Communicated on 3 May 2016
FOURTH SECTION
Application no. 200/15
P.R. against Austria
lodged on 26 December 2014
STATEMENT OF FACTS
The applicant is an Austrian national, born in 1968. He currently lives in Vienna.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows:
The applicant has studied law at the Karl-Franzens-University of Graz and graduated in February 1997. According to the University Act of 1966, (Allgemeines Hochschul-Studiengesetz) in force at the relevant time, the applicant was awarded in a graduation ceremony (Sponsion) the academic degree of magister iuris and a certificate of graduation was issued stating that, based on a positive assessment of the examinations required for the diploma programme in law, the applicant had been awarded the academic degree of magister iuris.
Upon the applicant’s request of 10 December 2009, the Vienna Municipal Office (Magistrat der Stadt Wien) issued on 12 February 2010 a decision, permitting him to change his family name from S. to R. This decision was based on Section 2 § 1 number 10 of the Federal Act for the amendment of surnames and forename (Bundesgesetz über die Änderung von Familiennamen und Vornamen, Namensänderungsgesetz – NÄG, hereinafter referred to as Names Act).
Thereupon, the applicant filed a request with the director of studies of the Karl-Franzens-University of Graz to amend the certificate of graduation issued in 1997 and modify his family name according to the Vienna Municipal Office’s decision of 12 February 2010.
The director of studies dismissed the applicant’s request on 19 August 2010.
The applicant’s appeal was dismissed by the Senat of the Karl‑Franzens‑University of Graz on 11 November 2010 finding that the decision of the Vienna Municipal Office of 12 February 2010 did not entail a duty of the university to amend certificates of graduation.
The applicant lodged a complaint with the Constitutional Court. He claimed that the refusal of the university to amend the certificate of graduation or to issue a new certificate of graduation with his new name violated his rights. Such a certificate was asked for by an employer when applying for a new post as lawyer. In the past he had been the victim of discrimination because of the origin of his family name and he had suffered unacceptable disadvantages in economic and social respect. Therefore, he had changed his name in compliance with the law in force but could not submit a certificate of graduation to a potential employer without being forced to reveal his former name. It could also not be excluded that employers would circulate this information and, in addition, this discrimination could also affect his private life. The certificate was not a decision by an authority and it was therefore possible to change or amend it at any time. The general possibility to change a certificate was obvious as female absolvents could have requested under the law in force in 1997 the amendment of the academic degree which had been awarded until 1993 in a masculine form to a female one (i.e. from magister to magistra). The fact that there was no provision in the law in force in 2010 allowing the change of a certificate of graduation was a lacuna in law. Also other authorities had changed documents previously issued by them such as the applicant’s driving licence without difficulty. Already the necessity to submit the decision of the Vienna Municipal Office’s decision of 12 February 2010 together with the certificate of graduation would raise a need for explanation and would eventually lead to social stigmatisation. The university’s refusal to amend the certificate therefore violated his rights under Article 8 of the Convention. He also had to withdraw from applying to certain posts which also violated his rights under Article 10 of the Convention. Further, he had no possibility to acquire a proper employment which resulted in a violation of his rights under Article 1 of Protocol No 1.
On 11 June 2012, the Constitutional Court dismissed the applicant’s complaint. It found that there were no sufficient reasons to assume that the provisions under consideration would violate the applicant’s rights especially because the alleged discriminations, when revealing his former name to a potential employer, could be dealt within the scope of the anti-discrimination law, especially the Non-Discrimination Act (Gleichbehandlungsgesetz).
The applicant lodged a complaint with the Administrative Court.
On 26 June 2014, the Administrative Court dismissed the applicant’s complaint. Examining the provisions in force at the time of the graduation, the Administrative Court found that the right to use the academic degree was joined to the person, whom the academic degree was awarded to. Even in case of change of the surname, there was no alteration in this right. The applicant would misinterpret the law when construing a subjective right to change all documents issued previously because of the amendment of his surname in accordance with Section 2 § 1 point 10 of the Names Act. He also could not rely on any provision, which would compel the university authorities to take specific steps in case of a change of the surname after the student had finished his studies or the academic degree had been granted. The Constitutional Court had already stated in its decision of 11 June 2012 that there were no sufficient reasons to assume that the provisions applicable to the case would violate the applicant’s rights under the Convention. Therefore, and on the basis of the applicant’s complaint as formulated, the Administrative Court also did not see any reason to institute proceedings for review of constitutionality (Gesetzesprüfungsverfahren) with the Constitutional Court.
B. Relevant domestic law
Section 35 § 3 of the University Act of 1966 (Bundesgesetz über die Studien an den wissenschaftlichen Hochschulen, Allgemeines Hochschul‑Studiengesetz), in force until the 31 July 1997, provided that the ceremonial award of an academic degree was granted by a university professor as a promotor in presence of the rector of the university in graduation ceremony (Sponsion). Further provisions would be regulated in a regulation enacted by the academic authorities. Upon request, the awarding of the degree could take merely place in written form. According to Section 34 § 4 of the University Act of 1966, the award of an academic degree had to be certified (beurkunden). The certificate had to contain inter alia the surname and forename of the person receiving the degree and his or hers birthday.
Since 1 October 1993, the academic degree was awarded grammatically adapted to the person’s gender. Under Section 45 § 17 of the University Act of 1966, those women, who had graduated before 1 October 1993 and therefore had been awarded with an academic degree in a male form (e.g. magister), could request an alteration to the female form (magistra).
On 1 August 1997 the University Act of 1997 (Universitäts Studiengesetz - UniStG) entered into force. According to this new law, the academic degree was awarded by decision of the university authorities when all requirements for a positive assessment of the examinations as set out in the curriculum were met. This provisions were incorporated into Section 87 of the University Act of 2002 (Bundesgesetz über die Organisation der Universitäten und ihre Studien, Universitätsgesetz 2002 – UG). Under the University Act of 2002, there is no provision comparable to Section 45 § 17 of the University Act of 1966. Moreover, the University Act of 2002 does not contain any provision permitting the amendment of granted graduation certificates.
COMPLAINTS
The applicant complains under Article 8 of the Convention that the University authorities had refused to amend his certificate of graduation of 1997 which he had to submit to potential employers when applying for a post as lawyer.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
In particular, were the proceedings available to the applicant in which he could have received a document under his new name showing that he has received an academic degree from the Karl-Franzens Univeristy of Graz?
2. Has there been an interference with the applicant’s right to respect for his private 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?
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