Information Note on the Court’s case-law 62

March 2004

Merger and Cros v. France (dec.) - 68864/01

Decision 11.3.2004 [Section I]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Complaint made out of time to the Court of Cassation following adoption by the Court of a judgment dealing with a similar question: preliminary objection dismissed

The first applicant, an adulterine child, was left the same share of her father’s estate as his legitimate children. While the estate was being administered, the latter challenged the arrangements for its division. In accordance with the domestic law applicable at the time, the court of fi rst instance held that the first applicant, whose father was married to a woman other than her mother at the time of her conception, was not entitled to more than 10% of the estate. It therefore set aside the gift of the excess. The court of appeal upheld that decision, in particular in so far as it refused to grant the first applicant identical rights to inherit to the legitimate children. The applicants – the mother and her daughter – appealed to the Court of Cassation in 1998. In March 2000 they argued i n a note to the advocate general that the reduction of the first applicant’s share of the estate owing to the statutory provisions on adulterine children infringed the Convention, as interpreted by the Convention institutions. The Court of Cassation dismis sed the appeal in May 2000 without examining that point.

Admissible under Article 8 and Article 1 of Protocol No. 1, taken together with Article 14, (discrimination on grounds of birth as regards rights to inherit): the Government maintained that the appli cants had not exhausted domestic remedies as they had not raised the complaint in their written submissions to the Court of Cassation, but only later, outside the statutory time-limit. The Court dismissed the objection. The applicants might justifiably hav e considered when they lodged their written submissions with the Court of Cassation in 1998 that, in the light of the Court of Cassation’s previous decisions, a ground of appeal alleging discrimination contrary to the Convention between the rights of adult erine and legitimate children would be bound to fail. In addition, the applicants had lodged a note addressed to the advocate general with the registry of appeals to the Court of Cassation in March 2000 in which they set out the purpose of their applicatio n and the Articles of the Convention which they alleged had been violated and referred to the Mazurek v. France precedent of 1 February 2000. Thus, directly there was a new development capable of affecting the Court of Cassation’s case-law, the applicants had drawn the Court of Cassation’s attention to the complaints they intended subsequently to refer to the Court. The fact that it had occurred after the time-limit for lodging the grounds of appeal on points of law had expired was beyond the applicants’ co ntrol and they could not be accused of any negligence in that regard.

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

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