Germany: Child born out of wedlock suffered human rights violation

Excluding children from inheritance rights if they were born out of wedlock before a certain cut-off point was discriminatory and led Germany to breach European human rights law.

In its 9 February judgment in the case of Mitzinger v. Germany (application no. 29762/10) the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The case brought by Gertraud Mitzinger, concerned inheritance rights of children born outside marriage. Mitzinger, the applicant, complained that she could not assert her inheritance rights after her father’s death in 2009, as she had been born out of wedlock and before a cut-off point provided for by legislation in force at the time. Notably, children born outside marriage before 1 July 1949 were excluded from any statutory entitlement to inherit and from the right to financial compensation.

Mitzinger is the natural and only daughter of her father, who recognised paternity in 1951. She lived in the former German Democratic Republic until 1984, while her father lived in the Federal Republic of Germany with his wife. Mitzinger and her father corresponded regularly during that period and she visited him and his wife every year between 1954 and 1959. After moving to Bavaria in 1984 with her husband and daughter, she visited her father regularly until 2007. He died in 2009.

In January 2009, directly after her father’s death, Mitzinger applied to the Memmingen District Court for the right to administer her father’s estate. She asserted that she needed this power as her father’s wife had dementia, and that she was a statutory heir.

The court dismissed her application. As Mitzinger had been born before 1 July 1949, she was excluded under section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act from any statutory entitlement to her father’s estate and from the right to financial compensation. Nor was she entitled to receive any copies of documents about the estate.

The court found that the aims pursued by Mitzinger’s difference in treatment, namely the preservation of legal certainty and the protection of the deceased and his family, had been legitimate.

However, it was not satisfied that excluding children born out of wedlock before a certain cut-off point provided for by legislation had been a proportionate means to achieving the aims sought to be achieved. Decisive for that conclusion was the fact that Mitzinger’s father had recognised her. Furthermore, she had regularly visited him and his wife.

The latter’s awareness of Mitzinger’s existence, as well as of the fact that the legislation allowed children born inside marriage and outside marriage after the cut-off date to inherit, had therefore to have had a bearing on her expectations to her husband’s estate. In any case, European case-law and national legislative reforms had shown a clear tendency towards eliminating all discrimination regarding the inheritance rights of children born outside marriage.

Just satisfaction (Article 41)

The court held that the question of the application of Article 41 was not ready for decision and reserved it for a later date.

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