AS TO THE ADMISSIBILITY OF
Application No. 17750/91
by H.R.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private on
30 June 1992, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C. L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M. P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 October 1990
by H.R. against the Federal Republic of Germany and registered on 4
February 1991 under file No. 17750/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
17550/91 - 2 -
THE FACTS
The applicant is a German citizen, born in 1943 and living in
Cologne. He is represented by Mr. Frank Montag, a lawyer in Cologne.
The applicant was born out of wedlock. On 21 February 1944
Mr. H. Pf. acknowledged paternity before a Public Notary (Notar).
According to the former version of Sec. 1589 (2) of the Civil
Code, which was in force at the relevant time, there existed no family
relationship between a child born out of wedlock and his or her father.
This situation was changed by the Act on the Legal Situation of
Children Born out of Wedlock which came into force on 19 August 1969.
As a consequence a child born out of wedlock also has a right to
inherit from the father. However, according to Article 12, Section 10
(2), first sentence, of the 1969 Act, the new hereditary regulations
do not apply to children born out of wedlock before 1 July 1949.
A constitutional complaint about the latter limitation was
rejected by the Federal Constitutional Court (Bundesverfassungsgericht)
on 8 December 1976. The Constitutional Court stated that the
differentiation was objectively justified in view of practical and
procedural difficulties resulting from the fact that paternity could
not be determined with certainty in all cases of illegitimate children
born before 1 July 1949. At that time scientific means to prove
paternity were not yet as developed as nowadays. It was therefore
likely that many paternity actions would fail simply because of lack
of proof. On the other hand the new legislative regulations provided
for the possibility of contesting legal acts by which paternity had
been established before 1 July 1949. In view of these circumstances
the fixing of an age limit was justified and did not exceed the margin
of appreciation which the legislator disposed of in relation to
transitory regulations. It was furthermore not objectionable if the
legislator had, to a certain extent, also taken into account important
uncertainties in the sphere of hereditary law and the view of those who
had been against the legislative reform of the legal position of
children born out of wedlock. The interests of those who trusted in
the continuing existence of the former relevant legal provisions and
therefore omitted possible measures to avoid undesired effects of the
new regulations justified certain protection. The Constitutional Court
concluded for these reasons that the regulation in question did not
violate the principle of equal treatment.
The applicant points out that his father is still alive and that
he is therefore affected by the legislative regulation in question.
He considers that in view of the Federal Constitutional Court's
previous jurisprudence, a constitutional complaint does not for him
constitute an effective remedy.
COMPLAINTS
The applicant submits that the transitory regulation excluding
his being his father's legal heir violates Article 8 in conjunction
with Article 14 of the Convention. He considers that he has been
discriminated against both in comparison with children born within
wedlock and with children born out of wedlock after 1 July 1949. He
puts the Federal Constitutional Court's arguments in question that the
differential treatment is objectively justified. The practical and
procedural difficulties invoked by the Constitutional Court were
irrelevant with respect to those family relationships between persons
born out of wedlock before 1 July 1949 and their respective fathers
where paternity was, as in his case, uncontested. A possible legal
- 3 - 17550/91
uncertainty could have been better avoided if the possibility of
contesting the result of previous affiliation proceedings or the
recognition of paternity had been limited in time. He further submits
that the general exclusion from hereditary rights of children born out
of wedlock before 1 July 1949 vis-à-vis their fathers was unjustified
in that it also protected fathers who, like his, did have ample time
to familiarise themselves with the new legislative situation which is
now in force since 19 August 1969.
THE LAW
The applicant complains that no retroactive effect beyond 12 July
1949 was given to amendments to the German Civil Code which came into
force on 19 August 1969 and which had the purpose of abolishing the
unequal treatment of children born out of wedlock as compared to
children born within wedlock. He submits that as a consequence he is
being discriminated against as he was born before the deadline in
question and therefore does not, unlike children born out of wedlock
after that date, qualify as an heir in respect of his late father's
estate.
It is true that Article 14 (Art. 14) of the Convention forbids
discrimination as to the enjoyment of the right to protection of
private and family life as guaranteed by Article 8 para. 1 (Art. 8-1)
of the Convention. The Commission notes however that according to the
jurisprudence of the European Court of Human Rights, the principle of
legal certainty, which is necessarily inherent in the law of the
Convention, may dispense States from re-opening legal acts or
situations that antedate judgments of the Court declaring domestic
legislation incompatible with the Convention (Marckx judgment of
13 June 1979, Series A no. 31, p. 26, para. 58). The same
considerations apply where a Constitutional Court annuls domestic
legislation as being unconstitutional.
In view of this principle of legal certainty the Commission finds
that the limitation in time of the retroactive effect of the
legislative amendments in question is objectively justified as was
already stated by the Federal Constitutional Court. Consequently the
present case does not disclose any appearance of a violation of the
Article invoked by the applicant.
It follows that the application must be rejected as being
manifestly ill-founded, in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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