Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20769/92

by Gabriele FORSTER

against Germany

------------------

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)

Menu

FORSTER v. GERMANY

FORSTER v. GERMANY

LEXI