Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21632/93

by G. R., E. R. and K. R.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 24 February 1992

by G. R., E. R. and K. R. against Austria and registered on

7 April 1993 under file No. 21632/93;

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 submitted by the applicants, may be

summarised as follows.

The first and second applicant, born in 1930 and 1936

respectively, are a couple residing in Vienna. The third applicant,

born in 1961, is their son. The first applicant is a lawyer, practising

in Vienna. He is representing the second and third applicant in the

proceedings before the Commission. The applicants' previous application

(No. 21314/93) concerning the reporting of a large Austrian newspaper

on their younger son's, or respectively, brother's suicide, has been

declared inadmissible in October 1993.

A. The particular circumstances of the case

On 16 May 1984 a son S. was born out of wedlock to M. and B., the

first and second applicant's son and third applicant's brother. M. and

B. decided to give the child for adoption. On 16 November 1984 S. was

adopted by a couple and on 9 January 1985 the Melk District Court

(Bezirksgericht) approved the adoption. B. and M. subsequently married.

M. died on 9 June 1991 and the following day B. committed suicide.

On 8 January 1992 the Vienna Inner City District Court rejected

the first and second applicants' acceptance of succession in B.'s

estate (Erbserklärung). The Court found that according to SS. 182 b and

732 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) B.'s son

S. was his heir, excluding B.'s parents from inheritance. On 26 May

1992 the Vienna Regional Civil Court (Landesgericht) rejected the first

and second applicants' appeal (Rekurs) and on 29 September 1992 the

Supreme Court rejected their appeal on points of law (außerordentlicher

Revisionsrekurs).

On 1 September 1992 all three applicants filed a complaint with

the Constitutional Court (Verfassungsgerichtshof). They submitted that

S. 182 para. 2, S. 182 a para. 1, S. 182 b para. 1, and S. 183 para. 1

of the Civil Code and one provision of the relevant procedural law

violated their constitutionally guaranteed rights and requested the

Court to set aside the said provisions. In particular, as the adoptive

parents only replaced the natural parents, there was no valid reason

to cut off the links between the adoptive child and its grandparents

or uncle. Moreover, the fact that they still had certain maintenance

obligations and that the child continued to have a right to inheritance

from his natural relatives violated their right to property.

On 2 December 1993 the Constitutional Court rejected the

applicants' complaints as being inadmissible, except for the first and

second applicant's complaint as regards S. 182 para. 2 of the Civil

Code. The Court found that their rights were directly affected by this

provision, as they would be entitled to have access to their grandson,

had he not been adopted. However, deciding on the merits, the Court

dismissed their complaint.

The Court considered that the relationship between grandparents

and grandchild fell within the scope of Article 8 of the Convention.

However, the Court, referring to Article 8 para. 2, found that the

contested provision fell within the margin of appreciation left to the

national authorities. In particular, it appeared necessary in order to

allow the adoptive child to grow up in its new family without any

disturbance. Similar provisions existed in a number of other European

states. Further, the obligation of the natural parents and their

relatives to maintain the child in case the adoptive parents were

unable to do so, appeared reasonable as they were closer to the child

than the general public. Finally, the right to inheritance did not in

general depend on whether there had been any personal contact between

the deceased person and his heirs. Thus, it was not unreasonable that

mutual rights to inheritance between the adoptive child and his natural

parents and their relatives subsisted, although the latter's right to

inherit was subsidiary to the right of the adoptive parents and their

offspring. S. 182 para. 2 of the Civil Code did not appear unreasonable

as regards to the provisions concerning inheritance.

On 30 November 1993 the first and second applicant filed an

appeal against the Melk District Court's decision of 9 January 1985,

which had approved the adoption. They submitted in particular that they

had not been heard in the adoption proceedings. On 19 January 1994 the

St. Pölten Regional Court rejected their appeal on the ground that the

grandparents did not have a right to be heard in the adoption

proceedings. On 13 April 1994 the Supreme Court rejected their appeal

on points of law.

B. Relevant domestic law

S. 182 para. 2 of the Civil Code (Allgemeines Bürgerliches

Gesetzbuch) provides that, if a couple adopts a child, the relationship

in family law between the natural parents and their relatives and the

adoptive child are terminated, with the exceptions laid down in

S. 182 a.

S. 182 a states that the obligations of natural parents and their

relatives, laid down in family law, to maintain the adoptive child

subsist (para. 1). However, this obligation is only subsidiary to the

respective obligations established between the adoptive parents and the

adoptive child (para. 3).

S. 182 b provides that the rights, stemming from the law on

inheritance, between natural parents and their relatives and the

adoptive child subsist (para. 1). In case of inheritance on intestacy

from the adoptive child, the adoptive parents and their offspring have

priority before the natural parents and their offspring (para. 2).

According to S. 183 para. 1 the adoptive child in general

receives the name of the person(s) adopting it.

S. 730 provides that on intestacy the deceased person's spouse

and those in the closest line of succession are entitled to inherit

(para. 1). According to S. 731 the first line of succession is

constituted by the deceased persons's children and their offspring

(para. 1). The deceased person's parents, his siblings and their

offspring are in the second line of succession (para. 2).

Further, S. 762 states that the deceased person's spouse, his

children, including grandchildren, or in case there are no children,

his parents, including grandparents, are entitled to a reserved portion

of his estate (Pflichtteil), which cannot be excluded by will.

COMPLAINTS

1. The applicants complain under Article 1 of Protocol No. 1 that

the provisions concerning an adoptive child's patrimonial rights

vis-à-vis his natural relatives violated their right to property. In

particular, all three applicants complain that their grandson or

nephew, respectively, has inheritance rights on intestacy. Further, the

first and second applicant submit that their grandson, even after his

adoption, excluded them from succession in the estate of their son B.,

and that he is entitled to a reserved portion of their estate.

2. The applicants also complain under Article 8 of the Convention

that the provisions regarding adoption violated their right to respect

for their family life. They submit in particular that these provisions

are unjust and unbalanced, as they destroy the links between the child

and his natural relatives, e.g. in that the child receives the name of

his adoptive parents, while some of the child's maintenance and

patrimonial rights against the natural relatives subsist.

3. Further, the applicants complain under Article 3 that the child

is treated like an object in the adoption proceedings, and that

adoption in general has adverse consequences for the child concerned.

Moreover, they complain that they were not heard in the adoption

proceedings.

THE LAW

1. The applicants complain under Article 1 of Protocol No. 1

(P1-1) that the provisions regarding adoption violated their right to

property.

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."

As regards the first and second applicants' complaint that they

did not inherit from their son B., the Commission recalls that

Article 1 of Protocol No. 1 (P1-1) applies only to a person's existing

possessions and that it does not guarantee the right to acquire

possessions (Eur. Court H.R., Marckx judgment of 13 June 1979, Series A

no. 31, p. 23, para. 50). To that extent, the applicants' complaint

does not fall within the scope of this Article.

The applicants further complain that their grandson or nephew,

respectively, has inheritance rights on intestacy. Further, the first

and second applicant submit that their grandson is entitled to a

reserved portion of their estate. The Commission finds that the

contested provisions of Austrian law, in particular insofar as they

place restrictions on the applicants to dispose of their property,

constitute an interference with their peaceful enjoyment of their

possessions within the meaning of the first paragraph of Article 1

(Art. 1-1).

However, the second paragraph of this Article authorises a

Contracting State to "enforce such laws as it deems necessary to

control the use of property in accordance with the general interest",

which may include legislation in the area of dispositions inter vivos

or by will (Marckx judgment, loc. cit., p. 28, para. 64). Such measures

must be 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, whereby the State

enjoys a wide margin of appreciation (Eur. Court H.R., Fredin judgment

of 18 February 1991, Series A no. 192, p. 17, para. 51).

In the circumstances of the present case, the applicants failed

to show that the provisions of the Austrian Civil Code, regarding

inheritance on intestacy in general and limiting a person's possibility

to dispose of his or her property by will in that close relatives are

entitled to a reserved portion of the estate, as well as the provisions

regarding the patrimonial rights of an adoptive child vis-à-vis his or

her natural parents and their relatives, are not in the general

interest or are disproportionate. A State may consider it in the

general interest to maintain certain links between a child and its

natural family after adoption. The Commission notes in particular, as

was also pointed out by the Constitutional Court, that according to the

Austrian Civil Code, the patrimonial rights between an adoptive child

and its natural family are to some extent mutual. Also the natural

parents and their relatives are entitled, albeit subsidiarily to the

adoptive parents and their offspring, to inherit from the adoptive

child. Thus, the provisions complained of fall within the wide margin

of appreciation which a State enjoys in such matters.

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 applicants also complain under Article 8 (Art. 8) of the

Convention about a lack of respect for their family life. They submit

in particular that the provisions relating to adoption are unjust and

unbalanced as they terminate links between the natural relatives and

an adoptive child, while some maintenance or inheritance right of the

child subsist.

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

"1. Everyone has the right to respect for his ... 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, assuming compliance with the six-months' rule

under Article 26 (Art. 26) of the Convention, finds that the contested

provisions concerning the family relations in case of adoption, as

applicable following the adoption of the applicants' grandson and

nephew in 1985, constituted an interference with their right to respect

for their family life (Marckx judgment, loc. cit., p. 21, 23-24,

paras. 45 and 52).

However, in the light of its findings regarding the applicants'

complaint under Article 1 of Protocol No. 1 (P1-1), the Commission

considers that this interference is justified under Article 8 para. 2

(Art. 8-2) as it is in accordance with Austrian law and can reasonably

be regarded as necessary in a democratic society for the protection of

the rights and freedoms of others, namely the adoptive child.

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.

3. Finally, as regards the applicants' complaints under Article 3

(Art. 3) of the Convention, the Commission notes that the applicants

are not entitled to introduce an application on behalf of their

grandchild and nephew. Further, the Commission finds that neither the

legislation complained of, nor its application in the present case

constitute inhuman or degrading treatment within the meaning of Article

3 (Art. 3).

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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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G.R., E.R. AND K.R. v. AUSTRIA

G.R., E.R. AND K.R. v. AUSTRIA

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