AS TO THE ADMISSIBILITY OF
Application No. 15344/89
by Carl-Ludwig and Lorenz HABSBURG-LOTHRINGEN
against Austria
The European Commission of Human Rights sitting in private
on 14 December 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 30 July 1989
by Carl-Ludwig and Lorenz HABSBURG-LOTHRINGEN against Austria and
registered on 3 August 1989 under file No. 15344/89;
Having regard to the report provided for in Rule 40 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 applicant, an Austrian citizen born in 1918, is a
banker residing in Brussels. He is a son of Charles, the last Emperor
of Austria. The second applicant, an Austrian citizen born in 1955,
is a banker residing at Arlesheim in Switzerland. He is a grandson of
the Emperor Charles. Before the Commission the applicants are
represented by Professor H. Golsong, a lawyer residing at Chevy Chase
in Maryland, United States, and Dr. W. Bitschnau, a lawyer residing at
Bludenz in Austria.
I.
Charles Emperor of Austria abdicated on 11 November 1918.
On 3 April 1919 the Austrian Act on the Banishment and the
Expropriation of the Property of the House Habsburg-Lothringen (Gesetz
betreffend die Landesverweisung und die Übernahme des Vermögens des
Hauses Habsburg-Lothringen) was enacted. The relevant provisions of
this Act state (translation; German original appended as Annex I):
"Section 5
The Republic of Austria is the proprietor of the
entire movable and immovable property on its territory of the
Court treasury as well as properties tied to the previously
reigning House or a branch thereof.
Section 7
(1) The net yield of the property which falls to the Republic
of Austria according to this Statute must be employed, after
deducting all costs connected with the transfer of the property
or which arise for the State on account of this transfer, for the
welfare of citizens whose health has been damaged, or who have
been deprived of their breadwinner, in the World War..."
Section 2 concerns the banishment of the members of the House
Habsburg-Lothringen. On 4 July 1963 a Constitutional Statute
concerning the authentic interpretation of this Section was enacted
(see below, THE FACTS).
Paras. 2, 3 and 4 of Section 6 define the tied property
referred to in Section 5 as being, inter alia, family foundations
(Familienfonds) and permanent entails in trust (Fideikommisse).
On 10 September 1919 the Allied Powers and the Republic of
Austria concluded the Treaty of St. Germain which states, insofar as
relevant:
"Section V. Protection of Minorities
Article 62
Austria undertakes that the stipulations contained in
this Section shall be recognised as fundamental laws, and that no
law, regulation or official action shall conflict or interfere
with these stipulations, nor shall any law, regulation or official
action prevail over them.
Article 63
Austria undertakes to assure full and complete protection
of life and liberty to all inhabitants of Austria without
distinction of birth, nationality, race or religion.
Article 66
All Austrian nationals shall be equal before the law and
shall enjoy the same civil and political rights without
distinction as to race, language or religion. ...
Article 67
Austrian nationals who belong to racial, religious or
linguistic minorities shall enjoy the same treatment and security
in law and in fact as the other Austrian nationals. ..."
In 1920 the Austrian Constitution (Bundesverfassungsgesetz)
was enacted. It was reenacted in 1929.
After a new Constitution had been enacted in 1934, by an Act
of 13 July 1935 (BGBl Nr. 299/1935) the family foundations of the
House Habsburg-Lothringen were reinstituted. Following a subsequent
Act of 14 March 1939 (Gesetzblatt für das Land Österreich Nr.
311/1939) repealing the Act of 1935 those rights of the House were
transferred to the German Reich.
By virtue of Constitutional Statute (Verfassungs-
Überleitungsgesetz) of 1 May 1945 the Austrian Constitution of 1920
was reenacted in the form of 1929.
Section 149 of the Constitution declares the validity of the
Act of 3 April 1919 as well as Section V of the Treaty of St. Germain
of 1919 quoted above. Section 60 para. 3 of the Constitution, which
concerns the election to the Office of the Federal President, states
that "members of reigning houses or of formerly regnant families are
excluded from eligibility" ("Ausgeschlossen von der Wählbarkeit sind
Mitglieder regierender Häuser oder solcher Familien, die ehemals
regiert haben.")
In Article 10 para. 2 of the Vienna State Treaty (Staatsvertrag)
of 15 May 1955, the Republic of Austria bound herself to maintain the
Act of 3 April 1919.
On 4 July 1963 a Constitutional Statute concerning the
authentic interpretation of the Act of 3 April 1919 was enacted.
According to this Statute Section 2 of the 1919 Act was to be read as
follows (translation; German original appended as Annex I):
"Section 2
In the interest of the security of the Republic the
former holders of the Crown and other members of the House of
Habsburg-Lothringen are banished from the country (des Landes
verwiesen), if and to the extent that they do not expressly
renounce their membership of this House and all sovereign rights
emanating therefrom. The determination whether or not this
declaration is to be regarded as sufficient falls to the Federal
Government who will consult with the Main Committee of the
National Council."
On 16 September 1963 when signing Protocol No. 4 to the
Convention Austria made a declaration which also appears in the
instrument of ratification deposited on 18 September 1969 and which
reads as follows:
"Protocol No. 4 is signed with the reservation that
Article 3 shall not apply to the provisions of the Law of 3 April
1919, StGB1. No. 209 concerning the banishment of the House of
Habsburg-Lorraine and the confiscation of their property, as set
out in the Act of 30 October 1919, StGB1. No. 501, in the
Constitutional Law of 30 July 1925, BGB1. No. 292, in the Federal
Constitutional Law of 26 January 1928, BGB1. No. 30, and taking
account of the Federal Constitutional Law of 4 July 1963, BGB1.
No. 172."
II.
On 5 April 1988 the first applicant filed an application with
the Austrian Constitutional Court (Verfassungsgerichtshof) in which he
requested the Court to declare unconstitutional the Act of 3 April
1919 as well as the reference thereto in Article 149 of the Austrian
Constitution, alternatively to declare unconstitutional Section 2,
parts of Section 5, paras. 2, 3 and 4 of Section 6, and Section 7 of
the 1919 Act. He also requested the Court to declare unconstitutional
Section 60 para. 3 of the Federal Constitution, Section 10 of the
State Treaty of 1955, and the reservation to Article 3 of Protocol
No. 4 to the Convention.
On 28 November 1988 the Constitutional Court rejected the
application as being inadmissible. The decision was served on the
first applicant on 30 January 1989. It states as follows
(translation; German original appended as Annex II):
"2.1 As the Constitutional Court has consistently held,
('individual') applications under Section 140 of the Federal
Constitution which do not ask for annulment of the 'entire
contents' or of 'particular' passages of the law alleged by the
applicant to be unconstitutional (Section 62 para. 1.1 of the
1953 Constitutional Court Act) or which do not contain a
'detailed' explanation of the arguments against the
constitutionality of the disputed statute (Section 62 para 1.2 of
the 1953 Constitutional Court Act) are not open to improvement
(Section 18 of the 1953 Constitutional Court Act) and are to be
dismissed as being inadmissible:
In order to comply with the strict formal requirements of
the first two sentences of Section 62 para. 1 of the 1953
Constitutional Court Act, not only must the disputed parts of the
law be clearly and precisely indicated ... but also the reasons
for the alleged unconstitutionality must be set out in detail and
in a verifiable manner (references).
2.2.1 Contrary to what is stated in the application, statutes
StGBl. 50/1919 and BGBl. 292/1928 which are cited in paragraph 1
(a) of the application and referred to in the related subsidiary
application, are not supplementary laws to the Habsburg Law but
an executive order of the Germano-Austrian State Office for the
War and Transitional Economy (from the year 1919) relating to the
lifting of restrictions on the fur trade and an order of the
Federal Minister for Trade and Commerce (from the year 1928)
concerning changes to the regulations on objects allowed to be
transported by rail on a conditional basis only. In these
respects alone, therefore, the application is incongruous,
contradictory and unsuitable for consideration on the merits.
Furthermore, the request that the Habsburg Law, Section 2 of
which is included in the Federal Constitution in its version of
4 July 1963, be declared unconstitutional [in its entirety or,
alternatively, in part] merely 'in consideration' of that Act,
is lacking in clarity.
2.2.2 In addition, para. 3 of the application requests the
annulment of Section 10 para. 2 of the State Treaty of Vienna,
para. 6 the annulment of the reservation in respect of Article 3
of Protocol No. 4 to the European Convention on Human Rights, and
paragraph 7 the annulment of the reservation in respect of
Article 12 para. 4 of the International Convenant on Civil and
Political Rights. However, it is clear from Section 140 of the
Federal Constitution in conjunction with Section 62 of the 1953
Constitutional Court Act and Section 140 (a) of the Federal
Constitutional Act in conjunction with Section 66 of the 1953
Constitutional Court Act that these provisions do not constitute
a suitable legal basis for such requests for annulment (concerning
state treaties) or for applications for a declaration of
inadmissibility [cf. the decision of 3 December 1986, G 92-94/86,
obtained by the applicant]. The application is therefore
inadmissible in these respects too.
2.2.3 Yet neither does para. 5 of the ('individual')
application comply with the indispensable formal requirements of
Section 62 para. 1 of the 1953 Constitutional Court Act. The
applicant alleges that Section 7 (b) of the Foundation and Fund
Reorganisation Act, BGBl. 197/1954, violates the constitutional
right of all citizens to equality before the law and the property
guarantee in Section 5 of the Basic Constitutional Law, but since
no reasons are given for this allegation, there is no detailed
explanation of the arguments under constitutional law as required
by Section 62 para. 1 of the 1953 Constitutional Court Act.
2.2.4 A necessary primary requirement - which is not
satisfied here - of an ('individual') application for annulment
of constitutional laws of the Federation whose constitutionality
is disputed in accordance with the rules of Section 44 para. 3 of
the Federal Constitution is, formally at least, the conclusive
assertion of a 'modification' of the Federal Constitution. That
is lacking in this case because Section 60 para. 3.2 of the
Federal Constitution and the reference to the Habsburg Law in
Section 149 para. 1 of the Federal Constitution, as well as
Section 44 para. 3 of the Federal Constitution, were, as regards
content, already part of the original version of the Federal
Constitution from the year 1920. Logically, individual
provisions of the Federal Constitution cannot be measured against
the rule in Section 44 of the Act, which was created at the same
time and can only be of significance for future 'modifications'
(of the Constitution). Neither is the ('individual') application
founded on a modification of the Federal Constitution (here
Section 149 of the Federal Constitution) when it seeks to have
Section II of Constitutional Act BGBl. 390/1963 annulled because
that Act leaves the Habsburg Law (referred to in Section 149 of
the Federal Constitution) expressly untouched.
2.3.1 The application therefore exhibited defects with regard
to its content which were not open to any improvement and,
consequently, was to be dismissed as being inadmissible.
2.3.2 Pursuant to Section 19 para. 3.2.c of the 1953
Constitutional Court Act, which applies by analogy, this decision
was reached without further proceedings at a non-public sitting."
Section 44 para. 3 of the Austrian Constitution mentioned in
para. 2.2.4 of this decision refers to the procedure for a total or
partial revision of the Constitution, namely involving Parliament, the
President and a vote by the electorate.
COMPLAINTS
1. The applicants submit under Article 3 of the Convention,
taken alone and together with Article 14 of the Convention, that the
laws complained of make a distinction according to the applicants'
origin and that their aim is therefore degrading within the meaning of
Article 3.
2. Under Article 6 of the Convention, taken alone and together
with Article 14, they also complain that in their case no Austrian
court can deal with the prohibition to run for the Office of Federal
President. The first applicant also complains under these provisions
that no Court can deal with the expropriation of property.
3. The first applicant furthermore complains under Article 8,
taken alone and together with Article 14 of the Convention, that the
banishment constitutes an interference with his private and family
life. In particular, he has no possibility, for instance, to visit
his family grave. The applicant submits in this respect that this
interference is not "in accordance with the law" within the meaning
of Article 8 para. 2 of the Convention in that the Act of 3 April 1919
runs counter to Articles 62 et seq. of the 1919 Treaty of St. Germain
which prohibits such discrimination. Moreover, there is no pressing
social need for the measures at issue.
4. Under Article 13 of the Convention, taken alone and together
with Article 14, the applicants complain, in addition, that in Austria
there is no effective remedy at their disposal to complain of the
alleged violations of the Convention.
5. Under Article 1 of Protocol No. 1, taken alone and together
with Article 14 of the Convention, the first applicant complains of
the expropriation of property which was not followed by a prompt,
adequate and effective compensation. In this respect the first
applicant points out that he is daily affected by the consequences of
this expropriation.
6. Under Article 3 of Protocol No. 1, taken alone and together
with Article 14 of the Convention, both applicants moreover complain
that they are excluded from the Office of Federal President who has
legislative functions in that he signs and issues (ausfertigen) the
laws.
7. Under Article 3 of Protocol No. 4, taken alone and together
with Article 14, the first applicant complains that he has been
deprived of his right as Austrian citizen to enter Austria. He
submits that because the Act of 3 April 1919 contradicts the 1919
Treaty of St. Germain, the Austrian reservation to Article 3 of
Protocol No. 4 does not comply with the requirements of Article 64 of
the Convention.
THE LAW
1. The applicants complain under Article 6 para. 1 (Art. 6-1) of
the Convention that in their case no Austrian court can deal with the
prohibition to run for the Office of Federal President. The first
applicant also complains under this provision that no court can deal
with the expropriation of property.
Article 6 para. 1 (Art. 6-1) of the Convention provides,
insofar as it is relevant:
"In the determination of his civil rights and
obligations ... everyone is entitled to a fair and
public hearing ... by an independent and impartial
tribunal established by law."
According to the Convention organs' case-law this provision
guarantees to everyone, who claims that an interference by a public
authority with his "civil rights" is unlawful, the right to submit
that claim to a tribunal meeting the requirements of Article 6 para. 1
(Art. 6-1) (see Eur. Court H.R., Le Compte, Van Leuven and De Meyere
judgment of 23 June 1981, Series A No. 43, p. 20 para. 44).
However, the question arises whether the proceedings the
applicants sought to bring involved the determination of "civil
rights" within the meaning of this provision. According to the
established case-law of the organs of the Convention, Article 6 para.
1 (Art. 6-1) of the Convention will not be applicable in this case
unless three conditions are satisfied: there must be, at least on
arguable grounds, a right in issue, the right in issue must be the
object of a "contestation" (dispute), and it must be "civil" (see Eur.
Court H.R., W. judgment of 8 July 1987, Series A no. 121, p. 34 et
seq., paras. 77 et seq.).
With regard to the issue of expropriation of the property of
the House Habsburg-Lothringen, the Commission notes that the Austrian
legislation in question, namely the Act of 3 April 1919, does not
recognise a right entitling the applicants to compensation. In this
respect, therefore, the first applicant's claim cannot be considered a
"civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
The Commission furthermore considers that a prohibition to run
for the Office of Federal President does not concern "civil rights" as
envisaged by Article 6 para. 1 (Art. 6-1) of the Convention.
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) of the Convention.
2. The first applicant complains under Article 1 of Protocol No.
1 (P1-1) to the Convention of the expropriation of property which was
not followed by a prompt, adequate and effective compensation. He
submits that he is still affected by the consequences of the
expropriation.
Article 1 of Protocol No. 1 (P1-1) states:
"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."
The Commission considers that the expropriation at issue
occurred on the basis of the Act of 3 April 1919. However, the
property rights were reinstituted in 1935, though they were
transferred to the German Reich in 1939. On 1 May 1945 the Austrian
Constitution of 1929 again became effective which in Section 149
declares the validity of the Act of 3 April 1919. On 15 May 1955
Austria bound herself in the State Treaty to maintain the Act of
3 April 1919.
Thus, whichever of these dates is to be regarded as the date
of expropriation, each of them precedes 3 September 1958, the date of
the ratification and entry into force of the Convention with respect
to Austria. However, in accordance with the generally recognised
rules of international law, the Convention only governs, for each
Contracting Party, facts subsequent to its entry into force with
respect to that Party.
It follows that the examination of this part of the
application is outside the competence of the Commission ratione
temporis.
3. Both applicants further complain that they are excluded from
the Office of Federal President. They rely on Article 3 of Protocol
No. 1 (P1-3) which states:
"The High Contracting Parties undertake to hold free elections
at reasonable intervals by secret ballot, under conditions which
will ensure the free expression of the opinion of the people in
the choice of the legislature."
The Commission notes that this provision concerns "the choice
of the legislature" and not the appointment of a Head of State, such
as the Federal President of Austria. It follows that in this respect
the application is incompatible ratione materiae with the provisions
of the Convention within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
4. Under Article 3 of Protocol No. 4 (P4-3) to the Convention the
first applicant complains that he has been deprived of his right as an
Austrian citizen to enter Austria. He submits that the Austrian
reservation to Article 3 of Protocol No. 4 (P4-3) (quoted above in THE
FACTS) is invalid in that it contradicts the 1919 Treaty of St.
Germain.
Article 3 of Protocol No. 4 (P4-3) states:
"1. No one shall be expelled, by means either of an
individual or of a collective measure, from the territory of
the State of which he is a national.
2. No one shall be deprived of the right to enter the
territory of the State of which he is a national."
The Commission notes that the condition for the validity of a
reservation to the Convention or its Protocols are laid down in
Article 64 (Art. 64) of the Convention, which provides in particular that a
reservation must relate to a "law then in force", that it shall not be
of a "general character" and that it shall "contain a brief statement
of the law concerned."
The Commission however finds that the Austrian reservation, by
referring to the Act of 3 April 1919 which was in force at the time
the reservation was made, is sufficiently precise and states the law
concerned.
It follows that also in this respect the application is
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
5. The applicants further submit that in respect of all the above
complaints they have been discriminated against contrary to Article 14
(Art. 14) of the Convention. This provision provides:
"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) concerns only
discrimination in relation to rights and freedoms guaranteed by the
Convention and its Protocols. However, the Commission has just found
that the various rights invoked by the applicants fall outside the
scope of the Convention ratione temporis or ratione materiae.
Therefore, the above complaint under Article 14 (Art. 14) is
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
6. Both applicants complain under Article 3 (Art. 3) of the
Convention, taken alone and together with Article 14 (Art. 14) of the
Convention, that the laws complained of make a distinction according
to the applicant's family origin and that their aim is therefore
degrading within the meaning of Article 3. This provision states:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
However, the Commission finds that the situation of which the
applicants complain has not been shown to constitute a distinction
the effects of which are contrary to Article 3 (Art. 3) of the Convention,
either alone or taken together with Article 14 (Art. 14) of the Convention.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
7. Under Article 8 (Art. 8) of the Convention, taken alone and
together with Article 14 of the Convention, the first applicant also
complains that the banishment from Austria interferes with his private
and family life. In particular, he has no possibility, for instance,
to visit his family or his family grave. Article 8 (Art. 8) of the
Convention provides:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
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 in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Commission considers that the requirement, stipulated in
the Act of 3 April 1919, that members of the House Habsburg-Lothringen
should not be admitted to Austria, unless they renounce their
membership of that House and all sovereign rights emanating therefrom,
is consistent with the constitutional status of Austria as a
Republic. Furthermore, the first applicant has not shown that there
exist effective and close family links, constituting family life for
the purposes of Article 8 (Art. 8) of the Convention, with persons
residing in Austria.
Insofar as the applicant may be understood as complaining that
the fact that he cannot visit his family grave breaches his right to
respect for private life within the meaning of Article 8 (Art. 8), the
Commission, even assuming that an issue could arise in this respect,
considers that, in the circumstances of the present case, no lack of
respect for private life has been shown.
Accordingly, the Commission finds no lack of respect for the
first applicant's right to respect for his private and family life
within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.
This part of the application is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
Insofar as the applicant also complains under Article 8
(Art. 8) taken together with Article 14 (Art. 14) of the Convention,
the Commission finds, for the reasons given above, that the treatment
which the applicant alleges cannot amount to discrimination within the
meaning of Article 14 (Art. 14) of the Convention. It follows that in
this respect the application is again manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
8. The applicants submit under Article 13 (Art. 13) of the
Convention, taken alone and together with Article 14 (Art. 14), that
in Austria there is no effective remedy at their disposal to complain
of the alleged violations of other provisions of the Convention.
Article 13 (Art. 13) provides:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
The Commission notes that the applicants' complaints are in
fact directed against an act of legislation, namely the 1919
Habsburg-Lothringen Act. However, according to the Commission's
case-law Article 13 (Art. 13) of the Convention does not guarantee a
remedy by which legislation can be controlled as to its conformity
with the Convention (see Young, James and Webster v. United Kingdom,
Comm. Report 14.12.79, Eur. Court H.R., Series B no. 39, p. 49 para.
177). The Commission furthermore finds no issue under Article 13,
(Art. 13) taken together with Article 14 (Art. 14) of the Convention.
It follows that the remainder 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
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy