Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26100/95

by Manfred BURGER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 October 1994

by Manfred BURGER against Austria and registered on 2 January 1995

under file No. 26100/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1957, is an Austrian national residing in

Schwechat. In the proceedings before the Commission he is represented

by Mr. M. Müllauer, a lawyer practising in Vienna.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In 1979 the applicant met his companion in life. Following an

abortion in 1980, they decided that she would take the pill in order

to avoid a further pregnancy. However, in early 1982 the applicant's

companion became pregnant again.

On 20 April 1982 the applicant's companion signed a declaration

which had been prepared by the applicant's counsel. According to this

declaration she had deceived the applicant as regards the possibility

of conception. Therefore, she would do everything possible in order to

avoid that the applicant had to fulfil any obligations as a father, in

particular any obligation to pay maintenance, and that she would

indemnify him, if nevertheless he were obliged to pay child

maintenance.

On 6 October 1982 the applicant's daughter was born out of

wedlock. The applicant and his companion continued to cohabit. However,

the applicant did not recognise his daughter.

On 27 June 1985 the applicant and his companion got married.

In 1991 divorce proceedings were started. The applicant's wife

also started paternity proceedings in the course of which the applicant

recognised his daughter. The applicant was then ordered to pay child

maintenance.

Subsequently, he requested the Floridsdorf District Court

(Bezirksgericht) to render a declaratory decision that the declaration

of 20 April 1982 was legally valid and to order his wife to pay back

AS 2,700 corresponding to maintenance he had already been obliged to

pay.

On 18 November 1992 the Floridsdorf District Court dismissed the

applicant's claim. In establishing the facts the court found that the

applicant, upon learning that his companion was pregnant, had proposed

an abortion, which she had refused. The applicant had then threatened

to leave her. Thereupon, on 20 April 1982, the applicant's companion

had signed the declaration which had been prepared by the applicant's

counsel. As regards the law, the court referred to S. 879 of the Civil

Code (Allgemeines Bürgerliches Gesetzbuch), according to which

agreements which are contra bonos mores (sittenwidrig) are null and

void. The court found that the declaration at issue had been made by

a pregnant woman who had been put under considerable pressure and was,

thus, null and void.

On 28 June 1993 the Vienna Regional Civil Court (Landesgericht

für Zivilrechtssachen) dismissed the applicant's appeal. The court,

referring to case-law, found that a declaration of one parent to

indemnify the other for maintenance claims concerning their child was

prima facie not invalid. It noted that such agreements were sometimes

concluded in divorce proceedings. Usually, these agreements were part

of the partition of matrimonial property and the parent undertaking to

maintain the child received something in return for indemnifying the

other. However, in the present case, the mother of the child had not

received anything in return. The declaration at issue went far beyond

an indemnification for maintenance obligations, in that the applicant's

companion discharged him from any of his obligations as a father.

Moreover, according to the contents of the declaration, the companion

had signed it in order to compensate the applicant for having misled

him as regards the use of contraceptives. Referring to case-law, the

court found that the sexual relationship of two adults belonged to a

sphere which was not open to regulation by a legal agreement. The

deception of one partner by the other about the use of contraceptives

could never give rise to compensation claims. It followed that a

declaration acknowledging compensation claims in this context was null

and void as being contra bonos mores within the meaning of S. 879 of

the Civil Code.

On 14 April 1994 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's appeal on points of law. The court, referring

to S. 879 of the Civil Code, found in particular that concealing the

possibility of conception affected primarily the most intimate personal

sphere of the woman who had to remain free to decide whether to apply

contraceptives or not. The freedom to decide any time in favour of

conceiving a child was an essential part of any woman's personal

dignity and freedom. Further, as the sexual relationship between a man

and a woman, whether they were married or not, involved their most

intimate personal sphere it was not open to regulation by a legal

agreement. The declaration at issue amounted to a complete denial of

the applicant's responsibility for the consequences of an intimate

relationship. It penalised the woman for her wish to have a child and

degraded her to a mere sexual partner who had to bear all the

consequences of a pregnancy which was unwanted only by the applicant.

In the circumstances of the case, the declaration, in an extremely

unbalanced way, put all the burden on the woman, while the applicant

had only agreed to continue to live with her. Therefore, it was contra

bonos mores.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that

the court decisions, which found that the declaration of 20 April 1982

by which his companion in life had discharged him from any obligations

as a father was null and void, violated his right to private and family

life. He contests the assumption that the declaration to indemnify him

for his daughter's maintenance claims was designed to compensate him

for having been deceived on the use of contraceptives. He also contests

the courts' opinion that the sexual relationship between adults is not

open to regulation by legal agreement. He claims that an agreement like

the one at issue was not prohibited by Austrian law.

2. The applicant further complains under Article 14 of the

Convention that the declaration by which his companion stated that she

would indemnify him in particular as regards his obligation to pay

maintenance for his daughter was declared null and void, whereas

agreements in which one spouse, in the course of divorce proceedings,

would undertake to indemnify the other for maintenance obligations

towards their child are valid according to the Austrian courts' case-

law. He submits that, thus, the contested decisions discriminated

against unmarried couples.

3. Finally, the applicant complains under Article 1 of Protocol

No. 1 that the decisions at issue also violated his right to property.

He argues that the right to be indemnified by another person with

regard to certain obligations forms part of his possessions.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention that the court decisions, which found that the declaration

of 20 April 1982 by which his companion in life had discharged him from

any obligations as a father was null and void, violated his right to

private and family life. In particular, he criticises the Austrian

courts' interpretation of the relevant law.

Article 8 (Art. 8), as far as relevant, reads as follows:

"1. Everyone has the right to respect for his private and

family life ....

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 Commission recalls that proceedings to contest paternity of

a child born out of wedlock concern the plaintiff's "private life"

(Eur. Court HR., Rasmussen v. Denmark judgment of 28 November 1984,

Series A no. 87, p. 13, para. 33). The Commission notes that the

proceedings in the present case did not concern the question of the

applicant's paternity, which moreover has been formally recognised by

him. They concerned the validity of a declaration made for the purpose

of discharging the applicant from any obligations, in particular any

maintenance obligations, as regards his daughter born out of wedlock.

Assuming that the decisions at issue constituted an interference with

the applicant's right to respect for his "private life", the Commission

finds that it was justified under the second paragraph of Article 8

(Art. 8).

The interference complained of was in accordance with Austrian

law, namely S. 879 of the Civil Code. As far as the applicant

criticises the application of the relevant legal provisions by the

Austrian courts, the Commission recalls that it is primarily for the

national authorities, notably the courts, to interpret and apply

domestic law (Eur. Court HR. Olsson (No. 2) v. Sweden judgment of

27 November 1992, Series A no. 250, p. 32, para. 79).

Further, the interference served a legitimate aim, namely the

protection of the rights and freedoms of others. As regards the

necessity of the interference, the Commission notes that the Austrian

courts had regard to the particular circumstances of the case. They

took into account the need to protect the personal sphere of the woman

concerned, which the applicant himself had infringed by urging her to

have an abortion and by putting pressure on her to sign the

declaration, and the imbalance which the declaration created between

the applicant and the mother of his child. The Commission finds that

the reasons adduced by the courts were "relevant" and "sufficient" and

that the interference complained of was proportionate to the legitimate

aim pursued (Eur. Court HR. Olsson (No. 1) v. Sweden judgment of

24 March 1988, Series A no. 130, pp. 31-32, paras. 67-68).

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains under Article 14 (Art. 14) of the

Convention that the contested decisions discriminated against unmarried

couples. He submits that the declaration by which his companion stated

that she would indemnify him in particular as regards his obligation

to pay maintenance for his child was declared null and void, whereas

agreements in which one spouse, in the course of divorce proceedings,

would undertake to indemnify the other for maintenance obligations

towards their child, are valid according to the Austrian courts' case-

law.

Article 14 (Art. 14) of the Convention reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Commission recalls that Article 14 (Art. 14) protects

individuals against discriminatory treatment only if they are placed

in analogous situations (Rasmussen judgment, loc. cit., pp. 12-13,

paras. 29 and 35).

In the present case the Austrian courts noted the difference

between the declaration at issue and agreements which are sometimes

made between spouses in the course of divorce proceedings when

partitioning matrimonial property. They found that the declaration at

issue went far beyond an indemnification for maintenance claims and

that moreover, the applicant's companion received nothing in return for

it. Accordingly, the applicant and his companion when making the

declaration were not in a situation which could be considered as

analogous to that of a married couple, who divorce and attempt to

settle the pecuniary consequences of the divorce through agreement.

Thus, the contested decisions were not discriminatory.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Finally, the applicant complains under Article 1 of Protocol

No. 1 (P1-1) that the decisions at issue also violated his right to

property. He argues that the right to be indemnified by another person

with regard to certain obligations forms part of his possessions.

Article 1 of Protocol No. 1 (P1-1) reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

Even assuming that the above claim formed part of the applicant's

possessions, and assuming that the decision of a court in a dispute

between private individuals in the context of family law may engage the

responsibility of the State under Article 1 of Protocol No. 1 (P1-1)

(see mutatis mutandis Eur. Court HR., Hoffmann v. Austria judgment of

23 June 1993, Series A no. 255, p. 58, para. 29), the Commission finds

that the complaint is, in any case, inadmissible for the following

reasons.

Any interference with the applicant's right to the peaceful

enjoyment of his possessions falls within the scope of the second

paragraph of Article 1 of Protocol No. 1 (P1-1). This paragraph

requires that the interference is lawful, serves a legitimate aim and

is proportionate, achieving a fair balance between the demands of the

general interest of the community and the requirements of the

protection of the individual's fundamental rights (Eur. Court of HR.,

Fredin v. Sweden judgment of 18 February 1991, Series A no. 192,

pp. 16-17, paras. 48-51). With a view to its above findings under

Article 8 (Art. 8) of the Convention, the Commission considers that

these requirements are met.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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BURGER v. AUSTRIA

BURGER v. AUSTRIA

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