Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15154/89

by M.B.

against Austria

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 April 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

Mr. K. ROGGE, Secretary to the Second 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 May 1989 by

M.B. against Austria and registered on 21 June 1989 under file No.

15154/89;

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

parties, may be summarised as follows:

The applicant is an Austrian national and resident at Hörsching.

Before the Commission she is represented by Mr. K. Lichtl, a lawyer

practising in Linz.

A. The particular circumstances of the case

The applicant was born out of wedlock in April 1983. On 18 May

1983, in proceedings before the Linz-Land Administrative Authority

(Bezirkshauptmannschaft), Mr. Z., who had already one child born in

wedlock in 1963 and another child born out of wedlock in 1976,

recognised the paternity as regards the applicant and accepted to pay

alimony. Subsequently, the applicant, her mother and her father Mr. Z.

lived together in a house at Hörsching owned by her father. Mr. Z.

died intestate on 1 February 1988.

On 2 September 1988 the applicant filed an acceptance of

succession with limited liability (bedingte Erbserklärung) as regards

the inheritance. She submitted in particular that her father had

wished that she and her mother should be heirs and especially be

entitled to stay in his house at Hörsching. Her father had not

considered S. 754 para. 2 of the Austrian Civil Code (Allgemeines

Bürgerliches Gesetzbuch), in force at the time in question. However,

this provision, which excluded illegitimate children as heirs, violated

the constitutional principle of equality as well as Article 14 of the

Convention in conjunction with Article 1 of Protocol No. 1.

On 7 November 1988 the Linz-Land District Court (Bezirksgericht)

rejected the applicant's acceptance of succession. The District Court

found in particular that there was an intestate succession. On

17 August 1988 the legitimate child born in 1963 had stated his

acceptance of succession with limited liability; this declaration had

been accepted by the District Court on 31 August 1988. Under S. 122 of

the Non-Contentious Proceedings Act (Außerstreitgesetz) the acceptance

of succession could be refused where a right of succession obviously

did not exist. Having regard to the clear wording of S. 754 para. 2

of the Civil Code, in case of intestate succession, the legitimate

child, having accepted succession, had precedence over an illegitimate

child.

On 18 January 1989 the Linz Regional Court (Landesgericht)

dismissed the applicant's appeal (Rekurs). The Regional Court found

in particular that the difference of treatment between legitimate and

illegitimate children under the law of succession could not be objected

to under constitutional law. Article 14 of the Convention could only

be applied in relation to the rights and freedoms safeguarded by the

Convention. However, the Convention, and especially Article 1 of

Protocol No. 1, did not guarantee a right to succession. Moreover, the

Regional Court, referring to the Marckx judgment of 13 June 1979, found

that the difference of treatment under S. 754 para. 4 of the Civil Code

had an objective and reasonable justification. The precedence of

legitimate over illegitimate children under the law of succession

corresponded to the traditional views concerning family and marriage.

The envisaged reform of the right of succession of illegitimate

children, supposed to adapt the legal provision to the current views

and the international standard, did not hinder objective and reasonable

decisions on the basis of the existing provisions.

On 29 March 1989 the Austrian Supreme Court (Oberster Gerichts-

hof) rejected the applicant's appeal on points of law (außer-

ordentlicher Revisionsrekurs).

The Supreme Court found in particular that S. 754 para. 2 of the

Civil Code did not violate Article 14 of the Convention on the ground

that the Convention and especially Article 1 of Protocol No. 1 did not

safeguard a right to succession.

The Supreme Court also held that the constitutional principle of

equality had not been contravened. S. 754 para. 2 of the Civil Code

aimed at keeping the property within the family, as normally it was

only the co-operation of members of the family which created the

estate. The illegitimate child would be considered as intruder into

the family and thus give rise to serious disputes within his or her

father's family. Although a reform of the law of succession to the

effect of equal treatment of legitimate and illegitimate children was

envisaged, the legal provision in force had an objective justification,

the more so as the family as a legal institution remained a decisive

element in the system of rules governing human relationships.

Furthermore, the Supreme Court considered that the Republic of

Austria had ratified the 1975 European Convention on the Legal Status

of Children born out of Wedlock with a reservation, which had recently

been prolonged for a further period of five years.

The Supreme Court further added - in a last sentence in

brackets - that the appeal had been lodged out of time.

The judgment was served in April 1989.

B. Relevant domestic law

On 1 January 1991 the Austrian Act on the Reform of the Law on

Succession (Erbrechtsänderungsgesetz) of 1989 entered into force,

repealing S. 754 of the Austrian Civil Code (Allgemeines Bürgerliches

Gesetzbuch) which concerned the right of intestate succession of

children born out of wedlock. S. 754 reads as follows:

"(1) Ein uneheliches Kind hat zum Nachlaß der Mutter und ihrer

Verwandten ein gesetzliches Erbrecht wie ein eheliches Kind;

ausgenommen sind die Verwandten der Vaterseite der Mutter, wenn

diese selbst unehelich ist.

(2) Zum Nachlaß des Vaters, dessen Vaterschaft festgestellt ist,

hat ein uneheliches Kind, vorbehaltlich der Bestimmungen über das

gesetzliche Erbrecht der Witwe (757 Abs. 2 erster Satz), ein

gesetzliches Erbrecht wie ein eheliches Kind, doch gehen ihm die

ehelichen Nachkommen und die diesen erbrechtlich Gleichgestellten

vor. Die Vaterschaft muß vor dem Tode des Vaters festgestellt

worden sein, außer das Kind ist zu dieser Zeit noch minderjährig;

in diesem Falle genügt es, daß die Klage auf Feststellung

spätestens zum Ablauf eines Jahres nach dem Tode des Vaters

erhoben worden ist.

(3) Zum Nachlaß der Verwandten des Vaters steht einem unehelichen

Kinde kein gesetzliches Erbrecht zu."

"(1) As regards the estate of his or her mother and the mother's

relatives, an illegitimate child has a right to intestate

succession like a legitimate child; with the exception of the

paternal relatives of the mother, if she herself was an

illegitimate child.

(2) As regards the estate of the father, whose paternity was

established, an illegitimate child, subject to the provisions on

the right to intestate succession of the widow (S. 757 para. 2

first sentence), has a right of intestate succession like a

legitimate child; however, the legitimate descendants and those

assimilated for purposes of succession precede. The paternity

must have been established before the father's death, unless the

child was still a minor at that time; in such a case it is

sufficient that affiliation proceedings were instituted not later

than one year following the father's death.

(3) As regards the estate of his or her father's relatives, an

illegitimate child does not have a right to intestate

succession."

SS. 121 et seq. of the Non-Contentious Proceedings Act (Außer-

streitgesetz) regulate the requirements as regards declarations for the

acceptance of succession. S. 122 provides inter alia that the

competent court shall accept and register any acceptance of succession

which was presented in due form.

COMPLAINTS

The applicant complains that, as a result of the application of

S. 754 para. 2 of the Civil Code, she could not claim a right to

intestate succession after her father's death on the sole ground of her

birth out of wedlock. The applicant invokes Article 14 of the

Convention, in conjunction with Article 1 of Protocol No. 1.

PROCEEDINGS BEFORE THE COMMISSION

The application was registered on 23 May and registered on

21 June 1989.

On 27 May 1991 the Commission decided to communicate the

application and to invite the respondent Government to submit written

observations on the admissibility and merits.

Observations were submitted by the respondent Government on

11 October 1991. On 9 December 1991 the applicant submitted

observations in reply.

THE LAW

The applicant, born out of wedlock, complains that under Austrian

law she did not have a right of intestate succession after the death

of her father who also had a child born in wedlock. She invokes

Article 14 of the Convention, in conjunction with Article 1 of

Protocol No. 1 (Art. 14+P1-1).

a. The Government submit that the applicant failed to exhaust, as

required by Article 26 (Art. 26) of the Convention, the domestic

remedies at her disposal, as the Supreme Court declared her appeal on

points of law inadmissible for having been lodged out of time.

The Commission notes that the Supreme Court, in its judgment of

29 March 1989, considered in detail the matters which the applicant now

raises in substance before the Commission. The question of whether the

applicant's appeal on points of law could also have been rejected for

having been lodged out of time constituted a mere supplementary

consideration mentioned at the end of the judgment.

Consequently, the applicant complied with the condition as to the

exhaustion of domestic remedies under Article 26 (Art. 26) of the

Convention.

b. The Government further maintain that Article 14 (Art. 14) of the

Convention only applies if the facts of the case fall within the ambit

of one or more of the substantive provisions of the Convention and its

Protocols. However, Article 1 of Protocol No. 1 (P1-1) did not cover

future acquisition of property, and the applicant had not invoked

Article 8 (Art. 8) of the Convention. In any event, in the present

case, there were valid reasons for a differential treatment of

legitimate and illegitimate children. S. 754 para. 2 of the Austrian

Civil Code did not exclude illegitimate children from succession rights

because of their illegitimate birth. It rather aimed at protecting the

legitimate family and the family assets, as in principle only the co-

operation between the family members had created the estate.

The Commission finds that the applicant's complaint about

discrimination in respect of succession rights after her father's death

raises difficult questions of fact and of law which require an

examination of the merits. The application is therefore not manifestly

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

Convention. No other ground for declaring it inadmissible has been

established.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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B. v. AUSTRIA

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