Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15344/89

by Carl-Ludwig and Lorenz HABSBURG-LOTHRINGEN

against Austria

The European Commission of Human Rights sitting in private

on 14 December 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 30 July 1989

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

registered on 3 August 1989 under file No. 15344/89;

Having regard to the report provided for in Rule 40 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 1918, is a

banker residing in Brussels. He is a son of Charles, the last Emperor

of Austria. The second applicant, an Austrian citizen born in 1955,

is a banker residing at Arlesheim in Switzerland. He is a grandson of

the Emperor Charles. Before the Commission the applicants are

represented by Professor H. Golsong, a lawyer residing at Chevy Chase

in Maryland, United States, and Dr. 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 Habsburg-Lothringen (Gesetz

betreffend die Landesverweisung und die Übernahme des Vermögens des

Hauses Habsburg-Lothringen) was enacted. The relevant provisions of

this Act state (translation; German original appended as Annex I):

"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

deducting 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

Habsburg-Lothringen. On 4 July 1963 a Constitutional Statute

concerning the authentic interpretation of this Section was enacted

(see below, THE FACTS).

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 permanent entails in trust (Fideikommisse).

On 10 September 1919 the Allied Powers and the Republic of

Austria concluded the Treaty of St. Germain which states, insofar as

relevant:

"Section V. Protection of Minorities

Article 62

Austria undertakes that the stipulations contained in

this Section shall be recognised as fundamental laws, and that no

law, regulation or official action shall conflict or interfere

with these stipulations, nor shall any law, regulation or official

action prevail over them.

Article 63

Austria undertakes to assure full and complete protection

of life and liberty to all inhabitants of Austria without

distinction of birth, nationality, race or religion.

Article 66

All Austrian nationals shall be equal before the law and

shall enjoy the same civil and political rights without

distinction as to race, language or religion. ...

Article 67

Austrian nationals who belong to racial, religious or

linguistic minorities shall enjoy the same treatment and security

in law and in fact as the other Austrian nationals. ..."

In 1920 the Austrian Constitution (Bundesverfassungsgesetz)

was enacted. It was reenacted in 1929.

After a new Constitution had been enacted in 1934, by an Act

of 13 July 1935 (BGBl Nr. 299/1935) the family foundations of the

House Habsburg-Lothringen were reinstituted. Following a subsequent

Act of 14 March 1939 (Gesetzblatt für das Land Österreich Nr.

311/1939) repealing the Act of 1935 those 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 declares the validity of the

Act of 3 April 1919 as well as Section V of the Treaty of St. Germain

of 1919 quoted above. Section 60 para. 3 of the Constitution, which

concerns the election to the Office of the Federal President, states

that "members of reigning houses or of formerly regnant families are

excluded from eligibility" ("Ausgeschlossen von der Wählbarkeit sind

Mitglieder regierender Häuser oder solcher Familien, die ehemals

regiert haben.")

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

of 15 May 1955, the Republic of Austria bound herself 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; German original appended as Annex I):

"Section 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 (des Landes

verwiesen), 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."

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 5 April 1988 the first applicant filed an application with

the Austrian Constitutional Court (Verfassungsgerichtshof) in which he

requested the Court to declare unconstitutional the Act of 3 April

1919 as well as the reference thereto in Article 149 of the Austrian

Constitution, alternatively to declare unconstitutional Section 2,

parts of Section 5, paras. 2, 3 and 4 of Section 6, and Section 7 of

the 1919 Act. He also requested the Court to declare unconstitutional

Section 60 para. 3 of the Federal Constitution, Section 10 of the

State Treaty of 1955, and the reservation to Article 3 of Protocol

No. 4 to the Convention.

On 28 November 1988 the Constitutional Court rejected the

application as being inadmissible. The decision was served on the

first applicant on 30 January 1989. It states as follows

(translation; German original appended as Annex II):

"2.1 As the Constitutional Court has consistently held,

('individual') applications under Section 140 of the Federal

Constitution which do not ask for annulment of the 'entire

contents' or of 'particular' passages of the law alleged by the

applicant to be unconstitutional (Section 62 para. 1.1 of the

1953 Constitutional Court Act) or which do not contain a

'detailed' explanation of the arguments against the

constitutionality of the disputed statute (Section 62 para 1.2 of

the 1953 Constitutional Court Act) are not open to improvement

(Section 18 of the 1953 Constitutional Court Act) and are to be

dismissed as being inadmissible:

In order to comply with the strict formal requirements of

the first two sentences of Section 62 para. 1 of the 1953

Constitutional Court Act, not only must the disputed parts of the

law be clearly and precisely indicated ... but also the reasons

for the alleged unconstitutionality must be set out in detail and

in a verifiable manner (references).

2.2.1 Contrary to what is stated in the application, statutes

StGBl. 50/1919 and BGBl. 292/1928 which are cited in paragraph 1

(a) of the application and referred to in the related subsidiary

application, are not supplementary laws to the Habsburg Law but

an executive order of the Germano-Austrian State Office for the

War and Transitional Economy (from the year 1919) relating to the

lifting of restrictions on the fur trade and an order of the

Federal Minister for Trade and Commerce (from the year 1928)

concerning changes to the regulations on objects allowed to be

transported by rail on a conditional basis only. In these

respects alone, therefore, the application is incongruous,

contradictory and unsuitable for consideration on the merits.

Furthermore, the request that the Habsburg Law, Section 2 of

which is included in the Federal Constitution in its version of

4 July 1963, be declared unconstitutional [in its entirety or,

alternatively, in part] merely 'in consideration' of that Act,

is lacking in clarity.

2.2.2 In addition, para. 3 of the application requests the

annulment of Section 10 para. 2 of the State Treaty of Vienna,

para. 6 the annulment of the reservation in respect of Article 3

of Protocol No. 4 to the European Convention on Human Rights, and

paragraph 7 the annulment of the reservation in respect of

Article 12 para. 4 of the International Convenant on Civil and

Political Rights. However, it is clear from Section 140 of the

Federal Constitution in conjunction with Section 62 of the 1953

Constitutional Court Act and Section 140 (a) of the Federal

Constitutional Act in conjunction with Section 66 of the 1953

Constitutional Court Act that these provisions do not constitute

a suitable legal basis for such requests for annulment (concerning

state treaties) or for applications for a declaration of

inadmissibility [cf. the decision of 3 December 1986, G 92-94/86,

obtained by the applicant]. The application is therefore

inadmissible in these respects too.

2.2.3 Yet neither does para. 5 of the ('individual')

application comply with the indispensable formal requirements of

Section 62 para. 1 of the 1953 Constitutional Court Act. The

applicant alleges that Section 7 (b) of the Foundation and Fund

Reorganisation Act, BGBl. 197/1954, violates the constitutional

right of all citizens to equality before the law and the property

guarantee in Section 5 of the Basic Constitutional Law, but since

no reasons are given for this allegation, there is no detailed

explanation of the arguments under constitutional law as required

by Section 62 para. 1 of the 1953 Constitutional Court Act.

2.2.4 A necessary primary requirement - which is not

satisfied here - of an ('individual') application for annulment

of constitutional laws of the Federation whose constitutionality

is disputed in accordance with the rules of Section 44 para. 3 of

the Federal Constitution is, formally at least, the conclusive

assertion of a 'modification' of the Federal Constitution. That

is lacking in this case because Section 60 para. 3.2 of the

Federal Constitution and the reference to the Habsburg Law in

Section 149 para. 1 of the Federal Constitution, as well as

Section 44 para. 3 of the Federal Constitution, were, as regards

content, already part of the original version of the Federal

Constitution from the year 1920. Logically, individual

provisions of the Federal Constitution cannot be measured against

the rule in Section 44 of the Act, which was created at the same

time and can only be of significance for future 'modifications'

(of the Constitution). Neither is the ('individual') application

founded on a modification of the Federal Constitution (here

Section 149 of the Federal Constitution) when it seeks to have

Section II of Constitutional Act BGBl. 390/1963 annulled because

that Act leaves the Habsburg Law (referred to in Section 149 of

the Federal Constitution) expressly untouched.

2.3.1 The application therefore exhibited defects with regard

to its content which were not open to any improvement and,

consequently, was to be dismissed as being inadmissible.

2.3.2 Pursuant to Section 19 para. 3.2.c of the 1953

Constitutional Court Act, which applies by analogy, this decision

was reached without further proceedings at a non-public sitting."

Section 44 para. 3 of the Austrian Constitution mentioned in

para. 2.2.4 of this decision refers to the procedure for a total or

partial revision of the Constitution, namely involving Parliament, the

President and a vote by the electorate.

COMPLAINTS

1. The applicants submit under Article 3 of the Convention,

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

laws complained of make a distinction according to the applicants'

origin and that their aim is therefore degrading within the meaning of

Article 3.

2. Under Article 6 of the Convention, taken alone and together

with Article 14, they also complain that in their case no Austrian

court can deal with the prohibition to run for the Office of Federal

President. The first applicant also complains under these provisions

that no Court can deal with the expropriation of property.

3. The first applicant furthermore complains under Article 8,

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

banishment constitutes an interference with his private and family

life. In particular, he has no possibility, for instance, to visit

his family grave. The applicant submits in this respect that this

interference is not "in accordance with the law" within the meaning

of Article 8 para. 2 of the Convention in that the Act of 3 April 1919

runs counter to Articles 62 et seq. of the 1919 Treaty of St. Germain

which prohibits such discrimination. Moreover, there is no pressing

social need for the measures at issue.

4. Under Article 13 of the Convention, taken alone and together

with Article 14, the applicants complain, in addition, that in Austria

there is no effective remedy at their disposal to complain of the

alleged violations of the Convention.

5. Under Article 1 of Protocol No. 1, taken alone and together

with Article 14 of the Convention, the first applicant complains of

the expropriation of property which was not followed by a prompt,

adequate and effective compensation. In this respect the first

applicant points out that he is daily affected by the consequences of

this expropriation.

6. Under Article 3 of Protocol No. 1, taken alone and together

with Article 14 of the Convention, both applicants moreover complain

that they are excluded from the Office of Federal President who has

legislative functions in that he signs and issues (ausfertigen) the

laws.

7. Under Article 3 of Protocol No. 4, taken alone and together

with Article 14, the first applicant complains that he has been

deprived of his right as Austrian citizen to enter Austria. He

submits that because the Act of 3 April 1919 contradicts the 1919

Treaty of St. Germain, the Austrian reservation to Article 3 of

Protocol No. 4 does not comply with the requirements of Article 64 of

the Convention.

THE LAW

1. The applicants complain under Article 6 para. 1 (Art. 6-1) of

the Convention that in their case no Austrian court can deal with the

prohibition to run for the Office of Federal President. The first

applicant also complains under this provision that no court can deal

with the expropriation of property.

Article 6 para. 1 (Art. 6-1) of the Convention provides,

insofar as it is relevant:

"In the determination of his civil rights and

obligations ... everyone is entitled to a fair and

public hearing ... by an independent and impartial

tribunal established by law."

According to the Convention organs' case-law this provision

guarantees to everyone, who claims that an interference by a public

authority with his "civil rights" is unlawful, the right to submit

that claim to a tribunal meeting the requirements of Article 6 para. 1

(Art. 6-1) (see Eur. Court H.R., Le Compte, Van Leuven and De Meyere

judgment of 23 June 1981, Series A No. 43, p. 20 para. 44).

However, the question arises whether the proceedings the

applicants sought to bring involved the determination of "civil

rights" within the meaning of this provision. According to the

established case-law of the organs of the Convention, Article 6 para.

1 (Art. 6-1) of the Convention will not be applicable in this case

unless three conditions are satisfied: there must be, at least on

arguable grounds, a right in issue, the right in issue must be the

object of a "contestation" (dispute), and it must be "civil" (see Eur.

Court H.R., W. judgment of 8 July 1987, Series A no. 121, p. 34 et

seq., paras. 77 et seq.).

With regard to the issue of expropriation of the property of

the House Habsburg-Lothringen, the Commission notes that the Austrian

legislation in question, namely the Act of 3 April 1919, does not

recognise a right entitling the applicants to compensation. In this

respect, therefore, the first applicant's claim cannot be considered a

"civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

The Commission furthermore considers that a prohibition to run

for the Office of Federal President does not concern "civil rights" as

envisaged by Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

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

2. The first applicant complains under Article 1 of Protocol No.

1 (P1-1) to the Convention of the expropriation of property which was

not followed by a prompt, adequate and effective compensation. He

submits that he is still affected by the consequences of the

expropriation.

Article 1 of Protocol No. 1 (P1-1) states:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it deems

necessary to control the use of property in accordance with the

general interest or to secure the payment of taxes or other

contributions or penalties."

The Commission considers that the expropriation at issue

occurred on the basis of the Act of 3 April 1919. However, the

property rights were reinstituted in 1935, though they were

transferred to the German Reich in 1939. On 1 May 1945 the Austrian

Constitution of 1929 again became effective which in Section 149

declares the validity of the Act of 3 April 1919. On 15 May 1955

Austria bound herself in the State Treaty to maintain the Act of

3 April 1919.

Thus, whichever of these dates is to be regarded as the date

of expropriation, each of them precedes 3 September 1958, the date of

the ratification and entry into force of the Convention with respect

to Austria. However, in accordance with the generally recognised

rules of international law, the Convention only governs, for each

Contracting Party, facts subsequent to its entry into force with

respect to that Party.

It follows that the examination of this part of the

application is outside the competence of the Commission ratione

temporis.

3. Both applicants further complain that they are excluded from

the Office of Federal President. They rely on Article 3 of Protocol

No. 1 (P1-3) which states:

"The High Contracting Parties undertake to hold free elections

at reasonable intervals by secret ballot, under conditions which

will ensure the free expression of the opinion of the people in

the choice of the legislature."

The Commission notes that this provision concerns "the choice

of the legislature" and not the appointment of a Head of State, such

as the Federal President of Austria. It follows that in this respect

the application is incompatible ratione materiae with the provisions

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

of the Convention.

4. Under Article 3 of Protocol No. 4 (P4-3) to the Convention the

first applicant complains that he has been deprived of his right as an

Austrian citizen to enter Austria. He submits that the Austrian

reservation to Article 3 of Protocol No. 4 (P4-3) (quoted above in THE

FACTS) is invalid in that it contradicts the 1919 Treaty of St.

Germain.

Article 3 of Protocol No. 4 (P4-3) states:

"1. No one shall be expelled, by means either of an

individual or of a collective measure, from the territory of

the State of which he is a national.

2. No one shall be deprived of the right to enter the

territory of the State of which he is a national."

The Commission notes that the condition for the validity of a

reservation to the Convention or its Protocols are laid down in

Article 64 (Art. 64) of the Convention, which provides in particular that a

reservation must relate to a "law then in force", that it shall not be

of a "general character" and that it shall "contain a brief statement

of the law concerned."

The Commission however finds that the Austrian reservation, by

referring to the Act of 3 April 1919 which was in force at the time

the reservation was made, is sufficiently precise and states the law

concerned.

It follows that also in this respect the application is

incompatible ratione materiae with the provisions of the Convention

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

5. The applicants further submit that in respect of all the above

complaints they have been discriminated against contrary to Article 14

(Art. 14) of the Convention. This provision provides:

"The enjoyment of the rights and freedoms set forth in

this Convention shall be secured without discrimination

on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social

origin, association with a national minority, property,

birth or other status."

The Commission recalls that Article 14 (Art. 14) concerns only

discrimination in relation to rights and freedoms guaranteed by the

Convention and its Protocols. However, the Commission has just found

that the various rights invoked by the applicants fall outside the

scope of the Convention ratione temporis or ratione materiae.

Therefore, the above complaint under Article 14 (Art. 14) is

incompatible ratione materiae with the provisions of the Convention

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

6. Both applicants complain under Article 3 (Art. 3) of the

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

Convention, that the laws complained of make a distinction according

to the applicant's family origin and that their aim is therefore

degrading within the meaning of Article 3. This provision states:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

However, the Commission finds that the situation of which the

applicants complain has not been shown to constitute a distinction

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

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

It follows that this complaint is manifestly ill-founded

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

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

together with Article 14 of the Convention, the first applicant also

complains that the banishment from Austria interferes with his private

and family life. In particular, he has no possibility, for instance,

to visit his family or his family grave. Article 8 (Art. 8) of the

Convention 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."

The Commission considers that the requirement, stipulated in

the Act of 3 April 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.

This part of the application is therefore manifestly ill-founded

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

Convention.

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. It follows that in

this respect the application is again manifestly ill-founded within

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

8. The applicants submit under Article 13 (Art. 13) of the

Convention, taken alone and together with Article 14 (Art. 14), that

in Austria there is no effective remedy at their disposal to complain

of the alleged violations of other provisions of the Convention.

Article 13 (Art. 13) provides:

"Everyone whose rights and freedoms as set forth in

this Convention are violated shall have an effective

remedy before a national authority notwithstanding that

the violation has been committed by persons acting in an

official capacity."

The Commission notes that the applicants' complaints are in

fact directed against an act of legislation, namely the 1919

Habsburg-Lothringen Act. However, according to the Commission's

case-law Article 13 (Art. 13) of the Convention does not guarantee a

remedy by which legislation can be controlled as to its conformity

with the Convention (see Young, James and Webster v. United Kingdom,

Comm. Report 14.12.79, Eur. Court H.R., Series B no. 39, p. 49 para.

177). The Commission furthermore finds no issue under Article 13,

(Art. 13) taken together with Article 14 (Art. 14) of the Convention.

It follows that the remainder of the application is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission

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