9
MARCKX v. BELGIUM JUDGMENT
AS TO THE LAW
I. ON THE GOVERNMENT’S PRELIMINARY PLEA
25. The application of the Civil Code provisions concerning children
born out of wedlock and unmarried mothers is alleged by the applicants to
contravene, with respect to them, Articles 3, 8, 12 and 14 (art. 3, art. 8, art.
12, art. 14) of the Convention and Article 1 of Protocol No. 1 (P1-1).
26. In reply, the Government firstly contend - if not by way of an
objection of lack of jurisdiction or inadmissibility as such, at least by way of
a preliminary plea - that the issues raised by the applicants are essentially
theoretical in their case. The Government illustrate this by the following
points: the child Alexandra Marckx did not suffer from the fact that her
maternal affiliation was not established as soon as she was born (16 October
1973) but only thirteen days later, when she was recognised, since at the
time she was unaware of the circumstances of her birth; her mother, Paula
Marckx, was acting of her own accord, and not under duress, when she
recognised Alexandra (29 October 1973) and when she adopted her (30
October 1974); there is nothing to indicate that, during the interval of a year
and a day between these two latter dates, Paula Marckx had any wish to
make, by will or by gift inter vivos, a provision for her daughter more
generous than that stipulated by Article 908 of the Civil Code; a very
substantial proportion of the expenses incurred by Paula Marckx for the
adoption could have been avoided; since 30 October 1974, Alexandra’s
position vis-à-vis her mother has been the same as that of a "legitimate"
child. Briefly, the applicants are overlooking, in the Government’s
submission, the fact that it is not the Court’s function to rule in abstracto on
the compatibility with the Convention of certain legal rules (Golder
judgment of 21 February 1975, Series A no. 18, p. 19, para. 39).
The Commission’s response is that it did not examine the impugned
legislation in abstracto since the applicants are relying on specific and
concrete facts.
27. The Court does not share the Government’s view. Article 25 (art. 25)
of the Convention entitles individuals to contend that a law violates their
rights by itself, in the absence of an individual measure of implementation,
if they run the risk of being directly affected by it (see, mutatis mutandis,
the Klass and others judgment of 6 September 1978, Series A no. 28, pp.
17-18, para. 33). Such is indeed the standpoint of the applicants: they raise
objections to several Articles of the Civil Code which applied or apply to
them automatically. In submitting that these Articles are contrary to the
Convention and to Protocol No. 1, the applicants are not inviting the Court
to undertake an abstract review of rules which, as such, would be
incompatible with Article 25 (art. 25) (see, in addition to the two judgments