DISSENTING OPINION OF JUDGE GARLICKI

It is with regret that I have to disagree with the majority.

This case relates to two important principles which determine the scope of the Court ’ s jurisdiction: the principle of subsidiarity and the principle of S tate action.

In respect of the former, I fully subscribe to the arguments developed by Judge Sir Nicolas Bratza that the interpretation of the will or of the relevant principles of domestic law by the national courts cannot be regarded as arbitrary or manifestly erroneous or unreasonable.

In respect of the latter, it should be noted that the case did not involve any direct interference by the national courts with the applicants ’ Article 8 rights. The courts were confronted with a will which contained a clause discriminating against adopted children vis-à-vis biological children. The courts first determined the correct interpretation of the will and, in accordance with that interpretation, gave effect to it. Thus, the real question before our Court is to what extent the Convention enjoys a “horizontal” effect, that is, an effect prohibiting private parties from taking action which interferes with the rights and liberties of other private parties. Consequently, to what extent is the State under an obligation either to prohibit or to refuse to give effect to such private action?

It seems clear that the authors of the Convention did not intend this instrument to possess a “third-party effect” (see A. Drzemczewski: “ The European Human Rights Convention and Relations between Private Parties ” , Netherlands International Law Review 1979, no. 2, p. 168). However, under our case-law it is obvious that there may be certain positive obligations of the State to adopt measures designed to secure respect for Convention rights, even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands , judgment of 26 March 1985, Series A no. 91, p.11, § 23). Such “indirect third-party effect” has been addressed by the Court in many different areas, such as the right to life (State obligation to carry out an effective investigation in a case of a murder committed by private persons – see, for example, Menson v. the U nited Kingdom , ( dec. ), no. 47916/99, ECHR 2003-V ), freedom of expression ( Appleby v. the U nited Kingdom , no. 44306/98, ECHR 2003-VI, in which the Court indicated that the State may be obliged to adopt “positive measures of protection, even in the sphere of relatio ns between individuals”, § 39), freedom of association ( Young, James and Webster v. the United Kingdom, judgment of 13 August 1981, Series A no. 44 , representing the first ruling of this kind), freedom of assembly ( Plattform “Ärzte für das Leb en” v. Austria , judgment of 21 June 1988 , Series A no. 139 ) and, above all , the protection of private life ( see, for example, Ignaccolo-Zenide v. Romania , no. 31679/96, ECHR 2000-I, in particular § 113).

Nevertheless, it seems equally obvious that the level of protection against a private action cannot be the same as the level of protection against S tate action. The very fact that, under the Convention, the State may be prohibited from taking certain action (such as introducing inheritance distinctions between children – see Marckx v. Belgium , judgment of 13 June 1979, Series A no. 31 ; Vermeire v. Belgium , judgment of 29 November 1991, Series A no. 214-C ; and Mazurek v. France , no. 34406/97, ECHR 2000 -II ) does not mean that private persons are similarly precluded from taking such action. In other words, what is prohibited for the State need not necessarily also be prohibited for individuals. Of course, in many areas such prohibition may appear necessary and well-founded. However, it should not be forgotten that every prohibition of private action (or any refusal to judicially enforce such action), while protecting the rights of some persons, unavoidably restricts the rights of other persons. This is particularly visible in regard to “purely” private-law relations, such as inheritance. The whole idea of a will is to depart from the general system of inheritance, that is, to discriminate between potential heirs. But at the same time, the testator must retain a degree of freedom to dispose of his/her property and this freedom is protected by both Article 8 of the Convention and Article 1 of Protocol No. 1. Thus, in my opinion, the rule should be that the State must give effect to private testamentary dispositions, 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. As in respect of all exceptional circumstances, however, their presence must be clearly demonstrated and cannot be assumed.

No exceptional circumstances of the abov e-mentioned kind existed in the present case . The testatrix had taken a decision, which was perhaps unjust, but cannot, even by present-day standards, be regarded as repugnant to the fundamental ideals of the Convention or otherwise destructive of Convention rights. Thus, the State was under a duty to respect and give effect to her will and was neither allowed nor expected to substitute its own inheritance criteria for what had been decided in the will. Accordingly, the State cannot be held to be in breach of the Convention by giving effect to this will.