FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 51625/08
by Farzaneh Bigwand AMMDJADI
against Germany
The European Court of Human Rights (Fifth Section), sitting on 9 March 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 28 October 2008,
Having deliberated, decides as follows:
THE FACTS
A. The circumstances of the case
The applicant, Ms Farzaneh Bigwand Ammdjadi, by 2002 an Iranian national, was born in 1961 and lives in Troisdorf. She was represented before the Court by Ms E. Dikkaya, a lawyer practising in Köln.
The facts of the case, as submitted by the applicant, may be summarised as follows.1. Background to the case
In 1980 the applicant married an Iranian national in Kermanschah/Iran. Subsequently they moved to Germany. In 1983 their son was born.
On 15 July 1997 the applicant and her former husband agreed that they would “seek to have clarified further rights, like alimony and pension rights, by their lawyers according to German law”.
By a decision of the Köln District Court of 10 November 1999, on her former husband’s request, the applicant was divorced. The court found that, on the basis of Iranian law – the law applicable to the facts of the present case – the petition was well-founded. At that time, no motion for a compensation of pension rights had been lodged.2. Proceedings before the domestic courts
On 24 January 2001 the Köln District Court rejected the applicant’s request for subsequent compensation of pension rights (nachträgliche Durchführung des Versorgungsausgleichs). It found that, on account of the fact that both parties were of Iranian nationality, section 8 paragraph 3 of the Agreement on Establishment between the German Reich and the Persian Empire (Niederlassungsabkommen, hereinafter referred to as “the Agreement”, see “Relevant domestic and international law and practice” below) excluded the application of section 17 § 3 second sentence of the Introductory Act to the German Civil Code (see “Relevant domestic and international law and practice” below, hereinafter referred to as “the Introductory Act”) – which alone could be the basis for compensation of pension rights. It pointed out that the Agreement intended to attribute all the consequences of a divorce and the divorce itself to the law of the parties’ common nationality. It also held that the fact that under Iranian law compensation of pension rights was not known did not violate the German ordre public.
On 17 May 2001 the Köln Court of Appeal confirmed this decision. It also found that section 8 paragraph 3 of the Agreement clearly excluded the application of section 17 § 3 second sentence of the Introductory Act. It pointed out that pension rights adjustment had only been established in 1977 and was not known in many countries. It also found that the applicant’s and her former husband’s statement, namely that they would seek to have clarified by their lawyers their further rights, such as alimony and pension rights, irrespective of the question whether it qualified as choice of law, in any event lacked the required notarial certification.
On 6 July 2005 the Federal Court of Justice dismissed a further appeal by the applicant. It also found that, given the apparent absence of a choice of law by the parties and the lack of a violation of the German ordre public, the Agreement excluded the application of section 17 § 3 second sentence of the Introductory Act. On 28 September 2005 the Federal Court of Justice dismissed her appeal that she had been denied a fair hearing.
On 17 April 2008, without stating further reasons, the Federal Constitutional Court refused to hear the applicant’s constitutional complaint.
B. Relevant domestic and international law and practice1. Pension rights adjustment under German law and in other states
The balancing of pension rights acquired by one partner in the course of the marriage has been introduced into German law in 1977 (in the states (Länder) of the Former German Democratic Republic it has been introduced in 1992). This comprehensive balancing of all private and public pension entitlements between spouses is aimed at protecting the “weaker” partner, in particular women who often did not work at all. It is related to both, family law and social law.
Apart from German law only Canadian law has a compensation of pension rights in the sense of a comprehensive balancing of pensions. Other forms of social safeguards on divorce, existing in some other countries, only in parts can be compared to the compensation of pension rights in German law.2. Relevant German conflict of laws rules
a. Relationship between state treaties and the further provisions of the Introductory Act to the German Civil Code:
Section 3 § 2 of the Introductory Act to the German Civil Code provides that rules in international conventions, in so far as they have become directly applicable in national law, take precedence over the Act.
Section 6 of the Introductory Act lays down that a provision of the law of another country shall not be applied where its application would lead to a result which is manifestly incompatible with the fundamental principles of German law. A violation of this ordre public reservation has been found in some cases concerning the application of sharia law, namely in a case concerning polygamy. It is applied very restrictively.
According to section 14 § 4 first sentence of the Introductory Act a choice of law concerning the general effects of marriage must be notarially certified.
b. Provisions of the Introductory Act to the German Civil Code concerning compensation of pension rights
Under German conflict of laws rules, compensation of pension rights is, in general, governed by the law applicable to the general effects of marriage (section 17 § 3 first sentence of the Introductory Act). This, primarily, is the law of the country of shared nationality of the spouses (section 14 § 1 of the Introductory Act). It shall only be carried out if German law is applicable and if such balancing is recognised by the law of one of the countries of which the spouses were nationals at the time when the divorce petition was served.
Pursuant to section 17 § 3 second sentence of the Introductory Act it can exceptionally be carried out, even if the conditions of the first sentence are not given, provided that (1) one spouse applies for it, (2) the other spouse has acquired an inland pension right during the subsistence of the marriage and (3) in so far as carrying it out would not be inconsistent with equity in light of mutual economic circumstances of the parties during the time spent in the country (known as “irregular pension rights adjustment”).3. The Agreement on Establishment between the German Reich and the Persian Empire and Final Protocol of 17 February 1929 (Deutsch‑Iranisches Niederlassungsabkommen)
Section 8 § 3 of the Agreement provides that in respect of personal, family and inheritance issues the law of the common nationality of the parties is applicable. In the Final Protocol (Schlußprotokoll) to the Agreement it is clarified that all aspects of family law shall be governed by that law.
The continued application of this Agreement has been confirmed by the German-Iranian Protocol of 4 November 1954 (BGBl. 1955 II No. 19, p. 829) and also by a number of decisions of the Federal Court of Justice, the Federal Administrative Court and the Federal Constitutional Court (see, inter alia, decision of the Federal Constitutional Court of 25 September 1986 (2 BvR 955/86); judgment of the Federal Administrative Court of 27 September 1988 (BVerwGE 80, 233)).
COMPLAINTS
The applicant complained under Articles 8 and 12 of the Convention and 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention, that she had been refused compensation of pension rights under German law. She submitted in particular that, in view of the fact that her former husband had for years paid contributions to the German insurance, her nationality could not be decisive for the question whether she was entitled to compensation of pension rights or not.
THE LAW
A. Alleged violation of Article 8 of the Convention
The applicant complained under Article 8 of the Convention that she had been refused pension rights. Article 8 of the Convention, in so far as relevant, reads:
“1. Everyone has the right to respect for his [...] family life [...].”
The Court observes first that even though the claim for compensation of pension rights is of a purely pecuniary nature and, under German law, is the direct consequence of a divorce of a couple, it is nonetheless the consequence of a marital life, aims at strengthening the position of the “weaker” partner and is therefore an expression of respect for family life on the part of the State. The Court therefore starts on the assumption that the facts of the present case fall within the scope of Article 8 of the Convention.
The present case raises the question whether the notion of “respect [...] for family life” as understood in Article 8, entailed an obligation on the part of the German courts to disregard a State contract by qualifying compensation of pension rights as part of the German ordre public and to apply the German conflict of laws provision which exceptionally could have led to the granting of compensation of pension rights under German law.
The Court observes that the decision to give effect to the Agreement and not to apply German law had a basis in national law, namely section 3 § 2 of the Introductory Act to the German Civil Code, and pursued a legitimate aim in that it aimed at giving effect to a State contract which, although concluded as early as 1929 between the German Reich and the Persian Empire, nonetheless was still applicable between both States – as had expressly been confirmed by the German-Iranian Protocol of 4 November 1954 and on several occasions by the higher German courts, including the Federal Constitutional Court (see “Relevant domestic and international law and practice” above).
As regards the proportionality of the impugned court decisions, the Court notes that the national authorities found that compensation of pension rights does not form part of the German ordre public, which presupposes that application of the law of a foreign country would lead to a result which is manifestly incompatible with fundamental principles of German law. It observes that the compensation of pension rights indeed was only introduced into German law in 1977 (in respect of the Länder of the former German Democratic Republic only in 1992) and is not known, as such or as a functional equivalent, in many other countries. There is in particular no European consensus on this matter, but the means of providing financial protection to the non-working partner differ widely between the Contracting States, which necessarily enjoy a margin of appreciation in this policy matter. Given, moreover, that Iranian law also provides for some kind of social protection of the other spouse, namely by means of some alimony and the morning gift, and that the applicant and her husband never made a valid choice of law, the Court finds that the Convention cannot go so far as to require the German courts to disregard the State contract and qualify the compensation of pension rights as forming part of the German ordre public. The notion of “respect [...] for family life” does not entail an obligation on the part of the Contracting State to grant a pecuniary privilege to one spouse, which moreover corresponds to a pecuniary disadvantage to the other spouse.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Alleged violation of Article 12 of the Convention
The Court reiterates that Article 12 of the Convention exclusively guarantees the right to marry and found a family. It is therefore not applicable to the facts of the present case, which deals exclusively with the consequences of a divorce.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
C. Alleged violation of Article 1 of Protocol No. 1
The applicant submitted that the refusal of compensation of pension rights amounted to a violation of Article 1 of Protocol No. 1. Article 1 of Protocol No. 1 reads:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Court, having regard to its case-law on the concept of the notion of “possessions” (see von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 74(c) and § 112, ECHR 2005-V, and Kopecký v. Slovakia [GC], no. 44912/98, § 35(c), ECHR 2004-IX), notes that, in the present case, the national courts found that the applicant was not entitled to a compensation of pension rights under German law since its application was excluded under the relevant German conflict of laws rules, namely by the Agreement between the German Reich and the Persian Empire of 1929 which, according to section 3 § 2 of the Introductory Act of the German Civil Code, excluded the application of section 17 § 3 second sentence of the Introductory Act of the German Civil Code – the only provision possibly leading to the granting of compensation of pension rights under German law. As to whether the applicant could reasonably expect to be entitled to a compensation of pension rights under German law, the Court takes note of the fact that so far compensation of pension rights has not been qualified as part of the ordre public by the German courts and that the applicant and her husband never chose, by notarial certificate, that German law should be the law applicable to their marriage. Under these circumstances, however, the Court finds that the applicant also cannot claim to have had a “legitimate expectation” of a compensation of pension rights under German law.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
D. Alleged violation of Article 14 of the Convention
The applicant further complained that she had been discriminated against on the basis of her Iranian nationality, contrary to Article 14, 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 Court reiterates that Article 14 complements the other substantive provisions of the Convention and the 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. The application of Article 14 does not necessarily presuppose a violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see Burden v. the United Kingdom [GC], no. 13378/05, § 58, 29 April 2008).
The Court refers to its above findings that the facts of the present case did not amount to an interference with Article 12 of the Convention or Article 1 of Protocol No. 1. The applicant therefore cannot claim that in these respects she had been discriminated against.
In so far as the applicant relied on Article 8 taken in conjunction with Article 14 of the Convention, the Court observes that the difference in treatment in the present case resulted from the fact that both the applicant and her former husband had Iranian nationality and that on this ground the State contract was applicable and excluded the application of German law. The Court finds that, especially in conflict of laws cases, the differentiation for all family issues according to nationality and not to habitual residence is a well-known principle which aims at protecting a person’s close connection with his or her home country. Therefore, even though the decisiveness of the habitual residence might arguably be considered preferable with regard to pension rights, the decisiveness of a person’s nationality cannot be considered to be without “objective and reasonable justification”. In this respect, it must also be noted that the applicant had been free to choose the application of German law, together with her husband, by notarial certification.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy