AS TO THE ADMISSIBILITY OF
Application no. 1289/09
by Roland HOFMANN
European Court of Human Rights (Fifth Section), sitting on
23 February 2010 as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 9 January 2009,
Having deliberated, decides as follows:
applicant, Mr Roland Hofmann, is a German national who lives in Rosenberg.
He was represented before the Court by Mr D. Herrmann,
a lawyer practising in Karlsruhe.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant's fiancée died in 2002 after having given birth to the couple's second child.
The applicant's and the deceased's children claimed damages from the gynaecologist (“the respondent”) who had performed a caesarean section on the deceased prior to her death; the case was settled before the Stuttgart Court of Appeal.
The applicant also claimed damages from the respondent.
5 October 2005 the Ellwangen Regional Court dismissed the claim.
It held that the applicant could not claim damages from the respondent pursuant to Section 844(2) of the Civil Code (see “Relevant domestic law”) because the deceased had not been obliged by law to provide maintenance to the applicant. Section 844(2) of the Civil Code could furthermore not be applied analogously to fill a lacuna in the law. The situation of partners living together out of wedlock, even if they raised their children together, was not comparable to that of spouses. Unlike spouses they were not obliged by law to provide maintenance to one another. The legislator had also been aware of calls for a widening of the application of Section 844(2) of the Civil Code to other forms of partnership but had repeatedly refused to do so.
On 5 January 2006 the Stuttgart Court of Appeal informed the parties of its intention to dismiss the applicant's appeal for the reasons given by the Regional Court. On 7 February 2006 the Court of Appeal dismissed the appeal and noted that Section 844(2) of the Civil Code was not linked to the notion of family but to the existence of an obligation by law to provide maintenance.
On 1 July 2008 the Federal Constitutional Court refused to admit the applicant's constitutional complaint for adjudication (no. 1 BvR 649/06).
B. Relevant domestic law
Section 844(2) of the Civil Code provides that the person responsible for the death of a person must pay a third person damages by payment of an annuity for the presumed duration of the deceased's life to the extent that the deceased would have been obliged to provide maintenance to the third person under the conditions that the deceased, at the time of the injury, was obliged or might become obliged by law to provide maintenance to the third person and if the third person has as a result of the death been deprived of his right to maintenance.
An obligation by law to provide maintenance exists between lineal relatives (Section 1601 of the Civil Code), spouses (Sections 1360 et seqq. of the Civil Code), former spouses following a divorce (Sections 1569 et seqq. of the Civil Code) and partners of registered same-sex partnerships (Section 5 of the Registered Partnership Act).
The applicant complained under Articles 14 and 8 of the Convention taken together that his claim for damages under Section 844 of the Civil Code had been dismissed because he had only been engaged to and not married with the deceased.
The Court will examine the case under Article 14 taken in conjunction with Article 8.
The relevant parts of Article 8 provide:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 ... for the protection of the rights and freedoms of others.”
The relevant part of Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... other status.”
The Court reiterates that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the provisions in question (see Andrejeva v. Latvia [GC], no. 55707/00, § 74, ECHR 2009-...).
The Court further reiterates that the notion of “family life” under
Article 8 is not confined to marriage-based relationships and may encompass
other de facto “family” ties where the parties are living together
out of wedlock (see Lebbink v. the Netherlands, no. 45582/99, § 35, ECHR 2004-IV).
In the absence of “family life”, the relationship between an applicant
and his fiancée may fall within the scope of the notion of “private
life” envisaged by Article 8 (see Wakefield v. the United Kingdom,
no. 15817/89, Commission decision of 1 October 1990).
Court reiterates that family life does not consist only of social, moral
or cultural relations, for example in the sphere of children's education;
it also comprises interests of a pecuniary nature. This is shown by,
among other things, the obligations in respect of maintenance and the
position occupied in the domestic legal systems of the majority of the
Contracting States by the institution of the reserved portion of an
estate. The Court has thus considered, for example, that matters of
intestate succession – and voluntary dispositions – between near
relatives prove to be intimately connected with family life (see, among
many other authorities,
Marckx v. Belgium, 13 June 1979, § 52, Series A no. 31; Pla and Puncernau v. Andorra, no. 69498/01, § 26, ECHR 2004-VIII). However, the Court has also held that an applicant cannot derive from Article 8 a right to be recognised as the heir of a deceased person for inheritance purposes
(see Haas v. the Netherlands, no. 36983/97, § 43, ECHR 2004-I).
Court observes that it has never held that the notions of “family
life” or of “private life” cover a claim for damages against a
third person. The cases concerning intestate successions or voluntary
dispositions concerned the pecuniary aspects of existing family ties.
In the case of
Schaefer v. Germany ((dec.), no. 14379/03, 4 September 2007), the Court proceeded only on the assumption that a dispute between two private individuals about their rights in respect of certain bonds and the effects of an execution into the applicant's assets might be covered by the notion of “family life”.
Turning to the circumstances of the present case, the Court observes that the domestic courts were faced with the legal questions whether the conditions of Section 844(2) of the Civil Code had been met or whether that provision could be applied analogously. The domestic courts rejected the applicant's claim on the grounds that the deceased had not been obliged by law to provide maintenance to the applicant and that there was no lacuna in the law.
Court is of the opinion that the applicant's claim for damages did not
concern the existing ties, including the pecuniary aspects thereof,
between himself and his late fiancée. It only concerned his relationship
with the respondent physician. The latter relationship does not raise
“family life” within the meaning of Article 8 or an issue of “private life” seen in terms of personal identity.
these reasons the facts of the case cannot be accommodated within the
ambit of Article 8 of the Convention, whether seen in terms of
“family life” or “private life”. It follows that Article 8 is not applicable in the instant case. Article 14 cannot therefore be relied on.
For these reasons, the Court by a majority
Declares the application inadmissible.
Claudia Westerdiek Peer
HOFMANN v. GERMANY DECISION
HOFMANN v. GERMANY DECISION