Right to the hereditary portion have also children out of wedlock
Wolter and Sarfert v. Germany 14.12.2017 (no. 59752/13 and 66277/13)
Heirs. National legislation according to which children who were born outside marriage before 1949 have no inheritance right. Distinction between children born out of wedlock and within. Infringement of the prohibition of discrimination in connection with a violation of the right to property protection.
Article 1 of the First Additional Protocol
The case concerned the question of just satisfaction in a judgment on the inheritance rights of children born outside of marriage.
The applicants, Rolf Wolter and Jürgen Sarfert, are German nationals who were born in 1943 and 1940 and live in Cologne and Stuttgart (Germany), respectively. They were both born out of wedlock to different parents.
Following the death of their natural fathers, the applicants applied to be recognised as heirs to their fathers’ estates. However, the German law applicable at the time stated that children born out of wedlock prior to 1 July 1949 were not entitled to inherit. The German courts therefore rejected the applicants’ claims. They appealed – ultimately to the Federal Constitutional Court – which also dismissed the claims. The court noted that following the judgment of the European Court of Human Rights in the case of Brauer v. Germany (no. 3545/04, 28 May 2009), the German legislature had amended the law so that the difference in inheritance rights between children born outside of marriage before and after 1949 had been set aside in cases where the deceased had died after 28 May 2009. However, where the deceased had died before 28 May 2009, the difference remained in force. As the fathers of both of the applicants had died before the cut-off date, the difference in treatment applied and the applicants were not entitled to inherit. The court held that it was not necessary to apply the legislative change retrospectively before the cut-off date because of the need to preserve legal certainty.
Relying in particular on Article 14 (prohibition of discrimination) taken in conjunction with Article 1 of Protocol No. 1 (protection of property), the applicants complained that the rulings by the German courts meant that they had been discriminated against as children born outside of marriage when compared to children born within marriage.
THE DECISION OF THE COURT
In its principal judgment on the merits of 23 March 2017 the Court found a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 – in respect of both Mr Wolter and Mr Sarfert.
Mr Wolter did not make any claim in respect of non-pecuniary damage; the Court awarded him EUR 5,000 in respect of costs and expenses.
Today’s decision concerned the question of the application of Article 41 (just satisfaction) of the Convention as regards Mr Sarfert.
Just satisfaction: Taking note of the friendly settlement reached between the German Government and Mr Sarfert, the Court decided to strike the application out of its list of cases insofar as the Article 41 (just satisfaction) procedure was concerned(echrcaselaw.com editing).