CONCURRING OPINION OF JUDGE THÓR VILHJÁLMSSON

For the reasons given at paragraph 32 of the judgment, I have, together with the majority of the Court, found that in this case domestic remedies were not exhausted as required by Article 26 (art. 26) of the Convention. In my opinion, the reasons contained in that particular paragraph suffice. I do, however, entertain some doubts as concerns the grounds set out in the succeeding paragraphs of the judgment.

PARTLY CONCURRING OPINION OF JUDGE GANSHOF VAN DER MEERSCH

(Translation)

I voted, along with the majority of my colleagues, for the failure to exhaust domestic remedies. I thus agree with the operative provisions of the judgment.

I regret, however, that I cannot agree with certain of the reasons stated in support of this decision.

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I.

1. In its judgment, the Court considers in turn the four remedies said by the Belgian Government to have been available to Mr. Van Oosterwijck to "redress" the state of affairs about which he was complaining.

The Court lists these "means of redress" and notes that Mr. Van Oosterwijck had not had recourse to them:

- he had not appealed on a point of law to the Court of Cassation from the judgment of the Brussels Court of Appeal;

- he had not pleaded a breach of the Convention either at first instance or on appeal;

- he had not sought authorisation to change his forenames by relying on the Act of 2 July 1974 ;

- he had not brought an action d ’ état.

2. From amongst these "means of redress", the Court rules out Mr. Van Oosterwijck ’ s omission to apply for permission to change his forenames. The reason given by the Court is that "he would not really have solved his problems ...: he would have succeeded only in eliminating some of the consequences of the wrong of which he complained but not in eradicating ... its cause ...". I concur unreservedly with the Court ’ s viewpoint on this issue.

3. On the other hand, the Court holds it against Mr. Van Oosterwijck that he neglected to utilise two of the three other "domestic remedies".

I agree with the reasoning employed by the Court with regard to the failure to plead a breach of the Convention and to the omission to make an application pertaining to his personal status by means of an action d ’ état, although I have allowed myself the privilege of formulating a few remarks on the latter point.

4. On the other hand, I am unable to agree with the Court ’ s reasoning in support of its decision that domestic remedies have not been exhausted insofar as it is based on failure to appeal on a point of law to the Court of Cassation from the judgment of the Brussels Court of Appeal.

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5. For the purposes of evaluating Mr. Van Oosterwijck ’ s obligation to appeal on a point of law to the Court of Cassation in order to exhaust the remedies open to him, the Court cannot do other than refer back to domestic law in accordance with the doctrine of renvoi . It must decide by reference to the Belgian domestic law, this being the law governing cassation proceedings, that is, in the instant case, the rules on the admissibility of and the grounds for an appeal to the Court of Cassation.

6. It is admittedly correct, as the Court observes that the Brussels Court of Appeal judgment sets out not only points of fact but also points of pure law.

This is so when the Court of Appeal states: "Whereas every individual must be treated as belonging to either the male or the female sex, which sex must be mentioned in the birth certificate; whereas that certificate in principle settles definitively this component of the individual ’ s status." In so holding, the judgment refers to what it describes as current Belgian law.

The same applies to the next reason: "Whereas there is no provision in current legislation that allows account to be taken of artificial changes to an individual ’ s anatomy, even if they correspond to his deep-seated psychical tendencies."

7. It can be seen that neither of these reasons involves a mixed question of law and fact. They both invoke a general principle of law.

8. However, in order to assess the prospects of success of an appeal by Mr. Van Oosterwijck on a point of law to the Court of Cassation from that judgment, based on one or both of these reasons in law, it is necessary to turn to the remainder of the judgment. In fact, it is not enough to take into consideration the reason in law enouncing the rule that is believed to be wrong. It must be ascertained whether the Court of Appeal ’ s decision is not justified by other reasons. And it can be clearly seen that this is the case.

9. Indeed , the Court of App eal expressly states: "Whereas, accordingly, it is not established that the appellant (Van Oosterwijck ) belongs fundamentally, as she maintains, to the male sex." Why "accordingly"? Because this finding is the conclusion drawn from a line of argument expressed by the Court of Appeal in the form of four reasons of fact, each of which suffices to show that, in that Court ’ s view, it is not proved that Mr. Van Oosterwijck has fully acquired the male sex. These reasons thus provide a justification in law for the operative provisions of the Court of Appeal ’ s judgment.

10. The reason in law, to which the European Court refers in order to decide that Mr. Van Oosterwijck had not exhausted domestic remedies because he did not appeal to the Court of Cassation, is obiter ( surabondant ). Yet, according to the settled case-law of the Belgian Court of Cassation, a plea contesting an obiter dictum in the decision under appeal is not an admissible ground of appeal (judgments of 10 March and 14 April 1978, Pasicrisie , 1978, I, pp. 773 and 912). The terms used by the Court of Cassation when laying down this rule have sometimes varied, according to the case. Thus: A plea to the effect that the court erred in law, when such error does not affect the correctness in law of the operative provisions under appeal, is inadmissible since there is no prejudice to the appellant (judgment of 2 December 1977, Pasicrisie , 1978, I, p. 387). Or again: A plea challenging only some reasons in the decision under appeal, when the operative provisions are justified in law by another reason, is inadmissible since there i s no prejudice to the appellant (judgments of 10 March and 16 June 1978, Pasicrisie , 1978, I, pp. 773 and 1178).

11. The appeal on a point of law that Mr. Van Oosterwijck might have lodged was doomed to failure. The remedy would not have been admissible. No blame can therefore be attached to him for not having had recourse to it.

It is wrong to base the operative prov isions of the Court ’ s judgment, in order to decide that domestic remedies have not been exhausted in the present case, on the fact that the applicant did not appeal on a point of law to the Court of Cassation from the judgment of the Brussels Court of Appeal.

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II.

12. There is another reason why the Court should not have based the failure to exhaust domestic remedies as is required by Article 26 (art. 26) of the Convention on the fact that Mr. Van Oosterwijck did not appeal on a point of law to the Court of Cassation from the Brussels Court of Appeal judgment which confirmed the order dismissing his petition.

If he had appealed to the Court of Cassation, he would not have been able to obtain satisfaction, even on the assumption that his appeal had been held admissible. The proceedings he had instituted were no more than a petition for rectification of his birth certificate. The object of the petition would have been binding on the Court of Cassation and would have circumscribed its jurisdiction, just as it circumscribed the jurisdiction of those courts which did have to rule on the petition. The Court of Cassation would have been obliged to remain within the framework of a petition which could not achieve the object sought by Mr. Van Oosterwijck . And even assuming that an appeal to the Court of Cassation had succeeded, the lower court judge, on having the case referred back, would have been ruling ultra petita had he purported to replace a request for rectification of the applicant ’ s birth certificate by a request for modification of his status.

13. In fact, as the Court itself rightly observe s in its judgment, the two actions are fundamentally different: "The former [actions d ’ état] deal with issues of substance in that their purpose is to establish, modify or extinguish personal status. The latter [actions for rectification] are brought solely in order to make good any error or omission appearing in the documents serving as proof of status."

14. The action for rectificat ion simply raises a question of evidence, that is to say the correctness and regularity of the documentary proof afforded by the certificate recording a person ’ s civil status. Unlike the action d ’ état, the action for rectification is not exclusively personal. It can be instituted on the initiative of any interested party or of the ministère public; the latter has the responsibility of inspecting and supervising the civil status registers, and this is done at least once every year. The number of rectifications of civil st atus certificates is countless, especially as regards civil status registers in less populous districts where the officers in charge of the registers ( échevins de l ’ état civil) do not always have the full training required for drawing up such certificates. Unlike the situation that obtains in an action d ’ état, in an action for rectification the status of the individual concerned is not the subject of any dispute.

15. The action d ’ état, on the o ther hand, does raise the issue of the individual ’ s true status. It takes the form of a dispute over or a claim concerning his civil status. It is always the very existence of that party ’ s status that constitutes the object of the action, the action being the means by which the request is presented.

16. The Court ’ s judgment is right to point out that the procedure in an action d ’ état is laid down in detail in the Judicial Code. In fact, from the procedural point of view, there is a parallel that corresponds to the fundamental difference in kind between the two actions.

17. The action for rectificatio n of a civil status certificate has the advantage of a speedy procedure, the interests at stake being relatively minor; there is nothing more than a procedure by way of petition.

18. On the other hand, the action d ’ état follows the "ordinary", contentious procedure. It is strictly personal to the party concerned and cannot even be brought by the ministère public. Only courts of first instance have jurisdiction over such an action; it must be heard by a chamber of three judges and notice thereof must be given to the ministère public: these are exceptional guarantees which are prescribed by the Judicial Code on account of the importance of the subject-matter for the social order. Academic writings stress the fact that it would be improper to disguise an action d ’ état as an action for rectification of a civil status certificate in order to take advantage of t he simpler procedure offered by the latter. The action for rectification of a civil status certificate is the automatic consequence of a successful action d ’ état.

19. A person ’ s status is inalienable. Questions of public policy are involved. It is inconceivable t hat a question of status should be dealt with by means of a procedure which, like that followed in actions for rectification of a civil status certificate, is set in motion by no more than a petition and does not even have to be contentious in form. Status is not negotiable or a matter for personal determination. It is personal to the individual and he cannot dispose of or modify it by agreement.

20. The action d ’ état must be available whenever an aspe ct of a person ’ s status is the subject of a dispute or a claim. This applies, for example, to affiliation, the question whether a child is legitimate or illegitimate, disavowal of paternity, divorce, separation and annulment of marriage. It must also be available when an individual seeks recognition of his sexual identity.

21. The aspects of a person ’ s status which have just been mentioned are fully dealt with in the Civil Code, the only exception being the question of sex, even though it cannot be contested that that also is an aspect of status; whilst there are admittedly no special rules in the Code on that question, it is not entirely lost sight of since it bears on the conditions on which marriage may be contracted. At the same time, it should not be forgotten that Article 14 (art. 14) of the Convention, which lays down the prohibition on any discrimination on the ground of sex, is also a rule of Belgian positive law, that Article (art. 14) being directly incorporated into domestic law.

22. A man or woman who is unab le to obtain recognition of his or her sexual identity, an aspect of status which is inseparable from his or her person will be unable to play his or her full role in society. As has been said, the right to such recognition is a general principle of law.

23. Even though it may not be enounced in any legislation, a general principle of law forms, in Belgian domestic law, part of the legal system. According to the case-law of the Belgian Court of Cassation, a general principle of law is an autonomous source of law, having th e same force as positive law [1] . A court must ensure that that principle is respected [2] . Reference has been made to a general principle of law in numerous judgments rendered by the Court of Cassation in civil cases, an area in which an appeal on a point of law must, if it is not to be inadmissible, state the legal provision or provisions which has or have been violated. Yet appeals on a point of law, notably those concerning a violation of the right of defence - a matter which is not the object of a general rule of positive law -, frequently do no more than indicate a general principle of law without citing a specific legal provision (judgments of 22 December 1977, Pasicrisie , 1978, I, p. 472, and of 11 April 1978, ibid., I, p. 892). The same applies where, without any reference to legislation, violation of a general principle of law is relied on as a ground of which the court should take notice of its own motion (judgment of 31 October 1972 , Pasicrisie , 1979, I, p. 265). The Court of Cassation has accepted the correctness of this procedure.

24. There is no difference i n kind between an action d ’ état instituted in an area governed by one or more provisions of civil law and an action d ’ état grounded on a general principle of law. Any action in the latter category would be instituted against the ministère public.

25. It follows from the above t hat an action d ’ état brought by a person in order to obtain recognition of his sexual identity is fundamentally different in both its nature and its purpose from an action for rectification of his civil status certificate; the latter concerns only the regularity and correctness of the documentary proof recording particulars of his civil status.

26. An appeal on a point of l aw from the judgment confirming the dismissal of Mr. Van Oosterwijck ’ s petition for rectification of his birth certificate would thus, for a further reason in law, have been necessarily doomed to failure. It was not a sufficient remedy.

27. For the reasons given in both chapters of this opinion, the Court, in order to decide that Mr. Van Oosterwijck had not exhausted domestic remedies before applying to the Commission, should not have based the operative provisions of its judgment on the failure to appeal on a point of law to the Court of Cassation.