AS TO THE ADMISSIBILITY OF
Application No. 14477/88
by F.B.
against Austria
The European Commission of Human Rights sitting in private on
10 September 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
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
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 October 1988 by
F.B. against Austria and registered on 15 December 1988 under file No.
14477/88;
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, born in 1928, is an Austrian national and claims to
have acquired the citizenship of Belize. When lodging his application,
he was resident in Costa Rica. In the beginning of 1992 he moved to
Nicaragua.
A. The particular circumstances of the case
The applicant's first wife died in December 1981. The applicant
inherited her farm valued at some 15 million AS. However, he had
difficulties to run the farm properly by himself. In accordance with his
late wife's wishes he sought to marry again. He met A.M., an innkeeper
in Wels, who then divorced her former husband. She married the applicant
on 20 January 1983.
On the same day the applicant's brother applied to the Wels District
Court (Bezirksgericht) for the applicant's partial legal incapacitation
(beschränkte Entmündigung). He claimed that the applicant was mentally
deficient (geistesschwach) and incapable of making reasonable decisions.
His new wife had married him only to get hold of his property part of
which had already been transferred to her.
On 20 January 1983, apparently some hours after the marriage, the
District Court appointed his brother as provisional guardian (vorläufiger
Beistand) and ordered this to be recorded in the official land register.
The applicant was not heard before this decision.
On 3 February 1983 the applicant appeared at the Wels District
Court. In presence of a Judge, he stated that on 2 February 1983 he had
left his wife and moved to a friend, because his wife had treated him
badly, and because he was afraid of her and her ex-husband. He also
mentioned that his wife had talked him into signing a sales order in
respect of his real property, and a contract with a view to purchasing
a restaurant in Linz. She had been nice to him and had helped him on the
farm as long as they had not yet been married. After their marriage she
had no longer been interested in running a farm. He further referred to
his school education, his driving licence and shooting licence and stated
that he did not consider himself to be mentally ill, or of low
intelligence or education, nor lavish. He also mentioned how he had
become acquainted with his second wife, and that he intended to institute
proceedings to have his marriage annulled.
This record was followed by a file note according to which the Judge
concerned did not have the impression that the applicant was mentally
ill. Rather he had been fully orientated, responsive, open-minded, and
he had properly answered questions. His intelligence and general
education appeared to be normal. However, the applicant had also been
tearful and helpless, and he had stated that he could not refuse
anything.
On 18 February 1983 the applicant's brother informed the Wels
District Court that he had appointed Mr. G. to assist him in his duties
as provisional guardian.
On 21 February 1983 the applicant appeared at the Wels District
Court and stated that his wife had attempted to induce him to sign
irrevocable mandates concerning the sale of his property but that he had
refused. He deposited the mandates at the Court and also complained
about the illicit behaviour of his wife.
On 24 March 1983 the Wels District Court placed the applicant under
guardianship (beschränkte Entmündigung). The Court had in particular
regard to a psychiatric expert opinion of 17 March 1983, according to
which the applicant, due to lack of intelligence, light signs of senility
and deficiencies in his personality, was not capable of managing complex
situations and to take difficult decisions.
On 21 April 1983 the applicant, assisted by counsel K., lodged an
appeal (Rekurs) against the decision of 24 March 1983.
On 26 April 1983 the applicant again appeared at the Wels District
Court. He withdrew his counsel's power of attorney and his appeal of 21
April 1983. He explained that his wife had talked him into signing the
power of attorney, and that his wife had instructed the counsel to lodge
the said appeal. In a decision of 26 April 1983 the District Court noted
that the applicant had withdrawn his appeal.
On 28 April 1983 the Wels District Court appointed Mr. G. as the
applicant's guardian.
On 19 May 1983 the applicant, again represented by counsel K.,
lodged an appeal against the decision of 26 April 1983, which was
dismissed on 17 August 1983. The applicant, represented by Mr. K.,
lodged an appeal on points of law (Revisionsrekurs). He subsequently
appointed counsel O. who withdrew the appeal on points of law.
Due to appeals brought by the applicant's wife, the decision on the
applicant's placement under guardianship had not acquired binding force,
when new legislation on guardianship matters entered into force, and the
guardianship proceedings concerning the applicant had to be continued in
first instance.
On 12 October 1984 the Wels District Court appointed a guardian
(Sachwalter) for the applicant under Section 273 para. 3 (2) of the Civil
Code (Allgemeines Bürgerliches Gesetzbuch) as amended by the Act on
Guardianship for Handicapped Persons (Sachwaltergesetz), which had
entered into force in July 1984. The guardian was entrusted with the
task of managing the following matters for the applicant: administration
of his property, financial transactions, conduct of court and
administrative proceedings, conclusion of leases, issuing of mandates and
powers of attorney. The applicant remained free to dispose of his
working income and money left to him by the guardian. The Court
appointed counsel G. as guardian.
The District Court found in particular that, in the course of the
applicant's first marriage, his late wife had taken all decisions in
managing their farm whereas he had only worked in accordance with her
instructions. The applicant had an insufficient school education and had
always had an intelligence below normal. He had been completely helpless
after the death of his first wife and run the farm down. The farm house
had became uninhabitable, and he had lived for months with
neighbours. In 1982 several estate agents, cattle-dealers and other
businessmen had attempted to take advantage of the applicant's
helplessness. The applicant had given various sales mandates and revoked
them shortly afterwards.
The District Court further noted that the applicant had then met
A.M. who was still married at that time. She had promised to assist him
in running the farm, got divorced by mutual consent and married him on
20 January 1983. The Court referred in detail to the difficulties which
the applicant had encountered with his second wife after their marriage:
her disinterest in agriculture, her intentions to sell his property and
purchase a restaurant, her refusal of sexual intercourse, unauthorised
dispositions concerning his property, renting of a flat in town from her
former husband against the applicant's will.
As regards the applicant's state of mental health, the District
Court relied in particular on the report of a psychiatric expert
Prof. H., according to which the applicant was not mentally ill, but
suffered from a mental deficiency in the form of low intelligence,
extremely good nature and irresolution, making him unfit for reasonable
economic decisions. The Court noted that the applicant himself had
accepted the necessity of a guardian in respect of important legal
transactions.
The District Court expected numerous lawsuits of the applicant with
his wife (challenge of the validity of the marriage and of the legitimate
birth of a child, contestation of property transfers and assertion of
financial claims) and third parties (concerning property transactions
which the applicant had concluded with them). For this reason it
considered it appropriate, despite the high costs, to appoint a
practising lawyer as guardian.
On 20 May 1985 the Wels Regional Court (Landesgericht) dismissed the
applicant's appeal against the District Court's decision of 12 October
1984.
The Regional Court, having further investigated and in particular
heard the applicant, his wife and a second psychiatric expert, Prof. L.,
noted that in the meantime criminal proceedings had been instituted
against the applicant's wife and her former husband, against the latter
inter alia on a charge of fraudulent conversion to the applicant's
disadvantage. Furthermore, in October 1983 the applicant, assisted by
his provisional guardian, counsel O., had instituted proceedings to
disclaim paternity in respect of a child born in wedlock on 4 September
1983. Counsel O. had withdrawn this action in March 1984. On 17 July
1984 the applicant had appeared in court and asked about the state of the
proceedings. He had declared that he could not remember to have given
counsel O. power of attorney, and had not known that the action had been
withdrawn. He had wished to pursue the proceedings, and withdrawn the
power of attorney on the ground that he suspected counsel O. of serving
his wife's interests. Some days later he had again instructed counsel
O.
The Regional Court considered that the applicant's state of mind had
deteriorated since his examination in the course of the first instance
proceedings. Due to a lack of intellectual stimulation, he had become
hit by atrophy. Moreover, there were signs of a beginning paranoia. The
applicant was thus suffering from a mental deficiency
within the meaning of S. 273 of the Civil Code requiring the appointment
of a guardian for the administration of his property, which could not be
properly carried out by members of his family.
On 11 December 1985 the Austrian Supreme Court (Oberster
Gerichtshof) rejected the applicant's appeal on points of law (außer-
ordentlicher Revisionsrekurs). The Supreme Court considered that the
applicant, who was represented by counsel, had failed to show that the
Regional Court decision was manifestly wrong from a factual or legal
point of view within the meaning of S. 16 of the Non-Contentious
Proceedings Act (Außerstreitgesetz). In particular, both lower courts
had duly considered that only a lawyer could properly administer the
applicant's property. Furthermore, the Regional Court had rightly
refused to hear witnesses as to the question of the applicant's mental
health, as it had assumed that the applicant was not mentally ill and had
based its findings in this respect on an expert opinion.
Meanwhile, on 23 September 1985 the Wels District Court had
authorised the guardian to bring an action on behalf of the applicant
against his wife to have his marriage declared null and void
(Ehenichtigerklärungsverfahren). The decision was confirmed by the Wels
Regional Court on 30 October 1985. In these proceedings the applicant
is represented by counsel H.
On 1 October 1986 the Wels District Court dismissed the applicant's
request of 24 September 1986 to have his guardianship terminated. The
District Court noted that the request of 24 September 1986 had been
formulated by the applicant's wife and only signed by himself. The
District Court, having heard the applicant, considered that his state of
mental health had not improved. Referring to the sale of a tractor by
the applicant in November 1985, it found that the applicant was still
acting to his detriment and needed a guardian in order to take care of
his financial matters. The District Court further noted that the
applicant, pending divorce proceedings with his wife, had moved to a
friend. On 21 September 1986 his wife had told the local police
authorities that the applicant was unlawfully detained. When the police
visited the applicant, he saw his wife and left with her. On 23
September 1986 he had made his will in presence of a notary and disposed
that his wife and her daughter should be sole heirs. The District Court
considered that the notary's statement that the applicant had made his
will in presence of mind and free of coercion, fraud and a relevant
error, did not show that he was in fact no longer suffering from mental
deficiencies.
According to two private psychiatric expert opinions of 13 and 22
October 1986 the applicant was not suffering from a mental illness
necessitating his placement under guardianship.
On 30 July 1987 the applicant declared that he wished to renounce
his Austrian nationality on the ground that he intended to move to Costa
Rica.
Subsequently he moved together with his wife and children to Costa
Rica.
On 12 December 1987 the Wels District Court rejected the request,
brought by the applicant's wife, to terminate the applicant's placement
under guardianship. Her appeal with the Wels Regional Court was to no
avail.
In April 1988 the applicant's guardian, authorised by the competent
guardianship court, visited the applicant in Costa Rica in order to
discuss his situation. The guardian, in his report dated 11 May 1988,
stated in detail the circumstances of this visit and the applicant's
living conditions. He mentioned the applicant's statement that he would
like not to be bothered any longer by his wife and to be divorced as soon
as possible; that he would like to have a home in Austria and live some
months of the year in Costa Rica; that he had wished to return to
Austria. In this respect, the guardian observed that it was difficult
to get the applicant's lost passport replaced as well as to get a flight
for him immediately.
On 1 July 1988 the Wels District Court rejected various requests
lodged by the applicant, represented by his wife, concerning in
particular financial matters and proceedings to have the applicant's
marriage declared null and void. In this respect, the Court found that
the applicant had not been in a position validly to appoint his wife as
representative concerning matters covered by the guardianship order.
Furthermore, the District Court considered that the submissions of the
applicant's wife did not necessitate that any measures be taken ex
officio. In particular, the Court, referring to its decision of
23 September 1985, confirmed by the Wels Regional Court, found that the
applicant's wife had failed to show that the conduct of proceedings to
have their marriage declared null and void was not in the applicant's
interest.
Moreover, the District Court dismissed the request that the
applicant's placement under guardianship be terminated. It considered
that the applicant could give authority to his wife as chosen
representative as regards this request in accordance with SS. 238 para.
1, 251 of the Non-Contentious Proceedings Act (Außerstreitgesetz).
However, the submissions of the applicant's wife did not contain any new
relevant information justifying the conclusion that he was no longer
suffering from a mental disorder. The applicant's wife rather disputed
the assessment of evidence in the first set of proceedings, where the
private expert opinions referred to had already been taken into account.
On 5 August 1988 the applicant and his wife were granted the
nationality of Belize. The applicant's guardian refused to consent to
the applicant's change of nationality. The Austrian authorities
recognised that the applicant's wife had lost her Austrian nationality.
On 7 October 1988 the Wels District Court rejected the applicant's
application for consent to his change of nationality, for termination of
guardianship and return of his property.
The District Court noted that these requests had been brought by the
applicant's wife and a lawyer on the applicant's behalf. However, having
regard to the applicant's placement under guardianship, he could not
appoint any legal representative. On the basis of these requests, the
Court nevertheless considered whether or not any decisions were to be
taken ex officio.
In particular, the District Court confirmed the refusal of the
applicant's guardian to authorise his change of nationality. It found
that a loss of the applicant's Austrian nationality would be dangerous
and detrimental to him. He had expressed the wish to live in Costa Rica,
where the nationality of Belize would be of no advantage to him.
Because of his mental deficiencies and lack of will-power, the applicant
had apparently not understood the disadvantages of a loss of his Austrian
nationality and his stay in Central America, i.e. the loss of his
farmer's pension and of his protection by the Austrian authorities
including the Austrian guardianship court. Because of his origin,
education and previous life the applicant was "not a person made to be
a citizen of a small Central American State".
On 18 October 1988 the Wels District Court addressed a letter to the
authorities of Costa Rica, under cover of the Austrian Consul-General in
Costa Rica, with a request to provide for the applicant's return to
Austria. Referring to the applicant's placement under guardianship, the
District Court stated that the applicant mainly needed protection against
his wife. In July 1987 she had taken the applicant to Costa Rica and
left him there without money, passport and return-ticket. On the
occasion of the guardian's visit to Costa Rica, the applicant had
complained about his wife and wished to return to Austria. For his
return, he had to await the delivery of a new Austrian passport. The
letter continued that on 16 May 1988 the applicant had returned to his
wife in Austria but had not appeared before the District Court, nor seen
his guardian. She had travelled back to Costa Rica with him in July
1988, and had brought him to a psychiatric hospital from where the
applicant had been able to escape in October 1988. He had contacted the
Consul-General and asked for help to return to Austria. The Consul-
General had then lost contact with the applicant.
On 11 November 1988 Costa Rican authorities brought the applicant
to a hotel with a view to his return to Austria. On 14 November 1988 the
applicant, in presence of officials of the Costa Rican Immigration Office
(Migracion), signed an affidavit (declaracion jurada - eidesstattliche
Erklärung) in Spanish. According to the wording of the affidavit, it was
translated for the applicant into German by the Austrian Consul-General.
According to this affidavit, the applicant wished to return to Austria.
He had accepted the decision of the Immigration Office that his stay in
Costa Rica was illegal and that he had to leave within twenty-four hours.
He declared that since 11 November he had been staying voluntarily in a
hotel where he was protected by the Immigration Office. He intended to
leave Costa Rica on 15 November 1988. In his submissions to the
Commission the applicant claims that he could not understand the document
in question as it was in Spanish. It appears that he returned to Austria
on 16 November 1988; on 10 December 1988 he again flew to Costa Rica.
On 11 January 1989 Austrian Administrative Court (Verwaltungs-
gerichtshof) rejected the applicant complaint of 28 August 1988
challenging the inactivity of the Upper Austrian Provincial Government
(Landesregierung) concerning his application to be released from Austrian
nationality on the ground that the complaint had not been authorised by
his guardian. It found that, having been placed under guardianship, he
could not validly lodge such a complaint nor instruct a lawyer to this
end.
On 10 April 1989 the Government of Upper Austria ruled that the
applicant had not lost the Austrian nationality because his acquisition
of the nationality of Belize had not been authorised by his guardian.
Complaints against this decision were rejected on 20 September 1989 by
the Administrative Court and on 26 September 1989 by the Constitutional
Court (Verfassungsgerichtshof) as they had not been authorised by the
guardian.
The Government submit that in the night from 10 to 11 August 1989
the court files concerning the applicant's guardianship proceedings were
stolen at the Wels District Court. An acquaintance, Mr. Steger (see also
below, Proceedings before the Commission), was suspected of having
committed this offence, and an international search was started. The
original was not returned. The applicant confirms that he is in
possession of the files.
It appears that in September 1989, in the context of these events,
the Costa Rican authorities, on the basis of a request from Interpol,
prohibited the applicant's wife and Mr. Steger from leaving that country.
On 18 October 1989 the Constitutional Court of Costa Rica (sala
constitucional) declared these measures unlawful. Apparently, the
authorities did not comply with this judgment. When in March 1990
Mr. Steger intended to get his and the applicant's passports from the
Costa Rican authorities in question, exit visas had not been entered.
On 13 April 1990 the Constitutional Court of Costa Rica declared that
these further measures constituted an unlawful infringement of their
right to freedom of movement. Meanwhile, on 22 March 1990 Mr. Steger,
inter alia on behalf of the applicant, lodged a complaint against Costa
Rica with the Inter-American Commission of Human Rights; these
proceedings were still pending in January 1991.
On 22 February 1990 the Wels District Court dismissed the
applicant's request of 26 November 1989 for termination of his placement
under guardianship.
On 14 August 1991 the Wels District Court dismissed various
complaints and requests lodged by the applicant. As regards the
applicant's complaints about his guardian, in particular the allegedly
belated payment of his monthly allowance, the District Court found that
the applicant's guardian had sent him non-negotiable cheques of an amount
of 2,000 US-Dollars via air mail to Costa Rica and at the same time
transferred the amount to the applicant's bank in Costa Rica. The
applicant had failed to show any negligence on the part of his guardian
in paying the allowances to him. Thus there was no reason to appoint
another guardian. With regard to the applicant's renewed requests to
terminate his placement under guardianship, the Court observed that such
a decision presupposed a considerable improvement of the applicant's
mental state. A new expert opinion on this question, ordered by the
District Court, and the applicant's personal appearance at Court would
be necessary.
The applicant's and his wife's requests to institute criminal
proceedings against the guardian and judges involved in his case for
fraud, misuse of powers and forgery of the court files remained
unsuccessful.
In the proceedings before the Commission, the applicant submits
that, in the proceedings to have his marriage declared null and void, a
judgment was passed in August 1989, and that he was not served a copy of
this judgment. The Government state that these proceedings are still
pending.
B. Relevant domestic law
SS. 269 et seq. of the Austrian Civil Code (Allgemeines Bürgerliches
Gesetzbuch) govern guardianship matters (Sachwalterschaft).
Under S. 273 para. 1 a guardian will be appointed for a person of
unsound mind if this person cannot handle all or some of his/her own
matters without risk of damage. S. 273 para. 2 concerns the question of
how far guardianship can be dispensed with because of family or other
assistance to the person concerned. S. 273 para. 3 regulates the extent
of matters to be handled by the guardian.
According to S. 273 a para. 1 the person of unsound mind has no
power to take any dispositions or to enter into any obligations as
regards the matters entrusted to the guardian without explicit or tacit
consent of the guardian concerned. If there is no risk of damage to the
well-being of the person of unsound mind concerned, the competent court
may decide that the person of unsound mind may dispose of, or enter into
obligations as regards particular items of his/her property or his/her
income or parts thereof, although these matters are generally within the
guardian's competence. S. 273 para. 3 provides that the person of
unsound mind is entitled to be informed by the guardian in time about any
intended important matters concerning him/herself, or his/her property,
and to comment upon such or other matters in due time. Such comments
have to be taken into account if the wish expressed likewise serves the
well-being of the person of unsound mind.
With regard to the rights and duties of a guardian, S. 282, first
sentence, provides that the provisions concerning the guardian of a minor
apply mutatis mutandis. Under S. 282, second sentence, the guardian of
a person of unsound mind also has to ensure that this person is taken
care of, in particular as regards medical and social care, if the
competent court does not decide otherwise.
Proceedings in guardianship matters are governed by the
Non-Contentious Proceedings Act (Außerstreitgesetz). S. 252 in
conjunction with SS. 236 to 250 regulate proceedings concerning
termination of guardianship. According to S. 237 the competent court is
obliged to hear the person concerned. Under S. 238 the court has to
ensure legal assistance for the person concerned; if the person concerned
has no legal or chosen representative, the competent court has to appoint
a provisional guardian for the purposes of the guardianship proceedings.
The provisional guardian's power to represent the person concerned
terminates as soon as this person informs the court about appointment of
a representative of his own choice.
COMPLAINTS
The applicant complains about his placement under guardianship. He
submits that subsequently he had no effective access to the courts. He
further complains that Austrian authorities violated his right to respect
for his family life in that his guardian does not, or not sufficiently,
pay for his living. He also considers that his placement under
guardianship and the incapacity freely to dispose of his property
constitute an unjustified interference with his property rights.
The applicant invokes Article 6 para. 1 and Article 8 of the
Convention and Article 1 of Protocol No. 1.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 October 1988 and registered on
15 December 1988.
On 7 March 1991 the Commission communicated the application to the
Austrian Government and invited them to submit written observations on
its admissibility and merits.
After an extension of the time-limit, the Government submitted their
observations on 5 July 1991.
On 5 November 1991 the applicant was granted an extension of the
time-limit to submit his observations in reply.
On 5 December 1991 Mr. Steger, residing in Costa Rica, presented
himself as the applicant's representative in the proceedings before the
Commission. By letter of 8 January 1992 the applicant was informed that
the President of the Commission had refused such representation under
Article 32 para. 2 of the Commission's Rules of Procedure.
Meanwhile, on 6 January 1992 Mr. Steger submitted observations on
behalf of the applicant.
By letter of 17 January 1992 the Secretary, referring to the
President's decision as to the applicant's representation by Mr. Steger,
invited the applicant to state whether he endorsed Mr. Steger's
submissions or intended to have other observations filed, possibly by a
lawyer practising in one of the Member States.
In a letter of 4 May 1992 the applicant stated that he endorsed Mr.
Steger's submissions.
THE LAW
1. The applicant complains about his placement under guardianship and
various other measures taken against him subsequently. He considers that
he is arbitrarily restricted in his right of access to court, as
guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, his right
to respect for his private and family life, as guaranteed by Article 8
(Art. 8) of the Convention, as well as his right to the peaceful
enjoyment of his possessions, as guaranteed by Article 1 of Protocol No.
1 (P1-1) to the Convention.
2. It appears that the applicant's main complaints relate to his
placement under guardianship and the respective Austrian court
proceedings between 1983 and 1985.
The Government, referring to Article 26 (Art. 26) of the Convention,
submit that these complaints have been lodged out of time.
The Commission notes that the applicant was placed under
guardianship by the Wels District Court on 12 October 1984 and that his
appeal was dismissed by the Wels Regional Court on 20 May 1985. The
final decision was given by the Austrian Supreme Court on
11 December 1985, which is more than six months before 20 October 1988,
the date on which the application was submitted to the Commission.
It follows that this part of the application must be rejected under
Article 26 and Article 27 para. 3 (Art. 26, 27-3) of the Convention.
3. The applicant also complains that the Wels District Court, in
decisions of 1 October 1986, 1 July and 7 October 1988 as well as
22 February 1990, refused to terminate the applicant's placement under
guardianship.
The Government submit that the applicant failed to exhaust domestic
remedies in accordance with Article 26 (Art. 26) of the Convention.
The Commission finds that the applicant did not lodge appeals
against the respective decisions with the Regional Court. He has not,
therefore, in accordance with Article 26 (Art. 26), exhausted the
remedies available to him under Austrian law. Moreover, an examination
of his case does not disclose the existence of any special circumstance
which might have absolved the applicant, according to the generally
recognised rules of international law, from exhausting the domestic
remedies at his disposal. In this respect, the Commission notes in
particular that the applicant, assisted by counsel, had pursued his
appeals against the Wels District Court's earlier decision of
October 1984 ordering his placement under guardianship.
It follows that this part of the application must also be rejected
under Article 26 and Article 27 para. 3 (Art. 26, 27-3) of the
Convention.
4. The applicant further complains about the refusal of the Austrian
authorities to agree to his change of nationality, and that he did not
have effective access to court in this matter, as required by Article 6
para. 1 (Art. 6-1) of the Convention.
The Government submit that Article 6 (Art. 6) does not apply to this
dispute.
The Commission observes that the Convention does not grant a right
as such to a particular nationality or to a change of nationality (cf.
No. 5212/71, Dec. 5.10.72, Collection 43 p. 69). Furthermore,
nationality entails rights and obligations which exist for the individual
person in his or her capacity as citizen, which do not relate to his or
her civil rights and obligations. Thus Article 6 (Art. 6) does not cover
the proceedings instituted by the applicant in view of his intended
change of nationality (cf. No. 5212/71, loc. cit.).
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).
5. The Commission has examined the applicant's further complaints
concerning in particular his allegedly forced stay in a hotel in Costa
Rica in November 1988, his difficulties in leaving the territory of Costa
Rica in 1989/90, the alleged misconduct of his guardian, inter alia, in
financial matters and proceedings to have the applicant's marriage
declared null and void, in the light of the parties' submissions. The
Commission finds that, in so far as the matters
complained of have been substantiated by the applicant and are within its
competence, they do not disclose any appearance of a violation of his
rights and freedoms set out in the Convention or its Protocols.
It follows that the remainder of the applicant's complaints is as
a whole manifestly ill-founded 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)
Full & Egal Universal Law Academy