Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17517/90

by 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 20 September 1990

by Carl-Ludwig HABSBURG-LOTHRINGEN against Austria and registered on

4 December 1990 under file No. 17517/90;

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 applicant, may be

summarised as follows.

The applicant, an Austrian citizen born in 1918, resides in

Brussels. He is a son of Charles, the last Emperor of Austria.

Before the Commission he is represented by Mr. W. Bitschnau, a lawyer

practising at Bludenz in Austria.

The present case concerns family and grandparents foundations

(Familienversorgungs- und Avitikalenfonds) of the House of

Habsburg-Lothringen which were established by Empress Maria Theresia.

The foundations included real property and bonds. Their regulations

were issued in 1839.

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. The relevant

provisions of this Act state (translation; German original appended as

Annex):

"Section 5

The Republic of Austria is the proprietor of the

entire movable and immovable property on its territory of the

Court treasury as well as properties tied to the previously

reigning House or a branch thereof.

Section 7

(1) The net yield of the property which falls to the

Republic of Austria according to this Statute must be

employed, after deduction of all costs connected with the

transfer of the property or which arise for the State on

account of this transfer, for the welfare of citizens whose

health has been damaged, or who have been deprived of their

breadwinner, in the World War..."

Section 2 concerns the banishment of the members of the House

of Habsburg-Lothringen.

Paras. 2, 3 and 4 of Section 6 define the tied property

referred to in Section 5 as being, inter alia, family foundations

(Familienfonds) and perpetual entails in trust (Fideikommisse).

In 1920 the Austrian Constitution (Bundesverfassung) was

enacted. It was reenacted in 1929. After a new Constitution was

again adopted in 1934, the family foundations of the House of

Habsburg-Lothringen were reinstituted in 1936 by an Act of 13 July

1935 (BGBl Nr. 299/1935). The applicant's eldest brother, O., became

their representative and head of the foundations.

Following a subsequent Act of 14 March 1939 (Gesetzblatt für

das Land Österreich Nr. 311/1939) repealing the Act of 1935, the

family foundation rights of the House were transferred to the German

Reich.

By virtue of Constitutional Statute (Verfassungs-

Ãœberleitungsgesetz) of 1 May 1945 the Austrian Constitution of 1920

was reenacted in the form of 1929. Section 149 of the Constitution

confirms the validity of the Act of 3 April 1919.

On 6 July 1954 the Federal Act concerning measures in matters

of trusts and foundations (Bundesgesetz betreffend Maßnahmen auf dem

Gebiet des Stiftungs- und Fondswesens) was enacted. It provides for

resumption of the legal personality of foundations which were

dissolved between 1938 and 1945. However, according to Section 7 of

the Act, in the case of foundations which were dissolved by Statute

("durch Gesetz"), the Republic of Austria is entitled to raise claims

concerning the transfer of fortune.

As a result of the 1954 Act, the Republic of Austria decreed

on 19 November 1954 that the real property which had been transferred

to the Habsburg family foundations after 1936 fell back to the

Republic (Rückstellung).

In Article 10 para. 2 of the Vienna State Treaty

(Staatsvertrag) of 15 May 1955, the Republic of Austria undertook to

maintain the Act of 3 April 1919.

II.

On 10 August 1985 the applicant's eldest brother O.

transferred the rights and duties of his function as head of the

family foundations to the applicant.

On 21 March 1989 the applicant requested the Constitutional

Court (Verfassungsgerichtshof) to quash as unconstitutional provisions

of various laws, inter alia of the Acts of 3 April 1919 and 6 July 1954.

On 29 November 1989 the Constitutional Court rejected the

request as being inadmissible, inter alia as the 1919 Habsburg Act

which had obtained constitutional force together with Section 149 of

the Constitution, could not be assessed on the basis of other

constitutional rules which were created in the same constitutional

act.

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1,

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

dissolution of the family foundations since 1939 constitutes a

deprivation of the property of the family. The Austrian Republic

obtained this result by determining in the Act of 6 July 1954 that the

Republic itself was entitled to raise claims, rather than the head of

the foundations. As a result, the Habsburg family is completely

excluded from the family foundations, without having obtained compensation

herefor. The effects of this expropriation exist to this day.

THE LAW

The applicant complains under Article 1 of Protocol No. 1

(P1-1), taken alone and together with Article 14 (Art. 14) of the

Convention, of the dissolution of the family foundations. The

Habsburg family is excluded from the benefits therefrom without having

obtained compensation. The applicant submits that he is still

affected by the consequences thereof.

However, 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 one part of Application No. 15344/89 as

being outside the competence of the Commission ratione temporis. That

part of the application also concerned the applicant's complaints

under Article 1 of Protocol No. 1 and Article 14 (P1-1, Art. 14) of the

Convention that the dissolution of the family foundations of the House

of Habsburg-Lothringen amounted to an expropriation of his property

which was not followed by a prompt, adequate and effective

compensation.

After examining the present application, the Commission

considers that it concerns the applicant's complaints under Article 1

of Protocol No. 1 and Article 14 (P1-1, Art. 14) of the Convention

that the dissolution of the family foundations of the House of

Habsburg- Lothringen amounted to an expropriation of property without

compensation having been obtained. The Commission thus finds that the

present application is substantially the same as the matter which has

already been considered by the Commission in Application No. 15344/89,

and that the applicant has not produced any relevant new information.

It follows that the application must be rejected pursuant to

Article 27 para. 1 (b) (Art. 27-1-b) 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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