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A.G. v. AUSTRIA

Doc ref: 18820/91 • ECHR ID: 001-1474

Document date: January 13, 1993

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A.G. v. AUSTRIA

Doc ref: 18820/91 • ECHR ID: 001-1474

Document date: January 13, 1993

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 18820/91

by A.G.

against Austria

The European Commission of Human Rights sitting in private on

13 January 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mr. H.C. KRÜGER, Secretary to the Commission

Mr. M. de SALVIA, Deputy Secretary to the Commission

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 June 1991 by

A.G. against Austria and registered on 18 September 1991 under file No.

18820/91;

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 is an Austrian citizen born in 1968 and living in

K. He is represented by Mr. Wolfgang Roringer, a lawyer in Tamsweg.

The facts as submitted by the applicant may be summarised as

follows.

The applicant was born out of wedlock. According to a judgment

given by the Murau District Court (Bezirksgericht) on 31 March 1969

A.J. is the applicant's father. This judgment, which became final, had

been given without the taking of evidence, the defendant A.J. not

having contested being the applicant's father.

However, according to a medical test carried out in March 1987

it is proven that A.J. cannot be the applicant's biological father.

Although he knew that the final paternity judgment of 31 March

1969 was irreversible the applicant nevertheless introduced an action

in the Murau District Court requesting a finding that contrary to the

previous judgment A.J. was not his father. This action was rejected

as being inadmissible on 10 January 1991. The Court stated that the

case was substantially the same as the matter decided in the previous

paternity proceedings and therefore the final judgment given in these

proceedings was binding. A retrial (Wiederaufnahmeverfahren) was no

longer possible as the time-limit fixed in Section 534 para.3 of the

Austrian Code on Civil Procedure (ZPO) was exceeded. Therefore, so the

Court concluded, the existing legal order did not provide for any

possibility to grant the applicant's justified request for a correction

of his legal family status.

The applicant's appeal on points of law (ordentlicher

Revisionsrekurs) was rejected by the Leoben Regional Court

(Kreisgericht) on 21 February 1991 as being inadmissible. In the

appeal proceedings the applicant had requested the Court to submit the

matter to the Constitutional Court (Verfassungsgerichtshof). He

considered that in its unamended version in force prior to 1970 Section

163 of the Austrian Civil Code (ABGB) was unconstitutional in that it

allowed a court in paternity proceedings to find the defendant to be

the father of the plaintiff child without the taking of any evidence

if the defendant accepted to be the father. The Leoben Regional Court

considered however that the provision in question was no longer

decisive in the appeal proceedings. The appeal was not inadmissible

on account of an application of Section 163 ABGB but on account of

procedural provisions resulting in the judgment of 31 March 1969 being

final. Therefore there was no reason to submit the case to the

Constitutional Court, as requested by the applicant.

THE COMPLAINTS

The applicant complains that under Austrian law he has no

possibility to have a paternity judgment given in 1969 set aside

although a medical test carried out in 1987 clearly disproves the

finding in that judgment according to which A.J. is his father. He

alleges a violation of Article 8 of the Convention which secures to

everyone the right to protection of his private and family life.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 June 1991 and registered on

18 September 1991.

On 2 December 1991 the Commission decided to communicate the

application to the Austrian Government, in accordance with Rule 48

para. 2 (b) of the Rules of Procedure, and to write them to submit

observations in writing on the admissibility and merits of the

application.

The Government submitted their observations on 9 March 1992 and

the applicants's Counsel replied on 6 May 1992.

THE LAW

The applicant invokes the right to protection of private and

family life which he considers violated on account of the impossibility

to have a paternity judgment given in 1969 set aside although its

findings are disproved by recent medical tests. However, the

Commission is not required to decide whether or not the facts alleged

by the applicant disclose any appearance of a violation of this

provision as, under Article 26 (Art. 26) of the Convention, it may only

deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

In the present case the applicant failed to raise, before the

Austrian Supreme Court (Oberster Gerichtshof) by way of an

extraordinary appeal on points of law (ausserordentlicher

Revisionsrekurs), the complaint he now makes before the Commission.

According to the uncontested statement of the respondent

Government the issue raised by the applicant in his complaint has so

far not been dealt with by the Supreme Court. In these circumstances

it cannot be found that the appeal in question would have been

ineffective (cf. Eur. Court H.R., Van Oosterwijck judgment of 6

November 1980, Series A No. 40, pp. 16-17, paras 33-34). Moreover, an

examination of the case 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 raising his

complaint in the proceedings referred to.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and his application must be

rejected in accordance with Article 27 para. 3 (Art. 27-3) of the

Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

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