Resolution CM/ ResDH (2012) 83 [1]

Execution of the judgments of the European Court of Human Rights

Brauer against Germany

(Application No. 3545/04, judgments of 28/05/2009, final on 28/08/2009

and of 28/01/2010 - friendly settlement)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in this case concerns discriminatory interference with the applicant's right to respect for her family life in that the applicant, born out of wedlock, was unable to assert her inheritance rights in respect of her late father (violation of Article 14 taken in conjunction with Article 8) (see details in Appendix);

Having invited the government of the respondent State to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent State paid the a p plicant the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent State, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent State (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2012) 83

Information about the measures to comply with the judgments in the case of

Brauer against Germany

Introductory case summary

The case concerns discriminatory interference with the applicant's right to respect for her family life in that, born out of wedlock in 1948 in the former German Democratic Republic (GDR), she was excluded from asserting her inheritance rights in respect of her late father, who had been resident in the Federal Republic of Germany (FRG). In 2003, the domestic courts rejected her legal claims in this respect. The relevant provisions of domestic law gave rise to a difference in treatment for a child born outside marriage before the legally prescribed cut-off date of 01/07/1949, as compared with a child born within marriage, a child born outside marriage after that date and also, since German reunification, a child born outside marriage before that date who was covered by the law of the former GDR because the father had been resident in GDR territory at the time the reunification had taken effect. The Court concluded that it was unable to find any ground on which such discrimination based on birth outside marriage could be justified (violation of Article 14 taken in conjunction with Article 8) .

I. Payment of just satisfaction and individual measures

In its judgment (merits) of 28/05/2009, the Court reserved the question of the application of Article 41 (just satisfaction) and invited the parties, within three months, to notify the Court of any agreement they might reach. Following the conclusion of a friendly settlement between the parties on 22/09/2009 concerning the applicant's claims for just satisfaction (for a total amount of 115 000 EUR), the Court, by judgment of 28/01/2010, struck the remainder of the application out of its list. The applicant waived any further claims in respect of her application and the just satisfaction due was paid to her on 19/04/2010, that is, within the prescribed time-limit. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

a) Legislative measures

In April 2011, the “Second Act for equal inheritance rights for children born outside of marriage, amending the Code of Civil Procedure and the Fiscal Code” (“ Zweites Gesetz zur erbrechtlichen Gleichstellung nichtehelicher Kinder, zur Änderung der Zivilprozessordnung und der Abgabenordnung ”) was promulgated (with entry into force partly for April 2011, partly retroactively for May 2009), thereby eliminating the existing unequal treatment under the law of succession of children born outside marriage as compared with children born within marriage. According to this Act, all children born outside marriage, including those born before 01/07/1949, will in particular have a statutory right of inheritance in respect of their fathers and their paternal relatives. The new rules w ill apply to all inheritance cases which have occurred since the date of the Court’s decision, i.e. as from 29/05/2009, and to all future cases.

As regards cases in which the State became the statutory heir because a child born outside wedlock before 01/07/1949 had no statutory right of inheritance in respect of their father or father’s relatives on the basis of the legal situation until 28/05/2009, those children are entitled to claim compensation from the State.

b) Publication and dissemination

The Court's judgment was sent to the domestic courts concerned as well as to all judicial authorities of the Länder and published in several law journals ( e.g . Zeitschrift für das Notariat in Baden-Württemberg 2009, p. 203; Zeitschrift für das gesamte Familienrecht 2009, p. 1293; Neue juristische Wochenschrift Rechtsprechungsreport 2009, p. 1603; Zeitschrift für Erbrecht und Vermögensnachfolge 2009, p. 510). It was also included in the Federal Ministry of Justice's Report on the Case-Law of the European Court of Human Rights and on the execution of its judgments and decisions in cases against the Federal Republic of Germany 2009, which is widely disseminated and published on the website of the Federal Ministry of Justice ( www.bmj. d e ).

III. Conclusions of the respondent State

The government considers that no individual measure is required apart from the payment of the just satisfaction , that the general measures adopted will prevent similar violations and that Germany has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 6 June 2012 at the 11 44 th Meeting of the Ministers’ Deputies .