CASE OF MITZINGER v. GERMANY
Violation of Article 14+8 - Prohibition of discrimination (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Yonko Grozev
5. The applicant was born in 1940 in Troschenreuth, in the former German Democratic Republic (GDR), and lives in Bayreuth. 6. The applicant is the natural and only daughter of Mr A.W., who recognised paternity in 1951. She lived in the territory of the former GDR until 1984, while her father lived in the Federal Republic of Germany (FRG), having married. The father and the daughter corresponded regularly during that period. Between 1954 and 1959, the applicant also visited her father and his wife once a year. After the applicant obtained an exit permit in 1984 for herself, her husband and her younger daughter, she left the GDR and moved to Bavaria. Thereafter the applicant visited her father on a regular basis until 2007. He died on 4 January 2009. 7. On 14 January 2009 the applicant applied to the Memmingen District Court for the right to administer her father’s estate, asserting the incapacity of her father’s wife to protect the applicant’s inheritance due to a grave illness, and notified the District Court of her inheritance claims. Furthermore, she asked to receive copies of all documents relating to the estate. She asserted that between 2002 and 2007 she had regularly visited her father at his retirement home and had talked to him on the telephone. Subsequently, her own health had prevented her from visiting. Telephone calls had been impossible because her father’s health had meant he had no longer been able to use a telephone. The retirement home had been in possession of her address and telephone number, and had phoned her on several occasions. 8. In a decision of 28 January 2009 the Memmingen District Court dismissed the applicant’s application, as there were no indications that the applicant’s father’s wife could not protect the inheritance. In addition, being born before 1 July 1949 and thus not being a statutory heir, she had no right to receive copies of documents about the estate. 9. On 6 February 2009 the applicant appealed to the Memmingen Regional Court, arguing in particular that she needed the power to administer the estate because her father’s wife suffered from dementia and that she was a statutory heir because she was her father’s natural daughter. 10. In a decision of 23 February 2009 the Memmingen Regional Court upheld the District Court’s decision refusing to give her the power to administer her father’s estate, holding that the applicant was not a statutory heir and thus had no right to apply. The Regional Court referred to the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 (see paragraph 15 below) and to a decision of the Federal Constitutional Court of 8 December 1976, in which the provision had been found to be in conformity with the Basic Law (see paragraph 16 below). 11. On 8 March 2009 the applicant appealed to the Munich Court of Appeal, arguing that the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would discriminate against her and breach her inheritance rights and was therefore not in conformity with the Basic Law. The applicant pointed out that in her case there was no need to protect the legitimate expectations of the deceased or other heirs as she was her father’s only daughter and her father had been separated from his wife for more than ten years when he had died. Furthermore, cultural and social changes within society had to be considered when interpreting the Basic Law. 12. In a decision of 14 May 2009 the Munich Court of Appeal dismissed the applicant’s appeal on the grounds 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. In the Court of Appeal’s view, the provision did not contravene the Basic Law, despite German reunification, as the Federal Constitutional Court had held in a decision of 20 November 2003 (file no. 1 BvR 2257/03). 13. On 17 July 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court, claiming discrimination as a result of the application of the aforementioned provision. According to her there were no apparent reasons why children born outside marriage should be treated differently from those born within marriage. That was particularly true in her case because she was her father’s only child. The applicant argued that the Munich Court of Appeal, when considering an appeal, had to respect Article 6 § 5 of the Basic Law, which provided that children born outside marriage must be provided by legislation with the same opportunities for physical and mental development and for their position in society as those enjoyed by children born within marriage. That provision prohibited a generalised application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act. 14. In a decision of 8 December 2009 the Federal Constitutional Court declined to consider the complaint, which it considered inadmissible for lack of sufficient substantiation (no. 1 BvR 2021/09). It observed, in particular, that the applicant had failed sufficiently to address the arguments of the Munich Court of Appeal’s decision. As the applicant doubted the validity of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, which had previously been declared valid by the Federal Constitutional Court, she had been obliged to give further reasons, which she had failed to do.