Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17099/90

by Felix and Carl-Ludwig HABSBURG-LOTHRINGEN

against Austria

The European Commission of Human Rights sitting in private

on 6 September 1991 , the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

G. SPERDUTI

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

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, 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 15 August 1990

by Felix and Carl-Ludwig HABSBURG-LOTHRINGEN against Austria and

registered on 29 August 1990 under file No. 17099/90;

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 applicant, an Austrian citizen born in 1916, resides

at San Angel in Mexico. The second applicant, an Austrian citizen

born in 1918, resides in Brussels. The applicants are the sons of

Charles, the last Emperor of Austria. Before the Commission the

applicants are represented by Messrs. H. Golsong, a lawyer residing

at Chevy Chase in Maryland, United States of America, and W. Bitschnau,

a lawyer residing at Bludenz in Austria.

I.

Charles, Emperor of Austria, abdicated on 11 November 1918.

On 3 April 1919 the Austrian Act on the Banishment and the

Expropriation of the Property of the House of Habsburg-Lothringen

(Gesetz betreffend die Landesverweisung und die Ãœbernahme des

Vermögens des Hauses Habsburg-Lothringen) was enacted. Section 2 of

the Act concerns the banishment of the members of the House of

Habsburg-Lothringen.

In Article 10 para. 2 of the Vienna State Treaty (Staatsvertrag)

of 15 May 1955, the Republic of Austria bound itself to maintain the

Act of 3 April 1919.

On 4 July 1963 a Constitutional Statute concerning the

authentic interpretation of the Act of 3 April 1919 was enacted.

According to this Statute, Section 2 of the 1919 Act was to be read as

follows:

[Translation]

"S. 2. In the interest of the security of the Republic the

former holders of the Crown and other members of the House

of Habsburg-Lothringen are banished from the country, if and

to the extent that they do not expressly renounce their

membership of this House and all sovereign rights emanating

therefrom. The determination whether or not this

declaration is to be regarded as sufficient falls to the

Federal Government who will consult with the Main Committee

of the National Council."

[German]

"§ 2. Im Interesse der Sicherheit der Republik werden der

ehemalige Träger der Krone und die sonstigen Mitglieder des

Hauses Habsburg-Lothringen, diese, soweit sie nicht auf

ihre Mitgliedschaft zu diesem Hause und auf alle aus ihr

gefolgerten Herrschaftsansprüche ausdrücklich verzichtet

und sich als getreue Staatsbürger der Republik bekannt

haben, des Landes verwiesen. Die Festsetzung, ob diese

Erklärung als ausreichend zu erkennen sei, steht der

Bundesregierung im Einvernehmen mit dem Hauptausschuß des

Nationalrates zu."

On 16 September 1963, when signing Protocol No. 4 to the

Convention, Austria made a declaration which also appears in the

instrument of ratification deposited on 18 September 1969 and which

reads as follows:

"Protocol No. 4 is signed with the reservation that

Article 3 shall not apply to the provisions of the Law of 3 April

1919, StGB1. No. 209 concerning the banishment of the House of

Habsburg-Lorraine and the confiscation of their property, as set

out in the Act of 30 October 1919, StGB1. No. 501, in the

Constitutional Law of 30 July 1925, BGB1. No. 292, in the Federal

Constitutional Law of 26 January 1928, BGB1. No. 30, and taking

account of the Federal Constitutional Law of 4 July 1963, BGB1.

No. 172."

II.

On 20 February 1990 the Austrian Embassy in Mexico issued the

first applicant with a passport. The passport states on page 4: "This

Passport is valid for all countries of the world". On page 6 under

the title "Reserved for the Authority" it is stated:

[Translation]

"Austrian Embassy

Mexico

'Not entitled to enter Austria and to travel through

Austria.'

Mexico, 20 February 1990".

[German]

"Österreichische Botschaft

Mexiko

'Berechtigt nicht zur Einreise nach Österreich und nicht zur

Durchreise durch Österreich.'

Mexiko, am 20. Februar 1990".

Upon the second applicant's inquiry he was informed by the

Austrian authorities that, if he applied for an Austrian passport, an

identical statement would be made therein.

COMPLAINTS

1. The applicants complain under Article 8 of the Convention,

taken alone and together with Article 14 of the Convention, that the

members of the House of Habsburg are the only Austrians prohibited

from entering Austria. The applicants submit that their present

application is not the same as Application No. 15344/89 (Carl Ludwig

and Lorenz Habsburg-Lothringen v. Austria, Dec. 14.12.89). It is also

submitted that there is no domestic remedy at their disposal to

complain about the passport statement.

The applicants allege a violation of their right to respect

for family life within the meaning of Article 8 in that, because of

their prohibition to enter Austria, they cannot visit a sister,

princess E., a nephew, various cousins as well as the family grave.

Furthermore, the applicants allege a violation of their right

to respect for private life within the meaning of Article 8. They

claim in particular that when such a passport is shown to a customs

officer, they may be subjected to degrading treatment. For instance,

they may have to spend hours or whole nights at the border answering

questions.

The applicants submit that these interferences with their

rights under Article 8 para. 1 of the Convention find no justification

under para. 2 of this provision.

2. Under Article 3 of the Convention, taken alone and together

with Article 14 of the Convention, the applicants submit that their

banishment from Austria, and the statement in the passport relating

thereto, amount to inhuman and degrading treatment.

3. Under Article 6 para. 1 of the Convention, taken alone and

together with Article 14 of the Convention, the applicants complain

that for seventy years they have been deprived of a right to appeal

(Rekursmöglichkeit).

THE LAW

1. The applicants complain under Articles 3, 6 para. 1 and 8

(Art. 3, 6-1, 8) of the Convention, taken alone and together with

Article 14 (Art. 14) of the Convention, of their prohibition to enter

Austria, as stated in the first applicant's passport.

2. The Commission considers that although only the first

applicant's passport contains the contested restriction, if the second

applicant applied for a passport, such a statement would also be

entered therein. In this respect therefore the Commission need not

distinguish between the applicants.

3. Article 27 para. 1 (b) (Art. 27-1-b) of the Convention

provides that the Commission shall not deal with any application

submitted under Article 25 (Art. 25) which is substantially the same

as a matter which has already been examined by the Commission and if

it contains no new information.

In the present case, the Commission notes that on 14 December

1989 it declared inadmissible as being manifestly ill-founded one part

of Application No. 15344/89. That part of the application concerned

the second applicant's complaints under Articles 8 and 14 (Art. 8, 14)

of the Convention of his banishment from Austria.

After examining the present application, the Commission

considers that, insofar as it concerns the second applicant's

complaints under Articles 8 and 14 (Art. 8, 14) of the Convention that

he is prevented from entering Austria, it is substantially the same as

the matter which has already been considered by the Commission in

Application No. 15344/89, and that in this respect the second

applicant has not produced any relevant new information.

It follows that this part of the second applicant's

application must be rejected pursuant to Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention.

4. Under Article 8 (Art. 8) of the Convention, taken alone and

together with Article 14 of the Convention, the first applicant

complains that his prohibition to enter Austria violates his right to

respect for his private and family life.

The Commission recalls its decision of 14 December 1989 in

Application No. 15344/89 in which it found:

"The Commission considers that the requirement,

stipulated in the Act of 3 October 1919, that members of the

House Habsburg-Lothringen should not be admitted to

Austria, unless they renounce their membership of that House

and all sovereign rights emanating therefrom, is consistent

with the constitutional status of Austria as a Republic.

Furthermore, the first applicant has not shown that there

exist effective and close family links, constituting family

life for the purposes of Article 8 (Art. 8) of the Convention, with

persons residing in Austria.

Insofar as the applicant may be understood as

complaining that the fact that he cannot visit his family

grave breaches his right to respect for private life within

the meaning of Article 8 (Art. 8), the Commission, even assuming that

an issue could arise in this respect, considers that, in the

circumstances of the present case, no lack of respect for

private life has been shown.

Accordingly, the Commission finds no lack of respect

for the first applicant's right to respect for his private

and family life within the meaning of Article 8 para. 1

(Art. 8-1) of the Convention. ...

4. Insofar as the applicant also complains under

Article 8 (Art. 8) taken together with Article 14 (Art. 14)

of the Convention, the Commission finds, for the reasons

given above, that the treatment which the applicant alleges

cannot amount to discrimination within the meaning of

Article 14 (Art. 14) of the Convention."

In the Commission's opinion these considerations apply equally

to the first applicant's complaints in the present case. This part of

the application is therefore manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention.

5. Insofar as the applicants further complain of a breach of

their right to respect for private life in that the entry in their

passports may give rise to degrading questioning, the Commission finds

that this cannot in itself constitute an interference with the

applicants' right to respect for private life within the meaning of

Article 8 (Art. 8) of the Convention. Insofar as the applicants, in

respect of this complaint, also invoke Article 8 (Art. 8) taken

together with Article 14 (Art. 14) of the Convention, the Commission

finds that the treatment which the applicants allege cannot amount to

discrimination within the meaning of Article 14 (Art. 14) of the

Convention. This part of the application is therefore manifestly

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

the Convention.

6. Under Article 3 (Art. 3) of the Convention, taken alone and together

with Article 14 (Art. 14), the applicants complain of the inhuman and

degrading treatment resulting from the entry in the first applicant's

passport.

However, the Commission finds that the situation of which the

applicants complain has not been shown to constitute a treatment the

effects of which are contrary to Article 3 (Art. 3) of the Convention, either

taken alone or together with Article 14 (Art. 14) of the Convention.

This part of the application is manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

7. The applicants complain under Article 6 para. 1

(Art. 6-1) of the Convention, taken alone and together with Article 14

(Art. 14) of the Convention, that they have no access to a court to

complain of the prohibition to enter Austria, as stated in the first

applicant's passport.

However, the Commission recalls its case-law according to

which a decision as to whether a person should be allowed to enter or

reside in a country does not involve either the determination of that

person's civil rights and obligations or of a criminal charge against

him within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention (see No. 8118/77, Dec. 19.3.81, D.R. 25 p. 105).

It follows that the applicants' complaints under Article 6

para. 1 and Article 14 (Art. 6-1, 14) of the Convention are

incompatible ratione materiae with the provisions of the Convention

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

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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HABSBURG-LOTHRINGEN v. AUSTRIA

HABSBURG-LOTHRINGEN v. AUSTRIA

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