Published on 30 September 2024
FOURTH SECTION
Application no. 19139/24
Maximilian MOLITOR-MÜHLFELD
against Austria
lodged on 2 July 2024
communicated on 11 September 2024
SUBJECT MATTER OF THE CASE
The application concerns a dispute surrounding the surname of the applicant, a dual Austrian and German national, following his request for the issuance of a new passport in the course of 2021.
On 5 January 2022 the Vienna municipality issued a formal decision changing the applicant’s surname from “Molitor von Mühlfeld” to “Molitor‑Mühlfeld”, thereby removing the prefix “von” and replacing it with a hyphen, after almost 27 years of previously accepted use (from his birth in 1994 until 2021), on the grounds that the original surname was in breach of 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).
On 5 June 2022 the Vienna Administrative Court (Verwaltungsgericht Wien) upheld the applicant’s appeal on the grounds that the decision had not been issued by the competent authority.
On 4 November 2022 the Vienna municipality issued a new decision, identical with the previous one but this time issued and signed correctly.
On 2 December 2022 the Vienna Administrative Court dismissed the applicant’s appeal against the second decision.
On 5 March 2024 the Constitutional Court (Verfassungsgerichtshof) dismissed the applicant’s complaint, including with reference to the Court’s judgment in Künsberg Sarre (cited above) delivered in the meantime. It reiterated its previous case-law on the Abolition of Nobility Act and the corresponding adjustment of the case-law of the Supreme Administrative Court (Verwaltungsgerichtshof). It held that Künsberg Sarre (cited above) concerned different circumstances than the present case, and that it was therefore not relevant. In particular, that case related to a self-chosen fantasy name and not to the title of nobility “von”. This also corresponded to the Court’s case-law according to which the scope of protection under Article 8 of the Convention on the right to bear a name did not extend to titles of nobility.
The applicant did not bring any proceedings before the Supreme Administrative Court, claiming that the latter was not an effective domestic remedy, as it could not decide on violations of constitutionally guaranteed rights.
He also submitted a decision by the Vienna Administrative Court of 13 June 2023 (not yet final) concerning his sister. Referring to Künsberg Sarre (cited above), the Vienna Administrative Court upheld her appeal against the decision of the Vienna municipality of 22 November 2022 changing her surname in the same manner as his, after previously accepted use since her birth in 1996. It held that in the light of Künsberg Sarre (cited above), the change of her surname was not necessary within the meaning of Article 8 of the Convention, nor had the municipality conducted a balancing of interests.
Lastly, the applicant submitted a circular note issued by the Ministry of the Interior of 19 September 2023 concerning the Court’s case-law on the name component “von”. Referring to Künsberg Sarre (cited above), the note states, inter alia, that an overriding individual interest (unlawful interference) can be assumed if the person concerned has been using the surname, which was established according to a law other than Austrian law, (i) at the time of the decision already for at least 15 years, (ii) as an Austrian citizen, and (iii) unchallenged by the Austrian civil status authorities.
Under Article 8 of the Convention, the applicant complains of a disproportionate interference with his right to respect for his private and family life. Under Article 14 read in conjunction with Article 8, he complains that he was subjected to a different treatment because the circular note of the Ministry of the Interior explicitly orders an administrative practice which was not applied to him although he fulfilled all the requirements.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the revision (ausserordentliche Revision) to the Supreme Administrative Court (Verwaltungsgerichtshof) an effective remedy within the meaning of this provision in respect of the applicant’s complaints under Article 8 and under Article 14 of the Convention, read in conjunction with Article 8? Furthermore, did the applicant invoke before the national authorities, at least in substance, the rights under these provisions on which he now wishes to rely before the Court?
2. Assuming domestic remedies to have been exhausted, has there been an interference with the applicant’s right to respect for his 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 applicant’s individual situation properly assessed?
3. Has the applicant suffered discrimination in the enjoyment of his Convention right to bear a name under Article 8 of the Convention, contrary to Article 14 of the Convention? In particular, has the applicant been subjected to a difference in treatment in comparison to other persons fulfilling the requirements mentioned in the circular note of the Ministry of the Interior of 19 September 2023? If so, was that difference in treatment objectively justified in the circumstances of the present case?