CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 juin 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                       Application No. 17750/91                       by H.R.                       against the Federal Republic of Germany         The European Commission of Human Rights sitting in private on 30 June 1992, the following members being present:              MM.    C. A. NØRGAARD, President                  S. TRECHSEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A. S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C. L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M. P. PELLONPÄÄ                  B. MARXER                    Mr. H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 22 October 1990 by H.R. against the Federal Republic of Germany and registered on 4 February 1991 under file No. 17750/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   17550/91                          - 2 -   THE FACTS         The applicant is a German citizen, born in 1943 and living in Cologne.   He is represented by Mr. Frank Montag, a lawyer in Cologne.         The applicant was born out of wedlock.   On 21 February 1944 Mr. H. Pf. acknowledged paternity before a Public Notary (Notar).         According to the former version of Sec. 1589 (2) of the Civil Code, which was in force at the relevant time, there existed no family relationship between a child born out of wedlock and his or her father.         This situation was changed by the Act on the Legal Situation of Children Born out of Wedlock which came into force on 19 August 1969. As a consequence a child born out of wedlock also has a right to inherit from the father.   However, according to Article 12, Section 10 (2), first sentence, of the 1969 Act, the new hereditary regulations do not apply to children born out of wedlock before 1 July 1949.         A constitutional complaint about the latter limitation was rejected by the Federal Constitutional Court (Bundesverfassungsgericht) on 8 December 1976.   The Constitutional Court stated that the differentiation was objectively justified in view of practical and procedural difficulties resulting from the fact that paternity could not be determined with certainty in all cases of illegitimate children born before 1 July 1949.   At that time scientific means to prove paternity were not yet as developed as nowadays.   It was therefore likely that many paternity actions would fail simply because of lack of proof.   On the other hand the new legislative regulations provided for the possibility of contesting legal acts by which paternity had been established before 1 July 1949.   In view of these circumstances the fixing of an age limit was justified and did not exceed the margin of appreciation which the legislator disposed of in relation to transitory regulations.   It was furthermore not objectionable if the legislator had, to a certain extent, also taken into account important uncertainties in the sphere of hereditary law and the view of those who had been against the legislative reform of the legal position of children born out of wedlock.   The interests of those who trusted in the continuing existence of the former relevant legal provisions and therefore omitted possible measures to avoid undesired effects of the new regulations justified certain protection.   The Constitutional Court concluded for these reasons that the regulation in question did not violate the principle of equal treatment.         The applicant points out that his father is still alive and that he is therefore affected by the legislative regulation in question. He considers that in view of the Federal Constitutional Court's previous jurisprudence, a constitutional complaint does not for him constitute an effective remedy.     COMPLAINTS         The applicant submits that the transitory regulation excluding his being his father's legal heir violates Article 8 in conjunction with Article 14 of the Convention.   He considers that he has been discriminated against both in comparison with children born within wedlock and with children born out of wedlock after 1 July 1949.   He puts the Federal Constitutional Court's arguments in question that the differential treatment is objectively justified. The practical and procedural difficulties invoked by the Constitutional Court were irrelevant with respect to those family relationships between persons born out of wedlock before 1 July 1949 and their respective fathers where paternity was, as in his case, uncontested.   A possible legal                                    - 3 -                        17550/91   uncertainty could have been better avoided if the possibility of contesting the result of previous affiliation proceedings or the recognition of paternity had been limited in time.   He further submits that the general exclusion from hereditary rights of children born out of wedlock before 1 July 1949 vis-à-vis their fathers was unjustified in that it also protected fathers who, like his, did have ample time to familiarise themselves with the new legislative situation which is now in force since 19 August 1969.   THE LAW         The applicant complains that no retroactive effect beyond 12 July 1949 was given to amendments to the German Civil Code which came into force on 19 August 1969 and which had the purpose of abolishing the unequal treatment of children born out of wedlock as compared to children born within wedlock.   He submits that as a consequence he is being discriminated against as he was born before the deadline in question and therefore does not, unlike children born out of wedlock after that date, qualify as an heir in respect of his late father's estate.         It is true that Article 14 (Art. 14) of the Convention forbids discrimination as to the enjoyment of the right to protection of private and family life as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.   The Commission notes however that according to the jurisprudence of the European Court of Human Rights, the principle of legal certainty, which is necessarily inherent in the law of the Convention, may dispense States from re-opening legal acts or situations that antedate judgments of the Court declaring domestic legislation incompatible with the Convention (Marckx judgment of 13 June 1979, Series A no. 31, p. 26, para. 58).   The same considerations apply where a Constitutional Court annuls domestic legislation as being unconstitutional.         In view of this principle of legal certainty the Commission finds that the limitation in time of the retroactive effect of the legislative amendments in question is objectively justified as was already stated by the Federal Constitutional Court.   Consequently the present case does not disclose any appearance of a violation of the Article invoked by the applicant.         It follows that the application must be rejected as being manifestly ill-founded, in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission unanimously           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission          (H.C. KRÜGER)                                (C.A. NØRGAARD)