JOINT PARTLY DISSENTING OPINION OF JUDGES LOUCAIDES AND TULKENS

(Translation)

Although we voted for finding a violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention, we do not, however, agree with the decision of the majority that “it is not necessary to examine the complaint based on Article 8 of the Convention taken in conjunction with Article 14”. We are surprised by that decision to the extent that the examination of this case and the question put to the parties with a view to holding a hearing concerned mainly the applicant’s complaint based on Article 8 of the Convention taken in conjunction with Article 14. Contrary to the opinion of the Court as expressed in paragraph 56 of the judgment, we do think that the Court should have ruled, firstly, on the question of the right to respect for family life, although that would have meant concluding that no separate issue arose under Article 1 of Protocol No. 1.

We shall confine ourselves to mentioning two reasons which, in the instant case, are linked and mutually supportive.

1. The first reason concerns the respect due to the applicant. Throughout the case, both in the domestic courts and before this Court, the applicant did not wish to reduce the dispute to a merely pecuniary issue, but presented it as a matter of discrimination linked to the status of “children born out of wedlock whose father or mother was, at the time of their conception, bound to another person in wedlock” and still unfortunately labelled “adulterine” illegitimate children. That, moreover, was the reason why he declined a proposal for a friendly settlement limited to the financial aspect of the dispute alone.

The mere fact that the division of the estate had already begun to take effect when the application was lodged, which, in the Court’s view, justified examining it under the head of an alleged infringement of the right to the peaceful enjoyment of possessions (see paragraphs 24, 42 and 43 of the judgment), as the Government had requested, does not appear to us to be conclusive. The Family Law Commission set up in 1998 in order, among other things, to avoid “a gulf developing between [citizens’] aspirations and the law”, rightly considered, in its report of 14 September 1999, that dealing with the issue solely from the standpoint of inheritance rights “appears to be neither fair nor appropriate”, for “is it not vain to hope that a hereditary advantage will succeed in healing a split which by its very nature belongs to a completely different realm?” (see paragraph 22 of the judgment).

2. The second reason concerns the restriction of inheritance rights as provided for in Article 760 of the Civil Code. That restriction, which the Court rightly held to be contrary to Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention, stems from the inferior

status of “adulterine” children, which still subsists in other provisions of the Civil Code (Articles 334-7, 759, 761, 762, 767, third paragraph, 908, 915-2, 1097-1) following the uncompleted reform of the 3 January 1972 Act. It is thus indeed here, in the realm of family life, that the problem arises, namely discrimination based on descent. The same Family Law Commission’s report of 14 September 1999, to which we referred in the previous point, pinpointed it when it recommended “giving full effect to the principle that children should be treated equally regardless of descent” and, to that end, considered it necessary “to achieve equality of status” (see paragraph 22 of the judgment). By confining itself to one of the consequences of that status, in this case the restrictions on “adulterine” children’s inheritance rights (in respect of which, moreover, there is a broad consensus in favour of abolition), the Court has perhaps not addressed the issue in its most meaningful terms, that is, the maintenance of inequalities, in the law of descent, based on conditions of birth. To apply a lex specialis in the instant case risks resembling a form of judicial “minimalism” or, to quote from the report of the Commission chaired by Professor Dekeuwer-Defossez, a “hybrid solution”, for “what is actually at issue is not only material equality between children born of different partnerships in the division of their common parent’s estate, but, in both more abstract and stronger terms, equality of the rights conferred by descent” (see paragraph 22 in fine of the judgment). Furthermore, the Court’s judgment leaves unresolved the question as to whether it considers, as the Government suggested, that inheritance rights fall outside the ambit of respect for private and family life guaranteed by Article 8 of the Convention, which may appear to be a regression compared with earlier judgments.

In the light of the importance which the member States of the Council of Europe attach to equality in respect of civil rights between children born in wedlock and children born out of wedlock, the clarity of our case-law, which is essential for the execution and enforcement of the Court’s judgments and their contribution to the collective guarantee of human rights, appears to us to be a requirement worth reiterating. We hope, however, that the present judgment will result in a long-awaited change and thus establish the principle that children should be treated equally regardless of descent.

[1] . Note by the Registry . The Court’s decision (in French) is obtainable from the Registry.