The Romanian Civil Code provides that part of the deceased’s estate shall be granted, even against his wish – manifested through donations or wills –, to a category of heirs called forced heirs (for the legal regime of forced heirship, see Articles 1.086 – 1.099 of the Romanian Civil Code, 2009). However, since this is effectively a limitation of a person’s possibility to freely dispose of his property and, as such, a limitation of the right to property, a question arises: is this limitation compatible with the right to respect for private property enshrined in Article 1 of Protocol no. 1 of the European Convention on Human Rights (hereinafter referred to as ECHR)?

I endeavour to answer this question, by analysing the following: how can the forced heirship mechanism be qualified and if it is covered by Article 1 of Protocol no. 1 of the ECHR (1); whether the Romanian legal provisions on forced heirship constitute an interference with the right to protection of property (2); whether this interference is provided by law and pursues a legitimate aim (3); whether this interference is necessary in a democratic society (4); whether the State’s margin of appreciation (in the simplest terms, the margin of appreciation gives the state more freedom in pursuing its policies when issues of human rights are at stake provided there is no or little consensus as to the scope of a certain fundamental right guaranteed by the ECHR between the parties therein) changes the conclusion of the analysis. Although in a logical sequence one would not analyse whether the interference is necessary in a democratic society if the state is deemed to have a large margin of appreciation, since this will be impractical; however, I will still analyse the issue of necessity in a democratic society, since the margin of appreciation of the state varies from a period to another and, thus, can change over time (Tümay, M., 2008, pp. 211-212) (5).    

1. Qualification of the forced heirship mechanism and applicability of Article 1 of Protocol no .1

The right of a person to devise (dispose of property by will – Garner, Bryan A., 2009, p. 517) his estate (McLearen, R., 2011, p. 325) is deemed to be a constitutive element of the right to dispose of one’s property (Professor Croucher, R. F., 2012, pp. 10-11; Mill, J. S., 2009, p. 200, § 6), as a characteristic of the general right to property (Stoica, V., 2013, pp. 103-104). The same reasoning applies when that person decides to dispose of his goods through donations (Stoica, V., 2013 p. 104). As such, any limitation brought upon the right of disposition by donation or by will constitutes a limitation of the right to property – since the right to dispose of one’s property is deemed a traditional and fundamental aspect of the right to property (ECtHR, Marckx v. Belgium, 1974, § 63). Such a limitation is generated by the Romanian rules on forced heirship which grant part of the deceased’s estate to the forced heirs by reducing the donations and the wills which exceed the limit of the non-reserved portion (the non-reserved portion refers to the part of the estate which the testator/ donor can dispose of freely, as opposed to the reserved portion) of the estate (see, for the general treatment of forced heirship, Art. 1.086 – 1.099 of the Romanian Civil Code, 2009).

As to the qualification of the forced heirship measure under Article 1 of Protocol no. 1 of the ECHR, it must be considered that this article is applicable to three situations: deprivation of property, control of the use of property and peaceful enjoyment of possessions – the last one having a general scope of application, subsidiary to the first two (Grgić, A. et al., 2007, pp. 10-11). I argue that the forced heirship measure falls under the general rule regarding the peaceful enjoyment of possessions. The forced heirship measure falls short of being qualified as deprivation of property: the measure does not interfere with the testator’s title to property and the economic nexus of the right is not affected – disposing of one’s property for pecuniary consideration is not covered by the norms on forced heirship. Likewise, this cannot be considered an issue of control of the use of property since the testator can use his property in any way he deems fit. Moreover, the relevant moment when the rules of reduction operate is that of the death of the person.

2. Is there an interference with the right to respect for private property?

Above, I argued that the forced heirship measure limits the right to property of a person. However, in order to successfully qualify this measure as an interference with the right to respect for private property in the terms of the ECHR, the following must be considered: it is true, on one hand, that the testator/donor can dispose of his property during his life as he sees fit, the rules on forced heirship not being applicable in this case, except for donations, but only retroactively since the effects of the reduction mechanism do not occur during the life of the person. On the other hand, if the testator/donor decides to dispose through donation/will of any part of his estate which exceeds the non-reserved portion (although he cannot intend this consciously since nobody can know at the moment of disposition what will be the scope of the estate when he dies), as opposed to the reserved portion, excluding the forced heirs from his acts of disposition, he will suffer a reduction of the donation(s) or of the will which exceed(s) the limits of the non-reserved portion. In other words, by virtue of law, the disposition by a person of his goods through donation or will regarding the reserved portion of his estate will be voided of any effect at the moment of his death, rendering his right of disposition only theoretical in this case. And, as the ECtHR’s case-law is clear on this topic, ‘the convention is intended to guarantee not rights that are theoretical and illusory but rights that are practical and effective’ (ECtHR, Airey v. Ireland, 1979, § 24; Leyla Şahin v. Turkey, 2005, § 136; Mamatkulov & Askarov v. Turkey, 2005, § 121). Thus, since the rules on forced heirship block the effectiveness of the right of disposition through will/donation when this right concerns the reserved portion of the estate, an interference with the ECHR right to respect for private property can be deemed to have occurred.    

3. The issues of the provision of the interference by law and the legitimate aim

Firstly, the condition that the interference must be provided by law (Carss-Frisk, M., 2003, p. 9) is satisfied: the law on forced heirship is clear and easily accessible (see Art. 1.086 – 1.099 of the Romanian Civil Code, 2009). Secondly, the condition that the interference must pursue a legitimate aim (Grgić, A. et al., 2007, pp. 13-14) is, in my view, satisfied, as well: guaranteeing part of the deceased’s estate to his immediate family, as a duty to them, in order to protect them (Chirică, D., 2014, p. 394).  

4. The necessity of the measure in a democratic society

The issue of necessity in a democratic society (Grgić, A. et al., 2007, p. 12) does not seem to be so simple and clear. The main problem seems to be that there are arguments against the general necessity of this measure. Moreover, there exist mechanisms which are less encroaching on the ECHR right to respect for private property and which seem to satisfy the same aim, thus rendering the forced heirship measure disproportional (Carss-Frisk, 2003, p. 31) to the aim it purports to achieve.

Regarding the general necessity of the forced heirship mechanism: the right of a person to dispose of his estate – through donation or will – does not serve only an economic purpose, but is a practical manifestation of private life (Croucher, 2012, pp. 12-14). A person can dispose of his estate in a manner in which it purports to influence the behaviour of his family. Thus, it is hard to understand how can an abstract legal provision solve such issues – which differ from one case to another – better than the person disposing of his property (Banks v. Goodfellow (1870) 5 LR QB 549, 563-565, cited in:Croucher, R. F., 2012, p. 13; Le Van,, 1977, p. 34). A counter argument may be that the testator/donor can still influence the behaviour of his family since he can dispose freely of the non-reserved portion of his estate. However, if the forced heirs knew that they would still benefit from the mandatory provisions on forced heirship, would they be as easily influenced by the testator/donor as compared to the situation where forced heirship did not exist? Such a statement can hardly be supported. In any case, this argument presupposes that the donor/testator is reasonable and seeks to influence the behaviour of his family for their own wellbeing or with a consideration for the general wellbeing. Nonetheless, this is not always the case.

Another counterargument as to the necessity of the forced heirship mechanism is that it incentivises the forced heirs not to pursue their professional development – especially those who know that they will inherit a vast estate (Croucher, 2012, p. 11; Le Van, 1977, p. 34). From a social perspective, the contribution of such heirs to the general wellbeing of the society is hindered (Croucher, 2012, p. 11). From a cost-benefit analysis perspective, the benefits brought about by the forced heirship institution – which, as argued below, can be reached through other means – are doubtful, while the costs, if they materialised, would be more harmful than the potential benefits. 

Furthermore, the mechanism of forced heirship is outdated. In past centuries, when life expectancy was lower, such a mechanism made sense. It guaranteed the possibility to protect children and to protect a wife which was deemed incapable to decide upon day-to-day economic issues (Idem, p. 15). Nowadays, things are different. Life expectancy is higher and parents live long enough to offer their children the protection and education they need to become independent – this is the real protection children need (Idem, p. 26). If the parents consider it necessary to offer their children additional benefits, they are free to do so. Moreover, the applicable law should reflect this freedom, not impose an obligation to this end. As for the status of the woman, it has changed fundamentally, rendering her on par with the man.

As a final counterargument against the necessity of the forced heirship mechanism, one could look at the Romanian Private International Law Public Order – which has a more limited scope than the domestic public order, being limited only to the fundamental values of the Romanian State (Oprea, 2013, pp. 168-169). It is considered in legal literature that the Private International Law Public Order does not encompass the forced heirship institution since the latter is not an institution reflecting the fundamental values of the Romanian State (Idem, p. 173). This shows, again, the symbolic importance of forced heirship as opposed to actual necessity.   

As to alternative measures to forced heirship which pursue the same aim: one can consider an enlargement of the institution of vices of consent as to donations and wills; or guaranteeing close family members who are still in need of protection monetary support, if the caretaker dies while those family members still need support (Idem, p. 172). The first alternative measure can occur when the testator/donator is influenced by a third person to disinherit close family members so that that third person can benefit from an unjustified donation/inheritance. The second alternative measure is justified, as mentioned above, when a person dies while still taking care of other members of his family (Le Van, 1977, p. 34).

Thus, because of a lack of necessity and due to the existence of alternative measures to the institution of forced heirship, which are less encroaching on the ECHR right to respect for private property, it can be concluded that the measure of forced heirship is not necessary in a democratic society. If this were the limit of the analysis, it could be concluded that the institution of forced heirship constitutes a violation of Article 1 of Protocol no. 1 of the ECHR.

5. The margin of appreciation

However, a thorough analysis of the issue of forced heirship must reflect the margin of appreciation, which the states enjoy under the framework of the ECHR (Grgić, et al., 2007, pp. 14-15; Greer, 2000, pp. 12-13 & pp. 42-44). 

The existence of homogeneity, or lack of it, within the legal systems of the parties to the ECHR as regards the issue of forced heirship must be taken into account, in this case. As such, an analysis of the situation within Europe demonstrates that forced heirship is part of the legal traditions of European states (CESifo DICE, 2014, pp. 15-19). Major legal systems such as France or Germany have provisions on forced heirship. So do almost all the other legal systems. This means that, because of this common shared tradition, it is more probable that any claim launched to the ECtHR regarding the issue of forced heirship may be rejected on the basis of the State’s margin of appreciation and on the basis of homogeneity within Europe’s legal systems (Spielmann, D., 20th of March 2014, p. 4) in regards to the existence of forced heirship within those systems. 

6. Conclusion

Although the provisions on forced heirship seem to be contrary to the fundamental right to respect for private property, a claim on this basis will more probably be rejected because of a large margin of appreciation accorded to the state by the Strasbourg Court. However, since the margin of appreciation doctrine is not an abstract one and is not fixed in time, its content varies from a period to another. This means that the evolution of the law – which is hard to predict in a general manner, let alone such a specific manner such as the provisions on forced heirship – can lead to a point in time where the Strasbourg Court may not only entertain a claim on the issue of forced heirship, but actually find a violation of Article 1 of Protocol no. 1 of the ECHR. Until then, a famous quote seems to reflect a reality which the legislature has not taken into consideration: ‘each unhappy family is unhappy in its own way’ (Tolstoy, L., 2013, p. II). A general rule which is designed for the same pattern cannot solve this unhappiness that is unique to each case. The persons involved are best positioned to do that. 

 

By Alexandros Bakos

 

This material was published in Lawyr.it Vol. 5 Ed. 3, September 2018, available only online.

 

References:

Legislation:

Romanian Law no. 287/2009: the Romanian Civil Code, Available at: https://legeaz.net/noul-cod-civil/ (accessed: 8th of April 2018)

The European Convention on Human Rights: Article 1 of Protocol no. 1, Available at: https://www.echr.coe.int/Documents/Convention_ENG.pdf (accessed: 8th of April 2018)

Case-law:

European Court of Human Rights, Marckx v. Belgium, 1979, Judgement – Merits and Just Satisfaction (Application 6833/74)

European Court of Human Rights,  Airey v. Irland,  1979, Judgement – Merits (Application 6289/73)

European Court of Human Rights, Leyla Şahin v. Turkey, 2005, Judgement – Merits and Just Satisfaction (Application 44774/98)

European Court of Human Rights, Mamatkulov and Askarov v. Turkey, 2005, Judgement – Merits and Just Satisfaction (Applications 46827/99 and 46951/99)

Treatises and other (hand)books:

Carss-Frisk, M. (2003), The right to property. A guide to the implementation of Article 1 of Protocol No. 1 to the European Convention on Human Rights. Human rights handbooks, No. 4,  Directorate General of Human Rights and Legal Affairs, Council of Europe, Reprinted in Germany. Available at: https://rm.coe.int/168007ff4a (Downloaded: 8th of April 2018)

Chirică, D. (2014), Tratat de drept civil. Succesiunile și liberalitățile, C. H. Beck, București

Garner, Bryan A. (editor in chief) (2009), Black’s Law Dictionary. Ninth Edition, Thomson Reuters, St. Paul, MN, United States of America

Grgić, A. et al. (2007), The right to property under the European Convention on Human Rights. A guide to the implementation of the European Convention on Human Rights and its protocols. Human rights handbooks No. 10, Directorate General of Human Rights and Legal Affairs, Council of Europe, Printed in Belgium. Available at: https://rm.coe.int/168007ff55 (Downloaded: 8th of April 2018)

Mill, J.S. (2009), Principles of Political Economy, Project Gutenberg. Available at: http://www.gutenberg.org/files/30107/30107-pdf.pdf?session_id=e7aea748942defb08f093fda2873233ae76e03c6 (Downloaded: 8th of April 2018)  

Stoica, V. (2013), Drept civil. Drepturile reale principale, C. H. Beck, București

Tolstoy, L. (2013), Anna Karenina, Project Gutenberg. Available at: http://www.gutenberg.org/cache/epub/1399/pg1399.pdf?session_id=3c8b2fccbcee2784d8336ec27565c896d445fe24 (Downloaded: 8th of April 2018)

Articles:

Le Van, G. (1977), ‘Alternatives to Forced Heirship’, Tulane Law Review, Vol. 52:1977, pp. 29-49

McLearen, R. (2011), ‘International Forced Heirship: Concerns and Issues with European Forced Heirship Claims’, Estate Planning and Community Property Law Journal, Vol. 3:323, pp. 323-342

Oprea, A. (2013), ‘Excepţia de ordine publică internaţională în dreptul internaţional privat şi rezerva succesorală’, SUBB Iurisprudentia nr. 4/2013, pp. 165-177. Available at: https://studia.law.ubbcluj.ro/pdfs/1492626461-11_Oprea_165_177.pdf (Downloaded: 8th of April 2018)

Professor Croucher, R.F. (2012), ‘How free is free? Testamentary Freedom and the Battle between ‘Family’ and ‘Property’, 37 Australian Journal of Legal Philosophy, pp. 9-27

Tümay, M. (2008) ‘The “Margin of Appreciation Doctrine” Developed by the Case Law of the European Court of Human Rights’, Ankara Law Review, Vol. 5 No. 2, pp. 201-234. Available at: http://dergiler.ankara.edu.tr/dergiler/64/1545/16910.pdf (Downloaded 8th of April 2018)

Other materials:

CESifo DICE (Database for Institutional Comparisons in Europe) (2014), ‘Succession law in Europe: Inheritance and inheritance tax, 2014’. Available at: https://www.cesifo-group.de/ifoHome/facts/DICE/Public-Sector/Public-Finance/Taxes/Succession-law-in-Europe-inheritance-tax/fileBinary/Succession-law-in-Europe-inheritance-tax.pdf (Downloaded 8th of April 2018)      

Greer, S. (July 2000), ‘The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights. Human rights files no. 17’, Council of Europe Publishing, Strasbourg. Available at: https://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-17(2000).pdf   (Downloaded: 8th of April 2018)

Spielmann, D. (20th of March 2014), ‘Whither the Margin of Appreciation?’, UCL – Current Legal Problems (CLP) lecture. Available at: https://www.echr.coe.int/Documents/Speech_20140320_London_ENG.pdf (Downloaded: 8th of April 2018)