Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21199/93

by Rosalie VERRYT

against Belgium

The European Commission of Human Rights (Second Chamber) sitting

in private on 18 May 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 November 1992

by Rosalie VERRYT against Belgium and registered on 20 January 1993

under file No. 21199/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

FACTS

The applicant is a Belgian citizen born in 1913 and resident at

Brussels, Belgium. She is retired.

Before the Commission she is represented by Mr. F. Saelens, a

lawyer practising in Brussels.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

A) Particular circumstances of the case

The applicant was born out of wedlock, on 12 September 1913, as

the only child of Maria Verryt. She was not recognised by her mother

under the relevant provisions of the Belgian Civil Code (CC). Therefore

according to the old Article 756 CC she had no rights in the estate of

her mother.

The applicant's mother, convinced that it was impossible for her

unrecognised illegitimate child to inherit, sold in 1955 her house with

all appurtenances, garden, orchard, pasture land and woods to her

sister E. The applicant explains that in reality the sale was a sham

transaction and that Maria Verryt's real intention was to ensure that

E., the applicant's aunt, would bequeath the house to the applicant

after her death.

In her will the applicant's mother named E. as her sole heir. On

21 July 1956 the applicant's mother died and E. took possession of all

the property covered by the will.

E. died on 22 March 1983. In execution of her will, according to

which her estate would be divided according to law, the inheritance was

distributed to her legitimate heirs which under the old article 756 CC

excluded the applicant.

In August 1983, the applicant brought an action before the Leuven

Court of First Instance in order, firstly, to have the contract of sale

between Maria Verryt and her sister annulled and, secondly, to claim

a right to the real property sold by Maria Verryt and a share in E.'s

estate.

By decision of 24 June 1986, the Leuven Court of First Instance,

refused to rescind the sale since the applicant had not shown that the

sale was a sham transaction, but granted the applicant the same rights

as a legitimate heir in the two estates.

On 6 June 1987, the Act of 31 March 1987 which by amending the

Civil Code gave illegitimate and legitimate children equal rights came

into force. Its aim was to bring Belgian law in conformity with the

Marckx judgment (Eur. Court H.R., judgment of 13 June 1979, Series A

no. 31).

The parties appealed against the decision of the Court of First

Instance and on 10 June 1988 the Court of Appeal of Brussels decided

that on the basis of the old Article 756 CC, which was preserved in

force in accordance with Section 107 of the Act of 31 March 1987, the

applicant had no rights in either of the estates.

The applicant lodged an appeal with the Court of Cassation

arguing that the Court of Appeal's judgment violated Article 14 in

conjunction with Article 8 of the Convention as well as Articles 6 and

6 bis of the Belgian Constitution (non-discrimination principle).

By judgment of 2 March 1990 the Court of Cassation decided to put

a preliminary question to the Court of Arbitration concerning the

possible violation of Articles 6 and 6 bis of the Constitution. In its

judgment of 4 July 1991 the Court of Arbitration, relying in particular

on the Marckx judgment, held that the "old Article 756 of the Civil

Code, preserved in force in accordance with Section 107 of the Act of

31 March 1987, breach[ed] Articles 6 and 6 bis [of the Constitution]

in so far it appli[ed] to successions originating from 13 June 1979

onwards". Because of the principle of legal certainty the Court

considered that the old Article 756 CC was still applicable to

successions which were opened before 13 June 1979.

By judgment of 15 May 1992, the Court of Cassation set the Court

of Appeal's judgment partially aside.

Referring to the Court of Arbitration's judgment the Court of

Cassation annulled the Court of Appeal's judgment insofar as it denied

the applicant's rights of inheritance in E.'s estate. Since E. had died

in 1983 and therefore the succession had occurred after 13 June 1979

the applicant had the same rights of inheritance as a legitimate heir.

Concerning the applicant's rights in her mother's estate the

Court ruled she had no rights of inheritance since her mother had died

in 1956, i.e. before the Marckx judgment.

B) Relevant domestic law and practise

1. According to Articles 6 and 6 bis of the Belgian Constitution all

Belgians are equal before the law and must be able to enjoy their

rights and freedoms without discrimination.

2. The Belgian Civil Code, before the entry into force of the Act

of 31 March 1987, provided as follows :

Article 756

"Illegitimate children shall not be heirs ; the law does

not grant them any rights in the estates of their deceased

father and mother unless they have been legally recognised.

It does not grant them any rights in the estates of the

relatives of their father or mother."

Article 908

"Illegitimate children may receive by disposition inter

vivos or by a will no more than their entitlement under the

title 'Inheritance on Intestacy'."

These provisions were repealed by an Act of 31 March 1987, which

came into force on 6 June. This Act also inserted into the Civil Code

a new Article 334, according to which :

"Whatever the method used to etablish affiliation, children

and their descendants shall have the same rights and

obligations in respect of their father and mother and their

relatives by blood and by marriage, and the father and

mother and their relatives by blood and by marriage shall

have the same rights and obligations in respect of the

children and the children's descendants."

Section 107 of the Act laid down the following transitional

provisions :

"The provisions of this Act shall apply to children born

before the date of its coming into force and still alive at

that date, but shall not give rise to any rights in respect

of successions opened before that date.

However, the validity of acts and distributions done before

the coming into force of this Act, under which a child born

out of wedlock has been accorded more substantial rights

than those granted to him by the provisions repealed by

this Act, shall not be subject to challenge."

Regard should also be had to Article 718 of the Civil Code :

"Succession shall take place on death."

COMPLAINTS

The applicant complains of having been excluded from inheritance

rights in her mother's estate. Recalling the case-law of the European

Court of Human Rights in the Marckx judgment (Eur. Court H.R., judgment

of 13 June 1979, Series A no. 31) and the Vermeire judgment (Eur. Court

H.R., judgment of 29 November 1991, Series A no. 214-C) she complains

of a violation of Article 14 in conjunction with Article 8 para. 1 of

the Convention.

The applicant admits that in the Marckx case (aforesaid judgment,

p. 25-26, para. 58), the Court stated that the principle of legal

certainty dispensed the Belgian State from reopening legal acts or

situations that antedated the delivery of the judgment. However, the

applicant is of the opinion that the limitation of retroactivity of the

Marckx judgment only concerns definitively executed and distributed

successions or legal situations where third parties have obtained

definitive rights to the property of the estate. She notes there is no

ground to exclude illegitimate children from inheritances which were

still in the process of execution and definitive distribution after

13 June 1979. In such a case there is no risk for legal uncertainty.

THE LAW

Having been excluded from inheritance rights in her mother's

estate because of her illegitimate affiliation the applicant complains

of being a victim of discrimination in the enjoyment of her right to

respect for her family life. She invokes Article 14 in conjunction with

Article 8 para. 1 (Art. 14+8-1) of the Convention.

Article 8 para. 1 (Art. 8-1) of the Convention reads as follows :

"Everyone has the right to respect for his private and

family life, his home and his correspondence."

Article 14 (Art. 14) of the Convention reads :

"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."

The Commission recalls that in the Marckx case (Eur. Court H.R.,

judgment 13 June 1979, Series A no. 31, p. 26, para. 59) the European

Court of Human Rights considered that the total lack of inheritance

rights on intestacy by reason solely of the illegitimate nature of the

affiliation between a person and her near relatives on her mother's

side was discriminatory and hence incompatible with Article 14 in

conjunction with Article 8 (Art. 14+8) of the Convention.

The European Court further ruled that in the interests of legal

certainty the Belgian State was dispensed from reopening legal acts or

situations that antedated the delivery of the judgment (aforesaid

Marckx judgment, p. 26, para. 58).

The Commission also recalls that in the Vermeire case (Eur. Court

H.R, judgment 29 November 1991, Series A No. 214-C , p. 81, para. 21-

22) having regard to the fact that according to Belgian law succession

takes place after the death of a person and the heirs have their rights

to the estate as of the date of death, the European Court decided that

a succession shall be considered to have taken place before the Marckx

judgment where the death occurred before that date, even if the

distribution of the property was effected after the said judgment. In

such a case there is a legal situation antedating the Marckx judgment

and there is no requirement that it be reopened.

The Commission notes that the applicant's mother died on

21 July 1956 and that on that date E. took possession of all the

property covered by the applicant's mother's will.

Therefore, the Commission considers that there was in the present

case a legal situation antedating the judgment which, for reasons of

legal certainty, the Belgian State is not required to alter in

retrospect.

It follows that the application must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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VERRYT v. BELGIUM

VERRYT v. BELGIUM

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