Lexploria

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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