AS TO THE ADMISSIBILITY OF
Application No. 21632/93
by G. R., E. R. and K. R.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 30 November 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 24 February 1992
by G. R., E. R. and K. R. against Austria and registered on
7 April 1993 under file No. 21632/93;
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 submitted by the applicants, may be
summarised as follows.
The first and second applicant, born in 1930 and 1936
respectively, are a couple residing in Vienna. The third applicant,
born in 1961, is their son. The first applicant is a lawyer, practising
in Vienna. He is representing the second and third applicant in the
proceedings before the Commission. The applicants' previous application
(No. 21314/93) concerning the reporting of a large Austrian newspaper
on their younger son's, or respectively, brother's suicide, has been
declared inadmissible in October 1993.
A. The particular circumstances of the case
On 16 May 1984 a son S. was born out of wedlock to M. and B., the
first and second applicant's son and third applicant's brother. M. and
B. decided to give the child for adoption. On 16 November 1984 S. was
adopted by a couple and on 9 January 1985 the Melk District Court
(Bezirksgericht) approved the adoption. B. and M. subsequently married.
M. died on 9 June 1991 and the following day B. committed suicide.
On 8 January 1992 the Vienna Inner City District Court rejected
the first and second applicants' acceptance of succession in B.'s
estate (Erbserklärung). The Court found that according to SS. 182 b and
732 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) B.'s son
S. was his heir, excluding B.'s parents from inheritance. On 26 May
1992 the Vienna Regional Civil Court (Landesgericht) rejected the first
and second applicants' appeal (Rekurs) and on 29 September 1992 the
Supreme Court rejected their appeal on points of law (außerordentlicher
Revisionsrekurs).
On 1 September 1992 all three applicants filed a complaint with
the Constitutional Court (Verfassungsgerichtshof). They submitted that
S. 182 para. 2, S. 182 a para. 1, S. 182 b para. 1, and S. 183 para. 1
of the Civil Code and one provision of the relevant procedural law
violated their constitutionally guaranteed rights and requested the
Court to set aside the said provisions. In particular, as the adoptive
parents only replaced the natural parents, there was no valid reason
to cut off the links between the adoptive child and its grandparents
or uncle. Moreover, the fact that they still had certain maintenance
obligations and that the child continued to have a right to inheritance
from his natural relatives violated their right to property.
On 2 December 1993 the Constitutional Court rejected the
applicants' complaints as being inadmissible, except for the first and
second applicant's complaint as regards S. 182 para. 2 of the Civil
Code. The Court found that their rights were directly affected by this
provision, as they would be entitled to have access to their grandson,
had he not been adopted. However, deciding on the merits, the Court
dismissed their complaint.
The Court considered that the relationship between grandparents
and grandchild fell within the scope of Article 8 of the Convention.
However, the Court, referring to Article 8 para. 2, found that the
contested provision fell within the margin of appreciation left to the
national authorities. In particular, it appeared necessary in order to
allow the adoptive child to grow up in its new family without any
disturbance. Similar provisions existed in a number of other European
states. Further, the obligation of the natural parents and their
relatives to maintain the child in case the adoptive parents were
unable to do so, appeared reasonable as they were closer to the child
than the general public. Finally, the right to inheritance did not in
general depend on whether there had been any personal contact between
the deceased person and his heirs. Thus, it was not unreasonable that
mutual rights to inheritance between the adoptive child and his natural
parents and their relatives subsisted, although the latter's right to
inherit was subsidiary to the right of the adoptive parents and their
offspring. S. 182 para. 2 of the Civil Code did not appear unreasonable
as regards to the provisions concerning inheritance.
On 30 November 1993 the first and second applicant filed an
appeal against the Melk District Court's decision of 9 January 1985,
which had approved the adoption. They submitted in particular that they
had not been heard in the adoption proceedings. On 19 January 1994 the
St. Pölten Regional Court rejected their appeal on the ground that the
grandparents did not have a right to be heard in the adoption
proceedings. On 13 April 1994 the Supreme Court rejected their appeal
on points of law.
B. Relevant domestic law
S. 182 para. 2 of the Civil Code (Allgemeines Bürgerliches
Gesetzbuch) provides that, if a couple adopts a child, the relationship
in family law between the natural parents and their relatives and the
adoptive child are terminated, with the exceptions laid down in
S. 182 a.
S. 182 a states that the obligations of natural parents and their
relatives, laid down in family law, to maintain the adoptive child
subsist (para. 1). However, this obligation is only subsidiary to the
respective obligations established between the adoptive parents and the
adoptive child (para. 3).
S. 182 b provides that the rights, stemming from the law on
inheritance, between natural parents and their relatives and the
adoptive child subsist (para. 1). In case of inheritance on intestacy
from the adoptive child, the adoptive parents and their offspring have
priority before the natural parents and their offspring (para. 2).
According to S. 183 para. 1 the adoptive child in general
receives the name of the person(s) adopting it.
S. 730 provides that on intestacy the deceased person's spouse
and those in the closest line of succession are entitled to inherit
(para. 1). According to S. 731 the first line of succession is
constituted by the deceased persons's children and their offspring
(para. 1). The deceased person's parents, his siblings and their
offspring are in the second line of succession (para. 2).
Further, S. 762 states that the deceased person's spouse, his
children, including grandchildren, or in case there are no children,
his parents, including grandparents, are entitled to a reserved portion
of his estate (Pflichtteil), which cannot be excluded by will.
COMPLAINTS
1. The applicants complain under Article 1 of Protocol No. 1 that
the provisions concerning an adoptive child's patrimonial rights
vis-à-vis his natural relatives violated their right to property. In
particular, all three applicants complain that their grandson or
nephew, respectively, has inheritance rights on intestacy. Further, the
first and second applicant submit that their grandson, even after his
adoption, excluded them from succession in the estate of their son B.,
and that he is entitled to a reserved portion of their estate.
2. The applicants also complain under Article 8 of the Convention
that the provisions regarding adoption violated their right to respect
for their family life. They submit in particular that these provisions
are unjust and unbalanced, as they destroy the links between the child
and his natural relatives, e.g. in that the child receives the name of
his adoptive parents, while some of the child's maintenance and
patrimonial rights against the natural relatives subsist.
3. Further, the applicants complain under Article 3 that the child
is treated like an object in the adoption proceedings, and that
adoption in general has adverse consequences for the child concerned.
Moreover, they complain that they were not heard in the adoption
proceedings.
THE LAW
1. The applicants complain under Article 1 of Protocol No. 1
(P1-1) that the provisions regarding adoption violated their right to
property.
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."
As regards the first and second applicants' complaint that they
did not inherit from their son B., the Commission recalls that
Article 1 of Protocol No. 1 (P1-1) applies only to a person's existing
possessions and that it does not guarantee the right to acquire
possessions (Eur. Court H.R., Marckx judgment of 13 June 1979, Series A
no. 31, p. 23, para. 50). To that extent, the applicants' complaint
does not fall within the scope of this Article.
The applicants further complain that their grandson or nephew,
respectively, has inheritance rights on intestacy. Further, the first
and second applicant submit that their grandson is entitled to a
reserved portion of their estate. The Commission finds that the
contested provisions of Austrian law, in particular insofar as they
place restrictions on the applicants to dispose of their property,
constitute an interference with their peaceful enjoyment of their
possessions within the meaning of the first paragraph of Article 1
(Art. 1-1).
However, the second paragraph of this Article authorises a
Contracting State to "enforce such laws as it deems necessary to
control the use of property in accordance with the general interest",
which may include legislation in the area of dispositions inter vivos
or by will (Marckx judgment, loc. cit., p. 28, para. 64). Such measures
must be 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, whereby the State
enjoys a wide margin of appreciation (Eur. Court H.R., Fredin judgment
of 18 February 1991, Series A no. 192, p. 17, para. 51).
In the circumstances of the present case, the applicants failed
to show that the provisions of the Austrian Civil Code, regarding
inheritance on intestacy in general and limiting a person's possibility
to dispose of his or her property by will in that close relatives are
entitled to a reserved portion of the estate, as well as the provisions
regarding the patrimonial rights of an adoptive child vis-à-vis his or
her natural parents and their relatives, are not in the general
interest or are disproportionate. A State may consider it in the
general interest to maintain certain links between a child and its
natural family after adoption. The Commission notes in particular, as
was also pointed out by the Constitutional Court, that according to the
Austrian Civil Code, the patrimonial rights between an adoptive child
and its natural family are to some extent mutual. Also the natural
parents and their relatives are entitled, albeit subsidiarily to the
adoptive parents and their offspring, to inherit from the adoptive
child. Thus, the provisions complained of fall within the wide margin
of appreciation which a State enjoys in such matters.
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 applicants also complain under Article 8 (Art. 8) of the
Convention about a lack of respect for their family life. They submit
in particular that the provisions relating to adoption are unjust and
unbalanced as they terminate links between the natural relatives and
an adoptive child, while some maintenance or inheritance right of the
child subsist.
Article 8 (Art. 8), so far as relevant, reads as follows:
"1. Everyone has the right to respect for his ... 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, assuming compliance with the six-months' rule
under Article 26 (Art. 26) of the Convention, finds that the contested
provisions concerning the family relations in case of adoption, as
applicable following the adoption of the applicants' grandson and
nephew in 1985, constituted an interference with their right to respect
for their family life (Marckx judgment, loc. cit., p. 21, 23-24,
paras. 45 and 52).
However, in the light of its findings regarding the applicants'
complaint under Article 1 of Protocol No. 1 (P1-1), the Commission
considers that this interference is justified under Article 8 para. 2
(Art. 8-2) as it is in accordance with Austrian law and can reasonably
be regarded as necessary in a democratic society for the protection of
the rights and freedoms of others, namely the adoptive child.
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.
3. Finally, as regards the applicants' complaints under Article 3
(Art. 3) of the Convention, the Commission notes that the applicants
are not entitled to introduce an application on behalf of their
grandchild and nephew. Further, the Commission finds that neither the
legislation complained of, nor its application in the present case
constitute inhuman or degrading treatment within the meaning of Article
3 (Art. 3).
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.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy