23
MARCKX v. BELGIUM JUDGMENT
No. 1 (P1-1), taken in each case both alone and in conjunction with Article
14 (art. 14+8, art. 14+P1-1).
(a) On the alleged violation of Article 8 (art. 8) of the Convention, taken both
alone and in conjunction with Article 14 (art. 14+8)
61. As the Court has already noted, Article 8 (art. 8) of the Convention is
relevant to the point now under consideration (see paragraphs 51 and 52
above). However, Article 8 (art. 8) does not guarantee to a mother complete
freedom to give or bequeath her property to her child: in principle it leaves
to the Contracting States the choice of the means calculated to allow
everyone to lead a normal family life (see paragraph 31 above) and such
freedom is not indispensable in the pursuit of a normal family life. In
consequence, the restriction complained of by Paula Marckx is not of itself
in conflict with the Convention that is if it is considered independently of
the reason underlying it.
62. On the other hand, the distinction made in this area between
unmarried and married mothers does raise an issue. The Government put
forward no special argument to support this distinction and, in the opinion
of the Court, which refers mutatis mutandis to paragraphs 40 and 41 above,
the distinction lacks objective and reasonable justification; it is therefore
contrary to Article 14 taken in conjunction with Article 8 (art. 14+8).
(b) On the alleged violation of Article 1 of Protocol No. 1 (P1-1), taken both
alone and in conjunction with Article 14 (art. 14+P1-1) of the Convention
63. Article 1 of Protocol No. 1 (P1-1) reads as follows:
"Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of property in accordance
with the general interest or to secure the payment of taxes or other contributions or
penalties."
In the applicants’ submission, the patrimonial rights claimed by Paula
Marckx fall within the ambit of, inter alia, this provision. This approach is
shared by the Commission but contested by the Government.
The Court takes the same view as the Commission. By recognising that
everyone has the right to the peaceful enjoyment of his possessions, Article
1 (P1-1) is in substance guaranteeing the right of property. This is the clear
impression left by the words "possessions" and "use of property" (in French:
"biens", "propriété", "usage des biens"); the "travaux préparatoires", for
their part, confirm this unequivocally: the drafters continually spoke of
"right of property" or "right to property" to describe the subject-matter of
the successive drafts which were the forerunners of the present Article 1