CASE OF MAZUREK v. FRANCE
Violation of Art. 14+P1-1;Not necessary to examine Art. 14+8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
7. The applicant, Claude Mazurek, is a French national who was born in Avignon in 1942 and lives at La Grande-Motte. 8. The applicant’s mother died on 1 August 1990 of HIV (human immunodeficiency virus) encephalopathy, having been infected after a blood transfusion. She left two children: a son, Alain, born out of wedlock in 1936 and legitimised by his mother’s marriage in 1937, and the applicant, born in 1942, on whose birth certificate only his mother’s name was entered as a parent, she being still married at the time of his birth, but living separately from her husband. They divorced in July 1944. 9. On 30 April 1991 Alain brought an action against the applicant in the Nîmes tribunal de grande instance seeking an order that his mother’s estate be divided by a notary, that the applicant, as an adulterine child, could not lay claim to more than a quarter of it and that there be deposited with the notary a sum of money unlawfully withdrawn by the applicant from his mother’s account and transferred to a personal account while their mother was in a coma. 10. In his pleadings, the applicant agreed to the appointment of a notary to divide the estate, but submitted that Article 760 of the Civil Code, which restricts the inheritance rights of adulterine children, was discriminatory and incompatible with Articles 8 and 14 of the Convention, the provisions of the United Nations Convention on the Rights of the Child and Article 334 of the Civil Code, which enshrines the principle that children born in wedlock and children born out of wedlock have equal rights. He requested the court to hold that he had the same inheritance rights as a legitimate child. He also submitted that the amount which he had been requested to deposit with a notary had been transferred as a gift which he was not required to bring into account, as evidenced by a letter from the deceased of 20 January 1988, a general power of attorney for bank transactions, dated 2 February 1988, and witness statements. 11. In a judgment of 21 January 1993 the court ordered the estate to be divided. With regard to the applicant’s rights, it referred to Article 760 of the Civil Code (see paragraph 17 below). The court conceded that Article 760 of the Civil Code represented a derogation from the principle, enshrined in the first paragraph of Article 334 of the Civil Code, that children should be treated equally regardless of descent, but held that its purpose was not to discriminate between children on the grounds of their birth but to ensure minimum compliance with marital commitments on the part of the married parent who engenders an illegitimate child. It accordingly concluded that Article 760 was necessary in order to protect the rights of others and that it was a principle of public policy which was not contrary to the Convention. In respect of the sum which had been withdrawn by the applicant and transferred to his own account, the court held that the applicant had merely executed his mother’s intention to gift him a sum of money in addition to his share in the estate and that although that gift should notionally be brought into account in calculating the disposable portion of the estate, it was inappropriate as matters stood to order that the amount in question be deposited with the notary dividing the estate. 12. The applicant appealed, arguing, among other things, that Article 760 of the Civil Code was incompatible with Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1. 13. In a judgment of 24 March 1994, the Nîmes Court of Appeal upheld the provisions of the lower court’s judgment ordering the estate to be divided and determining the applicant’s inheritance rights. It considered, however, that the amount transferred to the applicant’s account should be returned to the estate to be divided because he had not proved that his mother had intended it as a gift. 14. With regard to the complaint that the discrimination between legitimate children and adulterine children was incompatible with the provisions of the Convention, the Court of Appeal held: “In the instant case the provisions of Article 760 of the Civil Code, which limit the inheritance rights of adulterine children, are directly linked to the French legal principle of public policy according to which marriage should be monogamous and the interests of the spouse and legitimate children of an adulterer protected. Article 760 was not enacted in order to disadvantage adulterine children, but to protect the interests of the spouse and legitimate children of an adulterer; the provision does not therefore intentionally discriminate against adulterine children, but ensures the protection of children born of the marriage who might be disadvantaged on the division of their parents’ estate by the presence of an adulterine child who, on account of the predecease of the non-adulterous spouse and the system of matrimonial property elected by the spouses, might otherwise inherit from his or her parent both the assets from that parent’s estate and the assets from the estate of the spouse who is not his or her parent. The court was thus properly entitled to hold that it was not the intention of the legislature to discriminate between children on the grounds of their birth, but to ensure minimum compliance with the marital obligations of a married parent with regard to his or her legitimate children; the court was also properly entitled to hold that Article 760 of the Civil Code was a provision necessary for the protection of the rights of others, that it was a French legal principle of public policy and that it was not contrary to the European Convention on Human Rights.” 15. The applicant appealed on points of law to the Court of Cassation, which delivered its judgment on 25 June 1996. With regard to the applicant’s complaint of unjustified discrimination on grounds of birth between children born in wedlock and children born out of wedlock, contrary to Articles 8 and 14 of the Convention, the Court of Cassation held that inheritance rights had nothing to do with respect for private and family life guaranteed by Article 8 of the Convention. In respect of the complaint that the Court of Appeal had ordered the sum transferred to the applicant’s account to be returned to the estate to be divided, the Court of Cassation held that in deciding that the facts of the case had not shown any intention on the part of the deceased to bestow a gift on her son in advance of the division of her estate the Court of Appeal had determined an issue which it alone had jurisdiction to determine. 16. On 14 January 1994 the Commission of the Compensation Fund for Transfusion Patients and Haemophiliacs awarded the applicant, in his personal capacity, compensation of 40,000 French francs (FRF) and assessed the deceased’s loss at FRF 500,000, to be paid to her heirs. That amount was thus paid to the notary dealing with the estate and the applicant subsequently received one quarter of it. 17. The relevant provisions of the Civil Code, introduced by Law no. 72-3 of 3 January 1972, provide: “Children or their issue shall inherit from their father and mother, grandfathers, grandmothers or other ancestors, irrespective of sex or primogeniture, and even if they are born of different marriages. The estate shall devolve upon them in equal portions and per capita if they are all first degree issue and heirs in their own right; they shall inherit per stirpes if all or some of them inherit through their ascendants.” “Children born out of wedlock shall, in general, inherit from their father and mother or other ancestors, as well as from their brothers and sisters or other collateral relatives, on the same terms as legitimate children.” “Children born out of wedlock whose father or mother was, at the time of their conception, bound by a marriage of which legitimate children were born are entitled to inherit from that parent in competition with the legitimate children; however, they shall each receive only half of the share to which they would have been entitled if all the children of the deceased, including themselves, had been legitimate. The children born of the marriage injured by the adultery shall inherit in addition the fraction by which the adulterine child’s share of the estate is thus reduced; it shall be divided between them in proportion to their share in the estate.” 18. The relevant provisions of the United Nations Convention on the Rights of the Child, which came into force on 2 September 1990, read as follows: “1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.” 19. In a report entitled “Status and Protection of Children”, adopted in May 1990, the Conseil d’Etat referred to the issue of equal treatment of children regardless of descent in the following terms: “The restriction of adulterine children’s inheritance rights is the subject of much criticism. It appears to be in direct conflict with the principle that children should be treated equally regardless of descent and constitutes an infringement of the principles enshrined in the Civil Code according to which children born out of wedlock have, in general, the same rights as children born in wedlock. Such discrimination, based on descent, also appears to be contrary to the European Convention on Human Rights and to the Convention on the Rights of the Child. It should therefore be abolished.” The Conseil d’Etat’s report also sets out socio-demographic data. It emerges from the report that as at 1 January 1990 one in ten children had been born out of wedlock, this being true of more than one in four births in 1988. In addition to that, major shifts in family models appeared during the second half of the 1970s, “with a 30% decrease in the annual number of marriages between 1975 and 1985, 2.5 times more births out of wedlock over the same period, and a rise in the number of cohabiting unmarried couples so sharp that it is now the typical first union for two in three French citizens ... as for divorces, the annual figure had already almost doubled between 1960 and 1975, and it doubled again during the next ten years”. 20. A government bill, registered on 23 December 1991 (no. 2530), proposed bringing the inheritance rights of adulterine children into line with that of other children. It was subsequently abandoned. 21. On 3 February 1998 the Minister of Justice instructed Mrs Irène Théry, a sociologist, to study shifts in family models. The report, entitled “Couples, Descent and Kinship today” was submitted on 14 May 1998. It found that there was no sociological fracture according to whether couples were married or not, and criticised the inegalitarian status of adulterine children. 22. In August 1998 a working group on family law was set up by the Minister of Justice to consider, among other things, “possible changes to the law in the light of factual developments” in order to avoid “a gulf developing between [citizens’] aspirations and the law”. Chaired by Professor Françoise Dekeuwer-Defossez, the commission submitted its report on 14 September 1999. It contained a set of proposals for “renovating family law”. In particular, the commission recommended “giving full effect to the principle that children should be treated equally regardless of descent” as follows: “The principle that children should be treated equally regardless of descent was one of the two guiding principles underlying the 3 January 1972 Act. At the time, a compromise had to be made, however, and full equality was not achieved. Today, it appears essential to complete the exercise and achieve full equal treatment of children regardless of descent. In order to attain that objective, full equality of status needs to be achieved and the right to affiliation made equal so that the possibility of establishing or contesting descent will no longer depend on the parents’ legal status. SS1. Achieving equality of status The working group considers, unanimously and unhesitatingly, that the time has come to abolish the legal restrictions on adulterine children’s inheritance rights. The current position is that their rights are halved where they are competing with half- brothers and sisters or with the adulterer’s spouse. A number of arguments militate strongly in favour of abolition. The first is quite simply chronological. The solutions adopted by the 3 January 1972 Act constituted, according to the most eminent commentators, ‘an inglorious trade-off’, the fruit of a ‘Law of compromise’. That compromise was necessary as a transitional phase during which the principle of equality which the Act had intended to promote could be progressively inserted into our law. Twenty-seven years later, the transitional phase has come to an end. The second argument stems from the case-law of the European Court of Human Rights. It is likely that the Court will soon find that the French rule violates the Convention, and it would be preferable for an amendment of our law not to appear to be imposed from outside. Lastly, and above all, the solution favoured by the group of making the law of descent equal by abolishing divisive classifications makes it more and more difficult to maintain inequalities based on conditions of birth, without inevitably incurring the two-fold complaint of injustice and contradiction. Is there a danger that the importance of marriage will be lessened by undermining the trust which husbands and wives have placed in each other? The group does not think so. Adultery is clearly a serious injury inflicted on the spouse who is the victim of it and, over and above the spouses, on the children born of their marriage. In more legal terms, adultery is always an instance of misconduct and can be serious misconduct, for the duty of fidelity is inherent in the marital commitment. If such misconduct must be punished, however, it is only those who have committed it who should be punished and certainly not, we feel, the child born as a result. It is contradictory to declare on the one hand that parents have equal responsibility for their children irrespective of how they choose to lead their life as a couple and, on the other hand, to impose on a child, on the grounds that he or she is adulterine, the consequences of the parent’s infidelity. More specifically, to enforce marital duties through inheritance rights appears to be neither fair nor appropriate. For one thing, relations between husband and wife will often have been broken off well before the birth of the child, and there is therefore something hypocritical about imposing on that child the ties of a commitment from which those who entered into it have long since freed themselves. For another thing, even if the marital ties have remained intact until the end, 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? Moreover, as the law currently stands, it is almost always possible for the child’s parent to ‘erase’ this reduction in rights by legitimising – after divorcing and re-marrying, or, without divorcing, by seeking a court order – or even adopting the child. Far from making the rule more easily bearable, that option has the effect of leaving the child’s ultimate destiny to the discretion of the adulterous parent. Thus the current provisions have the effect of multiplying inequalities, without succeeding in strongly affirming the importance of the marital commitment. We add that we are not in favour of an intermediate solution whereby the current protection afforded by law to children born in wedlock (particularly Articles 760 and 915) would be abolished, while the protection afforded to the wronged spouse, the direct victim of the adultery, under Articles 759 and 767, second paragraph, would be maintained. The effect of that solution would be minimum compliance with the international conventions, whose sole concern is to secure equality between children, whereas the protective provisions specific to the spouse apply, by definition, only where the deceased leaves no other issue. Such a hybrid solution would merely be a means of failing to resolve the debate. 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. Proposal: – Abolish the restrictions on adulterine children’s inheritance rights.”