CASE OF WOLTER AND SARFERT v. GERMANY
Violation of Article 14+P1-1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Yonko Grozev
5. The first applicant was born in 1943 and lives in Cologne and the second applicant was born in 1940 and lives in Stuttgart. 6. The first applicant is the natural son of a Mr H., who recognised paternity several months after his birth. The first applicant had a personal relationship with his father and worked in his business. The father died on 23 October 2007. 7. On 6 November 2007 the first applicant applied for a certificate of inheritance attesting that he was entitled to 100% of the estate. 8. On 7 November 2007 the Cologne District Court granted the certificate, upon which the first applicant took the estate into his possession and disposed of it. However, on 10 December 2007 the Cologne District Court withdrew the certificate, stating that the first applicant, being a child born outside marriage, was not Mr H.’s statutory heir. The first applicant appealed against that decision, but on 25 August 2008 the Cologne Regional Court upheld it. 9. On 23 July 2009 the first applicant again applied for a certificate of inheritance stating that he was entitled to 100% of Mr H.’s estate, referring in particular to the European Court of Human Rights judgment in the case of Brauer v. Germany (no. 3545/04, 28 May 2009). 10. In a decision of 3 November 2009 the Cologne District Court dismissed the first applicant’s application, holding that the judgment in Brauer (cited above) was not applicable to his case. Instead, it granted certificates of partial inheritance to the first applicant’s half-sister and to the grandchildren of the deceased’s wife. 11. On 16 November 2009 the first applicant appealed to the Cologne Regional Court, arguing that under Article 6 § 5 of the Basic Law, which states that children born outside marriage must be provided by legislation with the same opportunities as are enjoyed by children born within marriage, there were no reasons he should be treated differently from children born within marriage. He stated that if he was refused the certificate the German State would be liable for compensation claims. 12. In a decision of 16 February 2010 the Cologne Regional Court upheld the District Court’s decision, holding that the first applicant was not a statutory heir. The Regional Court referred to a decision by the Federal Constitutional Court of 8 December 1976, in which section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had been found to be in conformity with the Basic Law. The principles developed in Brauer (cited above) were not applicable to the present case. There was a need to protect the legitimate expectations of the deceased and other heirs. The Cologne Regional Court also considered that an interpretation of the relevant provision of the Children Born outside Marriage (Legal Status) Act in conformity with the case-law of the European Court of Human Rights was not possible as the domestic law was clear and therefore not open to any interpretation. 13. On 18 March 2010 the first applicant appealed to the Cologne 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 him and breach his inheritance rights and therefore violate his right to equality before the law under Article 3 and his rights under Article 6 § 5 of the Basic Law. The first applicant stressed that the Regional Court’s reasoning disregarded the Court’s judgment in Brauer (cited above) and was therefore unlawful. The first applicant further noted that he had maintained a close relationship with his father until the latter’s death and had even worked in his business. The first applicant’s father had assumed that the first applicant would be his sole heir. 14. In a decision of 11 October 2010 the Cologne Court of Appeal dismissed the first applicant’s appeal on the grounds that it was bound by the decisions of the Federal Constitutional Court and that it had found that 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 European Court of Human Rights judgment in Brauer (cited above) did not require a change of position because German courts were not bound by the decisions of that court. The Court of Appeal added that interpreting domestic law in the light of the Convention was restricted when domestic law was clear and therefore not open to interpretation. That was the case with the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act. The Cologne Court of Appeal further noted that the first applicant’s appeal had been an appeal on points of law only. The first applicant’s argument, therefore, that he had had a close relationship with his father, which was a statement of fact, could not be taken into account when deciding on the appeal because it had been submitted for the first time before the Court of Appeal. 15. The second applicant is the natural son of a Mr B. and was born in the former GDR, where he lived until his flight from the country in 1957. In 1949 Mr B. was ordered by the Hamburg-Blankensee District Court to pay maintenance for the applicant. He met his father on four occasions, but was asked by the latter not to get involved in the lives of his wife and daughter. The father died on 26 June 2006, naming his daughter as sole heir in his will. 16. In 2009, after the European Court of Human Rights had issued its judgment in Brauer (cited above), the second applicant brought an action for a compulsory portion of the deceased’s estate (Plichtteilsklage) with the Hamburg Regional Court. 17. On 21 January 2010 the Hamburg Regional Court dismissed the second applicant’s claim, holding that under the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act the second applicant was not a statutory heir. That provision was in conformity with the Basic Law. The Regional Court referred to the Federal Constitutional Court’s judgment of 8 December 1976. It noted that Brauer (cited above) was not applicable to the case at hand because there had been no regular contact between the second applicant and his father, the deceased had a natural daughter and the second applicant had not lived in the former GDR for most of his life. 18. The second applicant appealed to the Hamburg Court of Appeal, arguing that the European Court of Human Rights judgment in Brauer (cited above) obliged the German courts to grant children born outside marriage the same inheritance rights as those born within marriage. The special circumstances of Brauer (cited above), which were referred to by the Regional Court, were not conditions that had to be present in order to apply the principles laid down in that judgment. 19. In a decision of 15 June 2010 the Hamburg Court of Appeal upheld the Regional Court’s decision, endorsing its reasoning. It referred to the Federal Constitutional Court’s case-law, arguing that there was a need to protect the legitimate expectations of the deceased. 20. The second applicant appealed to the Federal Court of Justice, which confirmed the Hamburg Court of Appeal’s reasoning in a decision on 26 October 2011. The Federal Court of Justice argued that neither the old nor the amended first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act discriminated against children born outside marriage before 1 July 1949 because the difference in treatment was based on legitimate grounds. Regarding the amended first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, expanding the retroactive scope of the reform beyond the one adopted was not necessary as the basic principles of legal certainty and legitimate expectations had to be respected. Those principles were also necessarily inherent in the Convention, meaning that even though the inheritance rights of children born outside marriage fell within the scope of the protection of Article 8 of the Convention, a State was dispensed from reopening legal acts or reviewing situations that pre-dated the delivery of a court judgment. The Federal Court of Justice also noted that the facts at issue did not fall within the ambit of Article 8 or that of Article 14 of the Convention. 21. On 18 November 2010 the first applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed discrimination and therefore a violation of Article 3 and Article 6 § 5 of the Basic Law by applying the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act because there were no reasons why children born outside marriage should be treated differently from those born within marriage. The case-law of the Federal Constitutional Court, which considered that provision to be valid, disregarded the European Court of Human Rights judgment in Brauer (cited above) and was therefore unlawful. That led to a violation of Article 8 and Article 14 of the Convention. 22. The second applicant also lodged a constitutional complaint with the Federal Constitutional Court. Relying on the judgment in Brauer (cited above), he complained that the application of the amended version of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act discriminated against him compared to children born within marriage. As a consequence he had been denied his inheritance rights. 23. In a decision of 18 March 2013 the Federal Constitutional Court dismissed both applicants’ constitutional complaints (file nos. 1 BvR 2436/11 and 3155/11). 24. The Federal Constitutional Court noted that the judgment in Brauer (cited above) had led the German legislature to pass the Second Inheritance Rights Equalisation Act of 12 April 2011 (Zweites Gesetz zur erbrechtlichen Gleichstellung nichtehelicher Kinder). The first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 had been changed retroactively, with the effect that the difference between children born outside marriage before and after 1 July 1949 had been set aside in cases of successions after 28 May 2009 (see paragraph 37 below). 25. Even though the first applicant’s claim of a close relationship with his father had only been made for the first time in his appeal to the Cologne Court of Appeal, the Federal Constitutional Court noted that that statement of fact was not relevant for the issue before it. It declared both applicants’ constitutional complaints admissible. 26. The Federal Constitutional Court confirmed the conformity of the amended first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act with the Basic Law. It reiterated that the cases at hand only needed to be examined under Article 6 § 5 of the Basic Law and not under Article 14, which contained the right to protection of property. The difference between children born outside marriage before and after 1 July 1949 had been abolished by the Second Inheritance Rights Equalisation Act of 12 April 2011. The general discrimination against children born before and after that date therefore no longer existed. The time-limit in the new provision was not linked to personal characteristics but to a coincidental external event (zufälliges, von außen kommendes Ereignis). Any discriminatory treatment was therefore of a lesser degree. 27. Making the reform retroactive was not necessary as the conformity of the relevant provision of the Children Born outside Marriage (Legal Status) Act had been repeatedly confirmed by the Federal Constitutional Court. The Brauer case (cited above) had not changed that position because the European Court of Human Rights had clarified in Marckx v. Belgium (13 June 1979, Series A no. 31) that the principle of legal certainty, which was necessarily inherent in the law of the Convention as in European Law, dispensed a State from reopening legal acts or reviewing situations that predated the delivery of a judgment by the European Court of Human Rights. 28. The Federal Constitutional Court concluded that the domestic courts in the proceedings at issue had interpreted the relevant provision in accordance with the Basic Law. The European Court of Human Rights’ judgment in Brauer (cited above) did not necessitate a different interpretation, particularly because the first applicant’s submission about a close relationship with his father had been made belatedly while the second applicant had not claimed any relationship with his father at all.