FIFTH SECTION
\nCASE OF MITZINGER v. GERMANY
\n(Application no. 29762\/10)<\/p>\n
JUDGMENT
\n(Just satisfaction \u2013 striking out)
\nSTRASBOURG
\n25 January 2018<\/p>\n
FINAL
\n25\/04\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Mitzinger v. Germany,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:<\/p>\n Erik M\u00f8se, President, Having deliberated in private on 19 December 2017,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 29762\/10) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a German national, Ms GertraudMitzinger (\u201cthe applicant\u201d), on 20 May 2010.<\/p>\n 2.\u00a0\u00a0In a judgment delivered on 9 February 2017 (\u201cthe principal judgment\u201d), the Court held that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8 on account of the fact that the applicant, who was born outside marriage before 1 July 1949, had been unable to assert her inheritance rights, unlike, in particular, persons born outside marriage after that date and persons born within marriage. The Court found that the difference in treatment of the applicant in this respect had not been a proportionate means to pursue the legitimate aims underlyingthe applicable legislation (see Mitzinger v. Germany, no.\u00a029762\/10, \u00a7\u00a7 30 et seq., 9 February 2017).<\/p>\n 3.\u00a0\u00a0Under Article 41 of the Convention the applicant sought just satisfaction. She claimed 6,000 euros (EUR) in respect of pecuniary damage, corresponding to the estimated minimum value of her share of the estate had she been a statutory heir.She also claimed compensation for non\u2011pecuniary damage, leaving the amount to be awarded to the discretion of the Court. She further claimed EUR 1,700 in respect of costs and expenses.The Government contested the applicant\u2019s claims in respect of pecuniary and non-pecuniary damage and part of the claims in respect of costs and expenses.<\/p>\n 4.\u00a0\u00a0Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicant to submit, within three months from the date on which the judgment became final according to Article 44 \u00a7 2 of the Convention, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., \u00a7 53, and point 3 of the operative provisions).<\/p>\n THE LAW<\/strong><\/p>\n 5.\u00a0\u00a0In September 2017 the applicant informed the Court in reply to its said request that the parties had not reached an agreement and that she upheld her claims as previously submitted.<\/p>\n 6.\u00a0\u00a0By a letter of 14 September 2017 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the question of the application of Article 41 of the Convention. They further requested the Court to strike out the application in accordance with Article\u00a037 of the Convention.<\/p>\n 7.\u00a0\u00a0The declaration provided as follows:<\/p>\n \u201c1.\u00a0\u00a0A friendly settlement has failed.<\/p>\n 2.\u00a0\u00a0Due to the particular circumstances of this individual case, the Federal Government is prepared to pay compensation in the amount of EUR 6,100.00 to the Applicant, if the Court, on condition of payment of the amount, strikes the Application out of its list of cases pursuant to Article 37 para. 1 (c) of the Convention. This would satisfy any and all claims, costs and expenses on the part of the Applicant against the Federal Republic of Germany (i.e. against the Federation and\/or the L\u00e4nder).<\/p>\n 3.\u00a0\u00a0Theamount shall be payable within three months of the Court\u2019s decision to strike the case out of its list becoming final.\u201d<\/p>\n 8.\u00a0\u00a0The Government explained that it had taken the following elements into account in calculating the compensation offered. As for the applicant\u2019s claims in respect of pecuniary damage, the Government found that having regard to the information given by the applicant in her previous submissions to the Court, she would have had a claim to one quarter of the value of her father\u2019s estate if she had been treated in the same manner as a child born within marriage. On the basis ofthe value of the estate as estimated by the applicant herself in her previous submissions, the applicant could therefore claim EUR 4,500 under this head. The Government further argued that the applicant had not suffered any non-pecuniary damage as a result of her discriminatory treatment. In particular, even if she had been treated in the same way as a legitimate child, she would only have had a claim for monetary compensation against the heir (her father\u2019s wife) and would not have inherited any personal objects.Moreover, the applicant herself had submitted that she had received EUR 5,000 from her father in compensation prior to his death in view of the fact that she would not be a heir. The Government further calculated the costs and expenses incurred by the applicant in the proceedings before the domestic courts and before this Court as having amounted to EUR 1,600.<\/p>\n 9.\u00a0\u00a0By a letter of 18 October 2017, the applicant indicated that she was not satisfied with the terms of the unilateral declaration. She stressed that she was still unable under domestic law to obtain information on the value of her deceased father\u2019s estate and thus to substantiate her claims for pecuniary damage. She agreed that, had she been treated in the same manner as a child born within marriage, she could have claimed from the heir one quarter of the value of her father\u2019s estate as a compulsory portion (Pflichtteilsanspruch); she estimated that portion at EUR 12,225. She further confirmed that she had received EUR 5,000 from her father prior to his death in view of the fact that she would not be a heir, but stressed that her father had given her that sum of his own free will.<\/p>\n 10.\u00a0\u00a0The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article\u00a037 \u00a7\u00a01\u00a0(c) enables the Court in particular to strike a case out of its list if:<\/p>\n \u201cfor any other reason established by the Court, it is no longer justified to continue the examination of the application\u201d.<\/p>\n 11.\u00a0\u00a0The Court also reiterates that in certain circumstances, it may strike out an application, or part thereof, under Article 37 \u00a7 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. Moreover, there is nothing to prevent a respondent Government from submitting a unilateral declaration relating, as in the instant case, to the reserved Article 41 procedure (seeRacu v. Moldova (just satisfaction \u2013 striking out), no. 13136\/07, \u00a7 17, 20 April 2010;Megadat.com SRL v.\u00a0Moldova (just satisfaction \u2013 striking out), no. 21151\/04, \u00a7 10, ECHR\u00a02011; and Althoff and Others v. Germany (just satisfaction \u2013 striking out), no.\u00a05631\/05, \u00a7 17, 27 September 2012). To this end, the Court will examine the Government\u2019s declaration carefully in the light of the general principles applicable in respect of Article 41 of the Convention (see, for example, Brum\u0103rescu v. Romania (just satisfaction) [GC], no. 28342\/95, \u00a7\u00a7\u00a019-20, ECHR 2001\u2011I;Mullai and Others v. Albania (just satisfaction \u2013 striking out), no. 9074\/07, \u00a7 12, 18 October 2011; and Bushati and Others v.\u00a0Albania (just satisfaction \u2013 striking out), no. 6397\/04, \u00a7 10, 14\u00a0February2012).<\/p>\n 12.\u00a0\u00a0The Court observes that the Government based its calculation of the pecuniary damage suffered by the applicant on the estimation of the value of the estate made by the applicant herself in her previous submissions (compareparagraph 3 above). Itfurther notes that the parties agreed that the applicant could have claimed from the heir one quarter of the value of her father\u2019s estate as a compulsory portion had she been treated in the same manner as a child born within marriage.<\/p>\n 13.\u00a0\u00a0As for the Government\u2019s assessment of the non-pecuniary damage suffered by the applicant, the Court, having regard to its practice (see, for instance, Di Triziov. Switzerland, no. 7186\/09, \u00a7 121, 2 February 2016; Biao v. Denmark [GC], no. 38590\/10, \u00a7 147, ECHR 2016; and Carvalho\u00a0Pinto de Sousa Morais v. Portugal, no.17484\/15, \u00a7 60, ECHR\u00a02017), finds that awards in this respect are made following the finding of a breach of Article\u00a014 taken in conjunction with Article 8.<\/p>\n 14.\u00a0\u00a0The Court has noted that in their calculation of the sum proposed in respect of the damage suffered by the applicant the Government expressed the view that the applicant had not suffered any non-pecuniary damage (see paragraph 8 above). However, the Court considers that it should take into account in its assessment whether the sum proposed by the Government as a whole is compatible with its practice under Article 41 of the Convention, that the applicant had received EUR 5,000 from her father prior to his death as she would not be an heir and that the Government had not deducted that amount from the award offered by them.<\/p>\n 15.\u00a0\u00a0Furthermore, as regards the Government\u2019s calculation of the costs and expenses incurred by the applicant, the Court observes that the Government now essentially acceptsthe claims made by the applicant in her initial submissions under Article 41 to the Court prior to the adoption of the principal judgment (see paragraph 3 above).<\/p>\n 16.\u00a0\u00a0The Court has regard to the above considerations and findsreasonable the total amount of compensation proposed by the Government \u2013 on which simple interest shall be payable at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points in the event of failure to settle within the three\u2011month period specified in the Government\u2019s declaration (see paragraph\u00a07 above). Itconcludes that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the case as regards the reserved Article 41 procedure. Accordingly, the remainder of the application should be struck out of the list (Article 37 \u00a7\u00a01\u00a0(c)).<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Takes note of the terms of the respondent Government\u2019s declaration and of the modalities for ensuring compliance with the undertakings referred to in paragraph 16 above and directs in consequence;<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant EUR 6,100 (sixthousand one hundred euros), within three months from the date on which the judgment becomes final, in accordance with Article 44 \u00a7 2 of the Convention, in respect of pecuniary and non-pecuniary damage, costs and expenses;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 2.\u00a0\u00a0Decides to strike the remainder of the application regarding the reserved Article 41 procedure out of its list of cases in accordance with Article\u00a037 \u00a7\u00a01\u00a0(c) of the Convention.<\/p>\n Done in English, and notified in writing on 25 January 2018, pursuant to Rule\u00a077\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Claudia Westerdiek\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Erik M\u00f8se
\nAngelika Nu\u00dfberger,
\nNona Tsotsoria,
\nAndr\u00e9 Potocki,
\nS\u00edofra O\u2019Leary,
\nM\u0101rti\u0146\u0161 Mits,
\nGabriele Kucsko-Stadlmayer, judges,
\nand Claudia Westerdiek, Section Registrar,<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n