57 MARCKX v. BELGIUM JUDGMENT PARTLY DISSENTING OPINION OF JUDGE PINHEIRO FARINHA PARTLY DISSENTING OPINION OF JUDGE PINHEIRO FARINHA (Translation) As I disagree with the majority view on important points I feel it necessary to express a separate opinion. 1. I find it impossible to follow my distinguished colleagues in stating that inheritance rights between near relatives fall within the ambit of Article 8 (art. 8) of the Convention (paragraphs 52-56). In my opinion there is no question of this Article’s being applicable except with regard to the reserved portion of an estate (reserve héréditaire). It is true that one cannot speak with respect to the reserved portion of "heredes sui" (heirs of the de cujus), as in the case of the old Roman succession, since in view of the very purpose and role of this institution the estate, practically speaking, belongs to them already. I have not overlooked (Inocencio Galvao Telles, The Law of Succession, pp. 95 et seq.) that like every other potential heir, a person entitled to a reserved portion has merely a contingent and future right during the lifetime of the de cujus, but even so he enjoys special protection. The reserved portion - from which only relatives benefit – thus constitutes a form of family protection arising from the moral and social obligations existing between persons connected by close family ties; it cannot be excluded by the de cujus. That being so, there is no difficulty in concluding that the "reserved portion" falls within the ambit of family life as it may be understood under Articles 8 and 14 (art. 8, art. 14) of the European Convention on Human Rights. 2. Succession, whether intestate or testate, and whether one considers the case of the statutory heirs or that of the exceptional heirs (successeurs irréguliers), does not in my opinion enjoy the protection of the Convention. In the case of testamentary succession the heirs are appointed by a manifestation of intention on the part of the de cujus who is not bound by any statutory obligation. (The same applies to contractual succession.) Testamentary succession, in spite of the "Nullum Testamentum" of which Tacitus speaks in his "Germania" is, it may be said, universally recognised since the Law of the XII Tables. It depends on an act lying in the unfettered discretion of the de cujus and so has nothing to do with protection of the family. In most cases the nearest relatives may be omitted from the will. Intestate succession, where the order of those entitled is prescribed by law, makes provisions for the estate to devolve in the absence of a will upon persons related to the deceased, or the State itself. The inclusion of the State