Published on 28 August 2023
FOURTH SECTION
Application no. 38042/19
Iris-Margaritha Eleonore Maria-Theresia ELLRICHSHAUSEN against Austria
and 6 other applications
(see list appended)
communicated on 11 July 2023
SUBJECT MATTER OF THE CASES
These seven cases concern disputes surrounding the eight applicants’ surnames: in five cases, the authorities changed the surnames on their own initiative (“rectification” – Berichtigung) after various periods of previously accepted use of the surnames in question. In the other two cases, the authorities refused to issue new passports to the applicants with their original surname. In both scenarios, the authorities based their decisions on the Abolition of Nobility Act of 1919 (Adelsaufhebungsgesetz) and its implementing provisions (Vollzugsanweisung) as interpreted by the Constitutional Court in its new case-law starting from 2014 onwards (see Künsberg Sarre v. Austria, nos. 19475/20 and three others, §§ 20-33 and 58‑74, 17 January 2023).
Applications nos. 38042/19, 32042/20 and 32286/20: The three applicants are members of one family, namely the daughter, her father and her mother. They are of Austrian nationality. By decisions of 19 April 2018 and 13 May 2019 respectively, the Linz municipality changed the applicants’ surname from “Freiherr von Ellrichshausen” to “Ellrichshausen”, thereby removing the name component “Freiherr von”, after almost 28, 37 and 35 years of previously accepted use respectively, on the grounds that the original surname was in breach of the Abolition of Nobility Act.
On 18 June 2018 and 4 October 2019 respectively, the Regional Administrative Court (Landesverwaltungsgericht) of Upper Austria dismissed the applicants’ appeals. On 24 September 2018 and 28 November 2019 respectively, the Constitutional Court (Verfassungsgerichtshof) declined to deal with their complaints. On 28 January 2019 and 28 January 2020 respectively, the Supreme Administrative Court (Verwaltungsgerichtshof) dismissed their request for revision (ausserordentliche Revision).
Before the Court, the applicants relied on Article 8 of the Convention, taken alone and in conjunction with Article 14, alleging a disproportionate interference with their right to respect for private and family life and a discriminatory treatment vis-à-vis persons whose surnames did not have a link to former nobility and were thus not forced to change their surname, as no surname could point to privileges of any kind because such privileges did not exist in Austria.
Application no. 16068/20: The applicants are two minor brothers. They hold both Austrian and German nationality since birth. Their father is a dual German and Swiss national, while their mother is of Austrian nationality. By decisions of 29 March 2018, the Vienna municipality changed the applicants’ surname from “Henckel von Donnersmarck” to “Henckel-Donnersmarck”, thereby removing the prefix “von” and replacing it with a hyphen, after almost six years of previously accepted use for the first brother and some ten months for the second brother respectively, on the grounds that the original surname was in breach of the Abolition of Nobility Act.
On 2 January 2019 the Vienna Administrative Court (Verwaltungsgericht) dismissed the applicants’ appeal. On 13 March 2019 the Constitutional Court declined to deal with their complaint. On 18 August 2019 the Supreme Administrative Court dismissed their request for revision.
As a consequence, the applicants now bear a different surname than their father (but the same as their mother whose surname was also changed).
Before the Court, the applicants rely on Article 8 of the Convention, alleging a disproportionate interference with their right to respect for private and family life.
Applications nos. 23848/21 and 23856/21: The two applicants are husband and wife. The husband is a dual German and Austrian national since birth, while the wife is of Austrian nationality. By decisions of 31 August 2018, the Graz municipality refused the issuance of new Austrian passports bearing the applicants’ original surname of “von Maurnböck” because of the prefix “von”, after 50 and ten years respectively of previously accepted use of that surname. The municipality held that the prefix “von” was forbidden for Austrian nationals, in accordance with the Abolition of Nobility Act and the Constitutional Court’s case-law thereto.
On 15 January 2019 the Regional Administrative Court of Styria dismissed the applicants’ appeals against the impugned decisions. On 2 December 2020 the Supreme Administrative Court dismissed the applicants’ request for revision.
The applicants did not bring any proceedings before the Constitutional Court. They claimed that the latter would not have been an effective domestic remedy, given the Constitutional Court’s case-law on the Abolition of Nobility Act, according to which, as also pointed out by the authorities and lower instances, the refusal to issue a passport with the prefix “von” did not breach Article 8 of the Convention. An appeal to the Constitutional Court would thus have been futile from the outset.
Before the Court, the applicants relied on Article 8 of the Convention, alleging a disproportionate interference with their right to respect for private and family life.
Application no. 48419/21: The applicant, a minor, is of Austrian and German nationality by descent from her father and mother respectively. By decision of 12 August 2019, the Zell am See municipality changed the applicant’s surname from “Höner zu Altenschildesche” to “Höner‑Altenschildesche”, thereby removing the prefix “zu” and replacing it with a hyphen, after three and a half years of previously accepted use, on the grounds that the original surname was in breach of the Abolition of Nobility Act.
On 18 November 2019 the Regional Administrative Court of Salzburg dismissed the applicant’s appeal. On 2 March 2020 the Constitutional Court set aside the latter judgment and held that the Regional Administrative Court did not make any enquiries into decisive legal points, thereby rendering its judgment arbitrary. On 17 September 2020 the Regional Administrative Court again dismissed the applicant’s appeal. On 23 February 2021 the Constitutional Court declined to deal with the applicant’s subsequent complaint. On 10 June 2021 the Supreme Administrative Court dismissed the applicant’s request for revision.
As a consequence, the applicant now bears two different surnames in Austria and Germany. Furthermore, neither her father (“Fankhauser”) nor her mother (“Höner zu Altenschildesche”) have the same surname as the applicant in Austria.
Before the Court, the applicant relied on Article 8 of the Convention, taken alone and in conjunction with Article 14, alleging a disproportionate interference with her right to respect for private and family life and a discriminatory treatment vis-à-vis persons whose surname was not composed of several name elements (mehrgliedriger Nachname) or whose surname of several name components was not complained about, and who were therefore not forced to change their surname, as her surname, just like other surnames which were not complained about, did not point to any privileges.
QUESTIONS TO THE PARTIES
Common question:
1. Has there been an interference with the applicants’ right to respect for their 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 individual situation of each applicant properly assessed? In the cases of the minor applicants, have their best interests as children been taken into consideration?
Case specific questions:
2. Applications nos. 38042/19, 32042/20, 32286/20 and 48419/21: Have the applicants suffered discrimination in the enjoyment of their right to bear a name under Article 8 of the Convention, contrary to Article 14 of the Convention? In particular, have the applicants been subjected to a difference in treatment in comparison to Austrian citizens who bear other prefixes or other name components as a part of their surname? If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?
3. Applications nos. 23848/21 and 23856/21: Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the individual complaint (Erkenntnisbeschwerde) to the Constitutional Court an effective remedy within the meaning of this provision in respect of the applicants’ complaint under Article 8 of the Convention?
APPENDIX
List of applications
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Nationality
1.
38042/19
Ellrichshausen v. Austria
15/07/2019
Iris-Margaritha Eleonore Maria-Theresia ELLRICHSHAUSEN
1990
Austrian
2.
16068/20
Henckel-Donnersmarck v. Austria and Germany
13/03/2020
Hugo Maria Felix Alfons Heinrich HENCKEL-DONNERSMARCK
2012
Austrian, German
Conrad Maria Johannes HENCKEL-DONNERSMARCK
2017
Austrian, German
3.
32042/20
Ellrichshausen v. Austria
28/07/2020
Egon-Sunaar ELLRICHSHAUSEN
1953
Austrian
4.
32286/20
Ellrichshausen v. Austria
28/07/2020
Margit ELLRICHSHAUSEN
1957
Austrian
5.
23848/21
Maurnböck v. Austria
28/04/2021
Erich Matthias Ludwig MAURNBÖCK
1968
Austrian, German
6.
23856/21
Maurnböck v. Austria
28/04/2021
Birgit Renate MAURNBÖCK
1973
Austrian
7.
48419/21
Höner-Altenschildesche v. Austria
29/09/2021
Johanna Amalia HÖNER-ALTENSCHILDESCHE
2016
Austrian, German