EGMR 23.03.2017

Wolter and Sarfert v. Germany (nos. 59752/13 and 66277/13)

Volltext (engl.) hier

Stichtagsregelung für die erbrechtliche Gleichstellung der vor dem 1. Juli 1949 geborenen nichtehelichen Kinder verletzt Eigentumsgarantie

s. auch EGMR Mitzinger v. Germany (application no. 29762/10), 09.02.2017

Laut BVerfG (Beschluss vom 18. März 2013 · Az. 1 BvR 2436/11, 1 BvR 3155/11) lag dagegen keine Verletzung der Grundrechte vor 

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 both 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. The applicants 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. 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.

They relied in particular, in substance, on Article 14 (prohibition of discrimination) taken in conjunction with Article 1 of Protocol No. 1 (protection of property).

Violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 – in respect of Mr Wolter and Mr Sarfert Just satisfaction: 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.

As regards Mr Sarfert, the Court held that the question of the application of Article 41 (just satisfaction) of the Convention was not ready for decision and reserved it for examination at a later date.

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