19
MARCKX v. BELGIUM JUDGMENT
regards the estate of any member of her mother’s family (Articles 756 and
365).
In the interval between her recognition and her adoption, Alexandra
could receive from her mother by disposition inter vivos or by will no more
than her entitlement under the Code under the title "Inheritance on
Intestacy" (Article 908). This restriction on her capacity, like that on Paula
Marckx’s capacity to dispose of her property, did not exist before 29
October 1973 and disappeared on 30 October 1974.
On the other hand, the Belgian Civil Code confers on "legitimate"
children, from the moment of their birth and even of their conception, all
those patrimonial rights which it denied and denies Alexandra; the capacity
of married women to dispose of their property is not restricted by the Code
in the same way as that of Paula Marckx.
According to the applicants, this system contravenes in regard to them
Article 8 (art. 8) of the Convention, taken both alone and in conjunction
with Article 14 (art. 14+8), and also, in Paula Marckx’s case, Article 1 of
Protocol No. 1 (P1-1) taken both alone and in conjunction with Article 14
(art. 14+P1-1). This is contested by the Government. The Commission, for
its part, finds only a breach of Article 14, taken in conjunction with Article
1 of Protocol No. 1 (art. 14+P1-1), with respect to Paula Marckx.
1. On the patrimonial rights relied on by Alexandra
50. As concerns the second applicant, the Court has taken its stand solely
on Article 8 (art. 8) of the Convention, taken both alone and in conjunction
with Article 14 (art. 14+8). The Court in fact excludes Article 1 of Protocol
No. 1 (P1-1): like the Commission and the Government, it notes that this
Article (P1-1) does no more than enshrine the right of everyone to the
peaceful enjoyment of "his" possessions, that consequently it applies only to
a person’s existing possessions and that it does not guarantee the right to
acquire possessions whether on intestacy or through voluntary dispositions.
Besides, the applicants do not appear to have relied on this provision in
support of Alexandra’s claims. Since Article 1 of the Protocol (P1-1) proves
to be inapplicable, Article 14 (art. 14) of the Convention cannot be
combined with it on the point now being considered.
51. The applicants regard the patrimonial rights they claim as forming
part of family rights and, hence, as being a matter for Article 8 (art. 8). This
reasoning is disputed by the Government. Neither does the majority of the
Commission agree with the applicants, but, as the Principal Delegate
indicated at the hearings, a minority of six members considers the right of
succession between children and parents, and between grandchildren and
grandparents, to be so closely related to family life that it comes within the
sphere of Article 8 (art. 8).
52. The Court shares the view of the minority. Matters of intestate
succession - and of disposition - between near relatives prove to be