European Court of Human Rights

The oral hearings were held in public at the Human Rights Building, Strasbourg, on 24 April. Immediately prior to their opening, the Court had held a short preparatory meeting.

There appeared before the Court:

- for the Government:

       Mr. J. NISET, Legal Adviser

                            at the Ministry of Justice,                                            Agent,

       Mr. J. De MEYER, Senator,

                            Professor at the University of Louvain,                   Counsel,

       Mr. H. VAN KEYMEULEN, Legal Adviser

                            at the Ministry of Justice,                                         Adviser;

- for the Commission:

       Mr. J. CUSTERS,

       Mr. B. KIERNAN,                                                                     Delegates,

       Mr. D. VAN OOSTERWIJCK, applicant,

                            Assisting the Delegates (Rule 29 par. 1, second sentence,   

                            of the Rules of Court).

The Court heard addresses by Mr. De Meyer for the Government and by Mr. Kiernan, Mr. Custers and Mr. Van Oosterwijck for the Commission, as well as their replies to questions put by the Court. During the hearings, several documents were produced to the Court by those appearing before it.

AS TO THE FACTS

1. The particular circumstances of the case

However, according to her, from the age of five she became conscious of a dual personality: although physically female she felt herself psychologically of the male sex. After going through a period of depression on this account, she attempted suicide in 1962 and had to be treated in hospital (see paragraph 12 of the Commission’s report).

In 1969, two specialists, Doctor Slosse and Doctor Dumont, respectively a neurologist and endocrinologist, found that the symptoms shown by the applicant unquestionably indicated transsexualism. In addition to having before them the report of a Belgian psychiatrist, they had also consulted a British psychiatrist, Doctor Randell.

Whilst the doctors considered the use of psychotherapy ineffective in this field, they concluded, in the light of American, English and Danish research, that surgical treatment offered excellent prospects of success. They also took note of the fact that the applicant had consistently refused to accept the first kind of treatment and they believed it probable that he would attempt to commit suicide if the second kind were not adopted.

Accordingly, they decided to apply hormone therapy, followed by surgery.

In July and December 1970 in Brussels, two surgeons, Mr. Fardeau and Mr. Longrée, successfully performed on him two operations of sexual conversion (bilateral mammectomy; hysterectomy-bilateral ovariectomy). Mr. Fardeau had previously sought the consent of the Medical Association: on 8 May 1970, the Secretary of the Council of the Brabant Province Branch of the Association had sent him the following reply: "As the problem you raise is a medical one, you should act according to your conscience but we must most strongly advise you to take all possible precautions in view of the very delicate nature of this type of operation."

Subsequently, the applicant received a phalloplasty carried out in ten stages, from October 1971 to October 1973, by Professor Evans, a surgeon at Queen Mary’s Hospital in London.

Part of the cost was borne by the Medical Service of the Commission of the European Communities; the Communities’ administrative department issued the applicant with an employment card made out in the name of Mr. D. Van Oosterwijck.

The ministère public (Attorney-General’s department) submitted on 13 November 1973 that the petition should be disallowed: it was argued that D. Van Oosterwijck had not established, as he was obliged to do under the legislation in force, that the initial record of his sex was tainted by an error, whereas the case decided in Ghent did concern such an error.

The Brussels Court dismissed the petition on 30 January 1974 on the ground that the petitioner had not demonstrated that the Registrar had made a mistake when drawing up the birth certificate; indeed, the petitioner’s submissions showed just the opposite since he did not claim to have been "fundamentally" a man from the outset.

The parquet (Attorney-General’s department) submitted that the appeal should be dismissed, relying on the following arguments. There was controversy in medical circles regarding the syndrome known as transsexualism. Moreover, the assertion that D. Van Oosterwijck had always belonged "fundamentally" to the male sex was not corroborated by the facts; the Registrar of Births had made no mistake in recording what outward appearances revealed. In point of fact, some lawyers questioned whether, in the absence of an error, the only conceivable legal remedy did not consist of an "action d’état préalable" (a "preliminary action pertaining to personal status"); their views probably had force, but in the present proceedings the issue had not been put in that manner. Admittedly, the appellant had an affliction which caused him considerable suffering in human and personal terms; if this were the only aspect to be considered, it might perhaps have been possible to grant his petition. From the point of view of public policy (ordre public), on the other hand, the petition prompted the most serious reservation: its acceptance might provoke numerous other petitions and it would be dangerous to encourage indirectly by this means the proliferation of treatment whose effects, being irreversible, might subsequently be regretted by the patients themselves. Finally, the perpetual calling in question of certain situations, particularly in the realm of personal status, conflicted with the requirements of a rational organisation of the community: it would tend to an increase in personal problems and engender a climate of insecurity and instability in family and social relationships.

The Brussels Court of Appeal dismissed D. Van Oosterwijck’s appeal on 7 May 1974. It held that, before it could be rectified, a civil status certificate had to contain an error committed when it was drawn up and that there was no provision in the laws as they then stood that allowed "account to be taken of artificial changes to and individual’s anatomy", such as those in the present case, "even if they correspond[ed] to his deep-seated psychical tendencies". However, "neither the physical examination of the appellant ... nor the proposed scientific evidence as to the biological aetiology of transsexualism" were capable of evidencing the existence, from the very outset, of "physical characteristics of the male sex or even (of) transsexual tendencies".

2. The Belgian legislation

Rectification of civil status certificates is governed by Articles 1383 to 1385 of the Judicial Code. The person concerned has to file a petition with the Court of First Instance (Article 1383). The President of the Chamber designated to hear the matter gives directions for the petition to be communicated to the ministère public and appoints a judge-rapporteur; the petitioner is invited to appear at a hearing in order to present his case (Article 1384). The operatives provisions of any judgment ordering rectification are transmitted to the Registrar of Births, Marriages and Deaths who will forthwith enter particulars thereof on his registers and endorse them in the margin of the certificate to be amended; thereafter, the certificate will only be issued bearing the rectifications ordered (Article 1385).

The Government referred the Court to a judgment dealing with the construction of these provisions: in the case of a couple who had obtained a judicial separation but later resumed co-habitation, the Verviers Court of First Instance held on 22 September 1969 that "rectifying a civil status certificate" involves making thereto "such additions, deletions or modifications as may be necessary to cause it to be in conformity with the law and with the true state of affairs regarding the status of the person or persons it concerns", including the situation where "a certificate, though properly prepared in the first place, no longer corresponds to the true state of affairs".

The Court of Cassation has never been called on to consider the issue.

At the present time, at last seven transsexuals have taken advantage of this Act, implementation of which in a given case has no legal bearing on the person’s sex.

On the other hand, certified copies of the full certificate may be obtained by the individual himself, his spouse or surviving spouse, his legal representative, his ascendants, descendants or rightful heirs, the public authorities and persons having a family, scientific or other legitimate interest (Article 45 par. 1, second sub-paragraph).

Identity cards, passports and driving licences do not specify the sex of the holder.

PROCEEDINGS BEFORE THE COMMISSION

- Article 3 of the Convention (art. 3), on the ground that his situation was one of "civil death" and was inhuman and degrading;

- Article 8 (art. 8), in that the application of the law obliged him to use documents which did not reflect his real identity;

- Article 12 (art. 12), since, by maintaining a distortion between his legal being and his physical being, the contested court decisions prevented his marrying and founding a family.

In its report of 1 March 1979, the Commission concluded that there had been a breach of Article 8 (art. 8) (unanimously) and of Article 11 (art. 11) (by seven votes to three). Accordingly, it considered that it was not necessary to extend its examination to Article 3 (art. 3), having regard to the fact that the matters complained of did not appear to have the degree of seriousness which the Commission usually contemplated in relation to that Article.

FINAL SUBMISSIONS MADE TO THE COURT

"as [their] main submission, ... to hold that, for failure to exhaust domestic remedies, the application is not admissible, or, in the alternative, to hold that the complaint is not well-founded and that it has not been shown that Belgium has violated the ... Convention ...".

For their part, the Commission’s Delegates requested the Court, "if [it judges that it] ought to re-examine the matter of Article 26 (art. 26), to hold that the plea based by the Government on non-observance of the rule as to exhaustion of domestic remedies is not well-founded ...".

AS TO THE LAW

The plea of non-exhaustion of domestic remedies

I. THE JURISDICTION OF THE COURT AND ESTOPPEL

The Court will take cognisance of preliminary pleas of this kind insofar as the respondent State may have first raised them before the Commission, in principle at the stage of the initial examination of admissibility, to the extent that their character and the circumstances permitted (see the Artico judgment of 13 May 1980, Series A no. 37, pp. 12-14, par. 24 and 27).

- had not appealed on a point of law to the Court of Cassation;

- had not pleaded the Convention either at first instance or on appeal;

- had not sought authorisation to change his forenames, pursuant to the Act of 2 July 1974;

- had not instituted an action d’état (action pertaining to personal status).

The first three points were mentioned in the 1977 written observations on admissibility and must accordingly be considered by the Court.

The fourth means of redress was not expressly referred to by the Government prior to the decision of 9 May 1978 accepting the application. However, their representatives had adverted to the matter in substance at the hearing preceding that decision: in particular, they had argued that the applicant "could have sought a declaratory judgment as to his new situation and ... the endorsement in the margin of the certificate, of the modification" effected; they had emphasised in addition that there existed "a fundamental difference" between "bringing the birth certificate into conformity with the actual state of affairs" in this way and "a genuine rectification" (see pages 35 and 36 of the verbatim record of the hearings before the Commission). There is thus no estoppel.

II. WHETHER THE PLEA IS WELL-FOUNDED

It has to be ascertained, in the light of these principles, whether any one or more of the remedies listed by the Government is or are relevant for the purposes of Article 26 (art. 26) and, if so, whether any special grounds nevertheless dispensed D. Van Oosterwijck from having recourse thereto.

1. Whether there existed any remedies which ought in principle to have been exercised

a) Application for authorisation to change forenames (see paragraphs 15 and 20 above)

Had the applicant successfully applied after the entry into force of the Act of 2 July 1974 for authorisation to change his forenames, third parties would admittedly have had far fewer opportunities of noticing the difference between his appearance and his civil status. However, he would not really have solved his problems in the manner claimed by the Government: he would have succeeded only in eliminating some of the consequences of the wrong of which he complained but not in eradicating either its cause, namely the respondent State’s non-recognition of his sexual identity (see paragraphs 12, 13 and 21, second sub-paragraph, above) or its social consequences. The Court concurs with the applicant and the Commission’s Delegates on this point.

(b) Appeal to the Court of Cassation and reliance on the Convention

- that the birth certificate "in principle settles definitively" the person’s sex, this being "a component of [his or her] status";

- in substance, that rectification of the certificate presupposed the presence of an error committed when the certificate was drawn up;

- that "there is no provision in current legislation that allows account to be taken of artificial changes to an individual’s anatomy, even if they correspond to his deep-seated psychical tendencies" (see paragraph 13 above).

It should also be noted that when construing the same texts other Belgian courts had arrived at divergent conclusions (see paragraphs 17 in fine and 18 above).

The Court of Cassation, while not taking cognisance of the actual merits of a case (Article 95 of the Constitution), does have jurisdiction to state the law and thereby set the course for subsequent judicial decisions. There is thus nothing to show that an appeal to the Court of Cassation on grounds of the national legislation stricto sensu would have been obviously futile.

(c) Action d’état (action pertaining to personal status)

In Belgian academic writings, legislation and judicial practice a distinction is drawn between actions d’état and actions for rectification. The former deal with issues of substance in that their purpose is to establish, modify or extinguish personal status. The latter are brought solely in order to make good any error or omission appearing in the documents serving as proof of status. Some appreciable, consequences in law, which are set forth in the Judicial Code (Articles 92 par. 1, 569 and 764), flow from this difference in the nature of the two actions.

An action d’état would have allowed the applicant not only to plead the Convention but also to procure a prior adjudication by the courts of his own country on the issue he raised before the Commission and thereafter before the Court, and to set this issue in its proper dimensions from the very outset, It is for those courts to determine, should the occasion arise, whether the action d’état is still available to the applicant.

However, in the absence of any decided cases in Belgium on this point, no blame can be attached to D. Van Oosterwijck for having omitted up till now to bring such an action. The rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case (compare the Stögmüller judgment of 10 November 1969, Series A no. 9, p. 42, par. 11; the Ringeisen judgment of 16 July 1971, Series A no. 13, pp. 37-38, par. 89 and 92; the above-mentioned Deweer judgment, p. 17, par. 29 in fine).

2. Whether there existed any special grounds capable of dispensing the applicant form exercising the remedies taken into consideration by the Court

The Court does not consider that a negative opinion of this kind can of itself justify or excuse failure to exercise a remedy (see, for example, the Commission’s final decision of 5 April 1968 on the admissibility of application no. 2257/64, Graf Soltikow v. the Federal Republic of Germany, Yearbook of the Convention, vol. 11, p. 224): at the very most, such an opinion may tend, when combined with other factors, to show that the remedy in question would in all probability be ineffective or inadequate (see the Commission’s decision of 12 July 1978 on the admissibility of application no. 7907/77, Mrs. X v. the United Kingdom, Decisions and Reports, no. 14, p. 210).

In the present proceedings, the documents in the case-file do not disclose on what precise grounds in law the qualified persons mentioned by the applicant based their opinions. There is no evidence before the Court to show that they dealt with the matter in the light of all relevant aspects, including the Convention. On this point, the Court therefore perceives nothing liable to disturb the conclusion following form paragraphs 32 to 34 above.

The Court is not persuaded by this argument. The fact that the Belgian courts might have been able, or even obliged, to examine the case of their own motion under the Convention cannot be regarded as having dispensed the applicant from pleading before them the Convention or arguments to the same or like effect (see, mutatis mutandis, the Commission’s unpublished decision of 4 September 1958 on the admissibility of application no. 342/57, X. v. the Federal Republic of Germany). Whether the obligation laid down by Article 26 (art. 26) has been satisfied has to be determined by reference to the conduct of the victim of the alleged breach. In addition, the manner in which the applicant presented his case to the Brussels Court of First Instance and Court of Appeal scarcely afforded them an opportunity of taking the Convention into account.

FOR THESE REASONS, THE COURT

Holds, by thirteen votes to four, that by reason of the failure to exhaust domestic remedies, it is unable to take cognisance of the merits of the case.

Done in English and in French, the French text being authentic, at the Human Rights Building, Strasbourg, this sixth day of November, one thousand nine hundred and eighty.

For the President

Gérard WIARDA

Vice-President

Marc-André EISSEN

Registrar

The following separate opinions are annexed to the present judgment in accordance with Article 51 par. 2 (art. 51-2) of the Convention and Rule 50 par. 2 of the Rules of Court:

- concurring opinion of Mr. Thór Vilhjálmsson;

- partly concurring opinion of Mr. Ganshof van der Meersch;

- joint dissenting opinion of Mr. Evrigenis, Mr. Liesch, Mr. Gölcüklü and Mr. Matscher.

G. W.

M.-A. E.

PARTLY CONCURRING OPINION OF JUDGE GANSHOF VAN DER MEERSCH

(Translation)

I voted, along with the majority of my colleagues, for the failure to exhaust domestic remedies. I thus agree with the operative provisions of the judgment.

I regret, however, that I cannot agree with certain of the reasons stated in support of this decision.

*   *   *

I.

1.  In its judgment, the Court considers in turn the four remedies said by the Belgian Government to have been available to Mr. Van Oosterwijck to "redress" the state of affairs about which he was complaining.

The Court lists these "means of redress" and notes that Mr. Van Oosterwijck had not had recourse to them:

- he had not appealed on a point of law to the Court of Cassation from the judgment of the Brussels Court of Appeal;

- he had not pleaded a breach of the Convention either at first instance or on appeal;

- he had not sought authorisation to change his forenames by relying on the Act of 2 July 1974;

- he had not brought an action d’état.

2.  From amongst these "means of redress", the Court rules out Mr. Van Oosterwijck’s omission to apply for permission to change his forenames. The reason given by the Court is that "he would not really have solved his problems ...: he would have succeeded only in eliminating some of the consequences of the wrong of which he complained but not in eradicating ... its cause ...". I concur unreservedly with the Court’s viewpoint on this issue.

3.  On the other hand, the Court holds it against Mr. Van Oosterwijck that he neglected to utilise two of the three other "domestic remedies".

I agree with the reasoning employed by the Court with regard to the failure to plead a breach of the Convention and to the omission to make an application pertaining to his personal status by means of an action d’état, although I have allowed myself the privilege of formulating a few remarks on the latter point.

4.  On the other hand, I am unable to agree with the Court’s reasoning in support of its decision that domestic remedies have not been exhausted insofar as it is based on failure to appeal on a point of law to the Court of Cassation from the judgment of the Brussels Court of Appeal.

*   *   *

5.  For the purposes of evaluating Mr. Van Oosterwijck’s obligation to appeal on a point of law to the Court of Cassation in order to exhaust the remedies open to him, the Court cannot do other than refer back to domestic law in accordance with the doctrine of renvoi. It must decide by reference to the Belgian domestic law, this being the law governing cassation proceedings, that is, in the instant case, the rules on the admissibility of and the grounds for an appeal to the Court of Cassation.

6.  It is admittedly correct, as the Court observes that the Brussels Court of Appeal judgment sets out not only points of fact but also points of pure law.

This is so when the Court of Appeal states: "Whereas every individual must be treated as belonging to either the male or the female sex, which sex must be mentioned in the birth certificate; whereas that certificate in principle settles definitively this component of the individual’s status." In so holding, the judgment refers to what it describes as current Belgian law.

The same applies to the next reason: "Whereas there is no provision in current legislation that allows account to be taken of artificial changes to an individual’s anatomy, even if they correspond to his deep-seated psychical tendencies."

7.  It can be seen that neither of these reasons involves a mixed question of law and fact. They both invoke a general principle of law.

8.  However, in order to assess the prospects of success of an appeal by Mr. Van Oosterwijck on a point of law to the Court of Cassation from that judgment, based on one or both of these reasons in law, it is necessary to turn to the remainder of the judgment. In fact, it is not enough to take into consideration the reason in law enouncing the rule that is believed to be wrong. It must be ascertained whether the Court of Appeal’s decision is not justified by other reasons. And it can be clearly seen that this is the case.

9.  Indeed, the Court of Appeal expressly states: "Whereas, accordingly, it is not established that the appellant (Van Oosterwijck) belongs fundamentally, as she maintains, to the male sex." Why "accordingly"? Because this finding is the conclusion drawn from a line of argument expressed by the Court of Appeal in the form of four reasons of fact, each of which suffices to show that, in that Court’s view, it is not proved that Mr. Van Oosterwijck has fully acquired the male sex. These reasons thus provide a justification in law for the operative provisions of the Court of Appeal’s judgment.

10.  The reason in law, to which the European Court refers in order to decide that Mr. Van Oosterwijck had not exhausted domestic remedies because he did not appeal to the Court of Cassation, is obiter (surabondant). Yet, according to the settled case-law of the Belgian Court of Cassation, a plea contesting an obiter dictum in the decision under appeal is not an admissible ground of appeal (judgments of 10 March and 14 April 1978, Pasicrisie, 1978, I, pp. 773 and 912). The terms used by the Court of Cassation when laying down this rule have sometimes varied, according to the case. Thus: A plea to the effect that the court erred in law, when such error does not affect the correctness in law of the operative provisions under appeal, is inadmissible since there is no prejudice to the appellant (judgment of 2 December 1977, Pasicrisie, 1978, I, p. 387). Or again: A plea challenging only some reasons in the decision under appeal, when the operative provisions are justified in law by another reason, is inadmissible since there is no prejudice to the appellant (judgments of 10 March and 16 June 1978, Pasicrisie, 1978, I, pp. 773 and 1178).

11.  The appeal on a point of law that Mr. Van Oosterwijck might have lodged was doomed to failure. The remedy would not have been admissible. No blame can therefore be attached to him for not having had recourse to it.

It is wrong to base the operative provisions of the Court’s judgment, in order to decide that domestic remedies have not been exhausted in the present case, on the fact that the applicant did not appeal on a point of law to the Court of Cassation from the judgment of the Brussels Court of Appeal.

*   *   *

II.

12.  There is another reason why the Court should not have based the failure to exhaust domestic remedies as is required by Article 26 (art. 26) of the Convention on the fact that Mr. Van Oosterwijck did not appeal on a point of law to the Court of Cassation from the Brussels Court of Appeal judgment which confirmed the order dismissing his petition.

If he had appealed to the Court of Cassation, he would not have been able to obtain satisfaction, even on the assumption that his appeal had been held admissible. The proceedings he had instituted were no more than a petition for rectification of his birth certificate. The object of the petition would have been binding on the Court of Cassation and would have circumscribed its jurisdiction, just as it circumscribed the jurisdiction of those courts which did have to rule on the petition. The Court of Cassation would have been obliged to remain within the framework of a petition which could not achieve the object sought by Mr. Van Oosterwijck. And even assuming that an appeal to the Court of Cassation had succeeded, the lower court judge, on having the case referred back, would have been ruling ultra petita had he purported to replace a request for rectification of the applicant’s birth certificate by a request for modification of his status.

13. In fact, as the Court itself rightly observes in its judgment, the two actions are fundamentally different: "The former [actions d’état] deal with issues of substance in that their purpose is to establish, modify or extinguish personal status. The latter [actions for rectification] are brought solely in order to make good any error or omission appearing in the documents serving as proof of status."

14.  The action for rectification simply raises a question of evidence, that is to say the correctness and regularity of the documentary proof afforded by the certificate recording a person’s civil status. Unlike the action d’état, the action for rectification is not exclusively personal. It can be instituted on the initiative of any interested party or of the ministère public; the latter has the responsibility of inspecting and supervising the civil status registers, and this is done at least once every year. The number of rectifications of civil status certificates is countless, especially as regards civil status registers in less populous districts where the officers in charge of the registers (échevins de l’état civil) do not always have the full training required for drawing up such certificates. Unlike the situation that obtains in an action d’état, in an action for rectification the status of the individual concerned is not the subject of any dispute.

15.  The action d’état, on the other hand, does raise the issue of the individual’s true status. It takes the form of a dispute over or a claim concerning his civil status. It is always the very existence of that party’s status that constitutes the object of the action, the action being the means by which the request is presented.

16.  The Court’s judgment is right to point out that the procedure in an action d’état is laid down in detail in the Judicial Code. In fact, from the procedural point of view, there is a parallel that corresponds to the fundamental difference in kind between the two actions.

17.  The action for rectification of a civil status certificate has the advantage of a speedy procedure, the interests at stake being relatively minor; there is nothing more than a procedure by way of petition.

18.  On the other hand, the action d’état follows the "ordinary", contentious procedure. It is strictly personal to the party concerned and cannot even be brought by the ministère public. Only courts of first instance have jurisdiction over such an action; it must be heard by a chamber of three judges and notice thereof must be given to the ministère public: these are exceptional guarantees which are prescribed by the Judicial Code on account of the importance of the subject-matter for the social order. Academic writings stress the fact that it would be improper to disguise an action d’état as an action for rectification of a civil status certificate in order to take advantage of the simpler procedure offered by the latter. The action for rectification of a civil status certificate is the automatic consequence of a successful action d’état.

19.  A person’s status is inalienable. Questions of public policy are involved. It is inconceivable that a question of status should be dealt with by means of a procedure which, like that followed in actions for rectification of a civil status certificate, is set in motion by no more than a petition and does not even have to be contentious in form. Status is not negotiable or a matter for personal determination. It is personal to the individual and he cannot dispose of or modify it by agreement.

20.  The action d’état must be available whenever an aspect of a person’s status is the subject of a dispute or a claim. This applies, for example, to affiliation, the question whether a child is legitimate or illegitimate, disavowal of paternity, divorce, separation and annulment of marriage. It must also be available when an individual seeks recognition of his sexual identity.

21.  The aspects of a person’s status which have just been mentioned are fully dealt with in the Civil Code, the only exception being the question of sex, even though it cannot be contested that that also is an aspect of status; whilst there are admittedly no special rules in the Code on that question, it is not entirely lost sight of since it bears on the conditions on which marriage may be contracted. At the same time, it should not be forgotten that Article 14 (art. 14) of the Convention, which lays down the prohibition on any discrimination on the ground of sex, is also a rule of Belgian positive law, that Article (art. 14) being directly incorporated into domestic law.

22.  A man or woman who is unable to obtain recognition of his or her sexual identity, an aspect of status which is inseparable from his or her person will be unable to play his or her full role in society. As has been said, the right to such recognition is a general principle of law.