(Application no. 3545/04)
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,
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:
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
The applicant subsequently made several attempts to assert her inheritance rights in the domestic courts.
B. Proceedings in the domestic courts
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.
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.
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 1949:1 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
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
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.
2. Concerning the conformity with the Basic Law of section 1934c of the Civil Code
D. Subsequent developments
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8
“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.”
Applicability of Article 8 of the Convention
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.
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.
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).
There has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 8.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
1. Pecuniary damage
2. Non-pecuniary damage
B. Costs and expenses
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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
11. In other words, children who had reached the age of majority (21 at the time) by the date on which the Children Born outside Marriage (Legal Status) Act came into force.