CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 avril 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        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:   <German>         "(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."         <English translation>         "(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)