, unlike Sofian , had a legally recognised family relationship with its father from birth. The Court considers that this issue falls more appropriately to be examined under Article 14 of the Convention taken in conjunction with Article 8.

ii. alleged violation of article 14 of the Convention taken in conjunction with article 8

30 . The applicants complained that Sofian was treated differently from children who had the status of legitimate children from birth, in breach of Article 14 of the Convention taken in conjunction with Article 8. Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] 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.”

31 . In the opinion of the applicants, no weighty reasons existed which could justify the situation whereby only children who had a legally recognised family relationship with their father at the time of the latter's death could inherit from that father. They agreed with the Commission that in the instant case such justification could not be found in the need to protect other heirs from having to give up a lawfully obtained inheritance.

32 . The Government argued that the reason for the difference in treatment lay in the provision of a general protection of the legitimate interests of third parties, in particular other heirs, in cases where family ties were established through letters of legitimation . They argued in this respect that heirs should enjoy the certainty that they would not have to give up a lawful inheritance to a descendant of the deceased who might turn up unexpectedly years later. The protection of their interests was achieved by denying retroactive force to letters of legitimation . Although the Government recognised that in certain circumstances the result of this system could be less than ideal – for which reason the relevant legislation had now been changed – this was not necessarily tantamount to a violation of the Convention. Moreover, Netherlands law offered several possibilities, such as the recognition by Sofian's father of the unborn child or his making of a will, which would have prevented the situation with which the applicants were confronted.

33 . The Court has previously examined alleged differences in treatment in matters of succession both under Article 14 taken in conjunction with Article 8 (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 24, § 54, and the Vermeire v. Belgium judgment of 29 November 1991, Series A no. 214-C, p. 83, § 28) and under Article 14 taken in conjunction with Article 1 of Protocol No. 1 (see the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 18, § 40, and Mazurek v. France , no. 34406/97, § 43, ECHR 2000-II). In the present case, Article 14 has been relied on in conjunction with Article 8, and the Court will therefore examine this issue in the light of these two provisions.

It follows that Article 14 taken in conjunction with Article 8 applies.

As noted above (paragraph 36), in the instant case Sofian was treated differently not only from children born in wedlock but also from children who, although born out of wedlock, had been recognised by their father. Although the letters of legitimation took the place of such recognition (see paragraph 18 above), Sofian was nevertheless still unable to inherit from his father. In the Court's view, similarly weighty reasons are required for this latter difference to be compatible with the Convention in the circumstances of the present case. The Court observes in this respect that there was no conscious decision on the part of Mr A. Bourimi not to recognise the child Ms Camp was carrying. On the contrary, he had intended to marry Ms Camp and letters of legitimation had been granted precisely because his untimely death had precluded that marriage (see paragraphs 8, 12 and 17-18 above). In these circumstances, the Court cannot accept the Government's arguments as to how Mr A. Bourimi might have prevented his son's present predicament (see paragraph 32 above).

39 . Although the protection of the rights of other heirs may constitute a legitimate aim, when it comes to the question of the proportionality of the means chosen to achieve this aim the Court observes that Sofian was not a descendant of whose existence the other heirs were unaware. Here, there is no indication that the exigencies of the situation required the level of protection that was afforded to Mr A. Bourimi's parents and siblings to the detriment of his son. The Court considers that in these circumstances Sofian's exclusion from his father's inheritance was disproportionate. Accordingly, there has been a breach of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian .

iii. APPLICATION OF ARTICLE 41 OF THE CONVENTION

40 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

41 . The applicants submitted that their claims for just satisfaction related solely to the breach of Article 14 of the Convention taken in conjunction with Article 8.

42 . The Government argued that, given the subsidiary nature of the provision, there was no room for application of Article 41 since it could not be excluded that the applicants would be successful if they lodged judicial proceedings for tort against the State.

Alternatively, the Government were of the opinion that the reasons why Ms Camp and Mr A. Bourimi had not availed themselves of other legal possibilities to establish a legally recognised family relationship between father and child, such as recognition or the making of a will, fell within the private sphere. Therefore, any financial or emotional prejudice suffered as a result should not be fully attributed to the Government.

In this context it is further observed that it has not been established by the Government that proceedings for tort would be successful.

Finally, the Court observes that the Government have declined to give the applicants the compensation which they claimed (see paragraph 4 above; see also the De Wilde , Ooms and Versyp judgment cited above, pp. 9-10, § 20, and the Ringeisen judgment cited above, p. 9, § 22).

45 . Consequently, the Court considers that it should examine the merits of the applicants' claims for just satisfaction.

46 . In addition, the Court cannot accept the Government's argument to the effect that they should not be held fully responsible for the entire financial consequences of private choices made by Ms Camp and Mr A. Bourimi . The Court has already rejected this argument when considering the merits and reiterates, under this head, its reasons for doing so (see paragraph 38 above). It would add that Sofian's parents, who had intended to get married, could hardly have been expected to anticipate that he would become the victim of discriminatory legislation.

A. Damage

1. Pecuniary damage

47 . The applicants claimed a total of 560,844.75 Netherlands guilders (NLG), this amount comprising the current value of the estate of Mr A. Bourimi , a sum of money which he had in his possession on the day he died and which had been handed over to his parents, as well as an amount of overpaid income tax which had been given to the deceased's parents by the tax authorities.

In respect of the current value of the estate, the applicants based themselves on a letter dated 14 March 2000 from the notary in charge of the winding up of the estate.

The applicants also sought compensation for removal expenses incurred by Ms Camp on two occasions. They estimated these costs at NLG 30,000.

Finally, the applicants submitted that pecuniary damage had been caused by the necessity to pay rent whereas they could have lived virtually for free in Mr A. Bourimi's house had this been inherited by Sofian .

48 . The Government argued that the value of the estate should be determined at the time of death of Mr A. Bourimi , and that developments which occurred or assets which were acquired after his death should have no bearing on this determination.

They further refuted that there was any connection between a violation of the Convention and the applicants' moving out of the house.

As to the time at which the value of the estate falls to be determined, the Court observes that the estate was distributed amongst the heirs on 9 February 2000 (see paragraph 15 above). Consequently, it was the value which the estate had at that time which Sofian would have obtained.

The Court further considers that the sums of money transmitted to the parents of Mr A. Bourimi prior to the distribution of the estate also qualify for compensation under this head.

As to removal expenses and rent, the Court notes that these items have not been sufficiently quantified. Moreover, Ms Camp left the house after reaching a settlement to that effect with the heirs of Mr A. Bourimi and at a time when the legal proceedings concerning her claim to remain in the house had not yet been concluded (see paragraph 14 above).

Noting that the bulk of the estate was only distributed very recently rather than shortly after Mr A. Bourimi's death in 1992, the Court does not deem it appropriate to make an award for statutory interest.

50 . The Court consequently awards Sofian NLG 560,844.75 in respect of pecuniary damage, which amount is to be paid to, and held by, Ms Camp for Sofian .

2. Non-pecuniary damage

51 . The applicants submitted that they had suffered frustration, distress and anxiety in which respect they deemed compensation in the amount of NLG 50,000 reasonable.

The Government were of the view that any finding of a violation would constitute sufficient just satisfaction under this head.

52 . Even though the finding of a violation of the Convention concerned Sofian only, the Court accepts that Ms Camp also suffered distress. Taking its decision on an equitable basis, the Court awards the applicants compensation in the amount of NLG 6,750.

B. Costs and expenses

53 . The applicants claimed an amount of NLG 71,670 for lawyers' fees and costs incurred in bringing the application. They added that the complaint concerning the difference in treatment had occupied most of the time which their legal representatives had spent on the case.

They also sought reimbursement in the amount of NLG 904.75 for the fees of the notary who had provided the applicants with written statements of the contents and value of the estate.

54 . The Government regarded the lawyers' fees as exaggerated. Moreover, they submitted that the question whether both or only one of the applicants are or is a victim of a violation of the Convention should also be taken into account.

55 . In relation to the claim for costs of legal representation the Court, deciding on an equitable basis, awards the applicants the sum of NLG 30,000, together with any value-added tax that may be chargeable, less the amounts received by way of legal aid from the Council of Europe.

It further considers that the notary's fees also qualify for compensation in the present context. In respect of this claim, therefore, the Court awards the applicants the sum of NLG 904.75.

C. Default interest

56 . According to the information available to the Court, the statutory rate of interest applicable in the Netherlands at the date of adoption of the present judgment is 6% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been no violation of Article 8 of the Convention in respect of family life either between Ms Camp and Sofian or between Ms Camp and the relatives of Mr A. Bourimi ;

2. Holds that it is not necessary to decide on the complaint of a violation of Article 8 of the Convention in respect of family life between Sofian and the relatives of Mr A. Bourimi ;

3. Holds that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian ;

4. Holds

(a) that the respondent State is to pay the applicants , within three months, the following sums:

( i ) NLG 560,844.75 (five hundred and sixty thousand eight hundred and forty-four Netherlands guilders seventy-five cents) for pecuniary damage, to be held by Ms Camp for Sofian ;

(ii) NLG 6,750 (six thousand seven hundred and fifty Netherlands guilders) for non-pecuniary damage;

(iii) NLG 30,904.75 (thirty thousand nine hundred and four Netherlands guilders seventy-five cents) for costs and expenses, together with any value-added tax that may be chargeable, less the amounts received by way of legal aid from the Council of Europe;

(b) that simple interest at an annual rate of 6% shall be payable from the expiry of the above-mentioned three months until settlement;

5. Dismisses the remainder of the applicants' claims for just satisfaction.

Done in English, and notified in writing on 3 October 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Michael O'Boyle Elisabeth Palm Registrar President