DISSENTING OPINION OF JUDGE MULARONI

(Translation)

I cannot share the opinion of the majority that there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.

Article 1 of Protocol No. 1 protects the right of property. It seems to me that, until now, the Court has tended to interpret that Article restrictively, considering that States enjoy a very wide margin of appreciation in the area.

The Court has clarified the notion of “possession” in its case-law: Article 1 of Protocol No. 1 applies only to existing possessions (see Marckx v. Belgium , judgment of 13 June 1979, Series A no. 31, p. 23, § 50); where a debt is concerned, it must be sufficiently established to be enforceable (see Stran Greek Refineries and Stratis Andreadis v. Greece , judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59).

The majority have found a violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention, basing their finding on Gaygusuz v. Austria (judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1130 et seq.). To my mind, however, there is an essential difference between the two cases, namely the payment of contributions.

In Gaygusuz (pp. 1141-42, § 39) the Court followed the Commission's reasoning and concluded that Article 14, taken in conjunction with Article 1 of Protocol No. 1, was applicable (and had been violated), after finding that “[e]ntitlement to the social benefit is therefore linked to the payment of contributions to the unemployment insurance fund, which is a precondition for the payment of unemployment benefit ... It follows that there is no entitlement to emergency assistance where such contributions have not been made”.

With regard to the right to a pension, the Court has specified that that right is not, as such, guaranteed by the Convention, even if it has acknowledged that it can be assimilated to a property right where, for example, an employer has given a more general undertaking to pay a pension on conditions that can be considered to be part of the employment contract (see Azinas v. Cyprus , no. 56679/00, §§ 32-34, 20 June 2002).

Admittedly, in Mennitto v. Italy ([GC], no. 33804/96, ECHR 2000-X), the Court concluded that Article 6 § 1 was applicable regarding the grant of allowances to families caring for disabled members of their household directly in their own homes. In that case, however, the committee in charge of ensuring that the claims met the statutory requirements had considered that the applicant's son satisfied the conditions entitling the families concerned to payment of the allowance. The Court concluded that Article 6 § 1 was applicable after finding that the Administrative Court and the Consiglio di Stato had affirmed that the administrative authorities had no discretion and that the Consiglio di Stato had held that the Region was under a duty to provide the necessary funds to guarantee payment of the allowance to beneficiaries in the amount laid down by law. The Court also noted that the applicant had already received two monthly instalments, so that he could have been led to believe that he did indeed have such a right.

In the light of the foregoing, I have grave doubts as to the possibility of concluding that Article 1 of Protocol No. 1 is applicable (and, consequently, that there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1). I do not see how, in the present case, the allowance for disabled adults, in so far as it constitutes a non-contributory social benefit, can be regarded as a “possession” within the meaning of Article 1 of Protocol No. 1.

Having said that, I am nonetheless a long way from concluding that there has not been a violation of the Convention.

In my opinion, this case goes to the heart of Article 8 of the Convention. The Court's interpretation of that provision has evolved concerning rights affecting the private and family sphere of human beings, which is the most intimate of spheres, and one in respect of which the Court must ensure that their dignity and their private and family life are protected by the States signatory to the Convention. The Court has held that these States must in the first place respect the private and family life of anyone within their jurisdiction, but also remove the obstacles and restrictions which hinder the free development of the personality, and assume broader and broader positive obligations.

The Court has held, inter alia , that “private life” is a broad term not susceptible to exhaustive definition and that Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world (see Bensaid v. the United Kingdom , no. 44599/98, § 47, ECHR 2001-I).I note also that the applicant was adopted by a French citizen. Authority to execute the judgment delivered on 28 July 1987 by the Bouaké Court of First Instance was given by a French court on 11 December 1987. France thus acknowledged the existence of family life between the applicant and his father, of French nationality, and family life is protected by Article 8 of the Convention.

As the Court held in Marckx (cited above, pp. 14-15, § 31), “by proclaiming in paragraph 1 the right to respect for family life, Article 8 signifies firstly that the State cannot interfere with the exercise of that right otherwise than in accordance with the strict conditions set out in paragraph 2. As the Court stated in the 'Belgian Linguistic' case, the object of the Article is 'essentially' that of protecting the individual against arbitrary interference by the public authorities (judgment of 23 July 1968, Series A no. 6, p. 33, § 7). Nevertheless it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective 'respect' for family life”.

I consider that, in the present case, Article 8 is applicable either from the point of view of private life or from the point of view of family life.

As regards Article 14, the Court's case-law has established very important principles regarding the interpretation of this provision.

Firstly, inasmuch as Article 14 has no independent existence, its application does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention, just as it does not presuppose a direct interference by the national authorities with the rights guaranteed by such a provision. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the provisions in question (see, among many other authorities, Karlheinz Schmidt v. Germany , judgment of 18 July 1994, Series A no. 291-B, p. 32, § 22, and Petrovic v. Austria , judgment of 27 March 1998, Reports 1998-II, p. 585, § 22). Secondly, Article 14 covers not only the enjoyment of the rights that States are obliged to safeguard under the Convention but also those rights and freedoms that fall within the ambit of a substantive provision of the Convention and that a State has chosen to guarantee, even if in so doing it goes beyond the requirements of the Convention. This principle was expressed for the first time by the Court in the Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (cited above, pp. 33-34). The Court's reasoning was similar in Abdulaziz, Cabales and Balkandali v. the United Kingdom (judgment of 28 May 1985, Series A no. 94, p. 35, § 71).

Applying the above principles to the instant case, I consider that, although Article 8 of the Convention does not guarantee, as such, the right to an allowance for disabled adults, the application falls “within the ambit” of that provision.

I conclude from this that Article 14 taken in conjunction with Article 8 is applicable here. In my view, once the French legal system had granted disabled adults the right to an allowance, it could not, without rendering Article 14 ineffective, do so on a discriminatory basis.

As pointed out by the majority (see paragraphs 47 and 48 of the present judgment), the applicant was lawfully resident in France, where he was entitled to the minimum welfare benefit, which is not subject to a nationality condition. The domestic authorities' refusal to grant him the allowance for disabled adults was based exclusively on the fact that he did not have the requisite nationality, which was a precondition for obtaining the allowance under Article L. 821-1 of the Social Security Code as applicable at the material time. Moreover, it has not been established, or even alleged, that the applicant did not satisfy the other statutory conditions entitling him to the social benefit in question. Like the majority (see paragraph 49 of the judgment), I find that the difference in treatment regarding entitlement to social benefits between French nationals or nationals of a country having signed a reciprocity agreement and other foreign nationals was not based on any “objective and reasonable justification”, especially as the applicant had been adopted by a French citizen. Even though, at the material time, France was not bound by reciprocity agreements with the Ivory Coast, it undertook, when ratifying the Convention, to secure “to everyone within [its] jurisdiction” the rights and freedoms defined in Section I of the Convention.

To my mind, the difference in treatment was discriminatory in so far as there was no reasonable relationship of proportionality between the means used and the aim sought to be achieved.

Accordingly, I find that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8.

I voted in favour of awarding the applicant a sum in just satisfaction and for costs and expenses, since the Court could (and, in my humble opinion, should), as it has previously done in a number of cases, have examined the applicant's complaint ex officio under Article 14 taken in conjunction with Article 8, even though the applicant did not expressly rely on the latter Article.