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FIFTH
SECTION
CASE OF BRAUER v. GERMANY
(Application
no. 3545/04)
JUDGMENT
(merits)
Translation
STRASBOURG
28 May 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision
In the case of Brauer v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 5 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3545/04) against the Federal
Republic of Germany (FRG) lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Ms
Brigitte Brauer (“the applicant”), on 13 January 2004.
- The
applicant was represented by Mr F. Steinhoff, a lawyer practising in
Lennestadt. The German Government (“the Government”) were
represented by their Agent, Ms A. Wittling-Vogel,
Ministerialdirigentin.
- The
applicant alleged that the relevant provisions of domestic law and
the decisions by the national courts had infringed her right to
respect for her family life as guaranteed by Article 8 of the
Convention. She also relied on Article 14 of the Convention.
- On
26 November 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided that
the Chamber would examine the merits of the application at the same
time as its admissibility (Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948 in Oberschwöditz, in the former
German Democratic Republic (GDR), and lives in Lennestadt.
A. Background to the case
- The
applicant is the natural daughter of a Mr Schildgen, who recognised
her several months after her birth. She lived in the territory of the
former GDR until 1989, while her father lived in the FRG. The father
and daughter corresponded regularly during this period, and after the
reunification of Germany she visited him. He died between 30 June and
3 July 1998 (the precise date has not been specified).
The
applicant subsequently made several attempts to assert her
inheritance rights in the domestic courts.
B. Proceedings in the domestic courts
- On
10 July 1998 the applicant applied for a certificate of inheritance
attesting that she was entitled to at least a 50% share of Mr
Schildgen's estate.
- In
a decision of 8 October 1998 the Neunkirchen District Court
(Amtsgericht – Nachlassgericht) refused the applicant's
application, holding that, notwithstanding the reform of the law of
succession following the introduction of the Inheritance Rights
Equalisation Act of 16 December 1997 (Erbgleichstellungsgesetz),
the first sentence of section 12(10)(2) of the Children Born
outside Marriage (Legal Status) Act (Gesetz über die
rechtliche Stellung nichtehelicher Kinder –
Nichtehelichengesetz) of 19 August 1969 remained in
force. The provision in question stated that children born outside
marriage before 1 July 1949 were not deemed to be statutory heirs
(see “Relevant domestic law and practice”, paragraph 18
below). The District Court also referred to a decision given by the
Federal Constitutional Court (Bundesverfassungsgericht) on 8
December 1976 (see also “Relevant domestic law and
practice”, paragraph 21 below), in which the provision had been
found to be in conformity with the Basic Law (Grundgsetz).
- On
4 November 1998 the applicant appealed to the Saarbrücken
Regional Court (Landgericht), arguing in particular that the
law of the former GDR, which provided for equal treatment between
children born within and outside marriage, should apply in her case.
In any event, section 12(10)(2) of the Children Born outside
Marriage (Legal Status) Act contravened Article 3 (principle of
equality before the law) of the Basic Law as there was no objective
justification for the difference in treatment.
- In
a decision of 7 January 1999 the Saarbrücken Regional Court
upheld the District Court's decision on the same grounds. It
acknowledged, however, that the exclusion of children born outside
marriage before 1 July 1949 from the statutory right of
inheritance placed them at a very clear disadvantage in relation to
those born after that date and also to those covered by the law of
the former GDR.
- In
a decision of 3 September 1999 the Saarland Court of Appeal
(Oberlandesgericht) quashed the Regional Court's decision and
remitted the case to it to establish whether the applicant was indeed
Mr Schildgen's natural daughter and whether there were any other
heirs. If the applicant were to be entitled to at least a 50% share
of the estate, the Regional Court should examine whether the first
sentence of section 12(10)(2) of the Children Born outside Marriage
(Legal Status) Act was in conformity with the Basic Law.
The
Court of Appeal confirmed at the outset that by virtue of the rules
of private international law and, in particular, the settled case-law
concerning section 25(1) of the Introductory Act to the FRG Civil
Code (Einführungsgesetz in das Bürgerliche Gesetzbuch),
FRG law alone was applicable in the applicant's case, since the
deceased (Erblasser) had not been resident in the territory of
the former GDR on 3 October 1990, when German reunification had taken
effect.
However,
it considered that the first sentence of section 12(10)(2) of the
Children Born outside Marriage (Legal Status) Act was not in
conformity with the Basic Law, for the following reasons. Firstly,
the legal and social status of children born outside marriage had
evolved considerably since the Federal Constitutional Court's
decision of 8 December 1976 and had in practice become equivalent to
that of children born within marriage. The Federal Constitutional
Court, moreover, had itself adopted a more restrictive approach to
Article 6 § 5 of the Basic Law (principle of equal treatment
between children born outside and within marriage) in its decision of
18 November 1986 (see “Relevant domestic law and
practice”, paragraph 23 below). Furthermore, a new
situation had arisen as a result of the accession of the former GDR
to the FRG, since by virtue of section 235(1)(2) of the
Introductory Act to the Civil Code, taken together with section
25(1), children born outside marriage before 1 July 1949 had the same
rights as children born within marriage if the father had been
resident in the territory of the former GDR on 3 October 1990
(see “Relevant domestic law and practice”,
paragraphs 19-20 below). However, there were no objective grounds for
a difference of treatment between children born outside marriage
before or after 1 July 1949, or between children born outside
marriage before 1 July 1949 according to whether or not the father
had been resident in the territory of the former GDR on 3 October
1990. The Court of Appeal concluded that the arguments put forward by
the Federal Constitutional Court in its decision of 8 December
1976 were no longer valid, particularly with regard to the practical
and procedural difficulties of establishing the paternity of children
born outside marriage before 1 July 1949, and the need to protect the
“legitimate expectations” of the deceased
(Vertrauensschutz des Erblassers) and his family.
- In
a decision of 25 January 2001 the Saarbrücken Regional Court
confirmed its previous decision on the basis of the same arguments.
Even if it was established to a 99% degree of certainty that the
applicant was indeed Mr Schildgen's daughter and there were no other
known heirs, she was excluded from any statutory entitlement to the
estate by the first sentence of section 12(10)(2) of the Children
Born outside Marriage (Legal Status) Act. In the Regional Court's
view, that provision did not contravene the Basic Law despite German
reunification, as the Federal Constitutional Court had held in its
decision of 3 July 1996 (see “Relevant domestic law and
practice” below, paragraph 22).
- In
a decision of 7 August 2001 the Saarland Court of Appeal again
quashed the Regional Court's decision and remitted the case to it to
establish whether there were any other heirs of the second or third
order and to re-examine whether the first sentence of section
12(10)(2) of the Children Born outside Marriage (Legal Status) Act
was compatible with the Basic Law where the State was the sole
statutory heir.
The
Court of Appeal held that it was not acceptable to set a cut-off date
if the deceased had no other heirs and, as a result, the State became
the sole statutory heir. It referred in that connection to the right
of inheritance (Erbrechtsgarantie) guaranteed in Article 14 §
1 of the Basic Law, which in its view also protected the rights of a
child born outside marriage where there were no private statutory
heirs other than the State.
- In
a decision of 10 July 2003 the Saarbrücken Regional Court
confirmed its previous decisions on the basis of the same arguments.
It added that it was not required in the case before it to examine
whether the provision in issue was in conformity with the Basic Law,
since it had been established that the deceased had heirs of the
third order and that the State was therefore not the statutory heir.
- In
a decision of 29 September 2003 the Saarland Court of Appeal
dismissed an appeal by the applicant, on the ground that it was bound
by the decisions of the Federal Constitutional Court in which the
first sentence of section 12(10)(2) of the Children Born outside
Marriage (Legal Status) Act had been found to be in conformity with
the Basic Law. It further refused to refer the case back to the
Regional Court for a fresh examination, seeing that the State was not
the statutory heir in the case before it.
- In
a decision of 20 November 2003 the Federal Constitutional Court,
sitting as a panel of three judges, declined to consider the appeal.
It
observed, in particular, that the aspect of protecting the
“legitimate expectation” of the deceased had gained in
importance since, following its decision of 8 December 1976, it
had considered the inheritance rights of children born outside
marriage before 1 July 1949 to have been clarified in relation to the
Basic Law. It added that the first sentence of section 12(10)(2)
of the Children Born outside Marriage (Legal Status) Act had not lost
its objective justification simply because children born outside
marriage in an entirely different social context had the same rights
as children born within marriage. The difference in treatment in
comparison with children born outside marriage who were covered by
the law of the former GDR was justified by the inherent purpose of
section 235(1)(2), that of avoiding any disadvantage resulting from
the former GDR's accession to the FRG.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Law of succession in the FRG
17. The Children Born outside Marriage
(Legal Status) Act of 19 August 1969, which came into force
on 1 July 1970, provided that on the father's death, children born
outside marriage after 1 July 1949 – shortly after the entry
into force of the Basic Law – were entitled to compensation
from the heirs in an amount equivalent to their share of the estate
(Erbersatzanspruch).
The sole exception concerned children born outside marriage before 1
July 1949:
the first sentence of section 12(10)(2) of the Act excluded them from
any statutory entitlement to the estate and from the right to
financial compensation.
18. In 1997, in the general context of
the reform of family law with regard to custody and parental rights,
the legislature also made changes to the law of succession for
children born outside marriage through the Inheritance Rights
Equalisation Act of 16 December 1997, which came into force on 1
April 1998. Children born outside marriage are in principle now
treated as equal to those born within marriage as regards all aspects
of the law of succession.
However, the first sentence of section 12(10)(2)
of the Children Born outside Marriage
(Legal Status) Act of 19 August 1969 remains in force as a
transitional provision.
B. Rules of succession applicable following German
reunification
- By
section 235(1)(2), taken together with section 25(1), of the
Introductory Act to the FRG Civil Code, children born outside
marriage in the territory of the former GDR before 3 October 1990
(the date on which German reunification took effect) have the same
inheritance rights as children born within marriage in accordance
with the FRG Civil Code if the father died after 3 October 1990 and
had been resident in the territory of the former GDR on that date.
Section 235(1)(2) seeks to protect the rights of children born
outside marriage prior to reunification who would have been covered
by the law of the former GDR, which afforded equal inheritance rights
to children born outside and within marriage.
- It
follows that the inheritance rights of children born outside marriage
before 1 July 1949 are dependent on the deceased's place of residence
on 3 October 1990: if the deceased was resident in the
territory of the former GDR, the child born outside marriage has the
same inheritance rights as a child born within marriage; if, however,
the deceased was resident in the territory of the FRG, the child born
outside marriage has no statutory entitlement to the estate.
C. Case-law of the Federal Constitutional Court
1. Concerning the conformity with the Basic Law of the
first sentence of section 12(10)(2) of the Children Born outside
Marriage (Legal Status) Act of 19 August 1969
- In
a leading decision of 8 December 1976 the Federal Constitutional
Court held that the provision in issue was compatible with the Basic
Law.
It
stated, in particular, that fixing 1 July 1949 as the
cut-off date was objectively justified in view of the practical and
procedural difficulties of establishing the paternity of children
born outside marriage before that date, since the scientific methods
used at the time were less developed than present-day methods. Many
paternity suits were therefore unlikely to succeed owing to
insufficient evidence. Moreover, the new legislation made it possible
to contest declarations of paternity drawn up before 1 July 1949.
Accordingly, having regard to those factors, the legislature had not
overstepped its margin of discretion in this regard. Furthermore, it
had to a certain extent been able to take account of existing
uncertainties regarding the law of succession and of the opinion of
those opposed to reforming the legal status of children born outside
marriage. Lastly, the “legitimate expectation” of the
deceased and their families that the exception provided for in the
first sentence of section 12(10)(2) of the Children Born outside
Marriage (Legal Status) Act would be maintained also deserved a
certain degree of protection.
- In
a decision of 3 July 1996 the Federal Constitutional Court confirmed
its earlier position notwithstanding the reunification of Germany. It
held that the legislature had taken into account the social
conditions prevailing when the Children Born outside Marriage (Legal
Status) Act had been enacted. This objective justification was still
present even though children born outside marriage in an entirely
different social context had the same rights as children born within
marriage.
2. Concerning the conformity with the Basic Law of
section 1934c of the Civil Code
- In
a decision of 19 November 1986 the Federal Constitutional Court held
that section 1934c of the Civil Code, which provided that a child
born outside marriage was entitled to a share in the estate only if
at the time of the father's death his paternity of the child had been
acknowledged or determined by a court ruling, or judicial proceedings
to that effect were pending, was not in conformity with Article 6 §
5 of the Basic Law.
D. Subsequent developments
- During
the passage of the Children's Rights Improvement Act
(Kinderrechteverbesserungsgesetz) of 9 April 2002, the
legislature again upheld the exception in the first sentence of
section 12(10)(2) of the Children Born outside Marriage (Legal
Status) Act. It took the view that that provision was compatible with
the Basic Law in the light of the Federal Constitutional Court's
decisions of 8 December 1976 and 3 July 1996
(see paragraphs 21-22 above), which had created an even stronger
“legitimate expectation” (Vertrauenstatbestand)
for the deceased and his family.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 8
- The
applicant submitted that the first sentence of section 12(10)(2) of
the Children Born outside Marriage (Legal Status) Act, read in
conjunction with section 235(1)(2) of the Introductory Act to the
Civil Code, and the decisions of the domestic courts had infringed
her right to respect for family life as guaranteed by Article 8 of
the Convention, which 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.”
She
complained in particular that she was excluded from any statutory
entitlement to inherit as a child born outside marriage before 1 July
1949 and also relied on Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set
forth in [the] 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
Government contested that argument.
- Since
the application mainly concerns the alleged discriminatory treatment
of the applicant, the Court considers it appropriate to examine it
first under Article 14 of the Convention taken in conjunction with
Article 8.
A. Admissibility
Applicability of Article 8 of the Convention
- The
Court reiterates that Article 14 of the Convention complements the
other substantive provisions of the Convention and its Protocols. It
has no independent existence since it has effect solely in relation
to “the enjoyment of the rights and freedoms” safeguarded
by those provisions. Although the application of Article 14 does not
presuppose a breach of those provisions – and to this extent it
is autonomous – there can be no room for its application unless
the facts in issue fall within the ambit of one or more of the latter
(see, among many other authorities, Pla and Puncernau v. Andorra,
no. 69498/01, § 54, ECHR 2004-VIII).
- The
Court must therefore determine whether Article 8 of the Convention is
applicable in the instant case.
- In
this connection, the existence or non-existence of “family
life” within the meaning of Article 8 is essentially a question
of fact depending upon the real existence in practice of close
personal ties, in particular the demonstrable interest in and
commitment by the father to the child both before and after the birth
(see, among other authorities, Lebbink v. the Netherlands, no.
45582/99, § 36 in fine, ECHR 2004-IV). Furthermore, a
right of succession between children and parents is so closely
related to family life that it comes within the sphere of Article 8
(see Marckx v. Belgium, 13 June 1979, § 52,
Series A no. 31; Camp and Bourimi v. the Netherlands, no.
28369/95, § 35, ECHR 2000-X; and Merger and Cros v. France,
no. 68864/01, § 48, 22 December 2004).
- In
the instant case the Court observes that the applicant's father
recognised her after her birth and had regular contact with her
despite the difficult circumstances resulting from the existence of
two separate German States; after German reunification, their contact
became closer.
- Accordingly,
the Court is in no doubt that the facts of the case fall within the
ambit of Article 8 of the Convention. Article 14 can therefore apply
in conjunction with Article 8.
- The
Court observes that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. The
Court further notes that no other ground for declaring it
inadmissible has been established. It must therefore be declared
admissible.
B. Merits
- The
Court notes at the outset that the Government did not dispute that
the application of the relevant provisions of domestic law gave rise
to a difference in treatment for a child born outside marriage before
the cut-off date of 1 July 1949, as compared with a child born within
marriage, a child born outside marriage after that date and also,
since German reunification, a child born outside marriage before that
date who was covered by the law of the former GDR because the father
had been resident in GDR territory at the time the reunification had
taken effect.
- The
Court reiterates in this connection that in the enjoyment of the
rights and freedoms guaranteed by the Convention, Article 14 affords
protection against different treatment, without an objective and
reasonable justification, of persons in similar situations (see
Mazurek v. France, no. 34406/97, § 46, ECHR
2000-II).
- It
must therefore be determined whether the alleged difference in
treatment was justified.
- The
applicant submitted that the difference in treatment as compared with
children born outside marriage after the cut-off date of 1 July 1949
or those covered by the law of the former GDR was not based on any
objective justification. As she had lived in the territory of the
former GDR until 1989, she should have been afforded the same
inheritance rights as a child born within marriage, irrespective of
where her father had been resident when German reunification had
taken effect. Furthermore, her father had not had a spouse or any
direct descendants, but only heirs of the third order whom he had not
known and whom the Saarbrücken Regional Court had, moreover, had
great difficulty in tracing. By contrast, he had been in regular
contact with the applicant and had therefore surely been unaware that
he should have made special arrangements for her to be able to
inherit from him. The applicant submitted in conclusion that her
exclusion from any entitlement to the estate had been wholly
disproportionate.
- The
Government, on the contrary, submitted that the difference in
treatment had been based on an objective and reasonable
justification. The decisions taken by the legislature and the
domestic courts had been appropriate and not discriminatory.
They emphasised, firstly, that, as in the majority of Contracting
States, the gradual harmonisation of the rights of children born
outside marriage with those of children born within marriage had
given rise to heated debates on matters of public interest and had
raised numerous moral, legal, political and economic questions.
Furthermore, following its reunification, Germany had been confronted
with a particular situation that warranted allowing it a wide margin
of appreciation, as the Court had done in Von Maltzan and
Others v. Germany ((dec.) [GC], nos. 71916/01,
71917/01 and 10260/02, §§ 110-11, ECHR 2005-V).
They
added that the intention of the legislature had been to preserve
legal certainty and any “legitimate expectation” that the
deceased and their families might have had that the exception
provided for in the first sentence of section 12(10)(2) of the
Children Born outside Marriage (Legal Status) Act would be
maintained. This “expectation” had been further
strengthened by the Federal Constitutional Court's two decisions of 8
December 1976 and 3 July 1996. The fact that after German
reunification the legislature had taken account of the situation of
children born in an entirely different social context could not alter
that position.
Moreover,
in view of the advanced age of any such fathers who were still alive,
it would no longer be practicable to amend the existing legislation.
Such an amendment would, furthermore, have the effect of
discriminating against children born outside marriage whose father
had died before the new legislation had come into force and against
any children concerned who had been unable to prove the identity of
their father at the time owing to the lack of sufficient technical
means.
- The
Court reiterates that a distinction is discriminatory for the
purposes of Article 14 of the Convention 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, in
particular, mutatis mutandis, Inze v. Austria,
28 October 1987, § 41, Series A no. 126, and Mazurek,
cited above, § 48).
- The
Court reiterates in this connection that the Convention is a living
instrument which must be interpreted in the light of present-day
conditions (see, among other authorities, Marckx, cited above,
§ 41, and Johnston and Others v. Ireland, 18 December
1986, § 53, Series A no. 112). Today the member States of the
Council of Europe attach great importance to the question of equality
between children born in and children born out of wedlock as regards
their civil rights. This is shown by the 1975 European Convention on
the Legal Status of Children born out of Wedlock, which is currently
in force in respect of twenty-one member States and has not been
ratified by Germany. Very weighty reasons would accordingly have to
be advanced before a difference of treatment on the ground of birth
out of wedlock could be regarded as compatible with the Convention
(see, mutatis mutandis, Inze, cited above, § 41;
Mazurek, cited above, § 49; and Camp and Bourimi,
cited above, § 38).
- The
Court considers that the aim pursued by maintaining the impugned
provision, namely the preservation of legal certainty and the
protection of the deceased and his family, is arguably a legitimate
one.
- It
further notes that, in line with other Contracting States, the German
legislature has, through the 1969 Children Born outside Marriage
(Legal Status) Act and subsequently the 1997 Inheritance Rights
Equalisation Act, gradually created an equal status between children
born outside and within marriage as regards the law of succession.
Following German reunification, in order to avoid any disadvantage
for children born outside marriage in a different social context, it
also granted them the same inheritance rights as children born within
marriage, provided that the father had been resident in the territory
of the former GDR at the time when the reunification had taken
effect. However, it maintained the exception laid down in the first
sentence of section 12(10)(2) of the Children Born outside Marriage
(Legal Status) Act, which excluded children born outside marriage
before 1 July 1949 from any statutory entitlement to inherit.
The constitutionality of that provision was also confirmed by the
Federal Constitutional Court, first in 1976 and twenty years later in
1996 (see “Relevant domestic law and practice”,
paragraphs 21-22 above). In the instant case the Federal
Constitutional Court applied its case-law, although the exchange of
arguments between the Saarbrücken Regional Court and the
Saarland Court of Appeal shows that the advisability of maintaining
the exception has also been the subject of debate at domestic level
(see paragraphs 10-15 above).
- In
this connection, the Court notes that the legislature's decision to
maintain this exception reflected the state of German society at the
time and the opposition of part of the public to any reform of the
legal status of children born outside marriage. Furthermore, there
were genuine practical and procedural difficulties in establishing
the paternity of children. Accordingly, as the Federal Constitutional
Court stated in its leading decision of 8 December 1976, the
continued application of the provision in question could be said to
have been based on objective reasons (see H.R. v. Germany,
no. 17750/91, Commission decision of 10 June 1992).
However,
in the Court's view, the arguments put forward at the time are no
longer valid today; like other European societies, German society has
evolved considerably and the legal status of children born outside
marriage has become equivalent to that of children born within
marriage. Furthermore, the practical and procedural difficulties in
proving the paternity of children have receded, as the use of DNA
testing to establish paternity now constitutes a simple and very
reliable method. Lastly, a new situation has been created as a result
of German reunification and the equalisation of the legal status of
children born outside and within marriage across a large part of
German territory.
Accordingly,
the Court cannot agree with the reasoning adopted by the Federal
Constitutional Court in the instant case. The Court considers, in
particular, that, having regard to the evolving European context in
this sphere, which it cannot neglect in its necessarily dynamic
interpretation of the Convention (see paragraph 40 above), the aspect
of protecting the “legitimate expectation” of the
deceased and their families must be subordinate to the imperative of
equal treatment between children born outside and within marriage. It
reiterates in this connection that as early as 1979 it held in its
Marckx judgment (cited above, §§ 54-59) that the
distinction made for succession purposes between “illegitimate”
and “legitimate” children raised an issue under Articles
14 and 8 taken together.
- As
to whether the means employed were proportionate to the aim pursued,
a further three considerations appear decisive to the Court in the
present case. Firstly, the applicant's father had recognised her
after her birth and had always had regular contact with her despite
the difficult circumstances linked to the existence of two separate
German States. He had neither a wife nor any direct descendants, but
simply heirs of the third order whom he apparently did not know. The
aspect of protecting these distant relatives' “legitimate
expectations” cannot therefore come into play. Secondly, the
applicant has spent a large portion of her life in the former GDR,
where she grew up in a social context in which children born outside
and within marriage enjoyed equal status. However, she was unable to
derive any benefit from the rules providing for equal inheritance
rights between children born outside and within marriage, since her
father had not been resident in the territory of the former GDR at
the time when German reunification had taken effect. In this
connection, it should be noted that following German reunification,
the legislature sought to protect the inheritance rights of children
born outside marriage whose father had been resident in the territory
of the former GDR; since inheritance rights come under the protection
of the right of property in German law, the factor taken into account
was the deceased's place of residence. Yet while this difference of
treatment may have been justified in the light of the social context
in the former GDR, it nevertheless had the effect of aggravating the
existing inequality in relation to children born outside marriage
before 1 July 1949 whose father had been resident in the FRG.
Lastly, the application of the first sentence of section 12(10)(2) of
the Children Born outside Marriage (Legal Status) Act excluded the
applicant from any statutory entitlement to the estate, without
affording her any financial compensation.
The
Court cannot find any ground on which such discrimination based on
birth outside marriage can be justified today, particularly as the
applicant's exclusion from any statutory entitlement to inherit
penalised her to an even greater extent than the applicants in other
similar cases brought before it (see, for example, Merger and
Cros, cited above, §§ 49-50, and Mazurek, cited
above, §§ 52-55).
- Having
regard to all the above considerations, the Court concludes that
there was not a reasonable relationship of proportionality between
the means employed and the aim pursued.
There
has therefore been a violation of Article 14 of the Convention taken
in conjunction with Article 8.
- Having
regard to its conclusion in the previous paragraph, the Court is of
the opinion that there is no need to examine separately the complaint
under Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
- The
applicant claimed the sum of 95,828.59 euros (EUR) in respect of
pecuniary damage, corresponding to the total amount she would have
inherited as a statutory heir. To that end, she submitted certified
copies of statements of her father's various bank accounts, which
indicated his assets at the time of his death. The applicant
submitted that her father had had no debts; his burial costs had
amounted to approximately EUR 1,000 and had been directly debited
from his current account.
- The
Government referred to the total sum of 53,000 German marks –
equivalent to EUR 26,500 – which the notary instructed by the
applicant to apply for a certificate of inheritance had indicated in
his statement of costs (Kostenberechnung) of 13 July 1998; the
domestic courts had subsequently taken this sum as a basis for
determining the value of the subject matter of the case. In the
Government's submission, the precise value of the deceased's assets
could not be determined from the additional documents submitted by
the applicant, as they did not indicate when any sums owing to the
deceased were due to be paid or whether he had any liabilities.
2. Non-pecuniary damage
- The
applicant also claimed compensation for non-pecuniary damage, which
she assessed at EUR 50,000, for having been completely deprived of
her inheritance rights throughout the proceedings before the domestic
courts.
- The
Government left the matter to the Court's discretion.
B. Costs and expenses
- The
applicant also claimed EUR 2,859.65 for the costs and expenses
incurred before the domestic courts and the Court.
- The
Government submitted that no causal link had been established between
the costs incurred and the alleged violation. Furthermore, in one set
of proceedings the applicant's lawyer had specified the amount being
sought in legal aid (EUR 351.41) at a very late stage and his
application to that end had therefore been refused by the competent
authority.
C. Conclusion
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 of the Convention is not ready for
decision. Consequently, it must be reserved and the subsequent
procedure fixed taking due account of the possibility of an agreement
between the respondent State and the applicant (Rule 75 § 1 of
the Rules of Court). The Court allows the parties three months in
which to reach such agreement.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
14 of the Convention taken in conjunction with Article 8;
- Holds that there is no need to examine
separately the complaint under Article 8 of the Convention;
- Holds that the question of the application of
Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant, within three months, to notify the
Court of any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in French, and notified in writing on 28 May 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
