DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

States Parties are obliged to abide by the standards set in the Court ’ s case-law, even when they have not been involved in the particular disputes in respect of which the case-law was established . This is the major lesson of the Fabris judgment. In fact, the respondent State has itself set some praiseworthy examples of appropriate conduct of this kind in the past , such as the reaction of the French Conseil d ’ Etat to the 1988 Moustaquim v. Belgium judgment when it amend ed its case-law on the deportation of aliens in 1991, or, more recently, the reaction of the Court of Cassation in April 2011 to the 2008 Salduz v. Turkey judgment on the question of legal assistance from the very beginning of police custody. It should be remembered that in this case the Court of Cassation, sitting in its most solemn formation, held that “States parties to the Convention must comply with the decisions of the European Court of Human Rights, without waiting to be the subject of proceedings before the Court or to have their laws amended”.

The impugned judgment of the Court of Cassation of 14 November 200 7 is an internationally wrongful act whose effects injured the applicant ’ s right not to be discriminated against and to inherit a share in his mother ’ s estate. The respondent State ’ s duty to cease that discrimination and acknowledge the applicant ’ s right should have been enshrined in the national legal order in which his right was injured. That is not the case with the proposed friendly settlement.

Since the respondent State had a duty, after Mazurek , to cease immediately any similar violation in pending proceedings, including in the proceedings for abatement brought by Mr Fabris and pending at that time, and the duty to cease immediately the illegal conduct is not prejudiced by the “internal law of the High Contracting Party” referred to in Article 41, the respondent S tate could not cho ose to maintain the discriminatory treatment of children born out of wedlock and pay compensation to the applicant as an alternative to ceasing the said discrimination and granting the abatement according to the principle of equality of children born in and out of wedlock.

The purpose of the duty to cease an internationally wrongful judicial act is to put an end to a violation of international law and to safeguard the continuing validity and effectiveness of the underlying rule that has been breached. That duty also encompasses situations where a State has violated the same rule on a series of occasions, with the attendant possibility of further repetitions (Commentaries to Article 30 of the Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission, 2001 ). Cessation of the violation is not at the discretion of the injured party, since the violation must cease even if the injured party does not demand it. Moreover, cessation is not subject to limitations relating to proportionality. Compliance with the rule that has been breached must be secured, especially when the breach takes the form of a judicial act of the highest court of the State at fault.

In the instant case the Court of Cassation ’ s judgment of 14 November 200 7 breached the principle of equality of children born in and out of wedlock . With the proposed friendly settlement, the internationally wrongful judicial act (namely, the aforementioned judgment of the Court of Cassation) will remain valid and thus the principle of equality will not be duly safeguarded. Full implementation of the Grand Chamber ’ s judgment would have required a different response from the respondent State. In order to achieve that purpose, three practical consequences should have followed: firstly, the respondent State should have reviewed the impugned judgment of the Court of Cassation of 14 November 200 7 and, if it does not already have one, introduced a procedure for revision of civil judgments which puts an end to the discrimination in question and the resulting violation of the European Convention of Human Rights; secondly, the domestic courts should have proceeded to a division of Mrs M ’ s estate ex novo , with an abatement of the inter vivos gifts made in 1970, in order to safeguard the applicant ’ s reserved portion, in accordance with Article 922 of the French Civil Code; and thirdly, the respondent State should have reviewed the provision of the law of 3 December 2001 which foresees that successions opened on 4 December 2001 are regulated according to the principle of equality of children born in and out of wedlock, sa v e for cases where division of the estate had taken place prior to that date . None of these consequences depends on the will of the injured party, since they are obligatory legal effects of the Grand Chamber ’ s judgment of 7 February 2013. The fact that the Court of Cassation ’ s judgment of 14 November 200 7 is still operative and consequently the discriminatory division of Mrs M ’ s estate and, worse still, section 25(2) of the Law of 3 December 2001 remain in force, thus allowing for discriminatory treatment of children born out of wedlock in successions opened on 4 December 2001 in cases where division of the estate ha s taken place prior to that date , fails to comply with the aforementioned judgment of the Grand Chamber and thus shows serious disrespect for the Court ’ s authority.

To put it simply, the respondent State cannot simply pay compensation for the continuing situation of legal discrimination against Mr Fabris in the domestic legal order; instead, it has to afford him and his half-brother and half-sister equal legal treatment in the division of Mrs M ’ s estate . Nor can the respondent State maintain in force a discriminatory provision which breaches the principle of equality of children born in and out of wedlock.

I therefore disagree with the proposed friendly settlement, since it is not inspired by the principles foreseen by A rticle 37 § 1 in fine of the Convention, and I reject the striking out of the applicant ’ s just satisfaction claim.