AS TO THE ADMISSIBILITY OF
Application No. 20769/92
by Gabriele FORSTER
against Germany
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The European Commission of Human Rights (First Chamber) sitting
in private on 29 June 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 August 1992 by
Gabriele Forster against Germany and registered on 6 October 1992 under
file No. 20769/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born out of wedlock in 1980,
and living in Berg/Germany. She is a pupil. Before the Commission, she
is represented by Mr. K. Brunnhuber, a lawyer practising in
Wolfratshausen.
The facts, as they have been submitted by the applicant, may be
summarised as follows.
On 15 July 1988 the applicant's father, a monk from the
Benedictine Order in Schäftlarn and priest since 1959 who was working
as teacher and as headmaster of a secondary school run under the
responsibility of the Order, admitted paternity to the applicant and
a further child, born in 1977. He also accepted liability for
maintenance payments, inter alia as regards the preceding eight years,
i.e. in respect of the applicant a sum of about DEM 35,000, and the
execution of these sums (sofortige Zwangsvollstreckung). In June 1989
he married the applicant's mother, a teacher by profession. He was then
expelled from the Order.
On 8 August 1989 the applicant instituted proceedings before the
Munich I Regional Court (Landgericht) against her father's former Order
under the Debtors (Voidable Transactions) Act (Gesetz betreffend die
Anfechtung von Rechtshandlungen eines Schuldners außerhalb des
Konkursverfahrens), claiming money to cover the above mentioned
maintenance claims for the past. She submitted that her father's work
as teacher and as headmaster of the said secondary school had been
gratuitous services of a value of at least DEM 10,000 per month. These
services could be challenged, like a donation, under S. 3 para. 1 (3)
of the Debtors (Voidable Transactions) Act.
The Debtors (Voidable Transactions) Act entitles a creditor,
outside bankruptcy proceedings, to challenge the validity of legal
dispositions taken by his debtor, as listed in SS. 3 et seq. of the
said Act, in order to secure the settlement of his payable and
enforceable debts. According to S. 3 para. 1 (3), a creditor is
entitled to challenge the validity of donations (unentgeltliche
Verfügungen) made by the debtor in the course of the preceding year,
unless a usual or traditional gift is concerned. S. 7 provides that the
creditor, in order to secure the payment of the debts concerned, may
claim that the assets given away on the basis of the challenged
dispositions are returned.
On 4 May 1990 the Munich I Regional Court dismissed the
applicant's action. The Regional Court found that the applicant had no
claim against the Order under the relevant provisions of the Debtors
(Voidable Transactions) Act, as her father had not made any
dispositions to the advantage of the Order which she could challenge
under the said Act. The Regional Court considered in particular that
the services rendered by her father as teacher did not amount to a
donation of salary which the Order ought to have paid to him. According
to canonical law, her father, as a monk, had committed himself to
poverty and had not been entitled to acquire personal assets. He had
not entered into an employment contract with the Order within the
meaning of the civil law, but had performed gratuitous work within the
Order without thereby acquiring salary claims. He had, therefore, not
been in a position to make donations to the advantage of the Order,
which could be challenged by the applicant under the Debtors (Voidable
Transactions) Act. The gratuitous services could, as such, not be
challenged under the Debtors (Voidable Transactions) Act.
On 27 February 1991 the Munich Court of Appeal (Oberlandes-
gericht) dismissed the applicant's appeal (Berufung). The Court of
Appeal, confirming the findings of the Regional Court, also emphasized
that a monk's work, like charitable work, is usually not remunerated.
On 21 January 1992 the Federal Constitutional Court (Bundes-
verfassungsgericht) declined to entertain the applicant's
constitutional complaint (Verfassungsbeschwerde), alleging
discrimination and a violation of the right for protection of the
marriage and the family. The Constitutional Court found that her
complaint had no sufficient prospects of success. The Constitutional
Court noted that the Courts had given detailed reasons that the
applicant's father, appertaining to an Order, had never acquired any
salary rights for his work which he could have subsequently disposed
of and that gratuitous work could not as such be challenged under the
Debtors (Voidable Transactions) Act. These considerations did not
appear as arbitrary and could not be otherwise objected to under
constitutional law. In particular, it was mainly for the parents to
fulfil their obligation to provide maintenance towards their children.
The State was not obliged to ensure, in such particular circumstances
as in the present case, the settlement of maintenance claims in
bringing actions against an Order. The decision was served on
6 February 1992.
COMPLAINTS
The applicant complains that the German courts dismissed her
action against her father's former Order, claiming money to cover her
maintenance claims. She considers to be discriminated against other
children born out of wedlock and invokes Article 14, read in
conjunction with Articles 2, 8 and 12, of the Convention.
THE LAW
The applicant complains that she was a victim of discrimination
in breach of Article 14, taken in conjunction with Articles 2, 8 and
12 (Art. 14+2+8+12), of the Convention. She submits that the Munich I
Regional Court's judgment, as confirmed upon appeal, prevented her from
enforcing her maintenance claims because her father had previously
appertained to the Benedictine Order.
The Commission recalls that Article 14 (Art. 14) complements the
other substantive provisions of the Convention and its Protocols. It
has no independent existence, since it has effect solely in relation
to the rights and freedoms safeguarded by those provisions. There can
be no room for application of Article 14 (Art. 14) unless the facts of
the case fall within the ambit of one or more of such provisions
(Eur. Court H.R., Inze judgment of 28 October 1987, Series A No. 126,
p. 17, para. 36).
To the extent that the applicant relies on Article 8 (Art. 8),
the Commission recalls that Article 8 makes no difference between the
"legitimate" and the "illegitimate" family, and that family life also
comprises interests of a material kind (Eur. Court H.R., Marckx
judgment of 13 June 1979, Series A No. 31, p. 14, para. 31, pp. 23-24,
para. 52). In the present case, the applicant's father had admitted
paternity to the applicant, accepted liability for maintenance claims
and the execution of the outstanding sums. The court decisions
complained about concerned the question whether the applicant could
obtain payment for these maintenance claims from a third person, namely
the Benedictine Order to which her father had previously appertained
as a priest. Article 8 (Art. 8) is, therefore, not relevant in the
present circumstances. Moreover, no issues arise under Articles 2 and
12 (Art. 2, 12).
The Commission considers that the relevant facts forming the
substance of the applicant's complaint about discrimination relate to
the possibilities of enforcing her maintenance claims and may be taken
into account under Article 1 of Protocol No. 1 (P1-1).
Article 14 (Art. 14) safeguards individuals, placed in similar
situations, from discrimination in the enjoyment of the rights and
freedoms set forth in the Convention and its Protocols. A distinction
is discriminatory if it "has no objective and reasonable justification"
(Eur. Court H.R., Marckx judgment, loc. cit., pp. 15-16, paras. 32-33).
In the present case, the applicant instituted court proceedings
against her father's former Order under the Debtors (Voidable
Transactions) Act, claiming money to cover her maintenance claims,
which had not been settled by her father. The Munich I Regional Court,
in its decision of 4 May 1990, dismissed this action on the ground that
her father had not made any dispositions to the advantage of the Order
which she could challenge under the said Act. As a monk, he had
performed a gratuitous work at the Order's secondary school and not
acquired salary claims. This decision was confirmed upon appeal by the
Munich Court of Appeal, and, following the applicant's constitutional
complaint, by the Federal Constitutional Court. The Constitutional
Court considered in particular that the lower Courts' detailed
reasoning that the applicant's father, appertaining to an Order, had
never acquired any salary rights for his work which he could have
subsequently disposed of and that gratuitous work could not as such be
challenged under the Debtors (Voidable Transactions) Act did not appear
as arbitrary. Moreover, it was not for the State to ensure, in such
particular circumstances as in the present case, the settlement of
maintenance claims in bringing actions against an Order.
The Commission considers that the applicant, following her
father's acceptance of paternity and liability to pay maintenance, was
entitled to maintenance claims against her father like other children
born out of wedlock. The court decisions complained about concerned the
inapplicability of the Debtors (Voidable Transactions) Act to the
gratuitous work of her father as (former) monk within an Order. There
is no indication that the German Courts subjected the applicant to a
different treatment on the ground of her birth as daughter of a
(former) monk, as compared to other children born out of wedlock had
they lodged claims under the said Act against third persons to obtain
payment in respect of a parent's gratuitous work.
It follows that there is no appearance of a violation of
Article 14 of the Convention, taken in conjunction with Article 1 of
Protocol No. 1 (Art. 14+P1-1). Consequently, the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy