CASE OF KROON AND OTHERS v. THE NETHERLANDS
(Application no. 18535/91) JUDGMENT STRASBOURG 27 October 1994
COURT (CHAMBER)
The European Court of Human Rights,
sitting, in accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention") and the relevant provisions of Rules of Court A**, as a Chamber composed of the following
judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr S.K. Martens,
Mr I. Foighel,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr A.B. Baka,
Mr G. Mifsud Bonnici,
Mr D. Gotchev,
and also of Mr
H. Petzold, Acting Registrar,
Having deliberated in private on 21
April and 20 September 1994,
Delivers the following judgment, which
was adopted on the last-mentioned date:
PROCEDURE
1. The case was referred to the Court by
the European Commission of Human Rights ("the Commission") on 3 July
1993, within the three-month period laid down by Article 32 para. 1 and Article
47 (art. 32-1, art. 47) of the Convention. It originated in an application (no.
18535/91) against the Kingdom of the Netherlands lodged with the Commission
under Article 25 (art. 25) by three Netherlands nationals, Catharina Kroon, Ali
Zerrouk and Samir M'Hallem-Driss, on 15 May 1991.
The Commission's request referred to
Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the
Netherlands recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its obligations
under Article 8 (art. 8) of the Convention, taken either alone or in
conjunction with Article 14 (art. 14+8).
2. In response to the enquiry made in
accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicants stated
that they wished to take part in the proceedings and designated the lawyer who
would represent them (Rule 30).
3. The Chamber to be constituted
included ex officio Mr S. K. Martens, the elected judge of Netherlands
nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 25 August 1993, in the
presence of the Registrar, the President drew by lot the names of the other
seven members, namely Mr F. Gölcüklü, Mr I. Foighel, Mr A.N. Loizou, Mr J.M.
Morenilla, Mr A.B. Baka, Mr G. Mifsud Bonnici and Mr D. Gotchev (Article 43 in
fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21
para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the
Netherlands Government ("the Government"), the applicants' lawyer and
the Delegate of the Commission on the organisation of the proceedings (Rules 37
para. 1 and 38). Pursuant to the order made in consequence, the Registrar
received the Government's memorial on 26 November 1993 and the applicants'
memorial on 30 November. The Secretary to the Commission informed the Registrar
that the Delegate would submit his observations at the hearing.
5. On 6 December 1993 the Commission
produced certain documents from the file on the proceedings before it, as
requested by the Registrar on the President's instructions.
6. In accordance with the decision of
the President, who had given the applicants leave to use the Dutch language
(Rule 27 para. 3), the hearing took place in public in the Human Rights
Building, Strasbourg, on 19 April 1994. The Court had held a preparatory
meeting beforehand.
There appeared before the Court:
- for the Government
Mr K. de Vey Mestdagh, Ministry of
Foreign Affairs, Agent,
Mr E. Lukács, Ministry of Justice, Adviser;
- for the Commission
Mr C.L. Rozakis, Delegate;
- for the applicants
Mr A.W.M. Willems, advocaat en
procureur, Counsel.
The Court heard addresses by Mr Rozakis,
Mr Willems and Mr de Vey Mestdagh and also replies to its questions.
AS TO THE FACTS
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
7. The first applicant, Catharina Kroon,
is a Netherlands national born in 1954. The second applicant, Ali Zerrouk, born
in 1961, was a Moroccan national at the time of the events complained of; he
subsequently obtained Netherlands nationality. Although they were not living
together at the time, they had a stable relationship from which the third
applicant, Samir M'Hallem-Driss, was born in 1987; he has both Moroccan and
Netherlands nationality. All three applicants live in Amsterdam.
8. In 1979, Mrs Kroon had married Mr
Omar M'Hallem-Driss, a Moroccan national.
The marriage broke down towards the end
of 1980. Thereafter, Mrs Kroon lived apart from her husband and lost contact
with him. It appears from official records that he left Amsterdam in January
1986 and his whereabouts have remained unknown ever since.
9. Samir was born on 18 October 1987. He
was entered in the register of births as the son of Mrs Kroon and Mr
M'Hallem-Driss.
Mrs Kroon instituted divorce proceedings
in the Amsterdam Regional Court (arrondissementsrechtbank) one month after
Samir's birth. The action was not defended and the divorce became final when
the Regional Court's judgment was entered in the register of marriages on 4
July 1988.
10. On 13 October 1988, relying on
section 1:198 (1) of the Civil Code (Burgerlijk Wetboek - "CC" - see
paragraph 19 below), Mrs Kroon and Mr Zerrouk requested the Amsterdam registrar
of births, deaths and marriages (ambtenaar van de burgerlijke stand) to allow
Mrs Kroon to make a statement before him to the effect that Mr M'Hallem-Driss
was not Samir's father and thus make it possible for Mr Zerrouk to recognise
the child as his.
The registrar refused this request on 21
October 1988. While expressing sympathy, he noted that Samir had been born
while Mrs Kroon was still married to Mr M'Hallem-Driss, so that unless the
latter brought proceedings to deny paternity (see paragraphs 18 and 21 below)
recognition by another man was impossible under Netherlands law as it stood.
11. On 9 January 1989 Mrs Kroon and Mr
Zerrouk applied to the Amsterdam Regional Court for an order directing the
registrar to add to the register of births Mrs Kroon's statement that Mr
M'Hallem-Driss was not Samir's father and with Mr Zerrouk's recognition of
Samir. They relied on Article 8 (art. 8) of the Convention, taken both alone
and together with Article 14 (art. 14+8), pointing out that while it would have
been possible for Mrs Kroon's former husband to deny the paternity of Samir, it
was not possible for her to deny her former husband's paternity of the child.
The Regional Court refused this request
on 13 June 1989. It held that in spite of the justified wish of Mrs Kroon and
Mr Zerrouk to have biological realities officially recognised, their request
had to be refused since, under the law as it stood, Samir was the legitimate
child of Mr M'Hallem-Driss. There were only limited exceptions to the rule that
the husband of the mother was presumed to be the father of a child born in
wedlock. This was justified in the interests of legal certainty, which were of
great importance in this field, and by the need to protect the rights and
freedoms of others. The law as it stood was therefore not incompatible with
Articles 8 and 14 (art. 8, art. 14) of the Convention.
12. Relying again on Articles 8 and 14
(art. 8, art. 14), Mrs Kroon and Mr Zerrouk appealed to the Amsterdam Court of
Appeal (gerechtshof).
The Court of Appeal rejected the appeal
on 8 November 1989. It held that Article 8 (art. 8) was applicable but had not
been violated. The restrictions imposed on the mother's right to deny the
paternity of her husband satisfied the requirements of Article 8 para. 2 (art.
8-2). There had, however, been a violation of Article 14 taken together with
Article 8 (art. 14+8), since there was no sound reason for the difference of
treatment which the law established between husband and wife by not granting
the latter the possibility, available to the former, of denying the husband's
paternity. Nevertheless the appeal could not be allowed; it was not open to the
court to grant the applicants' request, as that would require the creation of
new Netherlands law, including administrative procedure, and would therefore go
beyond the limits of the judiciary's powers to develop the law. Only the
legislature could decide how best to comply with Article 14 (art. 14) of the
Convention as regards the possibility of denying paternity of a child born in
wedlock.
13. Mrs Kroon and Mr Zerrouk then lodged
an appeal on points of law with the Supreme Court (Hoge Raad).
They argued, firstly, that the Court of
Appeal had violated Article 8 (art. 8) of the Convention by holding that the limitations
imposed by section 1:198 CC on the mother's possibility of denying her
husband's paternity - more particularly the fact that she might do so only in
respect of a child born after the dissolution of the marriage - satisfied the
requirements of Article 8 para. 2 (art. 8-2). The Court of Appeal had not
properly weighed up the interests involved. It ought to have considered the
relative weight of, on the one hand, the interests of the biological father and
his child and, on the other, the interests protected by the legislation. The
Court of Appeal should have given priority to the former interests, which in
the case before it were best served by severing the legal ties between Samir
and Mr M'Hallem-Driss and establishing such ties between Samir and Mr Zerrouk,
who were entitled, under Article 8 (art. 8) of the Convention, to have their
family relationship recognised.
In addition, they suggested that it
followed from the Court of Appeal's finding of a violation of Article 14 (art.
14) that the interference concerned could not under any circumstances be
covered by Article 8 para. 2 (art. 8-2).
Secondly, they argued that, by holding
that it was not empowered to grant the applicants' request as that would
require the creation of new Netherlands law, the Court of Appeal had violated
Articles 14 and 8 (art. 14+8) taken together. In the applicants' submission,
there was no reason to consider that only the legislature was able to remove
the discrimination which the Court of Appeal had rightly found to exist; it was
sufficient to disregard the requirement that the child must have been born
after the dissolution of the mother's marriage.
14. Following the advisory opinion of
the Advocate General, the Supreme Court rejected the appeal on 16 November
1990.
The Supreme Court did not rule on the
question whether section 1:198 CC violated Article 8 (art. 8), or Article 14
taken together with Article 8 (art. 14+8). It considered that it was not
necessary to do so, because it agreed with the Court of Appeal that, even if there
had been such a violation, solving the problem of what should replace section
1:198 CC went beyond the limits of the judiciary's powers to develop the law.
This finding was based on the following reasoning:
"In this connection, it should not be overlooked
that if a possibility were to be created for the mother to deny [her husband's]
paternity [of a child born] during marriage, the question would immediately
arise as to what other limitations should apply in order not to jeopardise the
child's interest in certainty regarding its descent from its legitimate
parents, which interest the child generally has and which is part of the basis
for the present system. Such limitations have therefore also been written into
the Bill to Reform the Law of Descent (Wetsvoorstel Herziening
Afstammingsrecht; Bijlage bij de Handelingen van de Tweede Kamer der
Staten-Generaal - Annex to the Records of the Lower House of Parliament -,
1987-88, 20626, sections 201 et seq.), which is now before Parliament ... [I]t
is not certain whether [these limitations] will be retained, added to or
withdrawn in the course of the further parliamentary discussion, many
variations being conceivable, regard also being had to the need to ensure equal
treatment of the father and the mother, in so far, at any rate, that unequal
treatment is not justified."
The judgment of the Supreme Court was
reported in Nederlandse Jurisprudentie (Netherlands Law Reports -
"NJ"), 1991, 475.
15. Three more children were born to Mrs
Kroon and Mr Zerrouk after the birth of Samir: a daughter, Nadia, in 1989 and
twins, Jamal and Jamila, in 1992. They were all recognised by Mr Zerrouk.
Mrs Kroon and Mr Zerrouk do not cohabit.
The applicants claim, however, that Mr Zerrouk contributes to the care and
upbringing of their children.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The register of births
16. Every municipality has a separate
register for births (section 1:16 (1) CC); this is kept by one or more
registrars of births, deaths and marriages (section 1:16 (2)).
An entry in the register of births, or
birth certificate, mentions the mother's husband as the father if the mother
was married at the time of the birth or within a period of 306 days immediately
preceding the birth; in all other cases, the name of the father is mentioned
only if he recognises the child before or at the time the entry is made
(section 1:17 (1) (c) CC).
17. An interested party or the public
prosecutor (officier van justitie) can apply to the Regional Court within the
jurisdiction of which the register in question is located for an order to
correct or add to the register of births. The Regional Court's decision is
forwarded to the registrar of births, deaths and marriages; the correction or
addition is made in the form of a note in the margin or at the foot of the
certificate (section 1:29 (1)-(3) CC).
B. Establishment of paternity and recognition
18. Section 1:197 CC reads as follows:
"The husband shall be the father of a child born
in wedlock. Where a child is born before the 307th day following dissolution of
the marriage, the former husband shall be its father, unless the mother has
remarried."
Section 1:197 CC thus creates two legal
presumptions. Firstly, a child born during marriage is presumed to be the issue
of the mother's husband; secondly, a child born before the 307th day following
the dissolution of the mother's marriage is presumed to be the progeny of the
mother's former husband. The first presumption may be rebutted only by the
mother's husband, who to that end must provide proof to the contrary (sections
1:199-200 CC - see paragraph 21 below). The second presumption may be rebutted
by either the mother or her former husband; the mother's former husband will,
however, have to adduce proof, whereas for the mother a statement is sufficient
(section 1:198 CC - see following paragraph).
19. Section 1:198 CC reads as follows:
"1. The mother may deny that a child born to her
within 306 days following the dissolution of the marriage is the child of her
former husband by making a statement to that effect before the registrar of
births, deaths and marriages, provided that another man recognises the child by
the instrument in which that statement is recorded ...
2. The mother's statement and the recognition must
take place within one year of the child's birth.
3. The [mother's] statement and the recognition shall
take effect only if the mother and the man who recognises the child marry each
other within one year of the birth of the child ... 4. If a judgment annulling
the recognition in an action brought by the former husband becomes final, the
mother's statement shall also lose its force.
5. ..."
20. In its judgment of 17 September 1993
(NJ 1994, 373), the Supreme Court deprived section 1:198 (3) CC of its effect.
In the case in question - in which a child
had been born within 306 days of the dissolution of its mother's marriage - it
was established, firstly, that there was a relationship between the child and
its biological father which qualified as "family life" for the
purposes of Article 8 (art. 8) of the Convention and, secondly, that the mother
and the biological father, who did not wish to marry, wanted the paternity of
the mother's former husband to be denied and the child to be recognised by its
biological father.
The Supreme Court found that section
1:198 (3) CC constituted an "interference" within the meaning of
Article 8 (art. 8), since it obstructed the formation of legally recognised
family ties unless the mother and the biological father got married.
In deciding whether such interference was
permissible under the terms of Article 8 para. 2 (art. 8-2), the Supreme Court
noted that when section 1:198 (3) CC had been enacted it was considered more
important to protect a child from being deprived of its "legitimate"
status than to enable it to establish ties with its biological father. Since
then, however, the relative importance of these two opposing interests had
changed; in particular, following the judgment of the European Court in the
Marckx v. Belgium case (13 June 1979, Series A no. 31), legal differences
between "legitimate" and "illegitimate" children had to a
large extent disappeared. In view of these developments, it could no longer be
said that in cases where, for the purposes of Article 8 (art. 8) of the Convention,
there was a relationship between the child and its biological father amounting
to "family life", the importance of maintaining a child's
"legitimate" status overrode the interest protected by section 1:198
(3) CC.
21. Section 1:199 CC reads as follows:
"The husband can only deny paternity of the child
by bringing an action to this end against the mother as well as against the
child, which, unless it has come of age, shall be represented in the
proceedings by a guardian ad litem appointed for that purpose by the District Court
(kantonrechter)."
Section 1:200 CC reads:
"1. The court shall allow the action to deny
paternity if the husband cannot be the father of the child.
2. If during the period in which the child was
conceived the husband did not have intercourse with the mother, or if they
lived apart during that time, the court shall also declare the action to deny
paternity well-founded, unless facts are established which make it appear
possible that the husband is the father of the child."
Such proceedings must be brought within
six months from the day on which the father became aware of the fact that the
child had been born; however, if the mother has made a statement of the kind
provided for in section 1:198 CC (see paragraph 19 above), this time-limit does
not expire until eighteen months after the birth of the child (section 1:203
CC).
22. According to section 1:205 CC,
legitimacy is proved by a person's parentage (afstamming) and the marriage of
his or her parents. If there is no birth certificate, the parentage of a
"legitimate" child is proved by the undisturbed possession of the
status of "legitimate" child.
23. Section 1:221 (1) CC reads as
follows:
"An illegitimate child has the status of natural
child (natuurlijk kind) of its mother. Upon recognition it acquires the status
of natural child of its father."
Section 1:222 CC reads as follows:
"An illegitimate child and its descendants have
legally recognised family ties (familierechtelijke betrekkingen) with the
child's mother and her blood relations and, after the child has been
recognised, also with the father and his blood relations."
Section 1:223 CC reads as follows:
"Recognition may be effected: (a) on the child's
birth certificate; (b) by an instrument of recognition drawn up by a registrar
of births, deaths and marriages; (c) by any notarial deed (notariële
akte)."
There is no requirement that the man
recognising an "illegitimate" child should be the biological father.
Moreover, it is not possible for a man to recognise a "legitimate"
child, even if he is the biological father.
Recognition under section 1:198 CC (see
paragraph 19 above) may be annulled on application by the mother's former
husband if the man who has recognised the child is not the child's biological
father (section 1:225 para. 3 CC).
C. Adoption by a parent and a stepparent of the child
(stiefouderadoptie)
24. Section 1:227 CC reads as follows:
"1. Adoption is effected by a decision of the
Regional Court at the request of a married couple who wish to adopt a child.
2. The request can only be granted if the adoption is
in the apparent best interests of the child, as regards both breaking the ties
with the [natural] parents and reinforcing the ties with the adoptive parents,
or - in the case of adoption of a legitimate or natural child of one of the
adoptive parents - as regards both breaking the ties with the other parent and
reinforcing the ties with the stepparent, and provided that the conditions laid
down in the following section are satisfied.
3. ...
4. ..."
Section 1:228 CC reads as follows:
"1. Adoption shall be subject to the following
conditions:
(a) ...
(b) that the child is not the legitimate or natural
child of a legitimate or natural child of one of its adoptive parents;
(c) that neither adoptive parent is less than eighteen
or more than fifty years older than the child;
(d) that the request is not opposed by a parent or the
parents with legally recognised family ties with the child. Nevertheless the
court shall not be obliged to refuse a request opposed by a parent who was
summoned more than two years previously to be heard on the occasion of a
similar request by the same couple that was refused, although the conditions
laid down in paragraphs (e) to (g) below were satisfied;
(e) ...
(f) ...
(g) that the adoptive parents were married at least
five years before the day the request was filed.
2. In the case of adoption of a legitimate or natural
child of one of the adoptive parents, the conditions set forth in paragraphs
(c) and (g) of the preceding subsection shall not apply. In the case of
adoption of a legitimate child of one of the adoptive parents, the condition
specified in paragraph (d) shall be replaced by the condition that the former
spouse, whose marriage with the spouse of the stepparent has been terminated
[by divorce or dissolution of the marriage after judicial separation], if he or
she has legally recognised family ties with the child, does not oppose the
request.
3. ..."
Section 1:229 (1) CC reads as follows:
"By adoption the adopted person acquires the
status of legitimate child of the adoptive parents. However, if the adopted
person already had the status of legitimate child of one of the spouses who
adopted him or her, he or she shall retain it and by adoption acquire the
status of legitimate child of the other spouse."
PROCEEDINGS BEFORE THE COMMISSION
25. Mrs Kroon, Mr Zerrouk and Samir
M'Hallem-Driss applied to the Commission on 15 May 1991. They complained that
they were unable under Netherlands law to obtain recognition of Mr Zerrouk's
paternity of Samir and that while a married man might deny the paternity of a
child born in wedlock, it was not open to a married woman to do so; they relied
on Article 8 (art. 8) of the Convention, both taken alone and in conjunction
with Article 14 (art. 14+8). They further argued that by not accepting these
claims the Supreme Court had denied them an effective remedy within the meaning
of Article 13 (art. 13).
26. On 31 August 1992 the Commission
declared the application (no. 18535/91) admissible as to the complaints
relating to Articles 8 and 14 (art. 8, art. 14) of the Convention and
inadmissible as to the remainder. In its report of 7 April 1993 (Article 31)
(art. 31), it expressed the opinion, by twelve votes to six, that there had
been a violation of Article 8 (art. 8) taken alone and, unanimously, that there
had been no violation of Article 14 in conjunction with Article 8 (art. 14+8).
The full text of the Commission's opinion and of the three dissenting opinions
contained in the report is reproduced as an annex to this judgment*.
FINAL SUBMISSIONS TO THE COURT
27. In their memorial, the Government
concluded
"that in the present case:
- Article 8 (art. 8) was not applicable, or
- Article 8 para. 1 (art. 8-1) had not been violated,
or
- the restriction of the rights referred to in Article
8 para. 1 (art. 8-1) was justifiable in accordance with Article 8 para. 2 (art.
8-2), and that
- Article 14 in conjunction with Article 8 (art. 14+8)
had not been violated".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE
CONVENTION
28. The applicants complained that under
Netherlands law it was not possible for Mrs Kroon to have entered in the
register of births any statement that Mr M'Hallem-Driss was not Samir's father,
with the result that Mr Zerrouk was not able to recognise Samir as his child.
They relied on Article 8 (art. 8) of the Convention, which reads:
"1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others."
The Government denied that any violation
had taken place, whereas the Commission agreed with the applicants.
A. Applicability of Article 8 (art. 8)
29. The Government argued that the
relationship between Mr Zerrouk on the one hand and Mrs Kroon and Samir on the
other did not amount to "family life". Since Samir had been born of
an extramarital relationship, there was no family tie ipso jure between him and
Mr Zerrouk. Moreover, Mrs Kroon and Mr Zerrouk had chosen not to marry and it
was from choice that the latter did not reside with Mrs Kroon and Samir. In
addition, the Government alleged that Mr Zerrouk did not contribute to Samir's
care and upbringing in any way and that there was nothing to show that he
fulfilled the role of Samir's "social father".
The Commission noted the long-standing
relationship between Mrs Kroon and Mr Zerrouk and the fact that it was not
disputed that not only was the latter the biological father of Samir but also
three other children had been born of that relationship.
The applicants noted that Netherlands
law did not require a man to live with a child and its mother in order to have
the right to recognise the child as his and thereby create legally recognised
family ties. They also claimed that Mr Zerrouk did in fact spend half his time
on Samir's care and upbringing and made financial contributions from his modest
income.
30. Throughout the domestic proceedings
it was assumed by all concerned, including the registrar of births, deaths and
marriages, that the relationship in question constituted "family
life" and that Article 8 (art. 8) was applicable; this was also accepted
by the Netherlands courts.
In any case, the Court recalls that the
notion of "family life" in Article 8 (art. 8) is not confined solely
to marriage-based relationships and may encompass other de facto "family
ties" where parties are living together outside marriage (see as the most
recent authority, the Keegan v. Ireland judgment of 26 May 1994, Series A no.
290, pp. 17-18, para. 44). Although, as a rule, living together may be a
requirement for such a relationship, exceptionally other factors may also serve
to demonstrate that a relationship has sufficient constancy to create de facto
"family ties"; such is the case here, as since 1987 four children
have been born to Mrs Kroon and Mr Zerrouk.
A child born of such a relationship is
ipso jure part of that "family unit" from the moment of its birth and
by the very fact of it (see the Keegan judgment, ibid.). There thus exists
between Samir and Mr Zerrouk a bond amounting to family life, whatever the
contribution of the latter to his son's care and upbringing.
Article 8 (art. 8) is therefore
applicable.
B. General principles
31. The Court reiterates that the
essential object of Article 8 (art. 8) is to protect the individual against
arbitrary action by the public authorities. There may in addition be positive
obligations inherent in effective "respect" for family life. However,
the boundaries between the State's positive and negative obligations under this
provision do not lend themselves to precise definition. The applicable
principles are nonetheless similar. In both contexts regard must be had to the
fair balance that has to be struck between the competing interests of the
individual and of the community as a whole; and in both contexts the State
enjoys a certain margin of appreciation (see, as the most recent authority, the
above-mentioned Keegan judgment, p. 19, para. 49).
32. According to the principles set out
by the Court in its case-law, where the existence of a family tie with a child
has been established, the State must act in a manner calculated to enable that
tie to be developed and legal safeguards must be established that render
possible as from the moment of birth or as soon as practicable thereafter the
child's integration in his family (see, mutatis mutandis, the above-mentioned
Keegan judgment, p. 19, para. 50).
C. Compliance with Article 8 (art. 8)
33. The applicants argued that Article 8
para. 1 (art. 8-1) placed the Netherlands under a positive obligation to enable
Mr Zerrouk to recognise Samir as his child and so establish legally recognised
family ties between the two.
In the alternative, the applicants
suggested that the existence of legislation which made impossible such
recognition constituted an "interference" with their right to respect
for their family life and that such interference was not necessary in a
democratic society.
34. The Government argued that, even
assuming "family life" to exist, the Netherlands had complied fully
with any positive obligations it might have as regards the applicants.
They pointed, firstly, to the
possibility of "stepparent adoption" (see paragraph 24 above), i.e.
adoption of Samir by Mrs Kroon and Mr Zerrouk. It was true that this
possibility was contingent on there being no opposition from Mr Omar
M'Hallem-Driss and on Mrs Kroon and Mr Zerrouk marrying each other. However,
the possibility of any objection on the part of Mr M'Hallem-Driss could be
discounted; if, for reasons of their own, Mrs Kroon and Mr Zerrouk did not wish
to marry, that was not a state of affairs for which the State could be held
responsible, since it placed no obstacles in the way of their marriage.
Further, under legislation in the course
of preparation, an unmarried parent who had previously exercised sole parental
authority over his or her child would be allowed joint custody with his or her
partner; this would give the partner complete legal authority, on an equal
footing with the parent.
In the alternative, the Government
argued that if there was an "interference" with the applicants' right
to respect for their family life then this was "necessary in a democratic
society" in the interests of legal certainty.
35. In the Commission's view the fact
that it was impossible under Netherlands law for anyone but Mr Omar
M'Hallem-Driss to deny his paternity and for Mr Zerrouk to recognise Samir as
his child constituted a lack of respect for the applicants' private and family
life, in breach of a positive obligation imposed by Article 8 (art. 8).
36. The Court recalls that in the
instant case it has been established that the relationship between the
applicants qualifies as "family life" (see paragraph 30 above). There
is thus a positive obligation on the part of the competent authorities to allow
complete legal family ties to be formed between Mr Zerrouk and his son Samir as
expeditiously as possible.
37. Under Netherlands law the ordinary
instrument for creating family ties between Mr Zerrouk and Samir was
recognition (see paragraph 23 above). However, since Samir was the
"legitimate" child of Mr Omar M'Hallem-Driss, Mr Zerrouk would only
be in a position to recognise Samir after Mr M'Hallem-Driss's paternity had
been successfully denied. Except for Mr M'Hallem-Driss himself, who was
untraceable, only Mrs Kroon could deny Mr Omar M'Hallem-Driss's paternity.
However, under section 1:198 CC the possibility for the mother of a
"legitimate" child to deny the paternity of her husband was, and is,
only open in respect of a child born within 306 days of dissolution of the
marriage (see paragraph 19 above). Mrs Kroon could not avail herself of that
possibility since Samir was born when she was still married. Indeed, this was not
contested by the Government.
38. The Government, however, suggested
that there were other ways of achieving an equivalent result.
The first such alternative suggested by
the Government, step-parent adoption, would make Samir the
"legitimate" child of Mr Zerrouk and Mrs Kroon. However, it would
require Mrs Kroon and Mr Zerrouk to marry each other. For whatever reason, they
do not wish to do so.
A solution which only allows a father to
create a legal tie with a child with whom he has a bond amounting to family
life if he marries the child's mother cannot be regarded as compatible with the
notion of "respect" for family life.
39. The second alternative suggested by
the Government, namely that of joint custody, is not an acceptable solution
either. Even if the legislation being prepared comes into force as the
Government anticipate, joint custody will leave the legal ties between Samir
and Mr Omar M'Hallem-Driss intact and will continue to preclude the formation
of such ties between Samir and Mr Zerrouk.
40. In the Court's opinion,
"respect" for "family life" requires that biological and
social reality prevail over a legal presumption which, as in the present case,
flies in the face of both established fact and the wishes of those concerned without
actually benefiting anyone. Accordingly, the Court concludes that, even having
regard to the margin of appreciation left to the State, the Netherlands has
failed to secure to the applicants the "respect" for their family
life to which they are entitled under the Convention.
There has accordingly been a violation
of Article 8 (art. 8).
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
IN CONJUNCTION WITH ARTICLE 8 (art. 14+8)
41. The applicants also complained that,
while Netherlands law made it possible for the husband of a child's mother to
deny being the father of the child, the mother's right to challenge her
husband's paternity was much more limited. They relied on Article 14 (art. 14)
of the Convention, which reads:
"The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, birth or other
status."
42. The Court finds that this complaint
is essentially the same as the one under Article 8 (art. 8). Having found a
violation of that provision taken alone, the Court does not consider that any
separate issue arises under that Article in conjunction with Article 14 (art.
14+8).
III. PPLICATION OF ARTICLE 50 (art. 50) OF THE
CONVENTION
43. Under Article 50 (art. 50) of the
Convention,
"If the Court finds that a decision or a measure
taken by a legal authority or any other authority of a High Contracting Party
is completely or partially in conflict with the obligations arising from the
... Convention, and if the internal law of the said Party allows only partial
reparation to be made for the consequences of the decision or measure, the
decision of the Court shall, if necessary, afford just satisfaction to the
injured party."
A. Damage
44. The applicants maintained that they
had suffered non-pecuniary damage as a result of the Netherlands' failure to
allow the establishment of legal family ties according to their wishes. Since
there was no possibility under Netherlands law of obtaining restitutio in
integrum, they claimed compensation in the amount of 30,000 Netherlands
guilders (NLG).
45. The Court considers it likely that
the impossibility of obtaining legal recognition of their family ties has
caused the applicants some frustration. However, this is sufficiently
compensated by the finding of a violation of the Convention.
B. Costs and expenses
46. As to costs and expenses incurred in
the Strasbourg proceedings, the applicants claimed NLG 26,000, plus value-added
tax, for lawyer's fees (65 hours at NLG 400), NLG 250 for out-of-pocket
expenses and an unspecified amount for travel and subsistence in connection
with their representative's attendance at the Court's hearing.
47. The Court reiterates that it allows
claims for costs and expenses only to the extent to which they were actually
and necessarily incurred and reasonable as to quantum.
In the instant case the Court finds it
reasonable to award NLG 20,000 for lawyer's fees, less 13,855.85 French francs
(FRF) paid by the Council of Europe in legal aid; any value-added tax that may
be due is to be added to the resulting figure. However, it rejects the claims
for out-of-pocket expenses and Mr Willems's travel and subsistence, since these
have been covered by the Council of Europe's legal-aid scheme.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that
Article 8 (art. 8) of the Convention is applicable;
2. Holds by seven votes to two that
there has been a violation of Article 8 (art. 8) of the Convention;
3. Holds unanimously that no separate
issue arises under Article 14 of the Convention in conjunction with Article 8
(art. 14+8);
4. Holds unanimously as regards the
claim for non-pecunuiary damage that the finding of a violation constitutes, in
itself, sufficient just satisfaction;
5. Holds by eight votes to one that the
respondent State is to pay to the applicants, within three months, NLG 20,000
(twenty thousand Netherlands guilders), less FRF 13,855.85 (thirteen thousand
eight hundred and fifty-five French francs and eighty-five centimes) to be
converted into Netherlands guilders in accordance with the rate of exchange
applicable on the date of delivery of the present judgment, plus any
value-added tax that may be payable on the resulting figure, in respect of
legal costs and expenses;
6. Dismisses unanimously the remainder
of the claim for just satisfaction.
Done in English and in French, and
delivered at a public hearing in the Human Rights Building, Strasbourg, on 27
October 1994.
Rolv RYSSDAL
President
Herbert PETZOLD
Acting Registrar
In accordance with Article 51 para. 2
(art. 51-2) of the Convention and Rule 53 para. 2 of Rules of Court A, the
following separate opinions are annexed to this judgment:
(a) dissenting opinion of Mr Morenilla;
(b) dissenting opinion of Mr Mifsud
Bonnici.
R.R.
H.P.
DISSENTING OPINION OF JUDGE MORENILLA
I regret that I am not able to agree
with my colleagues who have found a violation of Article 8 (art. 8) of the
Convention in this case.
I can nevertheless agree with their
conclusion (paragraph 30 in fine) that this Article (art. 8) is applicable to
the Netherlands authorities' refusal to grant the request by Catharina Kroon
and Ali Zerrouk for official recognition of the "biological reality"
of Mr Zerrouk's paternity of Samir M'Hallem-Driss (the third applicant), who
was registered as the matrimonial son of Mrs Kroon and Mr Omar M'Hallem-Driss
notwithstanding that they were separated de facto although not yet divorced.
However, my agreement is based only on the fact that this refusal, which was in
conformity with the Netherlands Civil Code, gives rise to an
"interference" in the personal sphere (family life) of the three
applicants, since it affects the legal situation of the alleged progenitor, the
son and the mother. It also affects Mr Omar M'Hallem-Driss, the legal father of
Samir and former spouse of Catharina Kroon, who is not a party in this
litigation and who has not been heard in the case since his whereabouts are
unknown.
I dissent from my colleagues' finding of
a violation because I think that the interference of the Netherlands
authorities was justified under paragraph 2 of Article 8 (art. 8-2), which
draws the dividing line between the right of the individual to respect for his
private and family life and the right of the State to take necessary action to
protect the general interest of the community or the equal rights or interests
of other persons. Paragraphs 1 and 2 of this Article (art. 8-1, art. 8-2) form
a "whole" (Luzius Wildhaber, "Kommentierung des Artikels
8", in Internationaler Kommentar zur Europäischen
Menschenrechtskonvention, 1992, pp. 11-12) and have to be considered as such
when deciding whether or not the interference was arbitrary and, in
consequence, whether the respondent State has denied the applicants' right to
respect for their family life. The Court's task, in each case, is to strike the
proper balance between the general interest of society and the protection of
the rights of the alleged victim.
Following its Marckx v. Belgium judgment
of 13 June 1979 (Series A no. 31), the Court has been developing an expanding
case-law on the "positive obligations" of the Contracting States
under Article 8 para. 1 (art. 8-1) of the Convention, and this involves
significant modifications in the content of the right secured by this
provision. This principle of "evolutive and creative" interpretation
(see Luzius Wildhaber, "Nouvelle jurisprudence concernant l'article 8
(art. 8) CEDH", in Mélanges en l'honneur de Jacques-Michel Grossen, 1992,
p. 106), which allows the Convention to be adapted to the changing
circumstances of our democratic societies, thus making it "a living
instrument", means however that in practice the Court is confronted with a
difficult dilemma: that "of guarding against the risk of exceeding its
given judicial role of interpretation by overruling policy decisions taken by
elected, representative bodies who have the main responsibility in democratic
societies for enacting important legislative changes, whilst not abdicating its
own responsibility of independent review of governmental action" (see Paul
Mahoney and Søren Prebensen, "The European Court of Human Rights", in
The European System for the Protection of Human Rights, R. St. J. Macdonald, F.
Matscher, H. Petzold, 1993, pp. 638-40).
This dilemma is even greater in matters
such as marriage, divorce, filiation or adoption, because they bring into play
the existing religious, ideological or traditional conceptions of the family in
each community. The majority of my colleagues have, however, considered there
to be a "positive obligation" incumbent on the Netherlands to
recognise the right of the natural father to challenge the presumption of the
paternity of the legal father (the husband of the mother), thus giving priority
to biological ties over the cohesion and harmony of the family and the
paramount interest of the child. In my opinion, this conclusion involves a
dangerous generalisation of the special circumstances of the instant case and
one which imposes on the Contracting States an obligation not included in the
text of Article 8 (art. 8), based on changeable moral criteria or opinions on
social values.
The Court, citing the Abdulaziz, Cabales
and Balkandali v. the United Kingdom judgment of 28 May 1985 (Series A no. 94),
said in the Johnston and Others v. Ireland judgment of 18 December 1986 (Series
A no. 112, p. 25, para. 55):
"[E]specially as far as those positive
obligations are concerned, the notion of 'respect' is not clear-cut: having
regard to the diversity of the practices followed and the situations obtaining
in the Contracting States, the notion's requirements will vary considerably
from case to case. Accordingly, this is an area in which the Contracting
Parties enjoy a wide margin of appreciation in determining the steps to be
taken to ensure compliance with the Convention with due regard to the needs and
resources of the community and of individuals ..."
The aim of the Council of Europe to
harmonise the legislation of the Contracting States in the field of family law
has been accomplished by the recommendations adopted by the Committee of
Ministers over the last two decades and by specialised conventions available
for ratification by the member States. This has led to reforms in family law in
many countries of Europe, from the 1970s onwards. These reforms have achieved a
certain approximation of national laws but not their uniformity, particularly
in regard to the regulation of procedures for denying legal paternity, which
still take many different forms. On the other hand, there is a tendency in the
regulation of the use of new techniques of human reproduction towards
prohibiting challenges to legal paternity by anonymous sperm donors.
Account should also be taken of the
importance of the family in many Contracting States, of the persistence in
these countries of a social rejection of adultery and of the common belief that
a united family facilitates the healthy development of the child. These factors
provide justification for interference by the State, in accordance with
paragraph 2 of Article 8 (art. 8-2), with the applicants' exercise of their
right to respect for family life, since its aim is the protection of
"morals" or the protection of the interests of the child against the
intrusion of an alleged biological father into his or her family circle or
legal status.
The social consequences of denying legal
paternity as regards the cohesion and harmony of the family, or in terms of
legal certainty concerning affiliation and parental rights, are better assessed
by the national authorities in the exercise of the extensive margin of
appreciation conferred on them. As the Court said in the Handyside v. the
United Kingdom judgment of 7 December 1976 (Series A no. 24, p. 22, para. 48)
in relation to the requirements of morals: "By reason of their direct and
continuous contact with the vital forces of their countries, State authorities
are in principle in a better position than the international judge to give an
opinion on the exact content of these requirements ..."
The Court, when determining the scope of
the margin of appreciation enjoyed by the Netherlands authorities in this case,
should also take into consideration Netherlands family law as a whole,
particularly sections 1:199 and 1:200 of the Civil Code (paragraph 21 of this
judgment) and the possibility of adoption by a stepparent of the child
(paragraph 24). This legal framework provides an alternative to the applicants'
claim whilst protecting the interests of the community.
DISSENTING OPINION OF JUDGE MIFSUD BONNICI
1. I have found it difficult to follow
the majority of the Court, principally because certain basic concepts have not
been duly taken into account while others have been given a meaning to which I
cannot subscribe.
2. Samir M'Hallem Driss, who is included
among the applicants in the proceedings, was born on 18 October 1987. One year
later, on 13 October 1988, the two other applicants, his mother Catharina Kroon
and Ali Zerrouk, initiated the first steps which eventually culminated in the
present proceedings. Catharina Kroon requested the Amsterdam registrar of
births, deaths and marriages to allow her to enter a declaration to the effect
that Samir's father was not her husband (as stated on the official birth
certificate of the child) but another man, namely Ali Zerrouk, who was prepared
to acknowledge his paternity of the child.
Netherlands law, like the legislation of
some other Contracting States, in given circumstances "presumes" the
paternity of a child, in conformity with the maxim of Roman law "pater is
est quem nuptiae demonstrant" (L.5 De in jus voc.= Dig. 2,4,5), thereby
establishing and ensuring inter alia the rights of the child. In matters of
this type, I believe that it is a principle of good law to hold that the
interests of the child are paramount. In the present case, the child Samir will
be seven years old when the judgment of this Court will be delivered. He is
listed as an "applicant" together with the mother and his auto-proclaimed
"father". The interests of the child were never looked after by an
independent person, a "curator ad litem", and in fact they are not
mentioned in the judgment. The "interests" of the mother and of the
other applicant are the only interests which have really been considered.
The "family life" which, in
the instant case, Netherlands law is alleged to have failed to
"respect" in terms of Article 8 (art. 8) of the Convention is the
fact that the mother and the self-proclaimed "father" of a child of
one year (as Samir was when all this began) who (a) refuse to marry (as is
their right); and (b) refuse to live together with the children (as is also
their "right") are not allowed by Netherlands law to deprive the
child of his legal status and to replace it by a "biological" one (as
they allege). I am not able to see that, here and now (before Samir has a real
chance to look after his interests), by losing his legal status Samir is,
definitely and incontrovertibly, gaining.
This is the first consideration
motivating my dissent.
3. The second refers to the notion of
"family life" which has been arrived at. In paragraph 30 of the
judgment it is stated:
"... the Court recalls that the notion of `family
life' in Article 8 (art. 8) is not confined solely to marriage-based relationships
and may encompass other de facto `family ties' where parties are living
together outside marriage."
and to this I subscribe. But then it
continues:
"Although as a rule living together may be a
requirement for such a relationship, exceptionally other factors may also serve
to demonstrate that a relationship has sufficient constancy to create de facto
`family ties'; such is the case here, as since 1987 four children have been
born to Mrs Kroon and Mr Zerrouk."
In my opinion, "family life"
necessarily implies "living together as a family". The exception to
this refers to circumstances related to necessity, i.e. separations brought
about by reasons of work, illness or other necessities of the family itself.
Forced or coerced living apart, therefore, is clearly an accepted exception.
But, equally clearly, this does not apply when the separation is completely
voluntary. When it is voluntary, then clearly the member or members of the
family who do so have opted against family life, against living together as a
family. And since these are the circumstances of the instant case where the
first two applicants have voluntarily opted not to have a "family
life", I cannot understand how they can call upon Netherlands law to
respect something which they have wilfully opted against. The artificiality of
this approach is in strident contradiction with the natural value of family
life which the Convention guarantees. The judgment moreover fails to explain
how "a relationship [which] has sufficient constancy to create ... family
ties" can be made equivalent to "a relationship which has sufficient
constancy to create family life" - as manifestly these two propositions
are by no means the same or equivalent.
4. In conclusion therefore, I cannot
agree with the majority of my colleagues because: (a) in the legislation of a
substantial number of Contracting States rules similar to those of the impugned
Netherlands law are principally concerned with the protection of the rights and
interests of the child (even against the "opportunist" wishes of the
parents) and this vital and important factor has not been given sufficient
consideration in a matter which may have a substantial impact as to where
exactly the margin of appreciation lies which each one of the Contracting States
enjoys in this matter; and (b) there is no "family life" in the
instant case, even if there are biological reasons for holding that there are
"family ties". Moreover, in paragraph 40 of the judgment, reference
is made to "social reality" as one of the factors which should
prevail over the legal presumption of paternity. In my opinion, ever mindful of
the frequent appeals and invocations made to "social reality" in
justification of certain notorious laws enacted in Soviet Russia (1920-1989)
and in Nazi Germany (1933-1945), it is dangerous and unsafe to bring such
criteria into the field of family rights. The approach to those rights should
be made from steadier and more stable platforms.
5. It follows from the above that I am
against granting any financial relief to the applicants under Article 50 (art.
50).
* The case is numbered
29/1993/424/503. The first number is the case's position on the list of cases
referred to the Court in the relevant year (second number). The last two
numbers indicate the case's position on the list of cases referred to the Court
since its creation and on the list of the corresponding originating
applications to the Commission.
** Rules
A apply to all cases referred to the Court before the entry into force of
Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by
that Protocol (P9). They correspond to the Rules that came into force on 1
January 1983, as amended several times subsequently.
* For practical reasons this annex
will appear only with the printed version of the judgment (volume 297-C of
Series A of the Publications of the Court), but a copy of the Commission's
report is obtainable from the registry.
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