Camp and Bourimi v The Netherlands (app no 28369/95)
| Judgment Date | 12 September 2000 |
Human Rights – Right to respect for private and family life – Intestacy – Illegitimacy – Whether absence of legally recognised family relationship constituting interference with family life by public authorities – Whether child discriminated against on grounds of birth – Human Rights Act 1998, Sch 1, arts 8, 14.
The mother was pregnant with the son when the father died intestate. Whilst it had been their intention, the mother and father had never married and so when the son was born he was illegitimate and, as he had not been legally recognised by the father, he initially carried the mother’s name. Two years after his birth, the son was granted letters of legitimation, but the domestic courts held that those letters did not have retroactive force from the father’s death and that accordingly he could not inherit from his father’s estate which, under domestic law, passed to his parents and siblings. The mother and son complained to the European Court of Human Rights: (i) that the legal framework in place meant that no legally recognised family relationship existed between the son and his father and the latter’s relatives until letters of legitimation were granted and as a result the son’s integration in his family from birth was not rendered possible, thereby violating art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights), as set out in Sch 1 to the Human Rights Act 1998; and (ii) that the son was treated differently from children who had the status of legitimate child as from their birth, in breach of art 14 of the Convention, taken in conjuncture with art 8.
Held – (1) The absence of a legally recognised family relationship between the son and his father did not constitute an interference by the public authorities with the family life between the son and mother, or the father’s parents and siblings. Accordingly there had been no violation of art 8 of the Convention taken alone.
(2) The son, who did not obtain legally recognised family ties with his father until letters of legitimation were granted, was unable to inherit from his father unlike children who did have such ties either because they were born in wedlock or had been recognised by their father. That constituted a difference in treatment between persons in similar situations, based on birth, and pursued no objective
as there had been no conscious decision on the father’s behalf not to recognise the son, on the contrary he had intended to marry the mother, and letters of legitimation had been granted precisely because his untimely death had precluded that marriage. Moreover, whilst the protection of other heirs could constitute a legitimate aim for such a difference in treatment, it did not arise in the instant case because the father’s heirs were aware of the son’s existence, and thus his exclusion from his father’s inheritance was disproportionate. It followed that there had been a breach of art 14 of the Convention, taken in conjunction with art 8.
Cases referred to in judgmentBarberà, Messegué and Jabardo v Spain (No 2) (art 50) (13 June 1994), Series A, no 285–C, ECt HR.
De Wilde, Ooms and Versyp v Belgium (No 2) (art 50) (1972) 1 EHRR 438, ECt HR.
Inze v Austria (1987) 10 EHRR 394, ECt HR.
Johnston v Ireland (1986) 9 EHRR 203, ECt HR.
Marckx v Belgium (1979) 2 EHRR 330, ECt HR.
Mazurek v France (app no 34406/97) (1 February 2000, unreported), ECt HR.
Ringeisen v Austria (No 2) (art 50) (1972) 1 EHRR 504, ECt HR.
Schmidt v Germany (1994) 18 EHRR 513, ECt HR.
Sunday Times v UK (No 2) (art 50) (1980) 3 EHRR 317, ECt HR.
Van Raalte v The Netherlands (1997) 24 EHRR 503, ECt HR.
Vermeire v Belgium (1991) 15 EHRR 488, ECt HR.
ComplaintThe applicant mother and applicant son complained to the European Court of Human Rights complaining that, contrary to art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), taken alone, and art 14, taken in conjuncture with art 8, letters of legitimation granted two years after the son’s birth did not have retroactive effect to the time of the father’s death. The facts are set out in the judgment.
12 September 2000.
THE EUROPEAN COURT OF HUMAN RIGHTS (FIRST SECTION)delivered the following judgment.
Procedure1. The case was referred to the Court by the applicants on 12 August 1999 and by the European Commission of Human Rights (the Commission) on 15 September 1999, within the three month period laid down by former arts 32(1) and 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) (Rome, 4 November 1950; TS 71 ((1953); Cmd 8969), as set out in Sch 1 to the Human Rights Act 1998. It originated in an application (no 28369/95) against the Kingdom of the Netherlands lodged with the Commission under former art 25 of the Convention by two Netherlands nationals, Ms Eveline ECH Camp and Mr Sofian A Bourimi (the applicants), on 18 August 1995. The applicants were
represented by Ms PMM van der Grinten and Ms EMLJ Dosker, lawyers practising in The Hague, the Netherlands. The Netherlands Government (the Government) were represented by their agents, Mr R Böcker and Ms J Schukking, of the Netherlands Ministry of Foreign Affairs.
The Commission’s request referred to former arts 44 and 48 and to the declaration whereby the Netherlands recognised the compulsory jurisdiction of the Court (former art 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 art 8 of the Convention, both taken alone and in conjunction with art 14.
2. On 20 September 1999 the Panel of the Grand Chamber decided, pursuant to art 5(4) of Protocol No 11 to the Convention and rr 100(1) and 24(6) of the Rules of Court, that the application would be examined by one of the sections. It was, thereupon, assigned to the First Section.
3. The Chamber constituted within the section included ex officio Mrs W Thomassen, the judge elected in respect of the Netherlands (art 27(2) of the Convention and r 26(1)(a) of the Rules of Court) and Mrs E Palm, President of the Section (rr 12 and 26(1)(a)). The other members designated by the latter to complete the Chamber were Mr L Ferrari Bravo, Mr R Türmen, Mr J Casadevall, Mr B Zupanèiè and Mr T Pan îru.
4. From October 1999 to January 2000 friendly-settlement negotiations took place between the parties which proved unsuccessful.
5. On 14 March 2000 the Chamber decided to hold a hearing.
6. In accordance with r 59(3) the President of the Chamber invited the parties to submit memorials on the issues arising in the application. The Registrar received the applicants’ and Government’s memorials on 29 March and 21 April 2000 respectively.
7. A hearing took place in public in the Human Rights Building, Strasbourg, on 6 June 2000 (r 59(2)).
There appeared before the Court: (a) for the Government: Mr R Böcker, agent, Mr J Struyker Boudier, Ms H Lenters, advisers; (b) for the applicants: Ms P van der Grinten, Ms E Dosker, counsel.
The Court heard addresses by Mr Böcker, Ms van der Grinten and Ms Dosker.
The facts I. The circumstances of the case8. On 24 September 1992 Ms Camp’s partner, Mr Abbie Bourimi, died, without having recognised (erkenning) the child she was carrying at that time and without leaving a will. Ms Camp and Mr Abbie Bourimi had been living...
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