Instantie

Europees Hof voor de rechten van de mens

Samenvatting

A. De feiten

Klaagster is het erkende onwettige kind van J. Vermeire die reeds in 1939
overleed. Nadat beide grootouders intestaat overleden waren (in resp. 1975 en
1980) werd de erfenis verdeeld over de twee wettige kleinkinderen. Klaagster
was hiervan uitgesloten ingevolge het burgerlijk wetboek (oud). Nadat in een
door klaagster aangespannen procedure de rechter in eerste aanleg op de voet
van het Marckx-arrest had beslist dat aan haar dezelfde rechten toekwamen als
aan de wettige kleinkinderen, oordeelde het Brusselse Hof van Beroep dat het
niet op de weg van de rechter lag om op dit punt aan het Marckx-arrest gevolg
te geven. Het Hof van Cassatie bevestigde deze uitspraak.

B. Procedure voor de Commissie

De klacht van 1 april 1987 werd op 8 november 1988 door de Commissie
ontvankelijk verklaard. In het rapport van 5 april 1990 werd geconcludeerd
dat geen schending van art. 8 juncto art. 14 EVRM had plaatsgevonden voor wat
betreft de nalatenschap van de grootmoeder (met zeven stemmen tegen zes),
maar wel tenaanzien van de erfenis van de grootvader (unaniem).

Op 11 juli 1990 legde de Commissie de zaak aan het Hof voor.

C. In rechte

Het Hof wijst op de passage in het Marckx-arrest (par. 58) waarin het
overweegt dat het rechtszekerheidsbeginsel de Belgische Staat ontslaat van de
verplichting om rechtshandelingen of situaties die van voor het arrest
dateren (d.w.z. voor 13 juni 1979) te heroverwegen. Dit brengt mee dat in
casu ten aanzien van de nalatenschap van de grootmoeder sprake is van zo’n
anterieure situatie. Weliswaar werd de erfenis pas verdeeld op een na het
Marckx-arrest gelegen datum, maar de verdeling had door haar declaratoire
karakter gevolgen vanaf het moment van het overlijden in 1975 (met acht
stemmen tegen een).

Ten aanzien van de erfenis van de grootvader overweegt het Hof dat de feiten
in de onderhavige zaak nauw overeenstemmen met die waarvan het in het
Marckx-arrest had geoordeeld dat zij discriminatie oplevert in de zin van
art. 14. Niet valt in te zien wat de Belgische appel- en cassatierechter zou
kunnen hebben weerhouden om het Marckx-arrest na te leven, net als de rechter
in eerste aanleg had gedaan. Er was niets onnauwkeurigs of onvolledigs aan de
regel die discriminatie van onwettige (klein)kinderen verbiedt. De door de
Belgische regering aangevoerde noodzaak van een algehele en grondige
herziening van de wetgeving ter zake wordt door het Hof niet erkend als
essentiele voorwaarde voor naleving van de Conventie als in het Marckx-arrest
geinterpreteerd. De vrijheid van keuze van de Staten bij de tenuitvoerlegging
van arresten van het Hof (art. 53 EVRM) vermag hen niet toe te staan de
toepassing van de Conventie op te schorten in afwachting van een herziening
van de wetgeving, in dier voege dat het Hof in 1991 een klacht over een
erfopvolging die in 1980 speelde zou moeten afwijzen terwijl het een
identieke klacht in 1979 had gehonoreerd. In latere Belgische jurisprudentie
is aan het Marckx-arrest bovendien wel gevolg gegeven.

Schending van art. 14 juncto art. 8 EVRM (unaniem).

Volledige tekst

PROCEDURE

1. The case was referred to the Court by the European Commission of Human
Rights (“the Commission”) on 11 July 1990, within the three-month period laid
down by Article 32 1 and Article 47 of the Convention. It originated in an
application (no. 12849/87) against the Kingdom of Belgium lodged with the
Commission under Article 25 by Mrs Astrid Vermeire, a Belgian national, on 1
April 1987.

The Commission’s request referred to Articles 44 and 48 and to the
declaration whereby Belgium recognised the compulsory jurisdiction of the
Court (Article 46). The object of the request was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent State of
its obligations under Articles 8 and 14.

2. In response to the enquiry made in accordance with Rule 33 3 (d) of the
Rules of Court, the applicant stated that she wished to take part in the
proceedings and designated the lawyer who would represent her (Rule 30).

3. The Chamber to be constituted included ex officio Mr J. De Meyer, the
elected judge of Belgian nationality (Article 43 of the Convention), and Mr
R. Ryssdal, the President of the Court (Rule 21 3 (b). On 27 August 1990, in
the presence of the Registrar, the President drew by lot the names of the
other seven members, namely Mr Thor Vilhjalmsson, Mrs D. Bindschedler-Robert,
Mr B. Walsh, Mr A. Spielmann, Mr S.K. Martens, Mr A.N. Loizou and Mr J.M.
Morenilla (Article 43 in fine of the Convention and Rule 21 4 of the Rules
of Court).

4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 5)
and, through the Registrar, consulted the Agent of the Belgian Government
(“the Government”), the Delegate of the Commission and the lawyer for the
applicant on the need for a written procedure (Rule 37 1). In accordance
with the order made in consequence, the Registrar received the applicant’s
memorial on 7 February 1991 and the Government’s memorial on 18 February
1991. On 13 March the Delegate of the Commission informed the Registrar that
he would submit his observations at the hearing.

5. On 9 April the Secretary to the Commission produced certain documents from
the proceedings before it, as the Registrar had requested on the instructions
of the President.

6. Having consulted, through the Registrar, those who would be appearing
before the Court, the President had directed on 12 October 1990 that the oral
proceedings should open on 23 May 1991 (Rule 38).

7. The hearing took place in public in the Human Rights Building, Strasbourg,
on the appointed day. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr J. Lathouwers, Legal Officer,

Ministry of Justice, Agent,

Mr F. Huisman, avocat Counsel;

(b) for the Commission

Mr H. Danelius, Delegate;

(c) for the applicant

Mr K. van Hoecke, avocat, Counsel.

The Court heard addresses by Mr Huisman for the Government, Mr Danelius for
the Commission and Mr Hoecke for the applicant, as well as their replies to
its questions.

AS TO THE FACTS

I. The particular circumstances of the case

8. Mrs Astrid Vermeire is a Belgian national resident in Brussels. She is the
recognised illegitimate daughter of Jerome Vermeire, who died unmarried in
1939. He was the son of the late Camiel Vermeire and his late wife Irma
Vermeire nee Van den Berghe, who also had two other children, Gerard and
Robert. They died in 1951 and 1978 respectively, Gerard unmarried and without
issue, Robert survived by two children of his marriage, Francine and Michel.

9. The applicant’s grandparents, who had brought her up after her father’s
death, both died intestate, Irma Vermeire nee Van den Berghe on 16 January
1975 and Camiel Vermeire on 22 July 1980. As the grandmother’s heirs had
remained
co-owners in undivided shares up to the grandfather’s death, the two estates
were realised and distributed to the legitimate grandchildren Francine and
Michel in a single procedure. Astrid Vermeire was excluded under the old
Article 756 of the Civil Code (see paragraph 13 below).

10. On 10 June 1981 she brought an action to claim a share in the estates
before the Brussels Court of First Instance. In a judgment of 3 June 1983
that Court allowed her the same rights as a legitimate descendant in the
estates in question.

It based its decision in particular on paragraph 59 of the judgment given by
the European Court in the Marckx case on 13 June 1979 (Series A no. 31, p.
26), and took the view that “the prohibition on discrimination between
legitimate and illegitimate children as regards inheritance rights [was]
formulated in the judgment sufficiently clearly and precisely to allow a
domestic court to apply it directly in the cases brought before it”.

11. The legitimate grandchildren appealed and on 23 May 1985 the Brussels
Court of Appeal set aside the judgment. It held in particular that:

” in so far as Article 8 entails negative obligations prohibiting arbitrary
interference by the State in the private or family life of persons residing
within its territory, it lays down a rule which is sufficiently precise and
comprehensive and is directly applicable, but this is not the case in so far
as Article 8 imposes a positive obligation on the Belgian State to create a
legale status in conformity with the principles stated in the said provision
of the Convention; (…) given that on this point the Belgian State has
various means to choose from for fulfilling this obligation, the provision is
no longer sufficiently precise and comprehensive and must be interpreted as
an obligation to act, responsibility for which is on the legislature, not the
judiciary.”

The Court of Appeal thus refused to give direct effect to the passages in the
Marckx judgment relating to an illegitimate child’s inheritance rights on
intestacy with respect to relatives of the parent by whom he or she has been
recognised.

12. The Court of Cassation concurred substantially with the reasons for this
decision, which was moreover consistent with its own case-law, and dismissed
the applicant’s appeal on 12 February 1987.

II. Relevant domestic law

13. The former Articles 756 and 980 of the Civil Code provided as follows:

Article 756

“Illegitimate children shall not be heirs; the law does not allow them any
rights in the estates of their deceased father and mother unless they have
been legally recognised. It does not allow them any rights in the estates of
the relatives of their father or mother.”

Article 908

“Illegitimate children may receive by disposition inter vivos or by will no
more than their entitlement under the title ‘Inheritance on Intestacy’.”

14. These provisions were repealed by a law of 31 March 1987, which came into
force on 6 June. That Law also inserted into the Civil Code a new Article
334, according to which:

“Whatever the method used to establish affiliation, children and their
descendants shall have the same rights and obligations in respect of their
father and mother and their relatives by blood and by marriage, and the
father and mother and their relatives by blood and by marriage shall have the
same rights and obligations in respect of the children and the children’s
descendants.”

15. Section 107 of the Law down the following transitional provisions:

“The provisions of this Law shall apply to children born before the date of
its coming into force and still alive at that date, but shall not give rise
to any rights in respect of successions taking place before that date.

However, the validity of acts and distributions done before the coming into
force of this Law, under which a child born out of wedlock has been accorded
rights greater than those allowed him by the provisions repealed by this Law,
shall not be subject to challenge.”

16. Regard should also be had to Articles 718, 724 and 883 of the Civil

Article 718

“Succession shall take place on death.”

Article 724

(wording in force at the time of the grandmother’s death)

“The legitimate heirs shall acquire as of right the possessions, rights and
legal actions of the deceased, subject to the obligation to pay all the debts
of the estate. Illegitimate children, the surviving spouse and the State must
obtain a court order for possession in accordance with the procedures to be
specified.”

(wording in force at the time of the grandfather’s death)

“The legitimate heirs shall acquire as of rights the possessions, rights and
legal actions of the deceased, subject to the obligation to pay all the debts
of the estate. Illegitimate children and the State must obtain a court order
for possessions in accordance with the procedures to be specified.

(wording following the Law of 31 March 1987)

“The heirs shall acquire as of right the possessions, rights and legal
actions of the deceased, subject to the obligation to pay all the dects of
the estate. The State must obtain a court order for possession in accordance
with the procedures specified below.”

Article 883

“Each co-heir shall be deemed to have succeeded solely and immediately to all
the property included in his share or which has come to him on a sale of
undivided joint property, and never to have had ownership of the other
property in the estate.”

PROCEEDINGS BEFORE THE COMMISSION

17. In her application to the Commission of 1 April 1987 (no 12849/87), Mrs
Astrid Vermeire complained that the Belgian courts had denied her the status
of an heir of her grandparents. She claimed that she had thereby suffered a
discriminatory interference with the exercise of her right to respect for her
private and family life, which was not compatible with Article 8 in
conjunction with Article 14 of the Convention.

18. On 8 November 1988 the Commission declared the application admissible. In
its report of 5 April 1990 (made under Article 31) it expressed the opinion
that the decisions in questions had not violated the said Articles as regards
her grandmother’s estate (by seven votes to six), but they had violated them
with respect to her grandfather’s estate (unanimously). The full text of the
Commission’s opinion and of the dissenting opinions contained in the report
is reproduced as an annex to this judgment.

(Note by the Registrar: For practical reasons this annex will appear only
with the printed versions of the judgment (volume 214-C of Series A of the
Publications of the Court), but a copy of the Commission’s report is
obtainable from the registry.)

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8

19. The applicant complaint of having been excluded from inheritance rights
in her paternal grandparents’ estates. She relied on Article 8 in conjunction
with Article 14 of the Convention, according to which:

Article 8

“1. Everyone has the right to respect for his private and family life, his
home and his correspondence.

2. There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or
the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall
be secured without discrimination on any ground such as sex, race, colour,
language, religion, political of other opinion, national or social origin,
association with a national minority, property, birth or other status.”

She pointed out that in the Marckx judgment of 13 June 1979 the European
Court had held that the total lack of inheritance rights on intestacy by
reason solely of the “illegitimate” nature of the affiliation between one of
the applicants and her near relatives on her mother’s side was discriminatory
and hence incompatible with these Articles (Series A no. 31, p. 26, 59). Mrs
Vermeire maintained that the domestic courts should have applied Articles 8
and 14, so interpreted, directly to the estates in which she was interested;
at the very least the Belgian legislature should have given the Law of 31
March 1987, amending the legislation
complained of, retrospective effect as from the date of the said judgment
(see paragraphs 14 and 15 above).

20. The Court stated in the Marckx case that the principle of legal certainty
dispensed the Belgian State from reopening legal acts or situations that
antedated the delivery of the judgment (same judgment, pp. 25-26, 58).

The present case concerns the estates of a grandmother who died before and a
grandfather who died after that date.

A. The grandmother’s estate

21. The applicant maintained that the succession to her grandmother’s estate
could not be regarded as having taken place before 13 June 1979. The date of
death was indeed 16 January 1975, but the distribution, which alone
determined the nature and extent of the heir’s claims, had not been carried
out until after the said judgment, jointly with that of the grandfather’s
estate.

22. The succession to Irma Vermeire nee Van den Berghe took place on her
death and the estate devolved on her “legitimate” heirs as of that date
(Articles 718 and 724 of the Civil Code, see paragraph 16 above).

The estate was undoubtedly not wound up until after 13 June 1979, but by
reason of its declaratory nature the distribution had effect as from the date
of death, that is to say, 16 January 1975 (Article 883 of the Civil Code,
ibid).

What is in issue here is therefore a legal situation antedating the delivery
of the Marckx judgment. There is no occasion to reopen it.

B. The grandfather’s estate

23. With reference to her grandfather’s estate, the applicant alleged that it
was for the Belgian authorities to ensure that it was distributed in a manner
consistent with Articles 8 and 14 as interpreted by the European Court in the
Marckx judgment. In her opinion they could have performed their obligation
either by direct application of those Articles or by amending the
legislation, retrospectively if need be.

24. The Government stated that they did not dispute the principles which
followed from the Marckx judgment; they considered, however, that these
principles compelled the Belgian State to carry out a thorough revision of
the legal status of children born out of wedlock. Responsibility for this
fell exclusively on the legislative power as the only body in a position to
make full use of the freedom left to the State to choose the means to be
utilised in its domestic legal system for fulfilling its undertaking under
Article 53 (same judgment, pp. 25-26, 58). Articles 8 and 14 were not
sufficiently precise and comprehensive on the points at issue in this case,
and were thus not suitable for direct application by the domestic courts.

The Government further maintained that the legislature could not be
criticised for any want of diligence. At first draft reform had been
introduced on 15 February 1978 (see the above-mentioned Marckx judgment,
Series A no. 31, p. 25, 57). That it had taken over nine years to complete
the task could be explained both by the acknowledged complexity of the issue
and by Parliament’s foresight. Rather than partial, fragmentary alterations,
Parliament had preferred an overall and
systematic revision, extending inter alia to the delicate question of the
status of children born in adultery. It had also pondered long over the
temporal extent to be given to the new provisions; in the end concern for the
legal certainty to be preserved in the interests of families, third parties
and the State, together with the fear that a large number of lawsuits would
follow, had induced it not to give the Law of 31 March 1987 any retrospective
effect (see paragraph 15 above).

25. The Marckx judgment held that the total lack of inheritance rights on
intestacy, based only on hte “illegitimate” nature of the affiliation, was
discriminatory (pp. 25 and 26, 56 and 59).

This finding related to facts which were so close to those of the instant
case that it applies equally to the succession in issue, which took place
after its delivery.

It cannot be seen what could have prevented the Brussels Court of Appeal and
the Court of Cassation from complying with the findings of the Marckx
judgment, as the Court of First Instance had done. There was nothing
imprecise or incomplete about the rule which prohibited discrimination
against Astrid Vermeire compared with her cousins Francine and Michel, on the
grounds of the “illegitimate” nature of the kinship between her and the
deceased.

26. An overall revision of the legislation, with the aim of carrying out a
thoroughgoing and consistent amendment of the whole of the law on affiliation
and inheritance on intestacy, was not necessary at all as an essential
preliminary to compliance with the Convention as interpreted by Court in het
Marckx case.

The freedom of choice allowed to a State as to the means of fulfilling its
obligation under Article 53 cannot allow it to suspend the application of the
Convention while waiting for such a reform to be completed, to the extent of
compelling the Court to reject in 1991, with respect to a succession which
took effect on 22 July 1980, complaints identical to those which it upheld on
13 June 1979.

27. In a case similar to the present one, from the point of view of Articles
6 and 6bis of the Belgian Constitution according to which all Belgians are
equal before the law and must be able to enjoy their rights and freedoms
without discrimination, the Belgian Court of Arbitration, relying in
particular on the Marckx judgment, held that “the old Article 756 of the
Civil Code, preserved in force by virtue of section 107 of the Law of 31
March 1987, breach(ed) Articles 6 and 6bis (aforesaid) in so far as it
appli(ed) to successions taking place from 13 June 1979 on” (judgment no.
18/91 of 4 July 1991, case of Verryt c. Van Calster et consorts, published in
the “Moniteur belge/Belgisch Staatsblad” of 22 August 1991, p. 18144, 18149
and 18153).

28. Similary, it should be found that the applicant’s exclusion form the
estate of her grandfather Camiel Vermeire violated Article 14 in conjunction
with Article 8 of the Convention.

II. APPLICATION OF ARTICLE 50

29. Under Article 50,

“If the Court finds that a decision or a measure taken by a legal authority
or any other authority of a High Contracting Party is completely or partially
in conflict with the obligation arising from the …. Convention, and if the
internal law of the said Party allows only partial reparation to be made for
the consequences of this decision or measure, the decision of the Court
shall, if necessary, afford just satisfaction to the injured party.”

Mrs Vermeire claimed in the first place 40, 175, 787 Belgian francs (BEF) as
compensation, this being equivalent to her share in the two estates in
question, after deducing inheritance tax and adding interest payable since
the two deaths. She also claimed BEF 2, 486, 399 in respect of her costs and
expenses before the domestic courts and the Strasbourg institutions.

30. In the Government’s opinion, were the Court to find that there had been a
breach of the Convention, the judgment would in itself constitute just
satisfaction. The figures put forward by the applicant could in any event not
be relied on, as they were based solely on the declarations of inheritance,
which were unilateral and incomplete.

31. The Court agrees with the Commission that the applicant suffered
pecuniary damage, the amount of which is equivalent to the share of her
grandfather’s estate which she would have obtained had she been his
“legitimate” granddaughter. Inheritance taxes and interest due must be taken
into account in calculating the compensation.

32. However, as the Government dispute the information supplied by Mrs
Vermeire, and as some of the costs claimed appear liable to revision on the
basis of this judgment, the question of the application of Article 50 is not
ready for decision. It should therefore be reserved.

FOR THESE REASONS, THE COURT

1. Holds by eight votes to one that the Belgian State was under no obligation
to reopen the succession to the estate of Irma Vermeire nee Van den Berghe;

2. Holds unanimously that the applicant’s exclusion from the estate of Camiel
Vermeire violated Article 14 in conjunction with Article 8 of the
Convention;

3. Holds unanimoulsy that the question of the application of Article 50 is
not ready for decision; accordingly,

(a) reserves it in whole;

(b) invites the Government and the applicant to submit to it in writing
within the next three months their observations on the question and in
particular to communicate to it any agreement wich they may reach;

(c) reserves the subsequent procedure and delegates to the President of the
Court power to fix the same if need be.

Rechters

mr Ryssdal, President, mrs. Vilhjalmsson, Bindschedler-Robert,Walsh, Spielmann, De Meyer, Martens, Loizou, Morenilla, Eissen, Registrar,and mr. Petzold, Deputy Registrar