EHRM, 09-02-2017, nr. 29762/10

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.

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.

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.

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.

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).

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.

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).

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.

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.

The Court reiterates 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. For the purposes of Article 14, a difference of treatment is discriminatory 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 Fabris, cited above, § 56; and Mazurek v. France, no. 34406/07, §§ 46 and 48, ECHR 2000-II).

The Court notes at the outset that the Government did not dispute the fact 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 reunification had taken effect (compare Brauer, cited above, § 34).

It must therefore be determined whether the difference in treatment was justified.

The applicant submitted that the difference in treatment was not based on any objective justification. The application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act discriminated against her, breached her inheritance rights and was therefore not in conformity with the Basic Law. There was no need to protect the legitimate expectations of the deceased or other heirs apart from his father's wife as she was her father's only daughter and her father had bequeathed his whole estate to his wife. Furthermore, cultural and social changes within society had to be considered in the interpretation of the Basic Law.

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. The intention of the legislature had been to preserve legal certainty and any ‘legitimate expectations’ that the deceased and their families might have had in view of the Federal Constitutional Court's settled case-law in that regard and in view of the legislature's repeated explicit decisions that the exception provided for in the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was to be maintained. Furthermore, in the present case the deceased had bequeathed his whole estate to his wife, knowing that the applicant, under domestic law, was excluded from any statutory claims, a decision which had to be respected.

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). Today the member States of the Council of Europe attach great importance to the question of equality between children born in and out of wedlock as regards their civil rights. Very weighty reasons would accordingly have to be advanced before a difference of treatment on the grounds of birth out of wedlock could be regarded as compatible with the Convention (see, with further references, Fabris, cited above, § 59).

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 still arguably a legitimate one (compare Brauer, cited above, § 41).

With regard to the question of whether there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued, the Court reiterates that, having regard to the evolving European context in this sphere, which it cannot neglect in its necessarily dynamic interpretation of the Convention, the aspect of protecting the ‘legitimate expectations’ of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and within marriage (see Fabris, cited above, 68, and Brauer, cited above, § 43). It reiterates in this connection that as early as 1979 it held in Marckx (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 (see Brauer, cited above, § 43).

The Court further considers it to be decisive that the applicant's father recognised her. Furthermore, she visited him and his wife between 1954 and 1959 once a year (compare Brauer, cited above, § 44). After she had left the GDR and moved to Bavaria, those visits continued on a regular basis until the applicant's health prevented them. Thus the applicant was not a descendant whose existence was unknown to her father's wife (compare Fabris, cited above, § 68).

The Court notes that the deceased had no direct descendants apart from the applicant, but, in contrast to Brauer, he had a wife, who was appointed sole heir. It takes note of the Government's argument on that point (see paragraph 40 above) according to which that decision had to be respected. Nevertheless, it would appear that even in the eyes of the national authorities the expectations of a sole heir are not protected in all circumstances, as a will such as the one in question does not exclude the right of children born inside marriage and of children born outside marriage after the cut-off date of 1 July 1949 to a statutory share of a deceased's estate. That fact must have had a bearing on the expectations of the father's wife about succeeding to establish undisputed rights to the estate.

Furthermore, European case-law and the national legislative reforms have shown a clear tendency towards eliminating all discrimination regarding the inheritance rights of children born outside marriage. The Court notes that the applicant brought inheritance-related claims before the domestic courts in 2009, directly after her father's death. The proceedings the applicant brought were still pending before the Federal Constitutional Court at the time of the delivery of the judgment in Brauer (cited above), in which this Court found that inequality of inheritance rights on the grounds of birth outside marriage was incompatible with the Convention in a case comparable to that of the applicant. That was sufficient to arouse justified doubts as to whether the applicant would be excluded from any claims to her father's estate (compare Fabris, cited above, § 69).

Moreover, the Court has to bear in mind that 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 (compare Brauer, cited above, § 44).

The foregoing considerations are sufficient to enable the Court to conclude that there was not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

There has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 8.