Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24659/94

by Alfred JUDMAIER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 28 June 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

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 6 June 1994 by

Alfred JUDMAIER against Austria and registered on 21 July 1994 under

file No. 24659/94;

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 facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant is an Austrian farmer residing in Frojach

(Austria). Before the Commission he is represented by Mr. E. Moser,

a lawyer practising in Murau (Austria).

A. Particular circumstances of the case

On 13 October 1968 M.G. gave birth to her son A.G. born out of

wedlock.

Subsequently the official guardian (Amtsvormund) of A.G.

instituted proceedings before the Murau District Court (Bezirksgericht)

against the applicant for recognition of paternity and maintenance

payments. In these proceedings the applicant recognised paternity of

A.G. On 31 March 1969, following this declaration and without the

taking of further medical evidence the District Court gave a judgment

(Anerkenntnisurteil), in accordance with Section 163 of the Civil Code

(Allgemeines Bürgerliches Gesetzbuch) recognising the applicant as

A.G.'s father. This judgment became final.

In March 1987 M.G., A.G. and the applicant underwent a medical

examination as a result of which the applicant had to be excluded as

the biological father of A.G.

On 2 July 1993 the applicant filed an action with the Murau

District Court against A.G. for a declaration that he was not A.G.'s

father. The applicant referred to the medical report of March 1987.

On 12 July 1993 the District Court rejected the applicant's

action. Having regard to its judgment of 31 March 1969 the District

Court found that it could not deal with the applicant's action for

reasons of res judicata.

On 19 July 1993 the applicant appealed against the District

Court's decision.

On 3 August 1993 the Leoben Regional Court (Landesgericht)

dismissed the applicant's appeal. It confirmed the District Court's

decision and refused leave to an ordinary appeal on points of law

(ordentlicher Revisionsrekurs).

On 10 August 1993 the applicant lodged an extraordinary appeal

on points of law (außerordentlicher Revisionsrekurs) with the Supreme

Court (Oberster Gerichtshof). He submitted that according to the

legislation in force as from 1970 on judgments establishing paternity

on the mere declaration of the putative father without further evidence

being taken were no longer possible. However, the legislator had

failed to provide adequate means for challenging a judgment based on

recognition given before 1970.

On 7 December 1993 the Supreme Court dismissed the applicant's

extraordinary appeal on points of law.

The Supreme Court found that the applicant's action could not be

rejected as res judicata.

It considered further whether there existed doubts as to the

constitutionality of Section 163 of the Civil Code as in force until

1970. It noted that the legislator, when amending Sections 163 et seq.

of the Civil Code in 1970, had acted with the explicit intention that

establishment of paternity by recognition and by judgment should have

the same legal consequences. However it would appear that under

Section 164b of the Civil Code an action for challenging the

establishment of paternity by recognition before the Office for Matters

of Personal Status (Standesamt) could be introduced at any time, while

the establishment of paternity based on a court judgment could only be

challenged within the absolute time-limit of 10 years for actions for

re-opening of proceedings. This result, based on a merely formalistic

interpretation of the law, was manifestly contrary to the legislator's

intentions. The Supreme Court concluded that the absolute time-limit

of 10 years for actions for re-opening of proceedings, as provided for

in Section 530 para. 2 of the Code of Civil Proceedings, was not

applicable in paternity matters. Thus, no doubts as to the

constitutionality of Section 163 of the Civil Code as in force until

1970 existed.

However, the Supreme Court found that the applicant's action was

inadmissible as being filed out of time. According to the Section 534

para. 1 subpara. 4 of the Code of Civil Proceedings an action for re-

opening of proceedings must be filed within 4 weeks after the person

has learned about the relevant new circumstances. In the present case

this was the expert opinion of March 1987 according to which the

applicant had to be excluded as father of A.G. The applicant filed his

action more than six years later and this action was therefore

introduced out of time no matter if one would apply the 4 weeks time

limit under Section 534 para. 1 of the Code of Civil Proceedings or the

one year time-limit under Section 164b para. 2 of the Civil Code.

B. Relevant domestic law

Sections 163 et seq. of the Austrian Civil Code concern paternity

in respect of children born out of wedlock.

Paternity is established either by recognition (Anerkenntnis)

before the Office for Matters of Personal Status (Standesamt) or by

judgment done in civil court proceedings upon an action filed by the

representative of the child born out of wedlock (Section 163b and 163c

of the Civil Code). In the latter proceedings since 1970 a formal

judgment merely based on the acceptance of the claim by the defendant

(Anerkenntnisurteil), as provided for in Section 395 of the Code of

Civil Proceedings (Zivilprozeßordnung), is no longer possible (Part 5

para. 4 of the Act on the Reform of the Legal Situation of Children

Born out of Wedlock - Gesetz über die Neuordnung der Rechtsstellung des

Unehelichen Kindes, BGBl. 1970/432). Thus, the court can only base its

findings on the taking of evidence, in particular medical expert

reports.

The father can at any time challenge the establishment of

paternity based on recognition, if he can prove the existence of

circumstances which would rebut the presumption that he was the

biological father and which he had not known at the time of the

recognition. He has to introduce such proceedings at latest one year

after he had learned about these new facts or evidence (Section 164b

para. 2 of the Civil Code).

A court judgment establishing paternity over a child born out of

wedlock can be challenged by the father with an action for re-opening

of proceedings under Sections 529 et seq. of the Code of Civil

Proceedings.

Re-opening of civil proceedings can be requested if one of the

parties has new relevant facts or evidence (Section 530 para. 7

subpara. 7 of the Code on Civil Proceedings). A request for re-opening

must be made within 4 weeks after the person has learned about these

new facts or evidence (Section 534 para. 1 of the Code of Civil

Proceedings). There is an absolute time limit of ten years after which

proceedings cannot be re-opened (Section 530 para. 2 of the Code of

Civil Proceedings).

COMPLAINTS

The applicant complains under Article 8 of the Convention that

the denial of the Austrian courts to recognise formally that he was not

the father of A.G. violated his right to respect for his private and

family life. He submits that the law in force did not provide for an

adequate possibility to challenge the District Court's judgment of

31 March 1969 according to which he was the father of A.G.

He submits further that he relied on the unequivocal provision

of Section 530 para. 2 of the Code of Civil Proceedings according to

which re-opening of proceedings was excluded after the elapse of

absolute time-limit of ten years. Thus, the Supreme Court's judgment

of 7 December 1993 only opened up a theoretical possibility of

challenging the wrong establishment of paternity which he could not

have actually availed himself of.

THE LAW

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

Convention that the denial of the Austrian courts to recognise formally

that he was not the father of A.G. violated his right to respect for

his private and family life.

Article 8 (Art. 8) of the Convention reads as follows:

"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 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 and morals, or for the protection of the rights and

freedoms of others."

The Commission considers that the applicant's interest to have

established whether he was or was not the father of A.G. may be

considered as a matter of his private and family life within the

meaning of Article 8 para. 1 (Art. 8-1) (see Eur. Court H.R., Rasmussen

judgment of 28 November 1984, Series A no. 87, p. 13, para. 33).

The Commission recalls that the essential object of Article 8

(Art. 8) is to protect the individual against arbitrary action by the

public authorities. There may in addition be positive obligations

inherent in effective "respect" for family life. However, the

boundaries between the State's positive and negative obligations under

this provision do not lend themselves to precise definition. The

applicable principles are nonetheless similar. In both contexts regard

must be had to the fair balance that has to be struck between the

competing interests of the individual and of the community as a whole;

and in both contexts the State enjoys a certain margin of appreciation

(Eur. Court H.R., Kroon and others judgment of 27 October 1994, para.

31, to be published in Series A no. 297-C). Respect for family life

requires that biological and social reality prevail over a legal

presumption of paternity (Kroon judgment, loc cit., para. 40).

In the present case, the applicant in 1969 recognised paternity

over A.G. and on 31 March 1969 the Murau District Court established

that he was the father of A.G. In March 1987, the applicant learned,

as a result of a medical examination, that he had to be excluded as

biological father of A.G. However, he did not take any immediate

action but introduced civil court proceedings for having established

that he was not the father of A.G. in July 1993. In these proceedings

the Supreme Court, on 7 December 1993, found that his action, lodged

more than six years after he had learned about the new circumstances

in 1987, was out of time.

The Commission finds that the applicant, once he had learned that

his paternity had to be excluded, could and should have tried to

challenge the District Court's judgment of 1969. In this respect the

Commission observes that the applicant's argument that no absolute

time-limit for re-opening should be applied in paternity proceedings

was accepted by the Supreme Court. However, the applicant having

learned about the relevant circumstances in 1987, waited for a further

six years until he introduced proceedings challenging paternity. When

he did so in 1993, the time limits provided for under Section 164b

para. 2 of the Civil Code and Section 534 para. 1 of the Code of Civil

Proceedings for bringing such proceedings had already expired.

The applicant submits that he relied on the unequivocal provision

of Section 530 para. 2 of the Code of Civil Proceedings according to

which re-opening of proceedings was excluded after the absolute time-

limit of ten years had elapsed. Thus, the Supreme Court's judgment of

7 December 1993 only opened up a theoretical possibility of challenging

the establishment of paternity which he could not have actually availed

himself of.

However, the Commission notes that the applicant in his

extraordinary appeal to the Supreme Court explicitly submitted his view

that the relevant legislation hindered him in effectively challenging

the District Court's judgment of 1969.

The Commission can see no reasons why the applicant could not

have raised this argument in proceedings introduced earlier which could

possibly have led to a successful challenge of the District Court's

judgment of 1969.

In these circumstances the Commission finds that the judgment of

the Supreme Court rejecting the applicant's action for failure to have

complied with a statutory time-limit, does not disclose any lack of

respect for his private and family life. Consequently, there is no

appearance of a violation of Article 8 (Art. 8) of the Convention.

It follows that the application is 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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JUDMAIER v. AUSTRIA

JUDMAIER v. AUSTRIA

LEXI