55
MARCKX v. BELGIUM JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE MATSCHER
the birth on the register, does not amount to an appreciable hardship and is
in no way humiliating for those concerned.
It follows that in the instant case there is also no violation of Article 14
taken in conjunction with Article 8 (art. 14+8) of the Convention.
II. The scope of articles 8 (art. 8) of the Convention and 1 of
Protocol no. 1 (P1-1), taken alone, and of article 14 of the
Convention, taken in conjunction with article 8 (art. 14+8) and
with article 1 of Protocol no. 1 (art. 14+P1-1), as regards certain
patrimonial rights
There seems to me to be no doubt that the rules on voluntary dispositions
and inheritance between near relatives are an important aspect of family life
within the meaning of Article 8 (art. 8). On the other hand, it would be
difficult to maintain that respect for family life requires that these rules
should be so organised as to leave the persons concerned unlimited freedom
to dispose of their property. In fact, in all the Contracting States these
matters are subject to restrictions, which in some cases are considerable.
However, the imposition of special restrictions as regards children born
out of wedlock constitutes, in the absence of objective and reasonable
grounds, discrimination within the meaning of Article 14 taken in
conjunction with Article 8 (art. 14+8) of the Convention. On this point I
fully approve of the Court’s reasoning and agree with its conclusions in the
present case.
On the other hand, I have doubts as to whether the rules on voluntary
dispositions and inheritance between relatives, that is the freedom to dispose
of property inter vivos or mortis causa, are also covered by the right to the
peaceful enjoyment of possessions within the meaning of Article 1 of
Protocol No. 1 (P1-1).
I incline to the view that this provision has completely different aims (the
protection of the right of property against interference by the public
authorities, the form of expropriation or other restrictions on the use of
property similar in their effects). Moreover - and contrary to the opinion
expressed on this matter in the reasons set out in the judgment (paragraph
63) -, the travaux préparatoires on Article 1 of Protocol No. 1 (P1-1),
although not very explicit in this respect, also seem to confirm this opinion.
It follows that, as Article 1 (P1-1) is not applicable, there can also be no
question in the instant case of a violation of Article 14 taken in conjunction
with Article 1 of Protocol No. 1 (art. 14+P1-1).
Furthermore, once the applicability of Article 8 (art. 8) of the Convention
and the violation of Article 14, taken in conjunction with Article 8 (art.
14+8), are established I see no advantage in ascertaining whether the
provisions of Belgian law complained of could be assessed under Article 1