AS TO THE ADMISSIBILITY OF
Application No. 26100/95
by Manfred BURGER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M.F. BUQUICCHIO, Secretary to the 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 13 October 1994
by Manfred BURGER against Austria and registered on 2 January 1995
under file No. 26100/95;
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 applicant, born in 1957, is an Austrian national residing in
Schwechat. In the proceedings before the Commission he is represented
by Mr. M. Müllauer, a lawyer practising in Vienna.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1979 the applicant met his companion in life. Following an
abortion in 1980, they decided that she would take the pill in order
to avoid a further pregnancy. However, in early 1982 the applicant's
companion became pregnant again.
On 20 April 1982 the applicant's companion signed a declaration
which had been prepared by the applicant's counsel. According to this
declaration she had deceived the applicant as regards the possibility
of conception. Therefore, she would do everything possible in order to
avoid that the applicant had to fulfil any obligations as a father, in
particular any obligation to pay maintenance, and that she would
indemnify him, if nevertheless he were obliged to pay child
maintenance.
On 6 October 1982 the applicant's daughter was born out of
wedlock. The applicant and his companion continued to cohabit. However,
the applicant did not recognise his daughter.
On 27 June 1985 the applicant and his companion got married.
In 1991 divorce proceedings were started. The applicant's wife
also started paternity proceedings in the course of which the applicant
recognised his daughter. The applicant was then ordered to pay child
maintenance.
Subsequently, he requested the Floridsdorf District Court
(Bezirksgericht) to render a declaratory decision that the declaration
of 20 April 1982 was legally valid and to order his wife to pay back
AS 2,700 corresponding to maintenance he had already been obliged to
pay.
On 18 November 1992 the Floridsdorf District Court dismissed the
applicant's claim. In establishing the facts the court found that the
applicant, upon learning that his companion was pregnant, had proposed
an abortion, which she had refused. The applicant had then threatened
to leave her. Thereupon, on 20 April 1982, the applicant's companion
had signed the declaration which had been prepared by the applicant's
counsel. As regards the law, the court referred to S. 879 of the Civil
Code (Allgemeines Bürgerliches Gesetzbuch), according to which
agreements which are contra bonos mores (sittenwidrig) are null and
void. The court found that the declaration at issue had been made by
a pregnant woman who had been put under considerable pressure and was,
thus, null and void.
On 28 June 1993 the Vienna Regional Civil Court (Landesgericht
für Zivilrechtssachen) dismissed the applicant's appeal. The court,
referring to case-law, found that a declaration of one parent to
indemnify the other for maintenance claims concerning their child was
prima facie not invalid. It noted that such agreements were sometimes
concluded in divorce proceedings. Usually, these agreements were part
of the partition of matrimonial property and the parent undertaking to
maintain the child received something in return for indemnifying the
other. However, in the present case, the mother of the child had not
received anything in return. The declaration at issue went far beyond
an indemnification for maintenance obligations, in that the applicant's
companion discharged him from any of his obligations as a father.
Moreover, according to the contents of the declaration, the companion
had signed it in order to compensate the applicant for having misled
him as regards the use of contraceptives. Referring to case-law, the
court found that the sexual relationship of two adults belonged to a
sphere which was not open to regulation by a legal agreement. The
deception of one partner by the other about the use of contraceptives
could never give rise to compensation claims. It followed that a
declaration acknowledging compensation claims in this context was null
and void as being contra bonos mores within the meaning of S. 879 of
the Civil Code.
On 14 April 1994 the Supreme Court (Oberster Gerichtshof)
dismissed the applicant's appeal on points of law. The court, referring
to S. 879 of the Civil Code, found in particular that concealing the
possibility of conception affected primarily the most intimate personal
sphere of the woman who had to remain free to decide whether to apply
contraceptives or not. The freedom to decide any time in favour of
conceiving a child was an essential part of any woman's personal
dignity and freedom. Further, as the sexual relationship between a man
and a woman, whether they were married or not, involved their most
intimate personal sphere it was not open to regulation by a legal
agreement. The declaration at issue amounted to a complete denial of
the applicant's responsibility for the consequences of an intimate
relationship. It penalised the woman for her wish to have a child and
degraded her to a mere sexual partner who had to bear all the
consequences of a pregnancy which was unwanted only by the applicant.
In the circumstances of the case, the declaration, in an extremely
unbalanced way, put all the burden on the woman, while the applicant
had only agreed to continue to live with her. Therefore, it was contra
bonos mores.
COMPLAINTS
1. The applicant complains under Article 8 of the Convention that
the court decisions, which found that the declaration of 20 April 1982
by which his companion in life had discharged him from any obligations
as a father was null and void, violated his right to private and family
life. He contests the assumption that the declaration to indemnify him
for his daughter's maintenance claims was designed to compensate him
for having been deceived on the use of contraceptives. He also contests
the courts' opinion that the sexual relationship between adults is not
open to regulation by legal agreement. He claims that an agreement like
the one at issue was not prohibited by Austrian law.
2. The applicant further complains under Article 14 of the
Convention that the declaration by which his companion stated that she
would indemnify him in particular as regards his obligation to pay
maintenance for his daughter was declared null and void, whereas
agreements in which one spouse, in the course of divorce proceedings,
would undertake to indemnify the other for maintenance obligations
towards their child are valid according to the Austrian courts' case-
law. He submits that, thus, the contested decisions discriminated
against unmarried couples.
3. Finally, the applicant complains under Article 1 of Protocol
No. 1 that the decisions at issue also violated his right to property.
He argues that the right to be indemnified by another person with
regard to certain obligations forms part of his possessions.
THE LAW
1. The applicant complains under Article 8 (Art. 8) of the
Convention that the court decisions, which found that the declaration
of 20 April 1982 by which his companion in life had discharged him from
any obligations as a father was null and void, violated his right to
private and family life. In particular, he criticises the Austrian
courts' interpretation of the relevant law.
Article 8 (Art. 8), as far as relevant, reads as follows:
"1. Everyone has the right to respect for his private and
family life ....
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 ... for the
protection of the rights and freedoms of others."
The Commission recalls that proceedings to contest paternity of
a child born out of wedlock concern the plaintiff's "private life"
(Eur. Court HR., Rasmussen v. Denmark judgment of 28 November 1984,
Series A no. 87, p. 13, para. 33). The Commission notes that the
proceedings in the present case did not concern the question of the
applicant's paternity, which moreover has been formally recognised by
him. They concerned the validity of a declaration made for the purpose
of discharging the applicant from any obligations, in particular any
maintenance obligations, as regards his daughter born out of wedlock.
Assuming that the decisions at issue constituted an interference with
the applicant's right to respect for his "private life", the Commission
finds that it was justified under the second paragraph of Article 8
(Art. 8).
The interference complained of was in accordance with Austrian
law, namely S. 879 of the Civil Code. As far as the applicant
criticises the application of the relevant legal provisions by the
Austrian courts, the Commission recalls that it is primarily for the
national authorities, notably the courts, to interpret and apply
domestic law (Eur. Court HR. Olsson (No. 2) v. Sweden judgment of
27 November 1992, Series A no. 250, p. 32, para. 79).
Further, the interference served a legitimate aim, namely the
protection of the rights and freedoms of others. As regards the
necessity of the interference, the Commission notes that the Austrian
courts had regard to the particular circumstances of the case. They
took into account the need to protect the personal sphere of the woman
concerned, which the applicant himself had infringed by urging her to
have an abortion and by putting pressure on her to sign the
declaration, and the imbalance which the declaration created between
the applicant and the mother of his child. The Commission finds that
the reasons adduced by the courts were "relevant" and "sufficient" and
that the interference complained of was proportionate to the legitimate
aim pursued (Eur. Court HR. Olsson (No. 1) v. Sweden judgment of
24 March 1988, Series A no. 130, pp. 31-32, paras. 67-68).
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains under Article 14 (Art. 14) of the
Convention that the contested decisions discriminated against unmarried
couples. He submits that the declaration by which his companion stated
that she would indemnify him in particular as regards his obligation
to pay maintenance for his child was declared null and void, whereas
agreements in which one spouse, in the course of divorce proceedings,
would undertake to indemnify the other for maintenance obligations
towards their child, are valid according to the Austrian courts' case-
law.
Article 14 (Art. 14) of the Convention reads as follows:
"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) protects
individuals against discriminatory treatment only if they are placed
in analogous situations (Rasmussen judgment, loc. cit., pp. 12-13,
paras. 29 and 35).
In the present case the Austrian courts noted the difference
between the declaration at issue and agreements which are sometimes
made between spouses in the course of divorce proceedings when
partitioning matrimonial property. They found that the declaration at
issue went far beyond an indemnification for maintenance claims and
that moreover, the applicant's companion received nothing in return for
it. Accordingly, the applicant and his companion when making the
declaration were not in a situation which could be considered as
analogous to that of a married couple, who divorce and attempt to
settle the pecuniary consequences of the divorce through agreement.
Thus, the contested decisions were not discriminatory.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Finally, the applicant complains under Article 1 of Protocol
No. 1 (P1-1) that the decisions at issue also violated his right to
property. He argues that the right to be indemnified by another person
with regard to certain obligations forms part of his possessions.
Article 1 of Protocol No. 1 (P1-1) reads as follows:
"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."
Even assuming that the above claim formed part of the applicant's
possessions, and assuming that the decision of a court in a dispute
between private individuals in the context of family law may engage the
responsibility of the State under Article 1 of Protocol No. 1 (P1-1)
(see mutatis mutandis Eur. Court HR., Hoffmann v. Austria judgment of
23 June 1993, Series A no. 255, p. 58, para. 29), the Commission finds
that the complaint is, in any case, inadmissible for the following
reasons.
Any interference with the applicant's right to the peaceful
enjoyment of his possessions falls within the scope of the second
paragraph of Article 1 of Protocol No. 1 (P1-1). This paragraph
requires that the interference is lawful, serves a legitimate aim and
is proportionate, achieving a fair balance between the demands of the
general interest of the community and the requirements of the
protection of the individual's fundamental rights (Eur. Court of HR.,
Fredin v. Sweden judgment of 18 February 1991, Series A no. 192,
pp. 16-17, paras. 48-51). With a view to its above findings under
Article 8 (Art. 8) of the Convention, the Commission considers that
these requirements are met.
It follows that this part 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy