PARTLY DISSENTING OPINION OF JUDGE S ir N icolas BRATZA

1. While I share the view of the majority of the Chamber that the applicants ’ claim falls within the ambit of Article 8 of the Convention and that Article 14 is accordingly applicable, I am unable to agree with the majority ’ s conclusion that there has been a violation of the two Articles taken in conjunction.

2. As is noted in the judgment, the present case is of an entirely different character from those previously examined by the Court involving allegations of discriminatory treatment in the field of succession and inheritance. In each of the earlier cases, it was the domestic legislation itself which gave rise to the difference of treatment of which complaint was made under the Convention, distinguishing as it did between the rights of succession of legitimate and illegitimate children (see Marckx v. Belgium , judgment of 13 June 1979, Series A no. 31, p. 24, § 54; Vermeire v. Belgium , judgment of 29 November 1991, Series A no. 214- C, p. 83, § 28 ; and Inze v. Austria , judgment of 28 October 1987, Series A no. 126, p. 18, § 40) or between children born of an adulterous relationship and other children, whether legitimate or not (see Mazurek v. France , no. 34406/97, § 43, ECHR 2000- II). In the present case , no such complaint is made or could be made against Andorra , discrimination on grounds of birth being expressly prohibited by both the Andorran Constitution and the s pecial l aw on a doption.

3. It is also important to observe that, although the applicants complain of the decisions of the High Court of Justice and the Constitutional Court of Andorra, it is not asserted that the decisions directly interfered with the applicants ’ Article 8 rights or subjected the first applicant to discriminatory treatment in the enjoyment of his family life by creating distinctions between the biological and adopted members of his family. As appears from the terms of its judgment, in upholding the appeals of the Serra Areny sisters and finding that, as an adopted child of the life t enant under the will of Carolina Pujol Oller, the first applicant was excluded from inheriting under the will, the High Court of Justice of Andorra sought to give effect to the intention of the testatrix herself in the exercise of her right to dispose of her property on her death. The circumstances of the present case are in this respect quite different from those which have frequently been examined by the Court, in particular under Article 10 of the Convention, in which it was the decisions of the domestic courts themselves which had restricted, penalised or otherwise interfered with the exercise of the Convention right in question and which required to be justified.

4. The fact that, under the Convention, the legislative or judicial organs of the State are precluded from discriminating between individuals (by, for instance, creating distinctions based on biological or adoptive links between children and parents in the enjoyment of inheritance rights) does not mean that private individuals are similarly precluded from discriminating by drawing such distinctions when disposing of their property. It must in principle be open to a testator, in the exercise of his or her right of property, to choose to whom to leave the property and, by the terms of the will, to differentiate between potential heirs, by ( inter alia ) distinguishing between biological and adoptive children and grandchildren. As pointed out in the opinion of Judge Garlicki , the testator ’ s right of choice finds protection under the Convention, namely in Article 8 a nd in Article 1 of Protocol No. 1. The State must in principle give effect, through its judicial organs, to such private testamentary disposition and cannot be held to be in breach of its Convention obligations (including its obligations under Article 14) by doing so, save in exceptional circumstances where the disposition may be said to be repugnant to the fundamental ideals of the Convention or to aim at the destruction of the rights and freedoms set forth therein. This remains true even if there may appear to be no objective and reasonable justification for the distinction made by a testator.

5. In my view, the distinction which was held by the domestic courts to have been intended by the testatrix in the present case between biological and adopted grandchildren cannot be said to be repugnant to the fundamental ideals of the Convention or otherwise destructive of Convention rights and freedoms. Nor do I understand the majority of the Chamber of the Court to suggest to the contrar y. It is true that in paragraph 46 of the judgment it is said that an issue of interference with private and family life under the Convention could arise if the national court ’ s assessment of the facts or domestic law were “blatantly inconsistent with the fundamental principles of the Convention” and in paragraph 59 such inconsistency is found to have existed in the national courts ’ assessment in the present case. However, I do not read this finding as suggesting that the upholding by a national court of a will which distinguishes between biological and adopted children is of itself to be seen as incompatible with Convention principles. The majority ’ s finding is, as I understand it, based rather on the ground that the High Court ’ s interpretation of the will in the present case and its assessment of the intention of the testatrix were clearly wrong and that accordingly it was that court ’ s decision that, as an adopted grandchild, the first applicant was excluded from inheriting the estate which itself gave rise to a violation of Article 14.

6. The central question thus raised is whether the manner in which the domestic courts interpreted the will of the testatrix or applied the principles of domestic law was such as to permit such a finding. The majority of the Chamber have re iterated in paragraph 46 of the judgment the principles established by the Court ’ s jurisprudence concerning the interpretation and application of domestic law: it is in the first place for the national authorities, and in particular the national courts, to construe and apply domestic law. I would agree with the majority that this principle applies a fortiori when the national courts are concerned with resolving disputes between private individuals or interpreting a private testamentary disposition, such courts being better placed than an international court to evaluate, in the light of local legal traditions, the particular context of the legal dispute and the competing rights and interests involved.

This being so, an issue would in my view only arise under the Convention if the Court were satisfied that the interpretation of the will or of the relevant principles of domestic law by the national courts was, to use the terms of the judgment, “manifestly unreasonable or arbitrary”.

7. Thus far, I am in agreement with the majority ’ s approach. Where I strongly disagree is as to the majority ’ s application of these principles when examining the judgments of the national courts. F ar from assessing the judgments according to these strict standards, the majority have to my mind substituted their own view of the proper interpretation of the will for that of the High Court of Justice of Andorra , preferring the construction placed on the will by the Tribunal des Batlles . While I can readily accept that one might prefer both the reasoning and the result reached by the first - instance court, I cannot accept that the decision of the appeal court may be characterised as either arbitrary or manifestly unreasonable.

8. I note at the outset that there was no real divergence between the Tribunal des Batlles and the High Court of Justice as to the appropriate date for the purposes of interpreting the testamentary disposition. Both agreed that the testatrix ’ s intention had to be construed essentially in the light of the legal status of adopted children in the social and family conditions that obtained in 1939 when the will was drafted. The difference of opinion centr ed rather on the meaning to be ascribed to the clause “son of a legitimate and canonical marriage”.

9. As noted in the judgment, the Tribunal des Batlles analysed the clause grammatically in the light of the historical background and applying Roman law as amended by canon law, being a source of the general law applicable in Andorra . In its view, it could not be said that, by inserting the clause, the testatrix had intended to prevent adopted or non-biological children from inheriting her estate; had this been her intention, she would have made express provision for it.

10. On appeal, the High Court of Justice construed both the relevant facts and law differently. As appears from the judgment, it found that adoption had been practically unheard of in Andorra during the first half of the twentieth century. It concluded from this that it was difficult to reconcile the testatrix ’ s act of creating a family settlement in case the life tenant should die without leaving offspring of a lawful and canonical marriage with an intention to extend the arrangement to adopted children, since adoption was not an established institution in the Principality at the time. Similarly, the court observed that the deed of adoption had been drawn up in Spain in accordance with the Spanish procedure for full adoption. Under the Spanish law applicable at the time, particularly Catalan law (to which the deed of adoption referred), on an intestate succession adopted children could inherit only from their adoptive father or mother and not from the rest of the adoptive parents ’ family. When examining the testatrix ’ s intention, the court found that both at the time when the will was made in 1939 and on the testatrix ’ s death in 1949 the adopted children of her legitimate son or son of the marriage were outside the family circle from a legal and sociological point of view. The purpose of a family settlement si sine liberis decesserit under Catalan law was, in the view of the court, to keep the family estate in the legitimate or married family and Catalan legal tradition had always favoured the exclusion of adopted children from such family settlements. The court thus found that, in order for adopted children to be able to inherit under a Catalan family settlement, there would have to be no doubt as to the testatrix ’ s intention to depart from the usual meaning ascribed to that arrangement. The terms used in the will did not support that conclusion.

11. The majority of the Court, while fin ding it neither appropriate nor necessary to analyse the legal theory behind the decision of the High Court to apply one legal system rather than another, be it Roman, canon, Catalan or Spanish law (see paragraph 56 of the judgment ), reject that court ’ s conclusion that the clause in the will referred only to biological “sons”. It is said that “there is nothing in the will to suggest that the testatrix intended to exclude adopted grandsons” and that, as it was open to her to have done so, “the only possible and logical conclusion is tha t this was not her intention” (see paragraph 58). The judgment goes on to state that the High Court ’ s interpretation of the will, by which it inferred a negative intention on the part of the testatrix, “appears over contrived and contrary to the general legal principle that where a statement is unambiguous there is no need to examine the intention of the person who made it” (ibid.).

12. In my view, this analysis does not do justice to the reasoning of the High Court, which examined the meaning to be attributed to the disputed clause in the will in the light of the surrounding circumstances, both factual and legal, at the time of the disposition. Whether or not that reasoning is convincing and whether or not the view of the Tribunal des Batlles is to be preferred, I am quite unable to conclude, as the majority do, that the High Court ’ s decision was unreasonable, arbitrary or “blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principl es underlying the Convention” (see paragraph 59 of the judgment ). Nor can I accept the majority ’ s view that because it was “not necessary” to interpret the will to exclude adopted children, “such an interpretation ... amounts to the judicial deprivation of an adopte d child ’ s inheritance rights” (see paragraph 60).

13. The majority go on to assert that, even if the will required interpretation, it should not have been interpreted exclusively in the light of the social conditions existing at the time when the will was made or when the testatrix died; any such interpretation should have taken account of the profound social, economic and legal changes which had occurred in the succeeding period of fifty-seven years. In particular, it is suggested that any interpretation should not have overlooked “the importance of interpreting the testamentary disposition in the manner that most closely corresponds to domestic law and to the Convention as interpr eted in the Court ’ s case-law” (see paragraph 62 of the judgment ).

14. As to this argument, I consider that if it was open to the domestic courts, as I believe it was, to endeavour to ascertain the intention of the testatrix in using the disputed clause, it was also in principle open to them to interpret the clause in the light of the social and legal conditions which prevailed at the time when the will was drafted, rather than at the time the clause fell to be examined.

15. For these reasons, regrettable as the result of the High Court ’ s judgment may seem, I am unable to find that the decision gave rise to a violation of the applicants ’ rights under Article 14 of the Convention taken i n conjunction with Article 8 .