THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

the Applicants are Austrian national born respectively in 1924 and 1965

and at present resident in Innsbruck, the first Applicant being the

father of the second.

The first Applicant registered the birth of his child and applied for

the issue of a birth certificate but refused to inform the Registrar

as to the religion of the parents of the second Applicant. The

Registrar, by a decision of .. July, 1965, refused to issue the

certificate since the provisions of the Registration Act

(Personenstandsgesetz) require that the birth certificate should

contain a statement as to the religion of the parents.

The first Applicant appealed to the District Court (Bezirksgericht) in

Innsbruck which was at the same time seized of application by the

Supervising Authority of the Registrar (Aufsichtsbehörde des

Standesamtes) that the entry in the Register be corrected to show the

religion of the parents as Roman Catholic and a corresponding birth

certificate issued.

This religion appears both from the marriage certificate of the parents

and also from the statement of the first Applicant in his application

to the Court. The Court gave judgment in accordance with the

application of the Supervising Authority on .. December, 1965.

This decision was confirmed on appeal by the Regional Court

(Landesgericht) in Innsbruck on .. January, 1966, and again by the

Supreme Court (Oberster Gerichtshof) on .. March, 1966. The Supreme

Court also declined the Applicant's request that it should place the

question of the constitutionality of Article 21 of the Registration Act

before the Constitutional Court. The Applicants then brought

proceedings before the Constitutional Court complaining of the

Registrar's decision of .. July, 1965, which were rejected on ..

September, 1966, as being out of time.

The Applicants maintain that the refusal to issue a birth certificate

which does not indicate the religion of the parents of the second

Applicant constitutes a violation of the following Articles of the

Convention and the First Protocol:

Article 5:  Because under various provisions, e.g. the Vagrancy Act

(Landstreichergesetz) persons who cannot produce an identity card can

be arrested and an identity card cannot be delivered without the

production of a birth certificate. The right to freedom and security

of the person is thus restricted.

Article 8:  The respect for private life is violated by being forced

to declare one's religion.

Article 9:  Because the right to religious freedom and the right to

change one's religion must include the right not to reveal one's

religion.

Article 10:  Because the right of freedom of expression must include

the right not to publish one's personal opinion in matters relating to

religion and belief.

Article 11:  Because the right of association implies the possession

of an identity card (Lichtbildausweis) which is only delivered on the

presentation of a birth certificate.

Article 12:  Because the right to marry is dependent on the production

of a birth certificate.

Article 14:  Because the issue of a birth certificate was refused on

the ground that the religion of the parents was not known thus

constituting a discrimination on religious grounds. Further the

Applicant states that the mention of the religion of a person's parents

on his birth certificate is likely to lead to his or his parents being

subjected to discriminatory treatment in Austria, the United States of

America and communist countries.

Protocol Article 1:  Because the first Applicant is not able to claim

tax reduction on the birth of his son whose existence he can only prove

by producing a birth certificate.

Protocol Article 2:  Because the second Applicant is deprived of his

right to education as he cannot be accepted in any school or

kindergarten without producing a birth certificate.

Protocol Article 3:  Because without producing a birth certificate the

second Applicant is unable to take part in elections.

The Applicants request the Commission to declare that the refusal to

issue a birth certificate without indication of the parents' religion

constitutes a violation of the above mentioned articles of the

Convention and also to require the Austrian authorities to issue a

birth certificate which does not mention the parents' religion.

Proceedings before the Commission

Whereas, the proceedings before the Commission may be summarised as

follows:

The Application was lodged with the Secretariat of the Commission on

9th May, 1966, and entered in the special register provided for by Rule

13 of the Commission's Rules of Procedure on 25th July, 1966.

On 10th May, 1967, the case was submitted to a group of three members

for a preliminary examination in accordance with Rule 34 of the Rules

of Procedure. On 2nd June, 1967,the Commission examined the Application

and declared inadmissible the Applicant's complaints alleging

violations of Articles 5, 11, 12 and 14 of the Convention and Articles

1, 2 and 3 of the First Protocol. At the same time it decided to give

notice to the Austrian Government in accordance with Rule 45, paragraph

(3) (b) of its Rules of Procedure of the Applicants' complaints

relating to Articles 8, 9 and 10 of the Convention and to invite it to

submit its observations on the question of admissibility.

The Austrian Government submitted its observations on 7th August, 1967,

and the Applicant submitted his observations in reply on 12th

September, 1967.

Submissions of the parties

The submissions of the parties may be summarised as follows:

On the question of the exhaustion of the available domestic remedies

in accordance with Article 26 of the Convention

The Respondent Government submits:  the Commission may only deal with

a matter after all domestic remedies have been exhausted, according to

the generally recognised rules of international law, and within a

period of six months from the date when the final decision was taken.

This rule, in the light of the Commission's consistent practice, is to

be interpreted to the effect that an Applicant must make use of all

domestic remedies accessible to him. The Applicant, indeed, appealed

against the Registrar's decision to the ordinary courts in accordance

with Article 45 of the Registration Act. He also appealed to the

Constitutional Court alleging a violation of his constitutional rights.

This remedy was clearly available to him and it therefore constituted

an essential step in exhausting the domestic remedies since only the

Constitutional Court can decide whether there has been a violation of

the fundamental rights in question. This appeal was, however, rejected

by the Constitutional Court in its decision of .. December, 1966, as

being out of time since the Applicant had not complied with the six

weeks' time limit laid down in Article 82, paragraph (1) of the

Constitutional Court Act.

The Applicant has thus forfeited his right to appeal to the Commission

since, according to its standing jurisprudence, Article 26 requires an

Applicant to make use of the domestic remedies within the periods

prescribed by the national law.

The appeal to the Constitutional Court would certainly have been an

effective remedy and the Applicant's statement in his letter to the

Commission of 21st July 1966, that an appeal to the Constitutional

Court was "useless" is incomprehensible and irrelevant. The fact that

the Supreme Court refused the Applicant's request to institute

proceedings with the Constitutional Court with a view to deciding

whether Article 45 of the Registration Act is compatible with the

Constitution can in no way be considered as a precedent with respect

to a future decision of the Constitutional Court.

The Respondent Government also submitted that the Applicant had failed

to make use of a further available remedy by way of appeal to the

Administrative Court.

In reply the Applicants submit that the  Respondent Government in its

observations has emphasised that the Constitutional Court found that

the appeals lodged by the Applicants were not administrative appeals

but were before the ordinary courts, with the result that, by virtue

of Article 82 of the Constitutional Court Act, the Constitutional Court

was not competent in the matter as there had been no administrative

decision of last instance. In fact no administrative appeals were

available to the Applicants on account of the provisions of Article 45

of the Registration Act. The Respondent Government admits that only the

Constitutional Court can decide whether there is a violation of the

fundamental rights in question. It is therefore not clear why the point

is taken that the Applicants failed to apply to the Administrative

Court. In this connection it should be mentioned that according to

Article 131 of the Constitution, application can only be made to the

Administrative Court when all other available remedies have been

exhausted. Neither in the Constitution nor in the Administrative Court

Act is there any indication whether these remedies should be before

administrative authorities or before the courts. Since Article 45 of

the Registration Act imperatively prescribes a further remedy, that is

to say to the District Court, it may be presumed in view of the clear

terms of Article 131 of the Constitution that an application to the

Administrative Court would be an arbitrary and senseless act, since

until an application has been made to the District Court the legally

prescribed remedy has not been exhausted.

The Respondent Government, moreover, takes exception to the Applicants'

failure to apply directly to the Constitutional Court against the

decision of the Registration Officer. As the Government itself admits,

the Constitutional Court rejected the application which was made at a

later stage with the comment that the matter concerned a remedy before

the ordinary courts. As already mentioned, Article 82 of the

Constitutional Court Act imperatively prescribes that application can

only be made not the Constitutional Court against administrative

decisions of last instance. Article 45 of the Registration Act also

imperatively prescribes a remedy before the ordinary courts. The

Applicants made enquiries at the Registration Office and the Provincial

Administration and were informed that an attempt to exhaust the

administrative remedies by applying to the Provincial Administration

and the Ministry of the Interior would have been fruitless since the

Provincial Administration would have refused to deal with the matter

on the ground that it was not competent in view of the provisions of

Article 45 of the Registration Act. Since, therefore, all

administrative remedies were blocked and the only remedy prescribed by

the Act was before the ordinary courts and, furthermore, the

Constitutional Court was only accessible after the administrative

remedies had been exhausted, a direct application to the Constitutional

Court was not possible. It must be emphasised that under the

Registration Act there are no administrative remedies at all against

the decisions of the Registration Officer and thus no direct access to

the Constitutional Court. Once the matter has been dealt with in the

first place by the authority, no further administrative authority is

competent to deal with the matter but, as a matter of imperative law,

the ordinary courts (against whose decision no application to the

Constitutional Court is possible) are exclusively competent.

Nevertheless, in order to exhaust all available remedies the Applicant

chose an indirect course and, when appealing to the Supreme Court,

requested that Court to lay appeal before the Constitutional Court.

This procedure is in accordance with the constant jurisprudence of the

Commission of Human Rights which has in a number of cases decided that

the Supreme Court must be considered as the court of law instance since

under Austrian law there is no appeal to the Constitutional Court from

the decisions of the ordinary courts. Since this application was

refused by the Supreme Court the Applicants have, according to the

standing  jurisprudence of the Commission, exhausted all domestic

remedies before the ordinary courts, which according to Article 45 of

the Registration Act, are the only remedies available.

The same reasoning demonstrates that the Supreme Court, which can of

its own motion place purely juridical (not administrative) matters

before the Constitutional Court, denied the Applicants access to the

Constitutional Court. The Applicants are therefore of the opinion that

their right to apply to the Constitutional Court in an administrative

matter has also been violated. This arises from the fact that Article

45 of the Registration Act prescribes an appeal to the ordinary courts

as a remedy in an administrative matter, with the result that following

the transfer of the matter to the ordinary courts, the access to the

Constitutional Court is barred.

Under Article 45 of the Registration Act an appeal to the District

Court is imperatively prescribed an further appeals can be directed

only to the higher courts. The exhaustion of the proper remedies is,

however, an imperative precondition for an application to the

Constitutional Court or the Administrative Court. The subsequent

application to the Constitutional Court was, therefore, bound to fail

but was nevertheless undertaken in order to demonstrate that no

available remedy had been neglected and also with the object of

obtaining a finding that in the opinion of Constitutional Court in the

present case the only available remedy was by means of an appeal to the

ordinary courts.

The Parties also made submissions concerning the alleged breaches of

Articles 3, 9 and 10 of the Convention.

THE LAW

Whereas, the Applicant alleges violations of Articles 8, 9 and 10 (Art.

8, 9, 10) of the Convention arising from the refusal by the authorities

of the town of Innsbruck to issue a birth certificate in respect of the

second Applicant, which did not state the religion of the first

Applicant and his wife as parents of the second Applicant; whereas it

is to be observed that, under Article 26 (Art. 26) of the Convention,

the Commission may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law; and whereas the Applicants failed to appeal in due

time directly to the Constitutional Court against the decision of the

town authorities of Innsbruck dated .. July, 1965; whereas in this

connection the Commission refers to the judgment of the Constitutional

Court of .. September, 1966, which states:  "The decision of the town

authorities of Innsbruck dated .. July, 1965 was not challenged within

the period of six weeks prescribed by Article 82 paragraph (1) of the

Constitutional Court Act, 1953, by an appeal based on Article 144 of

the Federal Constitution"; whereas, therefore, he had not exhausted the

remedies available to him under Austrian law; whereas, moreover, an

examination of the case as it has been submitted, including an

examination made ex officio, does not disclose the existence of any

special circumstances which might have absolved the Applicant,

according to the generally recognised rules of international law, from

exhausting the domestic remedies at his disposal; whereas, in

particular, the Commission observes that the Applicant appealed against

the decision of the town authorities to the ordinary courts and

eventually to the Supreme Court in accordance with the express

provisions of Article 45 of the Registration Act and thereby exhausted

the remedies available before the ordinary courts; whereas, however,

this does not absolve him from pursuing the remedy available for an

alleged breach of his human and constitutional rights by means of a

direct appeal to the Constitutional Court within the time prescribed;

whereas, therefore, the condition as to the exhaustion of domestic

remedies laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-3)

of the Convention has not been complied with by the Applicant;

Whereas, the parties have also made submissions concerning the breaches

of Articles 8, 9 and 10 (Art. 8, 9, 10) of the Convention alleged by

the Applicants;

Whereas, however, the Commission's decision on the Applicant's failure

to exhaust the domestic remedies as required by Article 26 (Art. 26)

of the Convention is conclusive on the question of the admissibility

of the Application; whereas, therefore, it is not necessary further to

examine the violations of the Convention alleged by the Applicants;

Now therefore the Commission declares this application inadmissible.