Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19345/92

by B.H.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 14 October 1992, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 23 December 1991

by B.H. against Austria and registered on 15 January 1992 under file

No. 19345/92;

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, born in 1967, is an Austrian national and resident

at Brig in Switzerland. Before the Commission she is represented by

Mr. K. Krückl, a lawyer practising in Linz.

A. Particular circumstances of the case

On 22 November 1985 the applicant, who was not married, gave

birth to a child. On 16 January 1986 Mr. M. recognised paternity.

On 25 May 1989 the Linz-Land District Court (Bezirksgericht)

appointed Mr. M. as the child's guardian. The District Court found

that this measure was in the interest of the child's well-being. The

Court noted in particular that, following the child's birth, the

applicant and Mr. M. had lived together. In 1987 the applicant had

left Mr. M. and her child and taken up employment in Styria. In

October 1987 the Linz-Land District Court, in agreement with the

applicant and the child's statutory guardian at that time, had

instructed Mr. M. to take care and educate the child. The applicant

had meanwhile taken up employment in Switzerland, paid maintenance, but

did not entertain any contacts with Mr. M. or the child.

On 9 April 1991 the applicant, represented by Mr. Krückl,

requested the Linz Public Prosecutor's Office (Staatsanwaltschaft) to

bring paternity proceedings under S. 164 c of the Austrian Civil Code

(Allgemeines Bürgerliches Gesetzbuch). She contested the paternity of

Mr. M. and claimed that Mr. P. was the child's father. She submitted

that the relevant period had been beginning of February 1985 when she

had had regular sexual intercourse with Mr. P., not with Mr. M.

The Linz Public Prosecutor's Office heard Mr. P. on 13 May 1991.

He confirmed to have had a sexual relationship with the applicant in

the beginning of 1985. Mr. M. was heard on 24 June 1991. He stated

that, after her relationship with Mr. P., the applicant had again had

her menstruation so that he had never doubted his paternity. In the

past the applicant had never raised any such doubts.

On 16 July 1991 the Linz Public Prosecutor's Office informed

Mr. Krückl that it did not intend to bring paternity proceedings.

B. Domestic law

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

in respect of children born out of wedlock. S. 163 b provides that

paternity is established by judgment or recognition; its establishment

is generally binding. S. 163 b regulates conditions and procedural

aspects for recognising paternity.

S. 163 d provides that the mother and the child are entitled to

file objections against the recognition within one year from the time

that they became aware of the recognition. According to S. 164 the

court has to declare a recognition void in case of such objections.

Under S. 164 c para. 1 (1) the child born out of wedlock may

bring paternity proceedings against the putative father. According to

S. 164 c para. 1 (2) the man, whose recognition became void because of

objections, can bring paternity proceedings against the child. Under

S. 164 c para. 1 (3) the Public Prosecutor's Office may institute, in

the public interest or in the interest of the child concerned,

paternity proceedings against the putative father, if there are

reasonable doubts as to the paternity of the person who recognised.

COMPLAINTS

The applicant complains under Article 8 of the Convention that

under Austrian law she and her child had only one year to object to the

recognition of paternity by Mr. M. She submits that since spring 1991

she has doubts as to the paternity of Mr. M.

THE LAW

1. The applicant complains about the statutory time-limit under

Austrian law to raise objections against the recognition of paternity

by Mr. M. in respect of her child born out of wedlock. The applicant

considers that the legal impediment to have her child's natural father

determined in paternity proceedings amounts to a violation of Article 8

(Art. 8) of the Convention. Article 8 (Art. 8) provides:

"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 or morals, or for the protection of the

rights and freedoms of others."

2. It appears that the applicant also wishes to raise her complaint

before the Commission on behalf of her child born out of wedlock in

November 1986.

The Commission notes that in 1987 the applicant left her child

with Mr. M. who had recognised paternity. In October 1987 Mr. M., with

her agreement, had been instructed to take care and educate the child.

In May 1989 the Linz-Land District Court appointed Mr. M. as the

child's guardian. According to the findings in this decision, the

applicant had meanwhile taken up employment in Switzerland, paid

maintenance, but did not entertain any contacts with Mr. M. or the

child.

The Commission, having regard to the applicant's legal and

factual relationship with her child as well as the object of her

complaint before the Commission, namely her child's legal relationship

with Mr. M., finds that the applicant is not able to raise, in

accordance with Article 25 para . 1 (Art. 25-1) of the Convention,

complaints on behalf of her child.

3. As regards the applicant's complaint on her own behalf, the

Commission considers that the applicant's interest to have her child's

natural father determined may be considered as a matter of her private

and family life within the meaning of Article 8 para. 1 (Art. 8-1)

(cf., mutatis mutandis, Eur. court H.R., Rasmussen judgment of 28

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

The Commission notes that, in accordance with S. 163 d para. 1

of the Austrian Civil Code, the applicant had the opportunity to file

objections against the recognition of paternity by Mr. M. within one

year from the time that she became aware of the recognition.

The Commission observes that, in paternity matters, the

Contracting States are entitled to think that the introduction of time-

limits is justified to ensure legal certainty and the interests of the

child (cf. Rasmussen judgment, loc. cit., p. 15, para. 41).

The Commission considers that, pursuant to S. 163 d para. 1 of

the Austrian Civil Code, the applicant had a reasonable opportunity to

clarify all aspects regarding the recognition of paternity in question

and possibly to raise objections. The Commission notes that, at the

time of recognition of paternity, the applicant lived together with

Mr. M. and her child, later she left her child with him and agreed that

he be in charge of caring for and educating her child, while she was

living and working abroad. The applicant claims that only in spring

1991 she became doubts as to the paternity of Mr. M. However, her

submissions in this respect do not disclose any new circumstance which

had not been known to her at the time after recognition by Mr. M.

In these circumstances the Commission finds that the statutory

time-limit to raise objections against recognition of paternity does

not disclose any lack of respect for the applicant's private and family

life. Consequently there is no indication of a breach 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.

Accordingly, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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