CEDH · CASELAW;COMMUNICATEDCASES;ENG — 7 octobre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 28 October 2024   FOURTH SECTION Application no. 25374/24 Wolfram BOETTICHER against Austria lodged on 30 August 2024 communicated on 7 October 2024 SUBJECT MATTER OF THE CASE The application concerns a dispute surrounding the surname of the applicant, an Austrian national, following his request for the issuance of a new passport in the course of 2020. The historical and legal background to the surname is as follows: the applicant’s father, seemingly an Austrian national, was adopted in 1947 by a German national from whom he also received the surname (“von   Boetticher”). In 1956, the applicant was born in Austria. His surname was registered as “von Boetticher”. Also in 1956, the Austrian Ministry of the Interior issued a decision concerning the applicant’s (adoptive) grandmother, seemingly in the context of the grandmother acquiring Austrian citizenship. According to that decision, the grandmother, as a German national, had the right to bear the surname “von Boetticher” under German civil law. However, upon receiving Austrian citizenship, she would, as an Austrian national, only have the right to bear the surname “Boetticher”, but not “von Boetticher”. The decision explained this as an automatic consequence under the Abolition of Nobility Act of 1919 ( Adelshaufhebungsgesetz ), pursuant to which all former nobiliary particles had to be removed. On 11 February 1957 the Supreme Administrative Court ( Verwaltungsgerichtshof ) upheld the grandmother’s appeal and held that former German nobiliary particles were now parts of a civil surname and did not fall under the provisions of the Abolition of Nobility Act if the person concerned acquired Austrian citizenship after the entry into force of the Weimar Constitution (see also Künsberg Sarre v.   Austria , nos.   19475/20   and three others, § 31, 17 January 2023, where this decision of the Supreme Administrative Court is mentioned). The applicant has borne the surname “von Boetticher” since his birth in 1956. However, on 6 August 2020 the Braunau District Administrative Authority ( Bezirkshauptmannschaft ) issued a decision refusing the issuance of a new passport to the applicant with the surname “von Boetticher”, although the applicant had borne that surname already for 64 years and the Supreme Administrative Court had, in 1957, upheld his grandmother’s appeal to retain the prefix “von” in the surname. On 18   May 2021 the Regional Administrative Court of Upper Austria ( Landesverwaltungsgericht Oberösterreich ) dismissed the applicant’s appeal, and on 22 September 2021 the Constitutional Court ( Verfassungsgerichtshof ) declined to deal with the applicant’s complaint for lack of prospects of success. Upon an extraordinary appeal ( ausserordentliche Revision ) lodged by the applicant, the Supreme Administrative Court, on 13 February 2024, asked the applicant to submit a statement ( Stellungnahme ) as to why there would still be a legal interest in a decision in this matter, given that the applicant had in the meantime already received a passport with the surname “von Boetticher”. The applicant submitted that the issuing of the passport was a de facto official act without the character of a legal decision, and that the decision of the Braunau District Administrative Authority of 6 August 2020 would set a legal precedent which would legally bind the domestic authorities once the current passport would expire after ten years. Furthermore, the right to bear a name went beyond the issuance of a passport and concerned all of his private and public legal relationships, and these proceedings concerned not just the question of the passport but also his surname. He lastly referred again to the decision of the Supreme Administrative Court of 11 February 1957 which concerned his grandmother’s surname and also had, indirectly, a legal effect for him. On 11 April 2024 the Supreme Administrative Court dismissed the appeal on the grounds that there was no longer any legal interest in a decision. Consequently, a decision would have no practical but only theoretical significance. Under Article 8 of the Convention, the applicant complains of a disproportionate interference with his right to respect for his private and family life. Under Article 6 of the Convention, he further complains of a violation of his fair trial rights on account of the refusal to implement the 1957 decision by the Supreme Administrative Court, the legal effect of which also encompassed him. Under Article 14 of the Convention read in conjunction with Article 8, the applicant lastly complains of a discriminatory treatment in so far as other citizens were allowed to bear prefixes such as “von” or other similar prefixes like “van”, “de” and “von der”, without an objective justification and their names did not fall within the scope of the Abolition of Nobility Act. QUESTIONS TO THE PARTIES 1.     Has there been an interference with the applicant’s right to respect for his private and family life, within the meaning of Article   8 §   1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article   8 §   2 (see   Daróczy v. Hungary , no.   44378/05, §   34, 1 July 2008, and   Künsberg Sarre v. Austria , nos. 19475/20   and three others, §§ 65 and 67-73, 17   January 2023)? Was, in this context, the applicant’s individual situation properly assessed?   2.     Did the applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article   6 §   1 of the Convention? In particular, in the light of the decision of the Supreme Administrative Court of 11 February 1957, was the principle of execution of a final, binding judicial decision and/or the principle of res   judicata respected (see Scordino v. Italy (no. 1) [GC], no.   36813/97, §   196, ECHR   2006-V, and Sharxhi and Others v. Albania , no.   10613/16, §§   92 ‑ 93, 11   January 2018)? Furthermore, did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article   6 §   1 of the Convention? In particular, was the principle of legal certainty respected (see Guðmundur Andri Ástráðsson v.   Iceland [GC], no. 26374/18, §§ 237-38, 1   December 2020)?   3.     Has the applicant suffered discrimination in the enjoyment of his Convention right to bear a name under Article 8 of the Convention, contrary to Article 14 of the Convention? In particular, has the applicant been subjected to a difference in treatment in comparison to other Austrian citizens who bear other prefixes as a part of their surname? If so, was that difference in treatment objectively justified in the circumstances of the present case?