The applicant was born outside marriage in 1948 in East Germany and claimed a share of the estate of her father, who had lived in West Germany dying in 1998. A West German statute of 1969 put illegitimate children on a equality with children of a marriage, but excluded children born before 1 July 1949, and had thus reached the age of majority as it came into force.
Held: The discriminatory provision was incompatible with the Convention. The aim of the legislation, distinguishing between children born before July 1949 and those born later, may have been legitimate, and the court even recognised the political and other difficulties which would have been involved if the distinction had been removed. However, this was not enough: ‘The Court considers, in particular, that, having regard to the evolving European context in this sphere, which it cannot neglect in its necessarily dynamic interpretation of the Convention, 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.’
The Court then considered whether the means were proportionate, saying: ‘As to whether the means employed were proportionate to the aim pursued, a further three considerations appear decisive to the Court in the present case. First, the applicant’s father had recognized her after her birth and had always had regular contact with her despite the difficult circumstances linked to the existence of two separate German states. He had neither a wife nor any direct descendants, but simply heirs of the third order whom he apparently did not know. The aspect of protecting these distant relatives’ ‘legitimate expectations’ cannot therefore come into play’.
The other two considerations were specific to German legislation in the context of the reunification, and they do not assist in the present case.
Judges:
Peer Lorenzen, P
Citations:
3545/04 (Translation), [2009] ECHR 795
Links:
Statutes:
European Convention on Human Rights
Cited by:
See Also – Brauer v Germany ECHR 28-Jan-2010
Just satisfaction – friendly settlement . .
Cited – Re Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Wills and Probate
Updated: 26 July 2022; Ref: scu.346628