Information Note on the Court’s case-law 6

May 1999

Mazurek v. France (dec.) - 34406/97

Decision 4.5.1999 [Section III]

Article 14

Discrimination

Rights of succession of the child of an extra-marital relationship: admissible and decision to hold a hearing

The applicant’s mother married in 1937, thus legitimating A., a child born to her out of wedlock in 1936. The applicant was born during the marria ge but only his mother was entered on his birth certificate as a parent, and she divorced her husband two years later. When their mother died, A. brought an action requesting the court to determine how the estate should be divided and seeking an order that the applicant, as the child of an adulterous relationship, could not lay claim to more than a quarter of it. The applicant submitted that the provisions of Article 760 of the Civil Code were discriminatory and asked the court to hold that he had the same inheritance rights as a legitimate child. The court found for A. It conceded that Article 760 represented a derogation from the principle, enshrined in the Civil Code, that legitimate and illegitimate children have equal rights, but held that its purpose w as not to discriminate between children on the grounds of their birth but to enforce the marital obligations of a married parent who gives birth to an illegitimate child. The court of appeal upheld that judgment, holding that the Article in issue, which li mits the inheritance rights of children born of adultery, was directly linked to the French legal principle of ordre public , under which marriage should be monogamous and the spouse and legitimate children of an adulterer should be protected. It also held that the provision did not intentionally discriminate against children born of adultery, since its purpose was not to disadvantage them but to protect the spouse and legitimate children of an adulterer. The case then went to the Court of Cassation, which h eld that rights of succession were not part of private and family life protected by Article 8 of the Convention. Before the Court, the applicant relied on Articles 8 and 14 and Article 1 of Protocol No. 1.

Article 35 § 1: With regard to the Government’s ob jection that domestic remedies have not been exhausted [with regard to Article 1 of Protocol No. 1], the Court noted that in the court of appeal proceedings the applicant had expressly alleged a violation of that Article. It was true that he had not done s o in the Court of Cassation, but one of the grounds of appeal at that stage had been that the court of appeal had given rise to unjustified discrimination on the grounds of birth by applying a legal provision permitting a reduction in the share of an estat e to be attributed to a child born of an adultery where that child was opposed by a legitimate child. The Court therefore held that, on the particular facts and in view of the nature and manner of presentation of the issue before the domestic courts – an i ssue in which Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1 were closely interwoven – the applicant could be deemed to have exhausted domestic remedies.

Admissible under Articles 8 and 14 and Article 1 of Protocol No. 1. The Section d ecided to hold a hearing on the merits.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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