MARCKX v. BELGIUM JUDGMENT
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(P1-1). Indeed, the right to dispose of one’s property constitutes a traditional
and fundamental aspect of the right of property (cf. the Handyside judgment
of 7 December 1976, Series A no. 24, p. 29, para. 62).
64. The second paragraph of Article 1 (P1-1) nevertheless authorises a
Contracting State to "enforce such laws as it deems necessary to control the
use of property in accordance with the general interest". This paragraph thus
sets the Contracting States up as sole judges of the "necessity" for such a
law (above-mentioned Handyside judgment, ibid). As regards "the general
interest", it may in certain cases induce a legislature to "control the use of
property" in the area of dispositions inter vivos or by will. In consequence,
the limitation complained of by the first applicant is not of itself in conflict
with Protocol No. 1.
65. However, the limitation applies only to unmarried and not to married
mothers. Like the Commission, the Court considers this distinction, in
support of which the Government put forward no special argument, to be
discriminatory. In view of Article 14 (art. 14) of the Convention, the Court
fails to see on what "general interest", or on what objective and reasonable
justification, a State could rely to limit an unmarried mother’s right to make
gifts or legacies in favour of her child when at the same time a married
woman is not subject to any similar restriction. In other respects, the Court
refers, mutatis mutandis, to paragraphs 40 and 41 above.
Accordingly, there was on this point breach of Article 14 of the
Convention, taken in conjunction with Article 1 of Protocol No. 1 (art.
14+P1-1), with respect to Paula Marckx.
D. On the alleged violation of Articles 3 and 12 (art. 3, art. 12) of the
Convention
66. The applicants claim that the legislation they complain of entails an
affront to their dignity as human beings; they contend that it subjects them
to "degrading treatment" within the meaning of Article 3 (art. 3). The
Government contest this. The Commission, for its part, did not consider that
it had to examine the case under this Article (art. 3).
In the Court’s judgment, while the legal rules at issue probably present
aspects which the applicants may feel to be humiliating, they do not
constitute degrading treatment coming within the ambit of Article 3 (art. 3).
67. In its report of 10 December 1977, the Commission expresses the
opinion that Article 12 (art. 12), which concerns "the right to marry and to
found a family", is not relevant to the present case.
The applicants, on the other hand, maintain their view that the Belgian
Civil Code fails to respect, in the person of Paula Marckx, the right not to
marry which, in their submission, is inherent in the guarantee embodied in
Article 12 (art. 12). They argue that in order to confer on Alexandra the
status of a "legitimate" child, her mother would have to legitimate her and,