Merger and Cros v. France

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Case Summary

Case of Merger and Cros v. France

European Court of Human Rights
Application no. 68864/01
Judgment of 22/12/2004

The Applicants, two French nationals, Ms. Hermance Merger and Ms. Clementine Cros, claim to be victims of a violation by France of Article 8 and Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("Convention”).

Contents 1 Facts 2 Admissibility 3 Merits 4 Decision 5 External links

Facts

Applicant Merger ("first Applicant”) was born on 6 December 1968 of a relationship which began in 1964 between Applicant Cros ("second Applicant”) and Mr. R. Merger, a married man and the father of four children. The first Applicant's father has acknowledged her paternity and she has borne his name.

On 11 May 1980, the first Applicant's father drew up a private deed dividing his movable property between his five children. As per the terms of the manuscript will he made in 1984, he left to the first Applicant the disposable portion of his estate which, pursuant to Article 913 of the Civil Code, amounted to one quarter. In a second manuscript will dated 16 June 1985, he stated that he wished the estate to be divided into five parts to be allocated by the drawing of lots in the presence of all his children, for the disposable portion of the estate to pass to the first Applicant after an account had been taken of any gifts that had been made and for his wife's life interest to attach only to the share of the four legitimate children. The first Applicant was to receive a reversionary pension for the duration of her studies and these were to be paid for if the law so permitted.

The first Applicant's father died on 12 March 1986, leaving as his heirs his wife, four legitimate children and the first Applicant, an illegitimate child. The deceased's four legitimate children and their mother brought proceedings against the Applicants in the Paris tribunal de grande instance seeking, inter alia, orders setting aside the gift of the disposable portion to the first Applicant and the gifts their father had made to the second Applicant, and restricting the first Applicant's rights to 10% of the net estate. The tribunal de grande instance ruled that, as an illegitimate child, the first Applicant was not entitled to more than 10% of the estate and held that the gift of the disposable portion was inoperative. The Applicants appealed against that judgment. On 27 November 1997, the Dijon Court of Appeal upheld the judgment of the court below in so far as it had refused to grant the first Applicant identical inheritance rights to those of the four legitimate children or to allow her to take the disposable portion. Noting that the first Applicant was an illegitimate child who had been conceived when her father was bound by marriage to a person other than her mother, it declared her claim to a reversionary pension inadmissible as she was not prepared to abandon her rights to the estate. The Applicants appealed to the Court of Cassation.

On 4 February 1999, the notary liquidated the estate and drew up the deed of division. Under the terms of the deed of division, the first Applicant was required to pay an equalizing balance to the other heirs in the French franc equivalent of 236,187 euros. The second Applicant sold her home to pay that balance on behalf of her daughter, who had no property of her own. In a judgment of 3 May 2000, the Court of Cassation dismissed the Applicants' appeal. Following that judgment, the equalizing balance was duly paid to the other heirs.

Admissibility

The Application was found to be admissible.

Merits

The Court noted that, since at the relevant time the first Applicant's father was dead, the first Applicant had automatically acquired rights to a share of the estate. The estate was owned jointly by the first Applicant and her half-brothers and half-sister. Accordingly, the case came within Article 1 of Protocol No. 1, and Article 14 of the Convention could apply in conjunction with that provision. The Court pointed out that a similar situation "the division of an estate under the same statutory provisions between a legitimate child and an illegitimate child conceived when one of its parents was bound by marriage to another person" had been at issue in the case of Mazurek v. France. In that case, it found that no grounds existed on which to justify discrimination based on birth out of wedlock. Similarly, in the instant case, the first Applicant was treated differently in the division of the estate on account of her position as an illegitimate child conceived when her father was bound by marriage to another person. It ruled, accordingly, that there has been a violation of Article 1 of Protocol No. 1, taken together with Article 14 of the Convention

The Applicants also complained of the illegitimate child's incapacity to receive a gift from its parent if, at the time of its conception, the parent was bound by marriage to another person. The Court noted that under its case-law the provision of Article 1 of Protocol No. 1 guarantees the right of everyone to the peaceful enjoyment of "his" possessions. But it applies only to a person's existing possessions and does not guarantee the right to acquire possessions whether on intestacy or through voluntary gift. It determined that in the present case, the complaint under Article 1 of Protocol No. 1 did not come within the scope of the Convention or its Protocols. Thus there has been no breach of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1.

The Applicants also relied on Article 8 of the Convention, taken together with Article 14, in respect of the same complaints. Having found the violation of Article 1 of Protocol No. 1 read in conjunction with Article 14 of the Convention in relation to the division of estate, the Court did not consider it necessary to examine this part of the complaint. It however turned to Article 8 for the rest of the complaint.

The Court reiterated that by guaranteeing the right to respect for family life, Article 8 presupposes the existence of a family. In the instant case the first Applicant was born in 1968. Her parents, having lived together since 1965, clearly formed a "family" with the first Applicant within the meaning of Article 8 of the Convention at that time. The Court noted that questions of inheritance and voluntary dispositions between near relatives appear to be intimately connected with family life. Article 8 of the Convention therefore came into play in the present case. While a general right to receive voluntary dispositions from one's parents or of other members of the family or a share in their estate is not a necessary part of family life, the distinction made in this connection between "illegitimate" children conceived when one of their parents was bound by marriage to another person and "legitimate" children does raise an issue under Article 14 of the Convention, taken together with Article 8. As with the inheritance rights, the Court did not find any ground in the instant case on which to justify such discrimination based on birth out of wedlock. Consequently, it held that there has been a violation of Article 8 of the Convention, taken together with Article 14, in respect of both Applicants.

Decision

The Court held that there has been a violation of Article 8 and Article 1 of Protocol 1 in conjunction with Article 14 of the Convention. It determined that the first Applicant sustained pecuniary damage in an amount equal to the difference between the sum she actually received and the share in her father's estate she would have received had she been his "legitimate" daughter. It accordingly ordered the division of assets as it would have been had all the children been legitimate. It awarded the second Applicant reparation for the loss linked to the payment of the equalizing balance on behalf of her daughter. The Court found that the discrimination suffered by the first Applicant caused both Applicants actual non-pecuniary damage that warranted an award of compensation. Ruling on an equitable basis, it awarded each Applicant EUR 3,000 under this head.

External links

Case of Merger and Cros v. France