CASE OF HAAS v. THE NETHERLANDS
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life;Respect for private life)
9. The applicant, who was born in 1964, states that he was born from a relationship between his mother and a certain P., a civil law notary (notaris). Although his mother had wanted to marry, P. had not; neither had the two ever lived together. P. had not recognised (erkenning) the applicant. Nevertheless, he made regular payments towards the applicant's care and upbringing, gave the applicant presents for his birthday, visited him and, together with the applicant's mother, went on day trips with him. The applicant called P. “Daddy”. 10. P. died on 19 August 1992 without leaving a will. His body was cremated. A nephew, K., was identified as his sole heir. 11. The applicant brought civil proceedings against K., seeking an order that K. hand over P.'s estate. The applicant argued that he had had “family life” with P. within the meaning of Article 8 of the Convention, and that the Netherlands legal provisions relating to the position of “illegitimate” and unrecognised children infringed Article 14. 12. The Arnhem Regional Court (arrondissementsrechtbank) rejected the applicant's claim by a judgment of 23 December 1993. It considered that the difference contained in Netherlands legislation on succession between children with and children without legally recognised family relationships (familierechtelijke betrekkingen) did not constitute an unjustified interference in the “family life” of “illegitimate” unrecognised children. In view of the rights and interests of third parties in relation to an inheritance, legal certainty required that only persons with a demonstrable legal family connection with the deceased be able to inherit. An “interference” with any “family life” the applicant might have had with P. was thus “in accordance with the law” and “necessary in a democratic society”. In the light of these considerations, the Regional Court did not find it necessary to determine whether or not P. was the applicant's biological father. 13. The applicant appealed to the Arnhem Court of Appeal (gerechtshof), complaining of the Regional Court's interpretation of Articles 8 and 14 of the Convention, as well as of the fact that the Regional Court had declined to rule on the issue of paternity. 14. Four witnesses were heard before the Court of Appeal: the applicant, his mother, a friend of his mother and the person who had been the applicant's co-guardian (toeziend voogd). The latter two stated that they were convinced that P. was the applicant's biological father and that he had never denied this fact to them but had, on the contrary, assured them that the applicant would be well provided for. The applicant's mother stated that she had not known any man other than P. until nine years after the applicant's birth, and that P. had referred to the applicant in public as “my son” or “my little boy”. In reply to K.'s argument that he had not been aware of the applicant's existence, the applicant stated that K.'s mother, who was a sister of P., had been so aware and had met the applicant. 15. In the proceedings before the Court of Appeal the applicant also submitted a number of photographs showing himself in the company of P. and his mother. 16. On 20 June 1995 the Court of Appeal gave judgment, dismissing the appeal. While it acknowledged that a situation where a court was unable to determine a case like the present one led to an unsatisfactory outcome for the applicant, the Court of Appeal saw no possibility of departing from the recent case-law of the Supreme Court (Hoge Raad) to the effect that it went beyond the jurisprudential task of the judiciary to determine the consequences of the possible incompatibility of Netherlands law with Article 14 of the Convention taken in conjunction with Article 8 (judgment of 24 February 1995, reported in Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1995, no. 468). 17. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court, which was dismissed on 17 January 1997. The Supreme Court held that, although an inability to inherit based solely on the ground of illegitimacy would be contrary to Article 8 taken in conjunction with Article 14, objective and reasonable grounds could exist to justify other kinds of restrictions on the intestate succession of “illegitimate” children. It then noted that in 1982 a law had come into force aimed at bringing the position of “illegitimate” recognised children into line with the requirements enunciated by the Court in Marckx v. Belgium (judgment of 13 June 1979, Series A no. 31). During the debate on the bill in Parliament, the then Minister of Justice had declared that the question of the position of “illegitimate” unrecognised children in relation to their biological fathers was a valid one, but that it fell to be dealt with in the planned reform of the law of succession. 18. Since then a number of attempts had been made to bring about this reform and, at the time of the Supreme Court's examination of the present case, a bill was before Parliament. It thus appeared that the legislature was of the view that a reform of the law of succession required the making of important political choices and that the legislative process had not yet come to an end. From this, the Supreme Court concluded in the first place that the absence in Netherlands law at the time of a rule making “illegitimate” unrecognised children the heirs of their biological fathers was not based solely on illegitimacy but on the difficulty, inherent in a reform of legislation, of reaching a sound balance between all the interests involved in the law of succession. Secondly, it followed that the choices to be made fell beyond the scope of the judiciary's jurisprudential tasks and that it was not possible to anticipate legislative developments by judgment. The judgment of the Supreme Court was published in NJ 1997, no. 483, with a critical annotation by a learned author. 19. Under Article 4:879 § 1 of the Civil Code (Burgerlijk Wetboek –“CC”), only those persons who have a legally recognised family relationship (familierechtelijke betrekking) with a person who has died intestate may inherit from that person. 20. Legally recognised family relationships between a father and a child exist where a child is born to a married couple or if it is born within 307 days following the dissolution of the marriage (Article 1:197 of the CC). An “illegitimate” child will have a legally recognised family relationship with its father (who does not have to be the biological father) if it has been recognised (erkenning) by the father, either before or after its birth (Article 1:222 of the CC). 21. Moreover, according to Article 1:215 of the CC, a legally recognised family relationship will also come into existence with the granting of letters of legitimation if it is established that the father, having died before the child was born and without having recognised it, was aware of the pregnancy and had intended to marry the mother. 22. According to the rules of intestacy, if a deceased does not leave any children with whom he has a legally recognised family relationship or a spouse, his parents and siblings (or their descendants) will inherit from him (Article 4:901 of the CC). If there are such children or a spouse, the parents and siblings are excluded from the inheritance (Articles 4:899 and 4:899a of the CC). 23. Within one year of the death of the father, a minor child with whom the late father had no legally recognised family relationship may request that an obligation be imposed on the father's heirs to make a lump sum available for his care and upbringing. In the determination of this amount, the court dealing with the request may not exceed the legally reserved portion of the estate (wettelijk erfdeel) to which the child would have been entitled had he had a legally recognised family relationship with his father (Article 1:406 § 5 of the CC). 24. This is an elaboration of the principle enunciated in Article 1:394 §1 of the CC that, where there is no legally recognised family relationship between a father and his child, the former is only bound to provide maintenance (levensonderhoud) for the child until it has come of age. The legally reserved portion of an estate is that part of a person's estate which will be attributed, according to the rules of intestacy, to the heirs who are direct descendants or ascendants, and which the testator is unable to dispose of by way of donation when alive, or by will. 25. On 20 March 1996 a bill was presented in Parliament aimed at amending, inter alia, the law of descent (afstammingsrecht; Tweede Kamer (Lower House) 1995-1996, 24 649, nos. 1-2), and on 1 April 1998 a change to the Civil Code came into force. It introduced a judicial declaration of paternity (gerechtelijke vaststelling van vaderschap, Article 1:207 of the CC) which may be requested by the mother or the child. A declaration of paternity has retroactive force to the time of the child's birth, but it does not adversely affect any rights acquired in good faith by third parties. 26. According to the explanatory memorandum to the bill, the possibility of having paternity determined judicially exists in all neighbouring countries. The absence of this possibility could be in conflict with Article 8 of the Convention taken in conjunction with Article 14, since it could lead to a situation where a child was deprived of a father if the latter were unwilling to recognise it. It was felt that this defect could not be remedied by the fact that a request for determination of a parental maintenance contribution could be made against the father pursuant to Article 1:394 § 1 of the CC.