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University of New South Wales Law Journal Student Series |
As of 1 January 2021, the European Court of Human Rights (hereinafter ‘ECtHR’ or the ‘Court’) concerned the Federal Republic of Germany in a total of 356 judgements, resulting in 199 judgments of violation. Almost 9 % of these were based on the grounds of Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘ECHR’ or the ‘Convention’). The herein protected right to respect for private and family life thus amounted to nearly 20 judgments of violation, representing the fourth-most right of the Convention to be violated.[1]
These statistics offer two kinds of insight: one being that Art. 8 ECHR is affected frequently and therefore leads to cases brought before the Court, the second being that Germany expresses either by legislative, administrative or judicial acts its occasionally deviating views on the scope and level of protection of private and family life. As private and family life not only are of importance in our daily life but also have high relevance in law – going beyond the mere number of cases brought against Germany – this article will shine light on the scope of Art. 8 ECHR and its perception in Germany.
Generally, nations have different understandings of the meaning of this right for respect and which requirements Art. 8 ECHR establishes. Due to cultural views differing greatly – especially with regard to family life – there are numerous divergencies within this area.[2] Depending on the kind of relationship (genetic, biological, social or legal ties) and the kind of legal institution or system that we look at, there are different levels of acknowledgment and protection of familial relationships. This article mainly focuses on this family aspect of Art. 8(1) ECHR to stay within a reasonable scope that can be covered here.
The purpose of this essay is to outline the status of Art. 8 ECHR in Germany and examine its influence on domestic law which can vary significantly even with regard to facts of cases that prima facie appear quite similar. Thus, this article also contributes to the contemplation and maybe even anticipation of future effects that (the findings of the ECtHR of) Art. 8 ECHR might have on German law.
It will do so by first setting out in Section II the level of protection under Art. 8 ECHR and the standing of the Convention in Germany. Sections III – V will look at three judgments of the ECtHR concerning Germany and their varying impact on domestic law. Section VI then will give an outlook on what future consequences of Art. 8 ECHR might arise based on its development so far. The article will conclude by summarizing the findings of the influence of Art. 8 ECHR until now and reiterate potential future impacts.
Art. 8 ECHR reads:
(1) Everyone has the right to respect for his private and family life, his home and his correspondences.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
As a starting point, this article will outline the scope and level of protection of Art. 8 ECHR as by general acceptance as well as its understanding and interpretation of the ECtHR with a focus on ‘family life’. It is important to highlight that according to the ‘Living-Instrument-Doctrine’ the ECHR “must be interpreted in the light of present-day conditions”[3] in order to continue to realize human rights.[4] This means that the following findings are the result of a long period of development and are subject to potential future changes with regard to the respective situations and circumstances.
The respect for ‘private life’ covers a wide range, going from physical and mental integrity, personal identity and identification to orientation, personal development and autonomy.[5] ‘Private life’ not only protects the life inside one’s own four walls – ‘home’ is expressly mentioned in Art. 8(1) ECHR – but also comprises the private life outside this sheltered area which thereby amounts to the respect and protection of privacy.[6] This is, however, conditional to individual circumstances; the level of protection depends on a ‘reasonable expectation of privacy’.[7]
This article will not discuss the entire field of ‘private life’ but mostly attend to the right of privacy, meaning the freedom of media infringement and the right to one’s own image.[8] Under the Convention, the Member States of the Council of Europe are for one under the obligation to respect this privacy and not intrude it by act of authority;[9] for two, the right to respect for private life requires further protection by offering legal actions and remedies in case Art. 8(1) is infringed by third parties.[10]
This evaluation begins with the note that the notion of ‘family life’ attaches importance to family life – not merely relationships.[11] This can be understood as the existence of actual lively solidarity and real proximity.[12] If this is lacking there still might be protection under private life as many aspects of familial relationships overflow into a person’s identity.[13]
‘Family life’ under the Convention sure covers so-called nuclear families, consisting of a man and a woman, most probably married to each other and cohabitating with their child.[14] Nevertheless, in order to meet reality according to the living-instrument-doctrine, the cohabitation of parents – regardless of their marital status – is not crucial (anymore);[15] neither is it essential for parents to be married.[16] By now, same-sex relationships as well as same-sex parents and their child are protected by ‘family life’.[17]
Correspondingly, the so-called “reality test”, which considers de facto relationships between the family members and emotional dependency, is decisive and not only financial support.[18] Even more – intended family life is also recognized if such actual relationships as part of ‘family life’ are seriously considered and tried for.[19] Conclusively, foster[20] and adoptive[21] families fall within the scope of Art. 8(1) ECHR. The same applies for extended family members.[22] However, the less close some kinship relations are the more it is case dependent if their actual lively circumstances suffice to qualify for ‘family life’ under Art. 8(1) ECHR.[23]
If Art. 8 ECHR is applicable, the cases oftentimes refer to the right to actually live together, to the rights of guardian ship and access to a child – in particular with respect to biological fathers of children born out of wedlock – to just name a few and probably the most significant subjects.[24] Not lastly due to the differing values and views, national principles and laws are not always homogenous, especially with regard to these personal and sensitives legal areas. This does not mean, however, that any provision based on a varying interpretation of ‘family life’ contradicts Art. 8 ECHR: under the Convention, the Member States have a margin of appreciation when fulfilling their obligations[25] which include providing provisions to comply with the requirements of Art. 8 ECHR.[26] The width and the depth of the respective assessment depend on the area of ‘private and family life’ that is concerned and are subject to a potential consensus among the Member States of the Council of Europe with respect to the interests in question.[27]
In order to comprehend the effects of Art. 8 ECHR on German law, the status of the Convention is of importance. Since the European Union has not (yet) become party to the ECHR because the proposed protocol was found not to be compliant with European law according to the opinion of the Court of Justice of the European Union given in 2014[28] the consequences of such accession can be disregarded here. Nevertheless, new negotiations have begun but have not come to a conclusion until now and are still on-going; due to the COVID-19 pandemic the meetings are held virtually.[29]
As a treaty, the ECHR is at the rank of a simple law.[30] Art. 59(2) German Basic Law assigns to such agreements the status of other federal statutes; thus, they are not on a constitutional level.[31] Nonetheless, the German Constitutional Court held that both basic and simple law are to be construed and interpreted in light of the Convention and the jurisdiction hereto by the European Court of Human Rights.[32]
If, however, the ECtHR finds a violation of the ECHR by a German law or authority act and therefore does not see that Germany acted in accordance with the Convention, Germany is obliged to remedy this treaty violation pursuant to Art. 46(1) ECHR. This does not automatically imply a legislative amendment but rather the obligation to consider and “taking account” the Court’s decision and results in the option to have it influence future legislative acts.[33]
Thus, this article will explore in the following sections if and how such influence occurred with regard to three judgments involving Germany.
The case Anayo v Germany[34] was brought before the ECtHR in 2007. The applicant – Mr Anayo – had an intimate relationship with a married woman. The two never cohabitated. She eventually gave birth to twins of whom the applicant is the biological father. According to German law, the husband of a woman birthing a child is deemed to be the legal father, § 1592 No. 1 German Civil Code.[35] The mother and her husband lived together with the twins and their older children as a family; both refused to give the applicant access to his children.[36]
He therefore applied to the courts to have contact rights granted, which eventually was denied. According to German law then in force, first and foremost only the legal parents of a child were entitled to have contact to the child, § 1684(1) CC. First, the District Court actually had granted the applicant access; it viewed him as a person having close ties with the children pursuant to § 1685(2) CC, despite he had not yet had any factual relationship with the twins. Although this is a requirement under § 1685(2) CC, the court held differently because that lack was not attributable to him due to the legal parents of the twins refusing to allow any contact.[37]
However, the Court of Appeal dismissed the applicant’s claim to gain access to his children because he neither was their legal father, nor did he qualify as having close ties with the twins because he had not actually borne any responsibility for them. As the Court did not see this criterion met, the judges did not even come to assess the best interest of the children. The Federal Constitutional Court refused to consider the applicant’s constitutional complaint.[38]
In addition, the applicant was precluded from contesting the mother’s husband’s legal paternity and subsequently acknowledge his paternity as there was a close social relationship between his biological children and their legal father because of their actual living circumstances (§ 1600(2) CC).[39]
This led the applicant to seeing a violation of his right to respect for his private and family life according to Art. 8(1) ECHR, which was confirmed by the ECtHR. Since there were no factual family ties yet, the Court found that the situation fell at least within the scope of private life and the applicant’s endeavours amounted to intended family life.[40]
The courts’ denial to grant the applicant access to his children was an infringement of Art. 8(1) ECHR which was not justified by law pursuant to Art. 8(2) ECHR. The Court of Appeal did not apply the decisive law correctly to the individual case because it did not give any respect to the interest of the children when considering the (legitimate) legislative aim to protect the existing relationship between the twins and their legal father.[41] More so even – the courts were basically hindered to do so by the statutory provision.[42] Thus, there was a violation of Art. 8 ECHR by Germany.
Just shortly after, a comparable case – Schneider v Germany[43] – was brought, and the ECtHR similarly found a violation of the right to respect for private and family life if the courts do not consider the individual circumstances and the best interest of the child when deciding on granting rights to the (alleged) biological, not legal father.
German law generally tends to be quite rigid and has the predisposition to opt for clear rules to allow for legal certainty and clarity; it prefers strict rules to overly flexible provisions.[44] Nevertheless, in order to comply with the guidelines of Art. 8 ECHR, Germany needs to at least adapt principles that can be applied individually depending on the specific situations, specifically with regard to the sensitive matter of family law and contact rights.[45]
The above cited cases of Anayo and Schneider therefore presented a violation of Art. 8 ECHR by the Federal Republic of Germany – not by denying biological fathers a right to contest paternity in certain situations but by the lack of ability to grant them a right to contact with their children in some cases because of legally stern provisions.[46] Theoretically, Germany could have been compliant with those rulings by remedying these particular interferences in the individual circumstances, Art. 46 (1) ECHR. As outlined previously, Germany additionally could avoid future infringements of the same kind by introducing a different interpretation of the above-mentioned provisions with regard to the best interest of the child – which is a leading concept of German family law.[47]
Notwithstanding, pressure grew to not only adopt another understanding of said statutes but to rather create a legal basis for granting biological, not legal fathers parental rights to some extent.[48] As a result, the legislator reacted by passing a ‘Bill to strengthen the rights of the biological, not legal father’.[49] This included the novel § 1686a CC which entitles the biological, not legal father to certain information and visitation rights if he has demonstrated a serious interest, and the connection furthermore is in the best interest of the child.
This is a prime example of what severe effect Art. 8 ECHR and relating ECtHR jurisprudence can have on German law: leading to a legislative amendment which introduced a new provision giving the biological, but not legal father a right of access to the child.
The next case this article will touch upon is Kautzor v Germany[50], which came before the ECtHR in 2009. This issue took a different path despite it being placed within a related area in family law as the first case and on the basis of similarly appearing facts.
The applicant – Mr Kautzor – was married to a woman who gave birth to a child shortly after the couple had got divorced. He claimed to be the biological father of the child because he allegedly had had sexual intercourse with the mother during the timeframe of conception. Thus, the applicant wished to get access to the child. Shortly after, another man acknowledged paternity of this child and married the mother later on. Accordingly, the mother and her then new husband lived together as a family with two more joint children. The applicant hence wished to have his (biological) paternity established and furthermore requested an establishment that the mother’s husband was not the child’s father.[51]
The District Court denied the applicant’s request because he was precluded from contesting the mother’s husband’s paternity. It held that pursuant to § 1600(2) CC the applicant was precluded from paternity contestation: a social and family relationship between the legal father and the child has already been established, for which there is an assumption if the legal father is married to the mother or is living with the child in domestic community for a long period of time, § 1600(4) CC. Additionally, the applicant could not have his biological paternity established pursuant to § 1598a CC since this provision does not entitle the biological father to request genetic testing. The Court of Appeal confirmed the District Court’s decision and the Federal Constitutional Court refused to consider the applicant’s constitutional complaint.[52]
As a result, the applicant claimed a violation of Art. 8(1) ECHR because of the German courts denying him the right to contest paternity on the grounds of a close social tie between his presumed biological child and its legal father.[53] Furthermore, he was dissatisfied with the courts’ refusal to clarify his paternity pursuant to § 1598a CC as this prima facie entitles only the legal father, the mother and the child to genetic testing.[54]
Again, due to the fact that there was no factual familial life between the applicant and the child – therefore no ‘family life’ – the ECtHR considered this case under the scope of ‘private life’ as paternity relates to one’s personal identity. Since the applicant was denied having his claim inspected and his paternity examined, there was an interference with Art. 8(1) ECHR.[55]
Contrary to the cases set out above, the Court here held that this interference was justified in line with Art. 8(2) ECHR, and found the German acts to be ‘in accordance with the law’ and ‘necessary in a democratic society’.[56] The Court emphasized that the means by which the Member States protect ‘private life’ are within their margin of appreciation due to the varying systems and approaches on how to respect private life – depending on the individual case and the issue at question. Since a uniform or predominant consensus between the Member States on what requirements are necessary to challenge paternity does not exist, the margin of appreciation of how to cope with these cases by the Member States is fairly broad.[57]
When creating the decisive law, the German legislator decided to give the established social, familial relationship between a child and its legal father a high level of protection and thus not permit a contestation of paternity by the biological father.[58] This legislative and legal-political aim is represented in § 1600(2) CC and keeps within the limits of Germany’s margin of appreciation.[59]
On the same day, the ECtHR found accordingly in an alike case – Ahrens v Germany[60] – even though this applicant was known to be the biological father and yet was not allowed to contest paternity.
As it had turned out, here – in contrast to the Anayo and Schneider cases above – the ECtHR did not find a violation of Art. 8 ECHR: neither by the statute of § 1600(2) CC itself nor by its judicial application. Thus, there was no need for Germany to make any legislative amendments or have the courts alter their jurisdiction by introducing another way of interpretation.
Like stated above, the Member States have a certain degree of discretion if there is no clear consensus amongst the Council of Europe states.[61] This principle came into question here: under German law, legal paternity can have a strong impact due to its characteristic of establishing a family law status and its consequences in relating areas of law dependent on this status, e. g. inheritance and tax law.[62] Because of these widespread repercussions of legal paternity under German law, Germany does have a wide margin of appreciation when determining the conditions for a contestation of paternity.[63] This means that Germany can continue to hold on to its rigid paternity law and provisions. This applies equally to the issues raised with regard to § 1598a CC, which gives the option to have biological parenthood clarified without bringing an action of paternity contestation only for the child, the legal father and the mother and not the alleged biological father; even more so since there is no rudimentary clear tendency amongst the Member States on how to regulate this issue.[64]
It is important to emphasize that Germany adhered to the margin of appreciation in this case because there was no established actual familial relationship between the (presumed) biological father and his child. Thus, this judgment of Germany’s compliance with Art. 8 ECHR does not provide any information on the Court’s assessment if the facts laid differently. However, Art. 8 ECHR and the associated judgement by the ECtHR in this case did not have any effect on German law.
This last case from 2000 – Von Hannover v Germany[65]– this article will cover focuses less on kinship, familial relationship and therefrom emerging rights but rather on privacy and protection from the media.
The applicant – Princess Caroline of Hannover – represents the royal family of Monaco at events and is engaged in several humanitarian or cultural foundations. She is not involved in any functions for the State of Monaco.
Photos of her private life were published in various German magazines and newspapers, displaying her with her children, male companions or performing leisure activities like playing sports or grocery shopping, and included pictures of her skiing or being on the beach.[66]
The applicant wished to not have these photographs published anymore. She therefore sought an injunction in the Regional Court to stop the print media from publishing these pictures. The court dismissed her application. On appeal, only the few photos showing her in the backyard of a restaurant with a male companion were found to infringe her personality rights. The courts qualified her as a figure of contemporary society ‘par excellence’ rather than a ‘relatively’ public figure. This meant that she had to endure a more intense and thorough display of her daily life because the public had a legitimate interest in how she was spending her everyday life. The right to protection of privacy would only prevail at a secluded place.[67] The German Constitutional Court mostly confirmed these judgments with the exception of the photographs of her with her children. These pictures were held to infringe her personality rights in conjunction with her right to family protection and thus had to be measured against another – stronger – level of protection. The publication of the remaining photos was found to be covered by the right of freedom of press since the applicant was a figure of contemporary society ‘par excellence’ and thus had to be balanced with the legitimate interest of the public to be informed.[68]
The applicant claimed that the judgment violated Art. 8 ECHR by not prohibiting the publishing companies from further publication of the photos. This was validated by the ECtHR. The Court found that pictures of oneself are part of one’s personal identity which also includes interaction with third parties to some extent. Thus, a person is entitled to have a ‘legitimate expectation’ of protection in certain situations. Therefore, the photographs in question were attributable to the applicant’s ‘private life’ within the meaning of Art. 8 ECHR.[69]
By not allowing for judicial remedy based on the then current legislation and case law, the German courts as part of the national authorities essentially violated Germany’s positive obligation as a Member State under Art. 8(1) ECHR to not only abstain from infringing the concerned rights but to actively protect the rights in question. In the course of examining potential justification of the occurred interference, the courts weighed the right to respect for private life against the right to freedom of expression (which also is protected under Art. 10 ECHR) and the interest of the public in information about certain people of the society.[70] Nevertheless, they did so incorrectly. According to the ECtHR, the applicant’s right to respect for private life is of higher importance and prevails against the other interests at stake. Therefore, the interference was not justified pursuant to Art. 8(2) ECHR. The reason being that the pictures in question all did not contribute to a public or political discussion; they rather displayed the applicant purely in her private daily life.[71] Finally, the Court stated that the differentiation between figures of contemporary society ‘par excellence’ and ‘relatively’ public figures is not necessarily distinct enough in order to offer sufficient protection – especially when considering the requirements to justify the infringement of rights.[72]
Yet again, this judgment of the ECtHR did not evoke a legislative reform. However, it led to a change in jurisprudence. Since the Court expressed its doubts on the distinction between figures of contemporary society ‘par excellence’ and ‘relatively’ public figures as not allowing for adequate protection in the individual case, the ECtHR basically expected the German courts to interpret German provisions differently, even more so: in the light of the ECHR.[73]
As a result, this principle of German law was abandoned. The German Federal Court of Justice ceased to distinguish between ‘relative’ and ‘absolute’ public figures and now prefers to practice a case-by-case assessment considering the individual interests.[74] The German Constitutional Court expressively declared the constitutional conformity of this approach.[75] From then on, decisive was whether a published picture formed a contribution to an ‘aspect of contemporary society’;[76] additionally the courts need to pay respect to the legitimate interest of the person affected.[77] Thus, the courts now have to examine whether a report adds reasonable insight into an event of contemporary society of public interest. If, in contrast, the report is an extract of the person’s private life attributable to the core of their sphere of privacy, it lacks any relevance for contemporary history. Due to this judgment of the ECtHR the systems and methods that had been developed and applied by the courts over a long period of time were not only to be reconsidered; this case under Art. 8 ECHR ultimately led to a fundamental reevaluation of the assessment of cases involving privacy and the press.[78]
Consequently, national courts have changed their jurisdiction accordingly by applying those principles set out by the European Court of Human Rights.[79] In fact, there has been another case brought by the applicant several years later with regard to the same questions at stake; however, there the ECtHR held that the domestic courts applied the new jurisdiction emerging from the judgment of 2004 correctly and therefore did not find a violation of Art. 8 ECHR.[80]
As this article has shown, there have already been various consequences of Art. 8 ECHR as interpreted by the ECtHR with regard to German law and jurisprudence. Nonetheless, this may not give the impression that that influence has stopped and effects have been exhaustive. Rather, it is of interest to understand which further impact might arise in the future. With regard to societal values changing and new family forms surfacing, mostly the comprehension of ‘family life’ will expectedly be subject to further developments. This stems from the consideration that there has not yet been an as intense examination of its scope as of the one of ‘private life’, and even more so from ‘family life’ encompassing an ever-changing area of personal life.
Especially the first two cases mentioned above illustrate the growing importance of actual family life based on living together and experiencing familial solidarity. This leads to the thesis that modifications with respect to the treatment of familial ties which not necessarily are mirrored as a status in family law are not unlikely to occur. In the following, two possible prospects will be discussed.
The first prospective alteration might actually be not surprising after the preceding sections. It refers to a different assessment of § 1600(2) CC – the preclusion of the biological father from contesting paternity if there already exists a social familial relationship between the child and its legal father – if is there is such family tie between the child and the biological father as well.[81] In these circumstances reservations might – or should – arise for German courts and respectively the ECtHR to even then give the legal tie of paternity more weight than the genetic link. The explanation of an existing social-familial relationship between the child and its legal father needing protection is not coherent if this aspect applies to the biological father too. Consequently, both men can draw upon their family life as protected by Art. 8 ECHR.
The means by which German law could comply with such a variation are pretty obvious because § 1600(2) CC would require a legislative amendment which allows for consideration of this situation. A mere change of jurisdiction by an alternative interpretation of said provision is not an option – as it has already been tried: a German District Court and a Court of Appeal in another proceeding both actually did find in favour of the biological fathers; the courts found them to be able to contest paternity because of their social-familial tie with their child.[82] The judges did so contradictory to the law by teleologically construing the provision in that way because according to them this was constitutionally required by Art. 6(2) German Basic Law.[83] This finding was overthrown by the German Federal Court of Justice though with the reason that these findings explicitly based on interpretations of the statute against the written law.[84]
In conclusion, Germany should consider to potentially pass a legislative amendment for the balancing of more than one father-child relationship – namely between the child and its legal father as well as between the child and its biological father – if the state wishes to anticipate another violation of Art. 8 ECHR found by the ECtHR in the near future.
The second area that potentially might experience some increased attention is related to the before mentioned scenario of the significance of social-familial ties and concerns the matter of acknowledging such relationships of a deceased person after his/her death.
Up until now, the ECtHR has found several violations of Germany in relation to Art. 8 ECHR on the grounds of discrimination of children born out of wedlock for purposes of succession law, which also involved intertemporal aspects.[85] Art. 8 ECHR itself does not guarantee a right to succession or a share in the deceased’s estate.[86] Nevertheless, such issues can fall within its ambit when ‘family life’ is affected; this was found to be the case for the succession between child and parents – especially if the domestic law is construed and applied in a discriminating way and Art. 8 ECHR therefore operates in conjunction with Art. 14 ECHR.[87]
Under the consideration that true family life and factual, social-familial relationships gain more importance both in reality and under Art. 8 ECHR, those developments could extend to include the recognition of actual solidarity as lived by the family members after a person’s death, too. According to current German law, this is only the case if such solidarity and proximity occur between the decedent and his legally recognized kinship or partner. National inheritance law, intestate succession and the compulsory share – a claim for close family members of the deceased which he did not provide for (sufficiently) in his will – all are strictly dependent on legal kinship.[88] There is no possibility for not legally linked family members of the deceased to raise a claim for participation in the estate, irrespective of how intense and close – emotionally or financially – the relationship was and notwithstanding a potential predicament for the surviving person.
So far, the ECtHR jurisprudence on Art. 8 ECHR already has impacted German inheritance law by in one case evoking a legal reform in the past[89] and in another by leading to an altered judicial interpretation of a specific provision.[90] Thus, a change in the treatment of inheritance law with regard to financial claims of persons other than the deceased’s legal issue, parents or partner cannot be excluded. Future developments in reality and in law might eventually result in the reception that family members whose relationships fall within the scope of Art. 8 ECHR but who are not within legal succession should be entitled to apply for a share in the estate in order to attribute post-mortem acknowledgment to close, lively familial solidarity.
Again, compliance with Art. 8 ECHR in this context could only be achieved by a legislative amendment.[91] Since German law is a civil law country and adheres to its written statutes, a plain change in jurisdiction would not bring any valid changes[92] because there is no legal base on which grounds such claim could be raised and which could be construed accordingly. It is not a question of interpretation but rather a question of the state’s adjustment of its possibly outdated perception of inheritance law[93] and the creation a legal novelty.
The scope of Art. 8 ECHR is very broad and its meaning and values can be perceived in different ways. This article gave an insight on the effects this guarantee by the Convention had so far in Germany.
It discloses that up until now there have been several – around twenty – violations of the right to respect for private and family life by Germany. It also showed how varyingly compliance with Art. 8 ECHR can be achieved – be it by staying within the Member States margin of appreciation, by altering a provision’s interpretation through the domestic courts’ jurisdiction or by introducing a legislative reform.
Considering the ever evolving familial and personal reality and the relating legal changes necessary, for one it will be interesting to see if there will be more violations of Art. 8 ECHR by Germany and consequently judgments by the ECtHR because of Germany’s non-compliance with the requirement to protect actual, social-familial ties in different areas of life. For two, Germany could potentially anticipate such breaches of Art. 8 ECHR in the future by adapting legal reforms which fulfil its (prospective) obligations under the Convention prior to those adversely affected by the current law applying to the ECtHR.
The findings of this article led to the thesis that said developments and the increasing significance of familial life which is not mirrored by family status law will result in an amplified recognition of such factual, social-familial relationships. Of particular interest is firstly the progress with regard to the preclusion of the biological father from the right to contest paternity if there is a social-familial tie between the child and both him and the child’s legal father. Secondly, it is conceivable that Germany might abandon its strict principle in inheritance law of linking questions of participation in the estate of the deceased solely to legal kinships and rather proceed to take into consideration the acknowledgment of social-familial relationships of the deceased within inheritance law. By all means, it is safe to say that Art. 8 ECHR and the relating ECtHR jurisprudence already had great impact in Germany and will continue to have influence on German law.
[1] European Court of Human Rights, The European Court of Human Rights and Germany: Facts and Figures (February 2021) 3-4 <https://www.echr.coe.int/Documents/Facts_Figures_Germany_ENG.pdf>.
[2] Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (Oxford University press, 2nd edition 2019) 397.
[3] Tyrer v The United Kingdom (European Court of Human Rights, Chamber, Application No 5856/72, 25 April 1978) [31].
[4] Walter Kälin and Jörg Künzli (no 2) 34.
[5] See Pretty v The United Kingdom (European Court of Human Rights, Fourth Section, Application No 2346/02, 29 July 2002) [61]; for an overview see Walter Kälin and Jörg Künzli (no 2) 377-94.
[6] Christoph Grabenwarter and Katharina Pabel, Europäische Menschenrechtskonvention [European Convention on Human Rights] (C.H. Beck, 6th ed, 2016), 284 [tr author].
[7] Peev v Bulgaria (European Court of Human Rights, Fifth Section, Application No 64209/01, 26 October 2007) [38].
[8] Von Hannover v Germany (No 2) (European Court of Human Rights, Grand Chamber, Application Nos 40660/08 and 60641/08, 7 February 2012) [96]; Walter Kälin and Jörg Künzli (no 2) 381; Christoph Grabenwarter and Katharina Pabel (no 6) 285 [tr author].
[9] Walter Kälin and Jörg Künzli (no 2) 394.
[10] Sousa Goucha v Portugal (European Court of Human Rights, Fourth Section, Application No 70434/12, 22 June 2016) [40]; Walter Kälin and Jörg Künzli (no 2) 395.
[11] Helen Stalford, ‘Concepts of Family under EU Law- Lessons from the ECHR’ (2002) 16 International Journal of Law, Policy and the Family 410, 423.
[12] L Yu Fomina, ‘Protection of the Right to Respect for Private and Family Life in European Court of Human Rights’ (2016) XIX(3) European Research Studies, 97, 103.
[13] Znamenskaya v Russia (European Court of Human Rights, First Section, Application No 77785/01, 12 October 2005) [27].
[14] See Helen Stalford (no 11) 411.
[15] Berrehab v The Netherlands (European Court of Human Rights, Chamber, Application No 10730/84, 21 June 1988) [21].
[16] Keegan v Ireland European Court of Human Rights, Chamber, Application No 16969/90, 26 May 1994) [44].
[17] X and Others v Austria (European Court of Human Rights, Grand Chamber, Application No 19010/07, 19 February 2013) [95]. This has not always been the case; about two decades ago these relationships might have fallen within the scope of ‘private life’ though, Helen Stalford (no 11) 422.
[18] Helen Stalford (no 11) 413.
[19] Anayo v Germany (European Court of Human Rights, Fifth Section, Application No 20578/07, 21 December 2010) [57], [60].
[20] Moretti and Benedetti v Italy (European Court of Human Rights, Second Section, Application No 16818/07, 27 April 2010) [44]-[52].
[21] See Zaiet v Romania (European Court of Human Rights, Third Section, Application No 44958/05, 24 March 2015).
[22] Marckx v Belgium (European Court of Human Rights, Plenary, Application No 6833/74, 13 June 1979).
[23] Walter Kälin and Jörg Künzli (no 2) 399.
[24] Ibid.
[25] Eleni Frantziou, ‘The margin of appreciation doctrine in European human rights law’ University College London Policy Briefing (October 2014) <https://www.ucl.ac.uk/public-policy/sites/public-policy/files/migrated-files/European_human_rights_law.pdf>.
[26] See, eg, Keegan v Ireland (no 16) [47].
[27] L Yu Fomina (no 12) 105.
[28] Opinion 2/13 of the Court (Full Court) (Court of Justice of the European Union, ECLI:EU:C:2014:2454, 18 December 2014).
[29] ‘EU accession to the ECHR’, Council of Europe (Web Page) <https://www.coe.int/en/web/human-rights-intergovernmental-cooperation/accession-of-the-european-union-to-the-european-convention-on-human-rights>.
[30] Christoph Grabenwarter and Katharina Pabel (no 6) 19 seq [tr author].
[31] See Frank Hoffmeister, ‘Germany: Status of European Convention on Human Rights in Domestic Law’ (2006) 4(4) International Journal of Constitutional Law 722, 727; Christian Tomuschat, ‘The Effects of the Judgments of the European Court of Human Rights According to the German Constitutional Court’ (2010) 11(5) German Law Journal 513, 518.
[32] See Bundesverfassungsgericht [German Constitutional Court], 2 BvR 1481/04, 14 October 2004 reported in (2005) 111 BVerfGE 307, 324 [tr author]; Amrei Müller ‘Domestic authorities’ obligations to co-develop the rights of the European Convention on Human Rights’ (2016) 20(8) International Journal of Human Rights 1057, 1062.
[33] Bundesverfassungsgericht (no 32) 324-5 [tr author]; Christian Tomuschat (no 31) 522-3.
[34] Anayo v Germany (no 19).
[35] Bürgerliches Gesetzbuch [Civil Code] (Germany), hereinafter: CC.
[36] Anayo v Germany (no 19) [8]-[10].
[37] Ibid [11]-[14].
[38] Ibid [15]-[22].
[39] See below for a more detailed examination of this provision.
[40] Anayo v Germany (no 19) [55]-[62].
[41] Ibid [63]-[73].
[42] Ibid [67]; Tobias Thienel, 'Human Rights of Biological Fathers v. Hard and Fast Rules: The Case of Anayo v. Germany' (2010) 53 German Yearbook of International Law 963, 967.
[43] Schneider v Germany (European Court of Human Rights, Fifth Section, Application No 17080/07, 15 December 2011).
[44] See James R Maxeiner. ‘Legal Certainty: A European Alternative to American Legal Indeterminacy?’ (2007) 15(2) Tulane Journal of International and Comparative Law 541, 553-8.
[45] Tobias Thienel (no 42) 969-70.
[46] See ibid 969.
[47] Ibid 969-70.
[48] Andreas T Hanke, 'Custody and Visitation Rights in Germany after the Decisions of the European Court on Human Rights' (2011) 45(3) Family Law Quarterly 353, 360; Marina Wellenhofer, ‘Der europäische Gerichtshof für Menschenrechte und das Vaterschaftsanfechtungsrecht des leiblichen Vaters‘ [The European Court of Human Rights and the biological father’s right to contest paternity] [2013] Zeitschrift für das gesamte Familienrecht [Journal of Entire Family Law] 828, 832 [tr author].
[49] Gesetz zur Stärkung der Rechte des biologischen, nicht rechtlichen Vaters [Bill to strengthen the rights of the biological, not legal father] (Germany) 4 July 2013, BGBl I, 2013, 2176.
[50] Kautzor v Germany (European Court of Human Rights, Fifth Section, Application No 23338/09, 22 March 2012).
[51] Ibid [5]-[12].
[52] Ibid [25]-[31].
[53] Ibid [40]-[42].
[54] Ibid [24], [30].
[55] Ibid [63].
[56] Ibid [64]-[84].
[57] Ibid [37]-[39], [71]-[72], [78].
[58] See Bundesgerichtshof [German Federal Court of Justice], XII ZR 164/04, 6 December 2006 reported in NJW 2007, 1677 [30] [tr author].
[59] Kautzor v Germany (no 50) [74].
[60] Ahrens v Germany (European Court of Human Rights, Fifth Section, Application No 45071/09, 22 March 2012).
[61] Amrei Müller (no 32) 1066.
[62] Kautzor v Germany (no 50) [78]; Marina Wellenhofer (no 48) 831 [tr author].
[63] Ibid.
[64] Kautzor v Germany (no 50) [79].
[65] Von Hannover v Germany (European Court of Human Rights, Third Section, Application No 59320/00, 24 June 2004).
[66] Ibid [8]-[17].
[67] Ibid [18]-[23], [27]-[30], [33]-[36].
[68] Ibid [24]-[25], [31]-[32], [37]-[38].
[69] Ibid [50]-[53].
[70] Beate Rudolf, ‘Council of Europe: Von Hannover v. Germany’ (2006) 4(3) International Journal of Constitutional Law 533, 534.
[71] Von Hannover v Germany (no 64) [54]-[70].
[72] Ibid [72]-[80].
[73] Hans-Joachim Cremer, Human Rights and the Protection of Privacy in Tort Law: A Comparison between German and English Law (Taylor & Francis Group 2010) 80.
[74] Bundesgerichtshof [German Federal Court of Justice], VI ZR 51/06, 6 March 2006 [tr author].
[75] See Bundesverfassungsgericht [German Constitutional Court], 1 BvR 1602/07, 26 February 2008 reported in (2008) 120 BVerfGE 180, 211-3 [tr author].
[76] Hans-Joachim Cremer (no 72) 84.
[77] Ibid 84-5; Bundesgerichtshof (no 73) [16] [tr author].
[78] See Katharina von Bassewitz, ‘Hard Times for Paparazzi: Two Landmark Decisions Concerning Privacy Rights Stir Up the German and English Media (2004) 35(6) International Review of Intellectual Property and Competition Law 642, 648.
[79] See e. g. Bundesgerichtshof [German Federal Court of Justice], VI ZR 146/06, 3 July 2007 [tr author].
[80] Von Hannover v Germany (No 2) (no 8).
[81] Marina Wellenhofer (no 48) 831 [tr author].
[82] Amtsgericht Herford [District Court of Herford], 14 F 770/06, 26 October 2007, which is not finally legally binding; Oberlandesgericht Hamm [Court of Appeal Hamm], 12 UF 51/16, 20 July 2016 [19]-[22] [tr author].
[83] Ibid.
[84] Bundesgerichtshof [German Federal Court of Justice], XII ZB 389/16, 15 November 2017 [23] [tr author].
[85] Brauer v Germany (European Court of Human Rights, Fifth Section, Application No 3545/04, 28 May 2009); Wolter and Sarfert v Germany (European Court of Human Rights, Fifth Section, Application Nos 59752/13 and 66277/13, 14 December 2017).
[86] Brauer v Germany (no 84) [30]-[32].
[87] Ibid.
[88] §§ 1590-1, 1924-5, 2303 CC.
[89] See Zweites Gesetz zur erbrechtlichen Gleichstellung nichtehelicher Kinder [Second Bill for the equal treament of children born out of wedlock in succession law] (Germany) BGBl I, 2011, 615.
[90] The case Wolter and Sarfert v Germany (no 84) evoked a change in interpretation, see Bundesgerichtshof [Federal Court of Justice], IV ZB 6/15, 12 July 2017 [tr author].
[91] For example, the principle of the English family provision pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (UK) could be a model. A further exploration would go beyond the scope of this article.
[92] And would probably be overthrown, see Case 2 above for a similar fate.
[93] German inheritance law has been reformed only marginally since entering into force in 1900.
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