By a decision of 20 May 2020 (case number 2 BvR 2628/18), Germany’s Federal Constitutional Court has terminated discrimination against illegitimate children of persons persecuted by the Nazis with respect to regaining the German citizenship. For decades, German courts had denied such claims. Raue represents many descendants of former Nazi-victims in their efforts to claim German citizenship. In the view of Raue, the decision will substantially improve chances of descendants to gain German citizenship.
Art. 116 para. 2 of the German Constitution grants descendants of former victims of Nazi-oppression a claim to become German citizen. This applies in particular to the descendants of former German Jews who were able to escape from Nazi persecution on or after November 1941, thus most of the former German Jews who were able to escape from the Holocaust. However, although that constitutional clause aims to indemnify the victims and their descendants, German administrative courts have applied the provision in a narrow way: They granted German citizenship only if in a hypothetical ordinary course of events the applicants would have become German citizen. As a result, the claim for citizenship depended on whether the descendent was a legitimate or illegitimate child. In case of legitimate children, until 1953 German citizenship was only granted if the father was deprived of German citizenship due to Nazi-law. If the person who had to flee Nazi-Germany was his mother, the application was denied. Conversely, illegitimate children who had a Nazi-victim as father were note able to become Germans because until 1975 German citizenship of illegitimate children was transferred by the mother only. Therefore, while assessing the respective family history, German courts still applied the law valid at the time of birth in spite of the fact that that law was inconsistent with equality of men and women (Art. 3 German Constitution) and equality of legitimate and illegitimate children (Art. 6 para. 5 German Constitution).
With its decision of 20 May 2020, the Federal Constitutional Court has terminated this practice. The Court decided that Art. 116 para. 2 German Constitution must be interpreted in a broad way as it aims to indemnify the victims and their descendants from Nazi-oppression. The Court has held that as a consequence, today’s constitutional decision for equality under the law between men and women respectively legitimate and illegitimate children must be preserved when assessing the case. It is therefore contrary to the German Constitution if a claim for German citizenship is denied on grounds that are no longer valid under today’s constitution, in particular if the denial is based on arguments that restrict the transfer of citizenship from a father to his illegitimate son. Raue believes that this reasoning also applies to opposite cases in which a legitimate child’s claim for German citizenship was denied because “only” the mother was a Nazi-victim.
For many years, Raue represents a large number of descendants of Nazi-victims who were so far denied German citizenship. Raue welcomes the Court’s clear decision and believes that the decision is an important step to compensate Nazi-victims and their descendants for the tremendous injustice which they occurred under the Nazi-regime.
(22 June 2020)