International human rights law has clearly established that not all distinctions in treatment constitute discrimination. This is summed up by the axiom ‘persons who are equal should be treated equally and those who are different should be treated differently’. Hence, there may be situations in which different treatment is justified. Although not all differences in treatment are discriminatory, international law establishes criteria for determining when a distinction amounts to discrimination. In a nutshell, as we will examine below, a distinction is compatible with the principle of equality when it has an objective and reasonable justification, pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought.

One of the first judgements at the international level determining the scope of the principle of non-discrimination was handed down by the European Court in the decision on the Belgian Linguistic case ( case ‘Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium , Application Nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64, Judgements of 23 July 1968). In this judgement, the European Court agreed that not all types of differential treatment in the provision of rights and freedoms constitute prohibited discrimination under the Convention. In this judgement, the Court set forth its analytical scheme for determining when prohibited discrimination has occurred (para. 10):

a. the facts disclose a differential treatment;

b. the distinction does not have an aim, that is, it has no objective and reasonable justification having regard to the aim and effects of the measure under consideration; and

c. there is no reasonable proportionality between the means employed and the aim sought to be realised.

In determining the point at which a given domestic law or practice has crossed the line to prohibited discrimination, the Court applies some of the same principles of interpretation developed under the case-law addressing issues arising under those articles containing restrictions clauses, for example Articles 8 (right to respect for private and family life) and 11 (freedom of assembly and association). Already in the Belgian Linguistics case , the Court applied criteria comparable to those it applied in cases reviewing issues arising under Article 8 which has built-in restriction clauses, that is the legitimacy of the aim to be achieved by a given practice and the proportionality between the means employed and that aim.

In addition to the three criteria listed in the Belgian Linguistics case (differential treatment; objective and reasonable justification for the aim; and proportionality), an additional element, whether the situation of the applicant is sufficiently analogous to that of individuals enjoying better protection of the contested right, is sometimes considered by the Court. As we will see, these requirements have been stressed by subsequent case-law of the European Court and some of the major human rights supervisory bodies.

In the following case, Paula Marckx is the unmarried mother of Alexandra who, according to Belgian legislation, was an ‘illegitimate’ child. According to the mother and the daughter, this situation involved a violation of Articles 8 (respect for family life) and 14 (prohibition of discrimination). In addition, they also alleged violation of Article 1 Protocol 1 (peaceful enjoyment of possessions) with respect to inheritance

rights. Marckx v. Belgium

European Court of Human Rights

Application No. 6833/74

Judgement of 13 June 1979

Keywords: family life, respect for - marry, right to - non- discrimination - objective and reasonable justification – property - prohibition of discrimination on the ground of birth - peaceful enjoyment of possessions

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AS TO THE FACTS

A. Particular circumstances of the case

8. Alexandra Marckx was born on 16 October 1973 at Wilrijk, near Antwerp; she is the daughter of Paula Marckx, a Belgian national, who is unmarried and a journalist by profession. Paula Marckx duly reported Alexandra’s birth to the Wilrijk registration officer who informed the District Judge (juge de paix) as is required by Article 57 bis of the Belgian Civil Code (“the Civil Code”) in the case of “illegitimate” children.

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10. On 29 October 1973, Paula Marckx recognised her child in accordance with Article 334 of the Code. She thereby automatically became Alexandra’s guardian (Article 396 bis); the family council, on which the sister and certain other relatives of Paula Marckx sat under the chairmanship of the District Judge, was empowered to take in Alexandra’s interests various measures provided for by law.

11. On 30 October 1974, Paula Marckx adopted her daughter pursuant to Article 349 of the Civil Code. The procedure, which was that laid down by Articles 350 to 356, entailed certain enquiries and involved some expenses. It concluded on 18 April 1975 with a judgment confirming the adoption, the effect whereof was retroactive to the date of the instrument of adoption, namely 30 October 1974.

12. At the time of her application to the Commission, Ms. Paula Marckx’s family included, besides Alexandra, her own mother, Mrs. Victorine Libot, who died in August 1974, and a sister, Mrs. Blanche Marckx.

13. The applicants complain of the Civil Code provisions on the manner of establishing the maternal affiliation of an “illegitimate” child and on the effects of establishing such affiliation as regards both the extent of the child’s family relationships and the patrimonial rights of the child and of his mother. The applicants also put in issue the necessity for the mother to adopt the child if she wishes to increase his rights.

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II. On the merits

28. The applicants rely basically on Articles 8 and 14 (Article 8, Article 14) of the Convention. Without overlooking the other provisions which they invoke, the Court has accordingly turned primarily to these two Articles (Article 8, Article 14) in its consideration of the three aspects of the problem referred to it by the Commission: the manner of establishing affiliation, the extent of the child’s family relationships, the patrimonial rights of the child and of her mother.

29. Article 8 (Article 8) of the Convention provides:

“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.”

30. The Court is led in the present case to clarify the meaning and purport of the words “respect for ? private and family life”, which it has scarcely had the occasion to do until now (judgment of 23 July 1968 in the “Belgian Linguistic” case, Series A no. 6, pp. 32-33, para. 7; Klass and others judgment of 6 September 1978, Series A no. 28, p. 21, para. 41).

31. The first question for decision is whether the natural tie between Paula and Alexandra Marckx gave rise to a family life protected by Article 8 (Article 8). By guaranteeing the right to respect for family life, Article 8 (Article 8) presupposes the existence of a family. The Court concurs entirely with the Commission’s established case-law on a crucial point, namely that Article 8 (Article 8) makes no distinction between the “legitimate” and the “illegitimate” family. Such a distinction would not be consonant with the word “everyone”, and this is confirmed by Article 14 (Article 14) with its prohibition, in the enjoyment of the rights and freedoms enshrined in the Convention, of discrimination grounded on “birth”. In addition, the Court notes that the Committee of Ministers of the Council of Europe regards the single woman and her child as one form of family no less than others (Resolution (70) 15 of 15 May 1970 on the social protection of unmarried mothers and their children, para. I-10, para. II-5, etc.). Article 8 (Article 8) thus applies to the “family life” of the “illegitimate” family as it does to that of the “legitimate” family. Besides, it is not disputed that Paula Marckx assumed responsibility for her daughter Alexandra from the moment of her birth and has continuously cared for her, with the result that a real family life existed and still exists between them. It remains to be ascertained what the “respect” for this family life required of the Belgian legislature in each of the areas covered by the application. By proclaiming in paragraph 1 the right to respect for family life, Article 8 (Article 8-1) signifies firstly that the State cannot interfere with the exercise of that right otherwise than in accordance with the strict conditions set out in paragraph 2 (Article 8-2). As the Court stated in the “Belgian Linguistic” case, the object of the Article is “essentially” that of protecting the individual against arbitrary interference by the public authorities (judgement of 23 July 1968, Series A no. 6, p. 33, para. 7). Nevertheless it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective “respect” for family life. This means, amongst other things, that when the State determines in its domestic legal system the régime applicable to certain family ties such as those between an unmarried mother and her child, it must act in a manner calculated to allow those concerned to lead a normal family life. As envisaged by Article 8 (Article 8), respect for family life implies in particular, in the Court’s view, the existence in domestic law of legal safeguards that render possible as from the moment of birth the child’s integration in his family. In this connection, the State has a choice of various means, but a law that fails to satisfy this requirement violates paragraph 1 of Article 8 (Article 8-1) without there being any call to examine it under paragraph 2 (Article 8-2). Article 8 (Article 8) being therefore relevant to the present case, the Court has to review in detail each of the applicants’ complaints in the light of this provision.

32. Article 14 (Article 14) provides: “The enjoyment of the rights and freedoms set forth in this 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, property, birth or other status.” The Court’s case-law shows that, although Article 14 (Article 14) has no independent existence, it may play an important autonomous rôle by complementing the other normative provisions of the Convention and the Protocols: Article 14 (Article 14) safeguards individuals, placed in similar situations, from any discrimination in the enjoyment of the rights and freedoms set forth in those other provisions. A measure which, although in itself in conformity with the requirements of the Article of the Convention or the Protocols enshrining a given right or freedom, is of a discriminatory nature incompatible with Article 14 (Article 14) therefore violates those two Articles taken in conjunction. It is as though Article 14 (Article 14) formed an integral part of each of the provisions laying down rights and freedoms (judgement of 23 July 1968 in the “Belgian Linguistic” case, Series A no. 6, pp. 33-34, para. 9; National Union of Belgian Police judgement of 27 October 1975, Series A no. 19, p. 19, para. 44). Accordingly, and since Article 8 (Article 8) is relevant to the present case (see paragraph 31 above), it is necessary also to take into account Article 14 in conjunction with Article 8 (Article 14+8).

33. According to the Court’s established case-law, a distinction is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, inter alia, the above-cited judgement of 23 July 1968, p. 34, para. 10).

34. In acting in a manner calculated to allow the family life of an unmarried mother and her child to develop normally (see paragraph 31 above), the State must avoid any discrimination grounded on birth: this is dictated by Article 14 taken in conjunction with Article 8 (Article 14.8).

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2. On the alleged violation of Article 14 of the Convention, taken in conjunction with Article 8 (art. 14+8)

38. The Court also has to determine whether, as regards the manner of establishing Alexandra’s maternal affiliation, one or both of the applicants have been victims of discrimination contrary to Article 14 taken in conjunction with Article 8 (art. 14+8).

39. The Government, relying on the difference between the situations of the unmarried and the married mother, advance the following arguments: whilst the married mother and her husband “mutually undertake ? the obligation to feed, keep and educate their children” (Article 203 of the Civil Code), there is no certainty that the unmarried mother will be willing to bear on her own the responsibilities of motherhood; by leaving the unmarried mother the choice between recognising her child or dissociating herself from him, the law is prompted by a concern for protection of the child, for it would be dangerous to entrust him to the custody and authority of someone who has shown no inclination to care for him; many unmarried mothers do not recognise their child (see paragraph 14 above). In the Court’s judgment, the fact that some unmarried mothers, unlike Paula Marckx, do not wish to take care of their child cannot justify the rule of Belgian law whereby the establishment of their maternity is conditional on voluntary recognition or a court declaration. In fact, such an attitude is not a general feature of the relationship between unmarried mothers and their children; besides, this is neither claimed by the Government nor proved by the figures which they advance. As the Commission points out, it may happen that also a married mother might not wish to bring up her child, and yet, as far as she is concerned, the birth alone will have created the legal bond of affiliation. Again, the interest of an “illegitimate” child in having such a bond established is no less than that of a “legitimate” child. However, the “illegitimate” child is likely to remain motherless in the eyes of Belgian law. If an “illegitimate” child is not recognised voluntarily, he has only one expedient, namely, an action to establish maternal affiliation (Articles 341a-341c of the Civil Code; see paragraph 14 above). A married woman’s child also is entitled to institute such an action (Articles 326-330), but in the vast majority of cases the entries on the birth certificate (Article 319) or, failing that, the constant and factual enjoyment of the status of a legitimate child (une possession d’état constante; Article 320) render this unnecessary.

40. The Government do not deny that the present law favours the traditional family, but they maintain that the law aims at ensuring that family’s full development and is thereby founded on objective and reasonable grounds relating to morals and public order (ordre public). The Court recognises that support and encouragement of the traditional family is in itself legitimate or even praiseworthy. However, in the achievement of this end recourse must not be had to measures whose object or result is, as in the present case, to prejudice the “illegitimate” family; the members of the “illegitimate” family enjoy the guarantees of Article 8 (art. 8) on an equal footing with the members of the traditional family.

41. The Government concede that the law at issue may appear open to criticism but plead that the problem of reforming it arose only several years after the entry into force of the European Convention  on Human Rights in respect of Belgium (14 June 1955), that is with the adoption of the Brussels Convention of 12 September 1962 on the Establishment of Maternal Affiliation of Natural Children (see paragraph 20 above). It is true that, at the time when the Convention of 4 November 1950 was drafted, it was regarded as permissible and normal in many European countries to draw a distinction in this area between the “illegitimate” and the “legitimate” family. However, the Court recalls that this Convention must be interpreted in the light of present-day conditions (Tyrer judgment of 25 April 1978, Series A no. 26, p. 15, para. 31). In the instant case, the Court cannot but be struck by the fact that the domestic law of the great majority of the member States of the Council of Europe has evolved and is continuing to evolve, in company with the relevant international instruments, towards full juridical recognition of the maxim “mater semper certa est”. Admittedly, of the ten States that drew up the Brussels Convention, only eight have signed and only four have ratified it to date. The European Convention of 15 October 1975 on the Legal Status of Children born out of Wedlock has at present been signed by only ten and ratified by only four members of the Council of Europe. Furthermore, Article 14 (1) of the latter Convention permits any State to make, at the most, three reservations, one of which could theoretically concern precisely the manner of establishing the maternal affiliation of a child born out of wedlock (Article 2). However, this state of affairs cannot be relied on in opposition to the evolution noted above. Both the relevant Conventions are in force and there is no reason to attribute the currently small number of Contracting States to a refusal to admit equality between “illegitimate” and legitimate” children on the point under consideration. In fact, the existence of these two treaties denotes that there is a clear measure of common ground in this area amongst modern societies. The official statement of reasons accompanying the Bill submitted by the Belgian Government to the Senate on 15 February 1978 (see paragraph 21 above) provides an illustration of this evolution of rules and attitudes. Amongst other things, the statement points out that “in recent years several Western European countries, including the Federal Republic of Germany, Great Britain, the Netherlands, France, Italy and Switzerland, have adopted new legislation radically altering the traditional structure of the law of affiliation and establishing almost complete equality between legitimate and illegitimate children”. It is also noted that “the desire to put an end to all discrimination and abolish all inequalities based on birth is ? apparent in the work of various international institutions”. As regards Belgium itself, the statement stresses that the difference of treatment between Belgian citizens, depending on whether their affiliation is established in or out of wedlock, amounts to a “flagrant exception” to the fundamental principle of the equality of everyone before the law (Article 6 of the Constitution). It adds that “lawyers and public opinion are becoming increasingly convinced that the discrimination against (illegitimate) children should be ended”.

42. The Government maintain, finally, that the introduction of the rule “mater semper certa est” should be accompanied, as is contemplated in the 1978 Bill, by a reform of the provisions on the establishment of paternity, failing which there would be a considerable and one-sided increase in the responsibilities of the unmarried mother. Thus, for the Government, there is a comprehensive problem and any piecemeal solution would be dangerous. The Court confines itself to noting that it is required to rule only on certain aspects of the maternal affiliation of “illegitimate” children under Belgian law. It does not exclude that a judgment finding a breach of the Convention on one of those aspects might render desirable or necessary a reform of the law on other matters not submitted for examination in the present proceedings. It is for the respondent State, and the respondent State alone, to take the measures it considers appropriate to ensure that its domestic law is coherent and consistent.

43. The distinction complained of therefore lacks objective and reasonable justification. Accordingly, the manner of establishing Alexandra Marckx’s maternal affiliation violated, with respect to both applicants, Article 14 taken in conjunction with Article 8 (art. 14.8).

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2. On the alleged violation of Article 14 of the Convention, taken in conjunction with Article 8 (art. 14+8)

48. It remains for the Court to determine whether, as regards the extent in law of Alexandra’s family relationships, one or both of the applicants have been victims of discrimination in breach of Article 14 taken in conjunction with Article 8 (art. 14+8). One of the differences of treatment found in this area between “illegitimate” and “legitimate” children concerns inheritance rights on intestacy (Article 756 in fine of the Civil Code); the Court’s opinion on this aspect appears at paragraphs 56 to 59 below. With respect to the other differences, the Government do not put forward any arguments beyond those they rely on in connection with the manner of establishing affiliation (see paragraphs 39 to 42 above). The Court discerns no objective and reasonable justification for the differences of treatment now being considered. Admittedly, the “tranquillity” of “legitimate” families may sometimes be disturbed if an “illegitimate” child is included, in the eyes of the law, in his mother’s family on the same footing as a child born in wedlock, but this is not a motive that justifies depriving the former child of fundamental rights. The Court also refers, mutatis mutandis, to the reasons set out in paragraphs 40 and 41 of the present judgment. The distinction complained of therefore violates, with respect to both applicants, Article 14 taken in conjunction with Article 8 (art. 14+8).

C. On the patrimonial rights relied on by the applicants

49. The Civil Code limits, in varying degrees, the rights of an “illegitimate” child and his unmarried mother as regards both inheritance on intestacy and dispositions inter vivos or by will (see paragraphs 17 and 18 above). Until her recognition on 29 October 1973, the fourteenth day of her life, Alexandra had, by virtue of Article 756, no inheritance rights on intestacy over her mother’s estate. On that date she did not acquire the status of presumed heir (héritière présomptive) of her mother, but merely that of “exceptional heir” (“successeur irrégulier”) (Articles 756-758, 760 and 773). It was only Alexandra’s adoption, on 30 October 1974, that conferred on her the rights of a “legitimate” child over Paula Marckx’s estate (Article 365). Moreover, Alexandra has never had any inheritance rights on intestacy as regards the estate of any member of her mother’s family (Articles 756 and 365). In the interval between her recognition and her adoption, Alexandra could receive from her mother by disposition inter vivos or by will no more than her entitlement under the Code under the title “Inheritance on Intestacy” (Article 908). This restriction on her capacity, like that on Paula Marckx’s capacity to dispose of her property, did not exist before 29 October 1973 and disappeared on 30 October 1974. On the other hand, the Belgian Civil Code confers on “legitimate” children, from the moment of their birth and even of their conception, all those patrimonial rights which it denied and denies Alexandra; the capacity of married women to dispose of their property is not restricted by the Code in the same way as that of Paula Marckx. According to the applicants, this system contravenes in regard to them Article 8 (art. 8) of the Convention, taken both alone and in conjunction with Article 14 (art. 14+8), and also, in Paula Marckx’s case, Article 1 of Protocol No. 1 (P1-1) taken both alone and in conjunction with Article 14 (art. 14+P1-1). This is contested by the Government. The Commission, for its part, finds only a breach of Article 14, taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1), with respect to Paula Marckx.

1. On the patrimonial rights relied on by Alexandra

50. As concerns the second applicant, the Court has taken its stand solely on Article 8 (art. 8) of the Convention, taken both alone and in conjunction with Article 14 (art. 14+8). The Court in fact excludes Article 1 of Protocol No. 1 (P1-1): like the Commission and the Government, it notes that this Article (P1-1) does no more than enshrine the right of everyone to the peaceful enjoyment of “his” possessions, that consequently it applies only to a person’s existing possessions and that it does not guarantee the right to acquire possessions whether on intestacy or through voluntary dispositions. Besides, the applicants do not appear to have relied on this provision in support of Alexandra’s claims. Since Article 1 of the Protocol (P1-1) proves to be inapplicable, Article 14 (art. 14) of the Convention cannot be combined with it on the point now being considered.

51. The applicants regard the patrimonial rights they claim as forming part of family rights and, hence, as being a matter for Article 8 (art. 8). This reasoning is disputed by the Government. Neither does the majority of the Commission agree with the applicants, but, as the Principal Delegate indicated at the hearings, a minority of six members considers the right of succession between children and parents, and between grandchildren and grandparents, to be so closely related to family life that it comes within the sphere of Article 8 (art. 8).

52. The Court shares the view of the minority. Matters of intestate succession - and of disposition - between near relatives prove to be intimately connected with family life. Family life does not include only social, moral or cultural relations, for example in the sphere of children’s education; it also comprises interests of a material kind, as is shown by, amongst other things, the obligations in respect of maintenance and the position occupied in the domestic legal systems of the majority of the Contracting States by the institution of the reserved portion of an estate (réserve héréditaire). Whilst inheritance rights are not normally exercised until the estate-owner’s death, that is at a time when family life undergoes a change or even comes to an end, this does not mean that no issue concerning such rights may arise before the death: the distribution of the estate may be settled, and in practice fairly often is settled, by the making of a will or of a gift on account of a future inheritance (avance d’hoirie); it therefore represents a feature of family life that cannot be disregarded.

53. Nevertheless, it is not a requirement of Article 8 (art. 8) that a child should be entitled to some share in the estates of his parents or even of other near relatives: in the matter of patrimonial rights also, Article 8 (art. 8) in principle 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 an entitlement is not indispensable in the pursuit of a normal family life. In consequence, the restrictions which the Belgian Civil Code places on Alexandra Marckx’s inheritance rights on intestacy are not of themselves in conflict with the Convention, that is, if they are considered independently of the reason underlying them. Similar reasoning is to be applied to the question of voluntary dispositions.

54. On the other hand, the distinction made in these two respects between “illegitimate” and “legitimate” children does raise an issue under Articles 14 and 8 (art. 14+8) when they are taken in conjunction.

55. Until she was adopted (30 October 1974), Alexandra had only a capacity to receive property from Paula Marckx (see paragraph 49 above) that was markedly less than that which a child born in wedlock would have enjoyed. The Court considers that this difference of treatment, in support of which the Government put forward no special argument, lacks objective and reasonable justification; reference is made, mutatis mutandis, to paragraphs 40 and 41 above. However, the Government plead that since 30 October 1974 the second applicant has had, vis-à-vis the first applicant, the patrimonial rights of a “legitimate” child; they therefore consider it superfluous to deal with the earlier period. This argument represents, in essence, no more than one branch of the preliminary plea that has already been set aside (see paragraphs 26 and 27 above). Moreover, in common with the Commission, the Court finds that the need to have recourse to adoption in order to eliminate the said difference of treatment involves of itself discrimination. As the applicants emphasised, the procedure employed for this purpose in the present case is one that usually serves to establish legal ties between one individual and another’s child; to oblige in practice an unmarried mother to utilise such a procedure if she wishes to improve her own daughter’s situation as regards patrimonial rights amounts to disregarding the tie of blood and to using the institution of adoption for an extraneous purpose. Besides, the procedure to be followed is somewhat lengthy and complicated. Above all, the child is left entirely at the mercy of his parent’s initiative, for he is unable to apply to the courts for his adoption.

56. Unlike a “legitimate” child, Alexandra has at no time before or after 30 October 1974 had any entitlement on intestacy in the estates of members of Paula Marckx’s family (see paragraph 49 above). Here again, the Court fails to find any objective and reasonable justification. In the Government’s submission, the reason why adoption in principle confers on the adopted child no patrimonial rights as regards relatives of the adopter is that the relatives may not have approved of the adoption. The Court does not have to decide this point in the present proceedings since it considers discriminatory the need for a mother to adopt her child (see paragraph 55 above).

57. As regards the sum total of the patrimonial rights claimed by the second applicant, the Court notes that the Bill submitted to the Senate on 15 February 1978 (see paragraph 21 above) advocates, in the name of the principle of equality, “the abolition of the inferior status characterising, in matters of inheritance, the lot of illegitimate children” as compared with children born in wedlock.

58. The Government also state that they appreciate that an increase in the “illegitimate” child’s inheritance rights is considered indispensable; however, in their view, reform should be effected by legislation and without retrospective effect. Their argument runs as follows: if the Court were to find certain rules of Belgian law to be incompatible with the Convention, this would mean that these rules had been contrary to the Convention since its entry into force in respect of Belgium (14 June 1955); the only way to escape such a conclusion would be to accept that the Convention’s requirements had increased in the intervening period and to indicate the exact date of the change; failing this, the result of the judgment would be to render many subsequent distributions of estates irregular and open to challenge before the courts, since the limitation period on the two actions available under Belgian law in this connection is thirty years. The Court is not required to undertake an examination in abstracto of the legislative provisions complained of: it is enquiring whether or not their application to Paula and Alexandra Marckx complies with the Convention (see paragraph 27 above). Admittedly, it is inevitable that the Court’s decision will have effects extending beyond the confines of this particular case, especially since the violations found stem directly from the contested provisions and not from individual measures of implementation, but the decision cannot of itself annul or repeal these provisions: the Court’s judgment is essentially declaratory and leaves to the State the choice of the means to be utilised in its domestic legal system for performance of its obligation under Article 53 (art. 53). Nonetheless, it remains true that the Government have an evident interest in knowing the temporal effect of the present judgment. On this question, reliance has to be placed on two general principles of law which were recently recalled by the Court of Justice of the European Communities: “the practical consequences of any judicial decision must be carefully taken into account”, but “it would be impossible to go so far as to diminish the objectivity of the law and compromise its future application on the ground of the possible repercussions which might result, as regards the past, from such a judicial decision” (8 April 1976, Defrenne v. Sabena, Reports 1976, p. 480). The European Court of Human Rights interprets the Convention in the light of present-day conditions but it is not unaware that differences of treatment between “illegitimate” and “legitimate” children, for example in the matter of patrimonial rights, were for many years regarded as permissible and normal in a large number of Contracting States (see, mutatis mutandis, paragraph 41 above). Evolution towards equality has been slow and reliance on the Convention to accelerate this evolution was apparently contemplated at a rather late stage. As recently as 22 December 1967, the Commission rejected under Article 27 (2) (art. 27-2) - and rejected de plano (Rule 45 (3) (a) of its then Rules of Procedure) - another application (No. 2775/67) which challenged Articles 757 and 908 of the Belgian Civil Code; the Commission does not seem to have been confronted with the issue again until 1974 (application no. 6833/74 of Paula and Alexandra Marckx). Having regard to all these circumstances, the principle of legal certainty, which is necessarily inherent in the law of the Convention as in Community Law, dispenses the Belgian State from re-opening legal acts or situations that antedate the delivery of the present judgment. Moreover, a similar solution is found in certain Contracting States having a constitutional court: their public law limits the retroactive effect of those decisions of that court that annul legislation.

59. To sum up, Alexandra Marckx was the victim of a breach of Article 14, taken in conjunction with Article 8 (art. 14+8), by reason both of the restrictions on her capacity to receive property from her mother and of her total lack of inheritance rights on intestacy over the estates of her near relatives on her mother’s side. 2. On the patrimonial rights relied on by Paula Marckx

60. From 29 October 1973 (recognition) to 30 October 1974 (adoption), the first applicant had only limited capacity to make dispositions in her daughter’s favour (see paragraph 49 above). She complains of this situation, relying on Article 8 (art. 8) of the Convention and on Article 1 of Protocol 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 (P1-1). Indeed, the right to dispose of one’s property constitutes a traditional and fundamental aspect of the right of property (cf. the Handyside judgment of 7 December 1976, Series A no. 24, p. 29, para. 62).

64. The second paragraph of Article 1 (P1-1) nevertheless authorises a Contracting State to “enforce such laws as it deems necessary to control the use of property in accordance with the general interest”. This paragraph thus sets the Contracting States up as sole judges of the “necessity” for such a law (above-mentioned Handyside judgment, ibid). As regards “the general interest”, it may in certain cases induce a legislature to “control the use of property” in the area of dispositions inter vivos or by will. In consequence, the limitation complained of by the first applicant is not of itself in conflict with Protocol No. 65. However, the limitation applies only to unmarried and not to married mothers. Like the Commission, the Court considers this distinction, in support of which the Government put forward no special argument, to be discriminatory. In view of Article 14 (art. 14) of the Convention, the Court fails to see on what “general interest”, or on what objective and reasonable justification, a State could rely to limit an unmarried mother’s right to make gifts or legacies in favour of her child when at the same time a married woman is not subject to any similar restriction. In other respects, the Court refers, mutatis mutandis, to paragraphs 40 and 41 above. Accordingly, there was on this point breach of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1), with respect to Paula Marckx.’

Comment

According to the European Court, the facts disclosed differential treatment. As already established by the Court in the Belgian Linguistics case, there are some criteria that must be met for the different treatment to be in accordance with the principle of non-discrimination: objective and reasonable justification and proportionality between the means adopted and the aim sought. The Court held that this standard was not met in this case. The Court found a violation of Article 8 in conjunction with Article 14 in regard to both applicants, mother and daughter. In addition, it found a breach of Article 14 in conjunction with Article 1 of Protocol No. 1 with respect to the mother. The Court held that the situation of the mother and her child was sufficiently analogous to that of a married woman and her child so that the state could not justify the differential treatment it had imposed. The sole exception was in relation to the child’s claims that her right to property under Protocol No. 1, Article 1 was violated: the Court held this provision inapplicable to an expectation of inheritance. Twelve years later, a new pair of applicants in the same circumstances as those in the Marckx case brought an application against Belgium. The Vermeire case, (Application No. 12849/87 Judgement of 29 November 1991, reproduced below) unlike the earlier Marckx case, was decided exclusively on Article 8 and 14 grounds; not on Article 1 of Protocol No. 1 grounds as well. In 1987, following the decisions of the Court, the Government of Belgium amended the legislation relating to affiliation, eliminating all discrimination concerning illegitimate children.

In the following advisory opinion, the Costa Rican government requested that the Inter-American Court examine proposed legislation to regulate the acquisition of Costa Rican citizenship. The proposed legislation envisaged a much shorter period of residency for persons of Central American, Ibero-Spanish or Spanish citizenship than those of other nationalities, but not all those who possessed such citizenship were treated in the same manner. In addition, the Court was required to consider the difference in treatment between a foreign woman married to a Costa Rican man and that accorded a foreign man married to a Costa Rican woman.

Advisory Opinion No. 4 ‘Proposed amendments to the naturalisation provisions of the Constitution of Costa Rica’  

Inter-American Court of Human Rights

OC-4/84 of 19 January 1984

Keywords: non-discrimination - equal treatment - objective and reasonable justification - preferential treatment - prohibition of discrimination, on the ground of sex - prohibition of discrimination on the ground of gender

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IV ISSUES RELATING TO DISCRIMINATION

52. The provisions of the proposed amendments that have been brought before the Court for interpretation as well as the text of the Constitution that is now in force establish different classifications as far as the conditions for the acquisition of Costa Rican nationality through naturalization are concerned. Thus, under paragraphs 2 and 3 of Article 14 of the proposed amendment, the periods of official residence in the country required as a condition for the acquisition of nationality differ, depending on whether the applicants qualify as native-born nationals of “other countries of Central America, Spaniards and Ibero-Americans” or whether they acquired the nationality of those countries by naturalization. Paragraph 4 of that same Article in turn lays down special conditions applicable to the naturalization of “ a foreign woman “ who marries a Costa Rican. Article 14 of the Constitution now in force makes similar distinctions which, even though they may not have the same purpose and meaning, suggest the question whether they do not constitute discriminatory classifications incompatible with the relevant texts of the Convention.

53. Article 1(1) of the Convention, a rule general in scope which applies to all the provisions of the treaty, imposes on the States Parties the obligation to respect and guarantee the free and full exercise of the rights and freedoms recognized therein “without any discrimination.” In other words, regardless of its origin or the form it may assume, any treatment that can be considered to be discriminatory with regard to the exercise of any of the rights guaranteed under the Convention is per se incompatible with that instrument.

54. Article 24 of the Convention, in turn, reads as follows:

Article 24. Right to Equal Protection

All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.

Although Articles 24 and 1(1) are conceptually not identical —the Court may perhaps have occasion at some future date to articulate the differences— Article 24 restates to a certain degree the principle established in Article 1(1). In recognizing equality before the law, it prohibits all discriminatory treatment originating in a legal prescription. The prohibition against discrimination so broadly proclaimed in Article 1(1) with regard to the rights and guarantees enumerated in the Convention thus extends to the domestic law of the States Parties, permitting the conclusion that in these provisions the States Parties, by acceding to the Convention, have undertaken to maintain their laws free of discriminatory regulations.

55. The notion of equality springs directly from the oneness of the human family and is linked to the essential dignity of the individual. That principle cannot be reconciled with the notion that a given group has the right to privileged treatment because of its perceived superiority. It is equally irreconcilable with that notion to characterize a group as inferior and treat it with hostility or otherwise subject it to discrimination in the enjoyment of rights which are accorded to others not so classified. It is impermissible to subject human beings to differences in treatment that are inconsistent with their unique and congenerous character.

56. Precisely because equality and nondiscrimination are inherent in the idea of the oneness in dignity and worth of all human beings, it follows that not all differences in legal treatment are discriminatory as such, for not all differences in treatment are in themselves offensive to human dignity. The European Court of Human Rights, “following the principles which may be extracted from the legal practice of a large number of democratic States,” has held that a difference in treatment is only discriminatory when it “has no objective and reasonable justification.” [Eur.Court H.R., Case relating to “ Certain Aspects of the Laws on the Use of Languages in Education in Belgium” (Merits), Judgment of 23rd July 1968, p. 34.] There may well exist certain factual inequalities that might legitimately give rise to inequalities in legal treatment that do not violate principles of justice. They may in fact be instrumental in achieving justice or in protecting those who find themselves in a weak legal position. For example, it cannot be deemed discrimination on the grounds of age or social status for the law to impose limits on the legal capacity of minors or mentally incompetent persons who lack the capacity to protect their interests.

57. Accordingly, no discrimination exists if the difference in treatment has a legitimate purpose and if it does not lead to situations which are contrary to justice, to reason or to the nature of things. It follows that there would be no discrimination in differences in treatment of individuals by a state when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity of humankind.

58. Although it cannot be denied that a given factual context may make it more or less difficult to determine whether or not one has encountered the situation described in the foregoing paragraph, it is equally true that, starting with the notion of the essential oneness and dignity of the human family, it is possible to identify circumstances in which considerations of public welfare may justify departures to a greater or lesser degree from the standards articulated above. One is here dealing with values which take on concrete dimensions in the face of those real situations in which they have to be applied and which permit in each case a certain margin of appreciation in giving expression to them.

59. With this approach in mind, the Court repeats its prior observation that as far as the granting of naturalization is concerned, it is for the granting state to determine whether and to what extent applicants for naturalization have complied with the conditions deemed to ensure an effective link between them and the value system and interests of the society to which they wish to belong. To this extent there exists no doubt that it is within the sovereign power of Costa Rica to decide what standards should determine the granting or denial of nationality to aliens who seek it, and to establish certain reasonable differentiations based on factual differences which, viewed objectively, recognize that some applicants have a closer affinity than others to Costa Rica’s value system and interests.

60. Given the above considerations, one example of a non-discriminatory differentiation would be the establishment of less stringent residency requirements for Central Americans, Ibero-Americans and Spaniards than for other foreigners seeking to acquire Costa Rican nationality. It would not appear to be inconsistent with the nature and purpose of the grant of nationality to expedite the naturalization procedures for those who, viewed objectively, share much closer historical, cultural and spiritual bonds with the people of Costa Rica. The existence of these bonds permits the assumption that these individuals will be more easily and more rapidly assimilated within the national community and identify more readily with the traditional beliefs, values and institutions of Costa Rica, which the state has the right and duty to preserve.

61. Less obvious is the basis for the distinction, made in paragraphs 2 and 3 of Article 14 of the proposed amendment, between those Central Americans, Ibero-Americans and Spaniards who acquired their nationality by birth and those who obtained it by naturalization. Since nationality is a bond that exists equally for the one group as for the other, the proposed classification appears to be based on the place of birth and not on the culture of the applicant for naturalization. The provisions in question may, however, have been prompted by certain doubts about the strictness of the conditions that were applied by those states which conferred their nationality on the individuals now seeking to obtain that of Costa Rica, the assumption being that the previously acquired nationality —be it Spanish, Ibero-American or that of some other Central American country— does not constitute an adequate guarantee of affinity with the value system and interests of the Costa Rican society. Although the distinctions being made are debatable on various grounds, the Court will not consider those issues now. Notwithstanding the fact that the classification resorted to is more difficult to understand given the additional requirements that an applicant would have to meet under Article 15 of the proposed amendment, the Court cannot conclude that the proposed amendment is clearly discriminatory in character.

62. In reaching this conclusion, the Court is fully mindful of the margin of appreciation which is reserved to states when it comes to the establishment of requirements for the acquisition of nationality and the determination whether they have been complied with. But the Court’s conclusion should not be viewed as approval of the practice which prevails in some areas to limit to an exaggerated and unjustified degree the political rights of naturalized individuals. Most of these situations involve cases not now before the Court that do, however, constitute clear instances of discrimination on the basis of origin or place of birth, unjustly creating two distinct hierarchies of nationals in one single country.

63. Consistent with its clearly restrictive approach, the proposed amendment also provides for new conditions which must be complied with by those applying for naturalization. Draft Article 15 requires, among other things, proof of the ability to “speak, write and read” the Spanish language; it also prescribes a “comprehensive examination on the history of the country and its values.” These conditions can be deemed,–prima facie, to fall within the margin of appreciation reserved to the state as far as concerns the enactment and assessment of the requirements designed to ensure the existence of real and effective links upon which to base the acquisition of the new nationality. So viewed, it cannot be said to be unreasonable and unjustified to require proof of the ability to communicate in the language of the country or, although this is less clear, to require the applicant to “speak, write and read” the language. The same can be said of the requirement of a “comprehensive examination on the history of the country and its values. “ The Court feels compelled to emphasize, however, that in practice, and given the broad discretion with which tests such as those mandated by the draft amendment tend to be administered, there exists the risk that these requirements will become the vehicle for subjective and arbitrary judgments as well as instruments for the effectuation of discriminatory policies which, although not directly apparent on the face of the law, could well be the consequence of its application.

64. The fourth paragraph of draft Article 14 accords “a foreign woman who [marries] a Costa Rican” special consideration for obtaining Costa Rican nationality. In doing so, it follows the formula adopted in the current Constitution, which gives women but not men who marry Costa Ricans a special status for purposes of naturalization. This approach or system was based on the so-called principle of family unity and is traceable to two assumptions. One has to do with the proposition that all members of a family should have the same nationality. The other derives from notions about paternal authority and the fact that authority over minor children was as a rule vested in the father and that it was the husband on whom the law conferred a privileged status of power, giving him authority, for example, to fix the marital domicile and to administer the marital property. Viewed in this light, the right accorded to women to acquire the nationality of their husbands was an outgrowth of conjugal inequality.

65. In the early 1930’s, there developed a movement opposing these traditional notions. It had its roots in the acquisition of legal capacity by women and the more widespread acceptance of equality among the sexes based on the principle of nondiscrimination. These developments, which can be documented by means of a comparative law analysis, received a decisive impulse on the international plane. In the Americas, the Contracting Parties to the Montevideo Convention on the Nationality of Women of December 26, 1933 declared in Article 1 of that treaty that “There shall be no distinction based on sex as regards nationality, in their legislation or in their practice.” [Adopted at the Seventh International Conference of American States, Montevideo, December 3-26, 1933. The Convention is reproduced in International Conferences of American States - Supplement 1933-1940. Washington, Carnegie Endowment for International Peace, 1940, p. 106.] And the Convention on Nationality, signed also in Montevideo on that same date, provided in Article 6 that “Neither matrimony nor its dissolution affects the nationality of the husband or wife or of their children.” [Ibid., at 108.] The American Declaration, in turn, declares in Article II that “All persons are equal before the law and have the rights and duties established in this declaration, without distinction as to race, sex, language, creed or any other factor.” These same principles have been embodied in Article 1(3) of the United Nations Charter and in Article 3(j) of the OAS Charter .

66. The same idea is reflected in Article 17(4) of the Convention, which reads as follows:

The States Parties shall take appropriate steps to ensure the equality of rights and the adequate balancing of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution. In case of dissolution, provision shall be made for the necessary protection of any children solely on the basis of their own best interests.

Since this provision is consistent with the general rule enunciated in Article 24, which provides for equality before the law, and with the prohibition of discrimination based on sex contained in Article 1(1), Article 17(4) can be said to constitute the concrete application of these general principles to marriage.

67. The Court consequently concludes that the different treatment envisaged for spouses by paragraph 4 of Article 14 of the proposed amendment, which applies to the acquisition of Costa Rican nationality in cases involving special circumstances brought about by marriage, cannot be justified and must be considered to be discriminatory. The Court notes in this connection and without prejudice to its other observations applicable to the amendment proposed by the members of the Special Legislative Committee [cf. supra, paras. 45 et seq.] that their proposal is based on the principle of equality between the spouses and, therefore, is more consistent with the Convention. The requirements spelled out in that amendment would be applicable not only to “a foreign woman” but to any “foreigner” who marries a Costa Rican national.

68. For the foregoing reasons, responding to the questions submitted by the Government of Costa Rica regarding the compatibility of the proposed amendments to Articles 14 and 15 of its Constitution with Articles 17(4), 20 and 24 of the Convention,

THE COURT IS OF THE OPINION

As regards Article 20 of the Convention,

By five votes to one

1. That the proposed amendment to the Constitution, which is the subject of this request for an advisory opinion, does not affect the right to nationality guaranteed by Article 20 of the Convention.

As regards Articles 24 and 17( 4 ) of the Convention,

By unanimous vote

2. That the provision stipulating preferential treatment in the acquisition of Costa Rican nationality through naturalization, which favors Central Americans, Ibero-Americans and Spaniards over other aliens, does not constitute discrimination contrary to the Convention.

By five votes to one

3. That it does not constitute discrimination contrary to the Convention to grant such preferential treatment only to those who are Central Americans, Ibero-Americans and Spaniards by birth.

By five votes to one

4. That the further requirements added by Article 15 of the proposed amendment for the acquisition of Costa Rican nationality through naturalization do not as such constitute discrimination contrary to the Convention.

By unanimous vote

5. That the provision stipulating preferential treatment in cases of naturalization applicable to marriage contained in Article 14(4) of the proposed amendment, which favors only one of the spouses, does constitute discrimination incompatible with Articles 17(4) and 24 of the Convention.

Comment

The Inter-American Court states the same principles as those contained in the Belgium Linguistics case (see above) as to when different treatment violates the prohibition of discrimination. In applying this principle, the Court concluded that the preferential treatment in the acquisition of Costa Rican nationality through naturalization or by birth, which favoured Central Americans, Ibero-Americans and Spaniards over other nationalities, did not constitute discrimination considering that the differential treatment was considered objective and reasonable taking into account that they shared ‘much closer historical, cultural and spiritual bonds with the people of Costa Rica’. Nonetheless, it considered that the provisions stipulating preferential treatment in cases of naturalization of foreign women married to Costa Rican men, who were treated more favourably than foreign men married to Costa Rican women, constituted discrimination. In this latter case, the Court found that the different treatment was not justified.

In the following case, the complainants alleged, inter alia, that legislation governing mental health in The Gambia was outdated. It was alleged that the Lunatics Detention Act (the principle instrument governing mental health) did not set out a definition of ‘lunatic’, and that there were no provisions and requirements establishing safeguards during the diagnosis, certification and detention of the patient. The complainants submitted that the provisions of the Lunatics Detention Act (LDA) condemning any person described as a ‘lunatic’ to automatic and indefinite institutionalisation were incompatible with and violated Articles 2 and 3 of the African Charter . Furthermore, the complainants argued that to the extent that mental illness is a disability, the practice of detaining persons regarded as mentally ill indefinitely and without due process constitutes discrimination on the analogous ground of disability.

Purohit and Moore v. The Gambia  

African Commission on Human and Peoples’ Rights

Communication No. 241/2001

Sixteenth Activity Report 2002-2003

Keywords: non-discrimination - equal treatment – disability - mental disabilities - human dignity - inhuman and degrading treatment - liberty of person - arbitrary arrest or detention - fair trial – health - political participation - maximum available resources

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Merits

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47. In interpreting and applying the African Charter, the African Commission relies on its own jurisprudence, and as provided by Articles 60 and 61 of the African Charter, on appropriate and relevant international and regional human rights instruments, principles and standards.

49. Articles 2 and 3 of the African Charter basically form the anti-discrimination and equal protection provisions of the African Charter. Article 2 lays down a principle that is essential to the spirit of the African Charter and is therefore necessary in eradicating discrimination in all its guises, while Article 3 is important because it guarantees fair and just treatment of individuals within a legal system of a given country. These provisions are non-derogable and therefore must be respected in all circumstances in order for anyone to enjoy all the other rights provided for under the African Charter.

50. In their submissions to the African Commission, the Respondent State conceded that under the LDA, persons declared “lunatics” do not have the legal right to challenge the two separate Medical Certificates that constitute the legal basis of their detention. However, the Respondent State argued, that in practice patients found to be insane are informed that they have a right to ask for a review of their assessment. The Respondent State further argues that Section 7(d) of the Constitution of The Gambia recognises that Common Law forms part of the laws of The Gambia. Therefore, such a vulnerable group of persons are free to seek remedies by bringing a tort action for false imprisonment or negligence if they believe they have been wrongly diagnosed and as a result of such diagnosis been wrongly institutionalised.

51. Furthermore, the Respondent State submits that patients detained under the LDA have every right to challenge the Act in a Constitutional Court claiming that their detention under that Act deprives them of their right to freedom of movement and association as provided for under the Constitution of The Gambia.

52. In view of the Respondent State’s submissions on the availability of legal redress, the African Commission questioned the Respondent State as to whether legal aid or assistance would be availed to such a vulnerable group of persons in order for them to access the legal procedures of in the country. The Respondent State informed the African Commission that only persons charged with Capital Offences are entitled to legal assistance in accordance with the Poor Persons Defence (Capital Charge) Act.

53. The category of persons that would be detained as voluntary or involuntary patients under the LDA are likely to be people picked up from the streets or people from poor backgrounds. In cases such as this, the African Commission believes that the general provisions in law that would permit anybody injured by another person’s act can only be available to the wealthy and those that can afford the services of private counsel.

54. Clearly the situation presented above fails to meet the standards of anti-discrimination and equal protection of the law as laid down under the provisions of Articles 2 and 3 of the African Charter and Principle 1(4) of the United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Illnesses and the Improvement of Mental Health Care.

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Comment

According to the Commission, the principle of non-discrimination contained in Article 2 is ‘essential to the spirit of the African Charter’. In addition to the finding of a violation of the principle of non-discrimination, it is worth mentioning that the Commission urged the Government of The Gambia to: a) repeal and replace the Lunatics Detention Act; b) pending the above, create an expert body to review the cases of all persons detained under the Lunatics Detention Act and make appropriate recommendations for their treatment or release; and c) provide adequate medical and material care for persons suffering from mental health problems.

This decision is interesting on at least two additional accounts. First, the African Commission examined not only the basis for detention but also the positive obligations to ensure adequate care for patients. Second, the Commission provided a holistic interpretation of the Charter by referring in several parts of the decision to other international human rights instruments with similar provisions to the African Charter and it explicitly endorsed the interpretation of the Human Rights Committee through its General Comments (para. 76). In this regard, for example, the Commission made use of the criterion stipulated in General Comment 25 to declare that there was no objective basis within the legal system of The Gambia to exclude mentally disabled persons from political participation. This cases is also discussed under the right to health.

Selected additional cases: ECHR  : case ‘Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium, Application Nos.’1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64; Judgement of 23 July 1968; Vermeire v. Belgium  , Application No. 12849/87, Judgment of 29 November 1991 (reproduced below). I/A Court H.R.: Inter-American Court Advisory Opinion OC-18/03 of 17 September 2003.