Lexploria

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:

"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."

"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

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CAMP AND BOURIMI v. THE NETHERLANDS

CAMP AND BOURIMI v. THE NETHERLANDS

LEXI