PARTLY DISSENTING OPINION OF JUDGE PINHEIRO FARINHA

(Translation)

As I disagree with the majority view on important points I feel it necessary to express a separate opinion.

1. I find it impossible to follow my distinguished colleagues in stating that inheritance rights between near relatives fall within the ambit of Article 8 (art. 8) of the Convention (paragraphs 52-56).

In my opinion there is no question of this Article ’ s being applicable except with regard to the reserved portion of an estate ( reserve héréditaire ).

It is true that one cannot speak with respect to the reserved portion of "heredes sui" (heirs of the de cujus), as in the case of the old Roman succession, since in view of the very purpose and role of this institution the estate, practically speaking, belongs to them already.

I have not overlooked (Inocencio Galvao Telles, The Law of Succession, pp. 95 et seq.) that like every other potential heir, a person entitled to a reserved portion has merely a contingent and future right during the lifetime of the de cujus, but even so he enjoys special protection.

The reserved portion - from which only relatives benefit – thus constitutes a form of family protection arising from the moral and social obligations existing between persons connected by close family ties; it cannot be excluded by the de cujus.

That being so, there is no difficulty in concluding that the "reserved portion" falls within the ambit of family life as it may be understood under Articles 8 and 14 (art. 8, art. 14) of the European Convention on Human Rights.

2. Succession, whether intestate or testate, and whether one considers the case of the statutory heirs or that of the exceptional heirs ( successeurs irréguliers ), does not in my opinion enjoy the protection of the Convention.

In the case of testamentary succession the heirs are appointed by a manifestation of intention on the part of the de cujus who is not bound by any statutory obligation. (The same applies to contractual succession.)

Testamentary succession, in spite of the "Nullum Testamentum" of which Tacitus speaks in his " Germania " is, it may be said, universally recognised since the Law of the XII Tables. It depends on an act lying in the unfettered discretion of the de cujus and so has nothing to do with protection of the family. In most cases the nearest relatives may be omitted from the will.

Intestate succession, where the order of those entitled is prescribed by law, makes provisions for the estate to devolve in the absence of a will upon persons related to the deceased, or the State itself. The inclusion of the State among the persons statutorily entitled means that intestate succession is not governed solely by considerations of family protection.

"The process of succession (Inocencio Galvao Telles, The Law of Succession, p. 13) concentrates essentially on the patrimonial aspects. It is what is to happen to the deceased ’ s estate, his assets and his debts which is at stake. This is the situation at the present day and it derives from very ancient rules which have gradually acquired greater clarity through the centuries. A different conception prevailed only in very remote times."

Death is the hub of the law of succession because it is the normal cause of the passing of the estate.

It is therefore only after the death of the de cujus that succession occurs and that there are heirs. Thus death puts an end to family life, and, with the exception of the reserved portion, inheritance rights are in my opinion outside the scope of Article 8 (art. 8) (taken either alone or in conjunction with Article 14 (art. 14+8)) of the European Convention on Human Rights.

3. In spite of what I have said above I support the majority opinion that there was a breach of Article 14 of the Convention, taken in conjunction with Article 8 (art. 14+8), with respect to Alexandra and Paula Marckx, but only as regards the Belgian law concerning the reserved portion, voluntary dispositions and the maintenance obligations of the near relatives of the unmarried mother towards her children.

4. I very much regret not to be able to share the opinion that the majority of my distinguished colleagues expressed as follows (paragraph 58):

"Having regard to all these circumstances, the principle of legal certainty, which is necessarily inherent in the law of the Convention as in Community law, dispenses the Belgian State from re-opening legal acts or situations that antedate the delivery of the present judgment."

The function of the European Court of Human Rights is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention, by interpreting the latter and stating the law that derives from it.

The Court has jurisdiction not to re-draft the Convention but to apply it. Only the High Contracting Parties can alter the contents of the obligations assumed.

I therefore consider that it is not for the Court to express an opinion on the applicability of the law it states to cases other than the particular case it has decided.

The execution properly so called of the judgment lies outside the Court ’ s jurisdiction; under Article 54 (art. 54) of the Convention, "the judgment of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution".

It is primarily for the Belgian national courts to decide questions raised by domestic legislation on past, present and future facts. It is they who, as appropriate, must apply the rules of res judicata, limitations and so forth in order to ensure the stability of existing situations.

5. As regards the violation of Article 1 of Protocol No. 1 (P1-1), taken alone or in conjunction with Article 14 (art. 14+P1-1) of the Convention, I agree with the opinion expressed by my distinguished colleague Judge Matscher.

[1] viz. (referring to the concluding, operational and vote-recording paragraph of the Court's judgment), on points 8, 9, 11 and 16, in respect of which the Court's finding was unanimous in rejection of the applicants' claims; and also on point 17, in respect of which there was a majority in favour of such rejection.

[2] Article 3 (art. 3) is the provision which forbids "torture or ... inhuman or degrading treatment or punishment". The claim of the applicants under this head was that they suffered "degrading treatment" - not by reason of anything done to them, or measures taken against them - but simply by reason of the fact that Belgian law did not recognise a legal (not merely a blood) tie of parenthood as automatically existing between unmarried mother and illegitimate child, arising from birth alone (and as from the date of birth) without either of them having to take the specific steps provided by Belgian law for the creation subsequently of such a legal (not merely blood) relationship.  This, the applicants claimed, constituted a "degrading treatment" of them.

[3] These exceptions are such as are to be found in several of the provisions of the Convention, in favour of e.g., national security, public safety, order, health or morals, economic well-being, etc.  None of them was invoked by the defendant Government.

[4] In that footnote the situation ha s been described in relation to the applicants' claim of having suffered "degrading treatment"; but it was exactly the same situation that gave rise to their claim of a lack of respect for their family life in Belgian law.

[5] This view is indirectly supported by the reference in paragraph 2 of Article 8 (art. 8-2) to "interference" by a public authority, - for while there is of course a distinction between interference and lack of respect (inasmuch as the latter does not necessarily imply the former), the existence of laws permitting, and therefore carrying a latent threat of resorting to, the practices described in paragraph 7 above, would - even if these laws were not in fact acted upon - involve a lack of respect for private and family life, home and correspondence which, if the measures concerned were put into execution, would amount to actual interferences in that sphere. The pointer is a very clear one.

[6] Judgment of 6 September 1978 , Series A no. 28.

[7] For the benefit of English readers, this idea is that of a dark garment sewn with white cotton so that all the tacking shows.

[8] The apparent interchangeabil ity of the terms "possessions", "property", " biens " and " propriété " in different contexts and without evident reason is confusing.  The French " biens " is best translated into English by "assets" not "possessions".  But the best French rendering of the English "assets" is "avoirs".  In addition, there is no really satisfactory French equivalent of "possessions" as such, and in the plural.  These anomalies of translation add to the difficulties. But they also thereby reduce the value of the Court's interpretation.

[9] Article 5 (P1-5) of the Protocol provides that its substantive clauses (i.e. its Articles 1 to 4) (P1-1, P1-2, P1-3, P1-4), shall be deemed to be "additional Articles to the Convention", and that "all the provisions of the Convention shall apply accordingly".

[10] Article 14 (art. 14) continues "on any ground such as ...", and there follows a list of the usual possible bases of discrimination, by reason of the individual's status or opinions, with general inclusions of "or other status", "or other opinion".  The Court has in consequence treated this list as one that only indicates prominent examples, and has regarded every ground of discrimination as covered by the Article, of whatever kind or origin, provided only that it was unjustifiable.

[11] Notably in the National Union of B elgian Police case (Judgment of 27 October 1975, Series A no. 19); see paragraphs 18 to 26 of my separate opinion.