PROCEDURE

The case originated in an application (no. 68864/01) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two French nationals, Ms Hermance Merger and Ms Clémentine Cros (“the applicants”), on 3 November 2000.

The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs.

The applicants alleged a violation of Article 8 of the Convention, taken together with Article 14, and of Article 1 of Protocol No. 1 to the Convention, taken together with Article 14 of the Convention.

The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).

By a decision of 11 March 2004 the Court declared the application admissible.

The applicants and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1968 and 1936 respectively and live in Paris.

The first applicant was born on 6 December 1968 of a relationship which began in 1964 between the second applicant, a widow and the mother of a daughter born in 1957, and Mr R. Merger, a married man and the father of four children born in 1942, 1944, 1945 and 1947. At the time her birth, her father and mother had been living together since 1965. Her father formally acknowledged paternity on 7 December 1973 and she has borne his name since 17 May 1985.

On 11 May 1980 the first applicant's father drew up a private deed dividing his movable property between his five children. The document was signed by the four legitimate children and by the father on the first applicant's behalf.

On 11 October 1984 he made a manuscript will in which he left to the first applicant the disposable portion of his estate which, pursuant to Article 913 of the Civil Code, came to one quarter. He stipulated that it was to be taken free of his wife's life interest.

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 conceived while he was bound by marriage to a person other than its mother.

A notary was instructed to wind up the estate. He took an inventory at the home on 20 June 1986. The first applicant (who was sitting her baccalaureate that day) was represented by the second applicant, who pointed out that certain movables were missing. The widow laid claim to certain items which she said belonged to her. The total value of the movables listed in the inventory was estimated at 114,175 French francs (FRF).

Since an amicable division of the estate proved impossible, 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 – which were deemed to have been made to the first applicant – and restricting the first applicant's rights to 10 % of the net estate.

The applicants asked the Court, inter alia, to dismiss the claims and to order the claimants to hand over to the first applicant all the movable property she had been allocated on 11 May 1980.

In a judgment of 6 November 1992, the tribunal de grande instance found that funds that had been used to purchase a flat in the avenue d'Italie in Paris and a sum of FRF 500,000 were gifts that had been made to the first applicant through an intermediary and set them aside under Articles 908 and 911 of the Civil Code. It added that the value of the property that had been acquired with those gifts had to be brought into account. Relying on those provisions, the tribunal de grande instance ruled that the first applicant was not entitled to more than 10% of the estate and held that the gift of the disposable portion was inoperative. Relying principally on Article 931 of the Civil Code, it held that the deed of division dated 11 May 1980 was null and void as it was not in the correct form and added, in the alternative, that the first applicant could only lay claim to 10% of the movables that were divisible in kind. Lastly, it declared that the first applicant was to receive her share of the estate free of any life interest.

The applicants appealed against that judgment. The first applicant completed her studies in December 1993.

In a judgment of 24 September 1996, the Paris Court of Appeal transferred the case to the Dijon Court of Appeal, as one of the parties was a judge of the Paris tribunal de grande instance and the other had been admitted to the Paris Bar while the proceedings were under way.

In a judgment of 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 and had ruled that the assets of the second applicant – who it noted had lived with the deceased since 1965 – were gifts acquired through an intermediary. 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. The first applicant signed the deed “without prejudice to the appeal to the Court of Cassation which has been served on the parties”. Under the terms of the deed of division, she was required to pay an equalising balance to the other heirs in the French franc equivalent of 236,187 euros (EUR).

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 equalising balance was duly paid to the other heirs.
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CODE
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68864/01
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ORG
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French Republic
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French nationals
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PERSON
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Ms Hermance Merger
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Ms Clémentine Cros
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3 November 2000
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French Government
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Mr R. Abraham
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Director of Legal Affairs
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Ministry of Foreign Affairs
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11 March 2004
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1968
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1936
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Paris
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6 December 1968
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1964
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DEM
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widow
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mother of a daughter
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1957
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Mr R. Merger
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DEM
NO_MASK
married man
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four children
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1942
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1944
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1945
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1947
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1965
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7 December 1973
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17 May 1985
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11 May 1980
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11 October 1984
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one quarter
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16 June 1985
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12 March 1986
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20 June 1986
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widow
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QUANTITY
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114,175 French francs (FRF)
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ORG
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Paris tribunal de grande instance
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10 %
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11 May 1980
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6 November 1992
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tribunal de grande instance
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LOC
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avenue d'Italie in Paris
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FRF 500,000
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tribunal de grande instance
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10%
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11 May 1980
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10%
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December 1993
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24 September 1996
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Paris Court of Appeal
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Dijon Court of Appeal
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Paris tribunal de grande instance
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Paris Bar
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27 November 1997
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Dijon Court of Appeal
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1965
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Court of Cassation
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4 February 1999
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Court of Cassation
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236,187 euros (EUR)
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3 May 2000
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Court of Cassation
Hermance Merger
FRA
CHAMBER
Task: Annotate the document to anonymise the following person: Hermance Merger