PARTLY DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

I . T he scope of article 8 (art. 8), taken alone, and of article 14, taken in conjunction with article 8 (art. 14+8), as regards the establishment of maternal affiliation

I entirely agree with the principle underlying the reasoning on which the Court ’ s judgment is based: the "respect for family life" guaranteed by Article 8 para. 1 (art. 8-1) of the Convention is not limited to a duty on the part of the State to abstain from certain interferences by the public authorities which might constitute an obstacle to the development of what we consider belongs to "family life"; it also implies that the State has an obligation to prescribe in its domestic legal system rules which allow those concerned to lead a normal family life.

Indeed, one may consider it as generally accepted that the implementation of many fundamental rights - and notably family rights - calls for positive action by the State in the shape of the enactment of the substantive, organisational and procedural rules necessary for this purpose.

On the other hand, it must also be stressed that this positive obligation, flowing from Article 8 (art. 8) of the Convention, is limited to what is necessary for the creation and development of family life according to the ideas which contemporary European societies have of this concept. Furthermore, States enjoy a certain power of appreciation as regards the means by which they propose to fulfil this obligation. In no case does Article 8 (art. 8) impose on the Contracting States a duty to adopt a family code comprising rules which go beyond this requirement.

It is precisely in the determination of the scope of the duties deriving from Article 8 (art. 8) or, what comes to the same thing, in the assessment of what is necessary for family life within the meaning of the Convention or of what might constitute an obstacle to its cr eation and development that, to my great regret, I must differ from the reasoning of the majority of the Court; this necessarily leads me to different conclusions in the instant case.

1. Respect for family life under Article 8 (art. 8) of the Convention as a positive obligation binding the Contracting States in the sense we have just given the expression does not require that the legal bond of affiliation should be regulated in any particular manner. In this connection the only obligation which can be derived from Article 8 (art. 8) is that domestic law should prescribe rules which permit establishment of this legal bond under conditions which are reasonable and easily met by those concerned.

It follows that those States which, like Belgium , regulate civil status in such a way that the establishment of the maternal affiliation of an "illegitimate" child does not follow merely from the entry of the birth at the registry office but requires in addition a declaration by the mother recognising this affiliation do not thereby violate Article 8 para. 1 (art. 8-1) of the Convention.

Of course, personally, I see no need for this double formality (entry on the register and recognition of affiliation) and I find the arguments put forward by the respondent Government to support it (protection of mother and child) scarcely convincing. In my view, however, the inconvenience of this formality is so small - particularly since the declaration of recognition by the mother can be included in the birth certificate itself - that no one can regard it as an appreciable hardship for those concerned or as an interference calculated to hinder the "development of family relations".

I accept that this reasoning applies principally to the unmarried mother and that, as far as the child is concerned, the only method of establishing her affiliation available to her under Belgian law, failing voluntary recognition by the mother, was to take legal proceedings for the purpose. However, this problem did not arise in the instant case as the mother voluntarily recognised her child fourteen days after birth, with the result that on this account the child cannot really be considered as a victim. This hypothesis can therefore be disregarded unless one wishes to pass judgment on Belgian law in abstracto, a course which the Court has quite rightly excluded (paragraphs 26 and 27 of the present judgment).

Moreover, the reasoning in the judgment contains nothing which could be taken as convincing proof that the Belgian system for establishing the maternal affiliation of "illegitimate" children has the adverse consequences complained of for the creation and development of a family life between the mother and her child born out of wedlock.

I can therefore find no violation of Article 8 (art. 8) taken alone.

2. It is true that Belgian law only requires a mother to recognise the affiliation in the case of children born out of wedlock. This undoubtedly constitutes differential treatment as compared with legitimate children.

However, and even if one firmly supports the theory of the autonomy of Article 14 (art. 14) (paragraph 32 of the present judgment), in order to constitute discrimination within the meaning of this provision the unequal treatment must be such as might be deemed to be an appreciable interference with the enjoyment of a fundamental right recognised by the Convention. For I do not believe that a difference of treatment with respect to a fundamental right which, even though lacking in our opinion objective and reasonable justification (that is, not appearing to us to be necessary), does not really interfere with a right that the Convention intends to protect constitutes, by itself, discrimination within the meaning of Article 14 (art. 14).

As I have stated above, the requirement of a recognition of affiliation, which can take the form of a simple declaration accompanying the entry of the birth on the register, does not amount to an appreciable hardship and is in no way humiliating for those concerned.

It follows that in the instant case there is also no violation of Article 14 taken in conjunction with Article 8 (art. 14+8) of the Convention.

II. T he scope of articles 8 (art. 8) of the C onvention and 1 of P rotocol no. 1 (P1-1 ), taken alone, and of article 14 of the C onvention, taken in conjunction with article 8 (art. 14+8) a nd with article 1 of P rotocol no. 1 (art. 14+P1-1), as regards certain patrimonial rights

There seems to me to be no doubt that the rules on voluntary dispositions and inheritance between near relatives are an important aspect of family life within the meaning of Article 8 (art. 8). On the other hand, it would be difficult to maintain that respect for family life requires that these rules should be so organised as to leave the persons concerned unlimited freedom to dispose of their property. In fact, in all the Contracting States these matters are subject to restrictions, which in some cases are considerable.

However, the imposition of special restrictions as regards children born out of wedlock constitutes, in the absence of objective and reasonable grounds, discrimination within the meaning of Article 14 taken in conjunction with Article 8 (art. 14+8) of the Convention. On this point I fully approve of the Court ’ s reasoning and agree with its conclusions in the present case.

On the other hand, I have doubts as to whether the rules on voluntary dispositions and inheritance between relatives, that is the freedom to dispose of property inter vivos or mortis causa, are also covered by the right to the peaceful enjoyment of possessions within the meaning of Article 1 of Protocol No. 1 (P1-1).

I incline to the view that this provision has completely different aims (the protection of the right of property against interference by the public authorities, the form of expropriation or other restrictions on the use of property similar in their effects). Moreover - and contrary to the opinion expressed on this matter in the reasons set out in the judgment (paragraph 63) -, the travaux préparatoires on Article 1 of Protocol No. 1 (P1-1), although not very explicit in this respect, also seem to confirm this opinion.

It follows that, as Article 1 (P1-1) is not applicable, there can also be no question in the instant case of a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1).

Furthermore, once the applicability of Article 8 (art. 8) of the Convention and the violation of Article 14, taken in conjunction with Article 8 (art. 14+8), are established I see no advantage in ascertaining whether the provisions of Belgian law complained of could be assessed under Article 1 of Protocol No. 1 (P1-1) as well; this is particularly so since the applicants themselves also seem to have considered the position primarily from the point of view of family life and felt themselves aggrieved by the obstacle which the provisions of Belgian law complained of constitute for its normal development.