Communicated on 26 May 2015

FIFTH SECTION

Application s

no . 29762/10 , Gertraud MITZINGER against Germany , no. 59752/13, Rolf WOLTER against Germany and no. 66277/13, Jürgen SARFERT against Germany

STATEMENT OF FACTS

1 . The applicants are German nationals.

2 . The applicant Ms Gertraud Mitzinger is represented before the Court by Ms K. Mitzinger , the applicant ’ s daughter. The second applicant, Mr Rolf Wolter , is represented before the Court by Mr P. Krumbiegel , a lawyer practising in Cologne. The third applicant, Mr Jürgen Sarfert , is represented before the Court by Mr F. Steinhoff, a lawyer practising in Lennestadt .

A. The circumstances of the cases

3 . The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Application no. 29762/10 ( Mitzinger )

4 . The first applicant was born in 1940 in Troschenreuth , in the former German Democratic Republic (GDR), and lives in Bayreuth.

(a) Background to the case

5 . The applicant is the only and natural daughter of Mr A.W., who recognised paternity in 1951. She lived in the territory of the former GDR until 1984, while her father lived in the Federal Republic of Germany (FRG), having married. The father and the daughter corresponded regularly during this period. Furthermore, between 1954 and 1961, the applicant visited her father and his wife once a year. After the applicant had obtained an exit permit in 1984 for herself, her husband and her younger daughter, she left the GDR and moved to Bavaria. Thereafter the applicant visited her father on a regular basis. He died on 4 January 2009.

(b) Proceedings in the domestic courts

6 . On 14 January 2009 the applicant applied for curatorship of her father ’ s estate, asserting her inheritance rights and the incapacity of her father ’ s wife to protect the inheritance due to a grave illness. Furthermore, she asked to receive copies of the inheritance file.

7 . In a decision of 28 January 2009 the Memmingen District Court refused the applicant ’ s application, holding that there were no indications that the applicant ’ s father ’ s wife could not protect the inheritance. Furthermore, the appli c ant had no right to receive copies of the inheritance file, as she was not a statutory heir.

8 . On 6 February 2009 the applicant appealed to the Memmingen Regional Court, arguing in particular that a curatorship of the estate was necessary because her father ’ s wife suffered from dementia and that she was, as the natural daughter of her father, a statutory heir.

9 . In a decision of 23 February 2009 the Memmingen Regional Court upheld the District Court ’ s decision refusing a curatorship for her father ’ s estate, holding that the applicant was not a statutory heir. The Regional Court referred to the first sentence of section 12(10 )( 2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 (see paragraph 37 below) and to a decision of the Federal Constitutional Court of 8 December 1976 (see paragraph 42 below), in which the provision had been found to be in conformity with the Basic Law.

10 . On 8 March 2009 the applicant appealed to the Munich Court of Appeal, arguing that the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would discriminate against her and breach her inheritance rights and therefore was not in conformity with the Basic Law. The applicant pointed out that in her case there was no need to protect legitimate expectations of the deceased or other heirs as she was her father ’ s only daughter and her father had been separated from his wife for more than ten years when he died. Furthermore, the cultural and social changes within society had to be considered in the interpretation of the Basic Law.

11 . In a decision of 14 May 2009 the Munich Court of Appeal dismissed the applicant ’ s appeal on the ground that it was bound by the decisions of the Federal Constitutional Court in which the first sentence of section 12(10 )( 2) of the Children Born outside Marriage (Legal Status) Act had been found to be in conformity with the Basic Law. In the Court of Appeal ’ s view, that provision did not contravene the Basic Law despite German reunification, as the Federal Constitutional Court had held in its decision of 20 November 2003 (file no. 1 BvR 2257/03, see paragraph 43 below).

12 . On 17 July 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court, claiming discrimination as a result of the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act. According to her there were no apparent reasons why children born outside marriage should be treated differently from those born within marriage. In her case, especially, there were no reasons to do so as she was her father ’ s only daughter. The applicant argued that the Munich Court of Appeal, when considering an appeal, had to respect Article 6 § 5 of the Basic Law (see paragraph 35 below). This provision prohibited a generalised application of the first sentence of section 12(10 )( 2) of the Children Born outside Marriage (Legal Status) Act. In addition the applicant claimed a violation of her right to be heard, arguing that the Munich Court of Appeal had disregarded her legal submissions by simply repeating the Munich Regional Court ’ s decision.

13 . In a decision of 8 December 2009 the Federal Constitutional Court declined to consider the complaint. It observed, in particular, that the applicant had failed sufficiently to address the arguments of the Munich Court of Appeal ’ s decision. As the applicant doubted the validity of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, which had previously been declared valid by the Federal Constitutional Court, she had been obliged to give further reasons, which she had failed to do.

2. Application no. 59752/13 ( Wolter )

14 . The second applicant was born in 1943 and lives in Cologne.

(a) Background to the case

15 . The applicant is the natural son of a Mr H., who recognised paternity several months after his birth. The applicant had a personal relationship with his father and worked in his business. The father died on 23 October 2007.

(b) Proceedings in the domestic courts

16 . On 6 November 2007, after Mr H. ’ s death, the applicant applied for a certificate of inheritance attesting that he was entitled to 100% of Mr H. ’ s estate.

17 . On 7 November 2007 the Cologne District Court granted the certificate, but on 10 December 2007 withdrew it stating that the applicant, being a child born outside marriage, was not Mr H. ’ s statutory heir. The applicant appealed against this decision. On 25 August 2008 the Cologne Regional Court upheld the District Court ’ s decision.

18 . On 23 July 2009 the applicant again applied for a certificate of inheritance stating that he was entitled to 100% of Mr H. ’ s estate, referring in particular to the European Court of Human Rights ’ judgment in the case of Brauer v. Germany .

19 . In a decision of 3 November 2009 the Cologne District Court refused the applicant ’ s application, holding that the judgment Brauer v. Germany was not applicable to his case.

20 . On 16 November 2009 the applicant appealed to the Cologne Regional Court arguing that, under Article 6 § 5 of the Basic Law, there were no reasons why children born outside marriage should be treated differently from those born within marriage.

21 . In a decision of 16 February 2010 the Cologne Regional Court upheld the District Court ’ s decision holding that the applicant was not a statutory heir. The Regional Court referred to the Federal Constitutional Court ’ s decision of 8 December 1976, in which section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had been found to be in conformity with the Basic Law. The principles developed in the European Court of Human Rights ’ judgment in the case of Brauer v. Germany were not applicable in the present case. There was a need to protect the legitimate expectations of the deceased and other heirs. The Cologne Regional Court further argued that an interpretation of the relevant provision of the Children Born outside Marriage (Legal Status) Act in conformity with the Court ’ s case-law was not possible as the domestic law was clear and therefore not open to any interpretation.

22 . On 18 March 2010 the applicant appealed to the Cologne Court of Appeal, arguing that the application of the first sentence of section 12(10 )( 2) of the Children Born outside Marriage (Legal Status) Act would discriminate against him and breach his inheritance rights and therefore violated Article 6 § 5 and Article 3 of the Basic Law (see paragraphs 35 and 34 below). The applicant stressed that the Regional Court ’ s reasoning disregarded the European Court of Human Rights ’ judgment in the case of Brauer v. Germany and therefore was unlawful. The applicant further noted that he had maintained a close relationship with his father until his death and had even worked in his business. The applicant ’ s father had assumed that the applicant would be his sole heir.

23 . In a decision of 11 October 2010 the Cologne Court of Appeal dismissed the applicant ’ s appeal on the ground that it was bound by the decisions of the Federal Constitutional Court, in which the first sentence of section 12(10 )( 2) of the Children Born outside Marriage (Legal Status) Act had been found to be in conformity with the Basic Law. The European Court of Human Rights ’ judgment in the case of Brauer v. Germany did not require a different point of view, because German courts were not bound by the decisions of that Court. The C ourt of Appeal added that the interpretation of domestic law in the light of the Convention was restricted when domestic law was clear and therefore not open to any interpretation. This was the case with the first sentence of section 12(10 )( 2) of the Children Born outside Marriage (Legal Status) Act. The Cologne Court of Appeal further noted that the applicant ’ s appeal was an appeal on points of law only. Therefore the applicant ’ s argument that he had had a close relationship with his father, which was a statement of fact, could not be taken into account when deciding on the appeal, because it was submitted for the first time before the Court of Appeal.

24 . On 18 November 2010 the applicant lodged a constitutional complaint with the Federal Constitutional Court, claiming discrimination and therefore a violation of Article 3 and Article 6 § 5 of the Basic Law by applying the first sentence of section 12(10 )( 2) of the Children Born outside Marriage (Legal Status) Act because there were no reasons why children born outside marriage should be treated differently from those born within marriage. The case-law of the Federal Constitutional Court, which considered this provision to be valid, disregarded the European Court of Human Rights ’ judgment in the case of Brauer v. Germany and therefore was unlawful. This led to a violation of Article 8 and Article 14 of the Convention.

25 . In a decision of 18 March 2013 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint and that of the third applicant, Mr Sarfert , examined joint ly (file nos. 1 BvR 2436/11 and 3155/11) The Federal Constitutional Court noted that as a result of the European Court of Human Rights ’ judgment of 28 May 2009 in the case of Brauer v. Germany, the German legislator had introduced the Second Inheritance Rights Equalisation Act of 12 April 2011 ( Zweites Gesetz zur erbrechtlichen Gleichstellung nichtehelicher Kinder) . The first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 was changed retroactively, to the effect that the difference between children born outside marriage before and after 1 July 1949 was set aside in cases of successions after 28 May 2009 (see paragraph 41 below). As far as the second applicant had alleged a close relationship with his father for the first time in his appeal to the Cologne Court of Appeal, the Federal Constitutional Court noted that this statement of fact was not relevant for the issue before it, therefore the constitutional complaint was admissible. The Federal Constitutional Court confirmed the conformity of the amended first sentence of section 12(10 )( 2) of the Children Born outside Marriage (Legal Status) Act with the Basic Law. The Federal Constitutional Court reiterated that the present cases only had to be examined under Article 6 § 5 and not under Article 14 of the Basic Law (see paragraph 36 below). The difference between children born outside marriage before and after 1 July 1949 had been abolished by the Second Inheritance Rights Equalisation Act of 12 April 2011; therefore, the general discrimination against children born before and after this date did no longer exist. The time-limit in the new provision was not linked to personal characteristics but to a coincidental external incident ( zufälliges , von außen kommendes Ereignis ) . Therefore, any discriminatory treatment was of a lesser intensity. Retroactivity of the reform was not necessary as the conformity of the relevant provision of the Children Born outside Marriage (Legal Status) Act had been repeatedly confirmed by the Federal Constitutional Court. Nor was a different point of view necessary in the light of the European Court of Human Rights ’ judgment in the case of Brauer v. Germany , because the European Court of Human Rights had clarified in the Marckx judgment of 1979 (no. 6833/74) that the principle of legal certainty, which was necessarily inherent in the law of the Convention as in European Law, dispensed a State from re ‑ opening legal acts or situations that predated the delivery of a European Court of Human Rights ’ judgment. The Federal Constitutional Court concluded in the case of the second applicant, Mr Wolter , that the Cologne courts had interpreted the relevant provision in accordance with the Basic Law and that the European Court of Human Rights ’ judgment in the case of Brauer v. Germany did not necessitate a different interpretation, notably as the applicant ’ s allegation of a close relationship with his father had been submitted belatedly.

3. Application no. 66277/13 ( Safert )

26 . The third applicant was born in 1943 and currently lives in Stuttgart.

(a) Background to the case

27 . The applicant is the natural son of a Mr B. and was born in the former GDR, where he lived until his flight in 1957. In 1949 Mr B. was ordered by the Hamburg- Blankensee District Court to pay maintenance for the applicant. The father died on 26 June 2006, having left a last will in which his daughter was declared sole heiress.

(b) Proceedings in the domestic courts

28 . In 2009 the applicant lodged an inheritance recovery action ( Erbschaftsklage ) with the Hamburg Regional Court.

29 . On 21 January 2010 the Hamburg Regional Court refused the applicant ’ s claim holding that, under the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, the applicant was not a statutory heir. This provision was in conformity with the Basic Law. The Regional Court referred to the Federal Constitutional Court ’ s judgment of 8 December 1976. It noted that the European Court of Human Rights ’ judgment in the case of Brauer v. Germany was not applicable in the present case because there had been no regular contact between the applicant and his father, the deceased had a natural daughter and the applicant had not lived most of his life in the former GDR.

30 . The applicant appealed to the Hamburg Court of Appeal, arguing that the judgment of the European Court of Human Rights in the case of Brauer v. Germany obliged the German courts to grant children born outside marriage the same inheritance rights as those born within marriage. The special circumstances of the case of Brauer v. Germany , which were referred to by the Regional Court, were not conditions for applying the principles laid down in that judgment.

31 . In a decision of 15 June 2010 the Hamburg Court of Appeal upheld the Regional Court ’ s decision, endorsing its reasoning. It referred to the Federal Constitutional Court ’ s case-law, arguing that there was a need to protect the legitimate expectations of the deceased.

32 . The applicant appealed to the Federal Court of Justice, which confirmed the Hamburg Court of Appeal ’ s reasoning in a decision on 26 October 2011. The Federal Court of Justice argued that neither the old nor the amended first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act discriminated against children born outside marriage before 1 July 1949 because the difference in treatment was based on legitimate grounds. Regarding the amended first sentence of section 12(10 )( 2) of the Children Born outside Marriage (Legal Status) Act, a further retroactivity of the reform beyond the one adopted was not necessary as the basic principles of legal certainty and legitimate expectations were to be respected. These principles were necessarily also inherent in the Convention, with the consequence that even though the inheritance rights of children born outside marriage fell within the scope of protection of Article 8 of the Convention, a State was dispensed from re ‑ opening legal acts or situations that predated the delivery of a court judgment. The Federal Court of Justice noted furthermore that the facts in issue fell neither in the ambit of Article 8 nor in that of Article 14 of the Convention.

33 . The applicant lodged a constitutional complaint with the Federal Constitutional Court. In a decision of 18 March 2013 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint and that of the second applicant, Mr Wolter (see paragraph 25 above).

B. Relevant domestic law and practice

1. Relevant provisions of the Basic Law

34 . Article 3 of the Basic Law, in so far as relevant, reads as follows:

“(1) All persons shall be equal before the law.

...

(3) No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disfavoured because of disability.”

35 . Article 6 § 5 of the Basic Law reads as follows:

“(5) Children born outside marriage shall be provided by legislation with the same opportunities for physical and mental development and for their position in society as are enjoyed by those born within marriage.”

36 . Article 14 of the Basic Law, as far as relevant, reads as follows:

“(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.”

2. Provisions concerning inheritance rights of children born outside marriage

37 . The Children Born outside Marriage (Legal Status) Act of 19 August 1969, which came into force on 1 July 1970, provided that upon the father ’ s death, children born outside marriage after 1 July 1949 – shortly after the entry into force of the Basic Law – were entitled to compensation from the heirs in an amount equivalent to their share of the estate ( Erbersatzanspruch ). In contrast, children born outside marriage before 1 July 1949 were excluded from any statutory entitlement to the estate and from the right to financial compensation under the first sentence of section 12(10)(2) of the Act.

38 . By virtue of section 235(1 )( 2), taken together with section 25(1), of the Introductory Act to the FRG Civil Code, children born outside marriage in the territory of the former GDR before 3 October 1990 (the date on which German reunification took effect) have the same inheritance rights as children born within marriage in accordance with the FRG Civil Code if the father died after 3 October 1990 and had been resident in the territory of the former GDR on that date. Section 235(1 )( 2) seeks to protect the rights of children born outside marriage prior to reunification, who would have been covered by the law of the former GDR, which afforded equal inheritance rights to children born outside and within marriage. It follows that the inheritance rights of children born outside marriage before 1 July 1949 are dependent on the deceased ’ s place of residence on 3 October 1990: if the deceased was resident in the territory of the former GDR, the child born outside marriage has the same inheritance rights as a child born within marriage; if, however, the deceased was resident in the territory of the FRG, the child born outside marriage has no statutory entitlement to the estate.

39 . During the passing of the Children ’ s Rights Improvement Act ( Kinderrechteverbesserungsgesetz ) of 9 April 2002, the legislator again upheld the exception in the first sentence of section 12(10 )( 2) of the Children Born outside Marriage (Legal Status) Act.

40 . By a judgment of 28 May 2009 in the case of Brauer v. Germany the European Court of Human Rights found a violation of Article 14 of the Convention taken in conjunction with Article 8 of the Convention by the application of the first sentence of section 12(10 )( 2) of the Children Born outside Marriage (Legal Status) Act by the domestic courts. The Court reasoned that the aspect of protecting the legitimate expectation of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and within marriage.

41 . As a result, the German legislature introduced the Second Inheritance Rights Equalisation Act of 12 April 2011. The first sentence of section 12(10)(2) of the Children Born outside Ma rriage (Legal Status) Act of 19 August 1969 was changed retroactively to the effect that the difference between children born outside marriage before and after 1 July 1949 was set aside in cases when the deceased had died after 28 May 2009. In cases where the deceased had died before 28 May 2009 the difference remained in force.

3. Relevant case-law of the Federal Constitutional Court

42 . In a leading decision of 8 December 1976 (file no. 1 BvR 810/70) the Federal Constitutional Court held that the first sentence of section 12(19 )( 2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 was compatible with the Basic Law. It stated, in particular, that fixing 1 July 1949 as the cut-off date was objectively justified in view of the practical and procedural difficulties of establishing the paternity of children born outside marriage before that date, since the scientific methods used at the time were less developed than present-day methods. Many paternity suits were therefore unlikely to succeed owing to insufficient evidence. Moreover, the new legislation made it possible to contest declarations of paternity drawn up before 1 July 1949. Accordingly, having regard to those factors, the legislature had not overstepped its margin of discretion in this regard. Furthermore, it had to a certain extent been able to take account of existing uncertainties regarding the law of succession and of the opinion of those opposed to reforming the legal status of children born outside marriage. Lastly, the “legitimate expectation” of the deceased and their families that the exception provided for in the first sentence of section 12(10 )( 2) of the Children Born outside Marriage (Legal Status) Act would be maintained also deserved a certain degree of protection.

43 . In two decisions of 3 July 1996 (file no. 1 BvR 563/96) and of 20 November 2003 (file no. 1 BvR 2257/03) the Federal Constitutional Court confirmed its earlier position.

COMPLAINTS

44 . The applicants complain under Article 14 of the Convention taken in conjunction with Article 8 that their inheritance rights were violated by the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969.

45 . The second applicant, Mr Wolter (application no. 59752/13), complains in addition under Article 14 of the Convention taken in conjunction with Article 1 of Protocol 1 that his inheritance rights were violated by the application of the amended first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969.

QUESTIONS TO THE PARTIES

1. Has the applicant Mr Wolter (application no. 59752/13) exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

In particular, did the applicant bring before the national authorities, at least in substance, his complaints under Article 14 of the Convention, taken in conjunction with Article 8, and under Article 14 of the Convention, taken in conjunction with Article 1 of Protocol no. 1, on which he now wishes to rely before the Court?

2. Has the applicant Mr Safert (application no. 66277/13) exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

In particular, did the applicant bring before the national authorities, at least in substance, the right under Article 14 of the Convention, taken in conjunction with Article 1 of Protocol no. 1, on which he now wishes to rely before the Court?

3. Has the applicant Ms Mitzinger (application no. 29762/10) suffered discrimination in the enjoyment of her Convention rights on the ground of the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, contrary to Article 14 of the Convention taken in conjunction with Article 8?

4. Has the applicant Mr Wolter (application no. 59752/13) suffered discrimination in the enjoyment of his Convention rights on the ground of the application of the amended first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, contrary to Article 14 of the Convention taken in conjunction with Article 8?

5. Have the applicants Mr Wolter (application no. 59752/13) and Mr Sarfert (application no. 66277/13) suffered discrimination in the enjoyment of their Convention rights on the ground of the application of the amended first sentence of section 12(10 )( 2) of the Children Born outside Marriage (Legal Status) Act, contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol no. 1?