37 MARCKX v. BELGIUM JUDGMENT DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE whose scope, whose field of application is not the field to which the case relates. 4. At the same time, the fact that the provision concerned is applicable in short that the question can properly be asked whether there has been a breach of it in the given case - a question that otherwise cannot be asked at all - in no way means that such a breach has in fact occurred. Thus, the defendant party to a claim must be absolved (a) if the clause or article invoked is not applicable, and (b) if it is applicable but there has been no breach of it. Only if it is both applicable, and also has been infringed, can the defendant party be held responsible and (as regards the Convention on Human Rights) a Convention-breaker. 5. The foregoing are elementary, standard propositions which should not need stating because they are such as everyone would assent to in principle, - but principle is easily lost sight of when eagerness for specific results however meritorious they may be in themselves - overreaches the still, small voice of the juridical conscience. It has therefore seemed worth restating them, since their relevance to the present case constitutes the most important aspect of it; for it is not just a remote or synthetic connection between the subject-matter of a text or clause and that of the instant claim or complaint that will suffice to make the former applicable to the latter. The essential question is whether the two deal with the same class or category of juridical concept. Within certain limits almost anything can colourably be represented as connected with or related to some other given thing, or as belonging to the same sphere of ideas - as witness the attempt made in the present case (but rightly rejected by the Court) to claim a violation of Article 3 (art. 3) of the Convention on Human Rights2. But the kind of conjuring trick such a claim involves is not enough. The Court rejected this claim, but in my view should have gone much further and held that such a provision as Article 3 (art. 3) was concerned with a wholly different class of subject-matter, and had no sort of applicability at all to such circumstances as those of the applicants. Article 3 (art. 3) is the provision which forbids "torture or ... inhuman or degrading treatment or punishment". The claim of the applicants under this head was that they suffered "degrading treatment" - not by reason of anything done to them, or measures taken against them - but simply by reason of the fact that Belgian law did not recognise a legal (not merely a blood) tie of parenthood as automatically existing between unmarried mother and illegitimate child, arising from birth alone (and as from the date of birth) without either of them having to take the specific steps provided by Belgian law for the creation subsequently of such a legal (not merely blood) relationship. This, the applicants claimed, constituted a "degrading treatment" of them. 2