THE FACTS
Whereas the facts presented by the Applicant may be summarised as
follows:
the Applicants are Austrian national born respectively in 1924 and 1965
and at present resident in Innsbruck, the first Applicant being the
father of the second.
The first Applicant registered the birth of his child and applied for
the issue of a birth certificate but refused to inform the Registrar
as to the religion of the parents of the second Applicant. The
Registrar, by a decision of .. July, 1965, refused to issue the
certificate since the provisions of the Registration Act
(Personenstandsgesetz) require that the birth certificate should
contain a statement as to the religion of the parents.
The first Applicant appealed to the District Court (Bezirksgericht) in
Innsbruck which was at the same time seized of application by the
Supervising Authority of the Registrar (Aufsichtsbehörde des
Standesamtes) that the entry in the Register be corrected to show the
religion of the parents as Roman Catholic and a corresponding birth
certificate issued.
This religion appears both from the marriage certificate of the parents
and also from the statement of the first Applicant in his application
to the Court. The Court gave judgment in accordance with the
application of the Supervising Authority on .. December, 1965.
This decision was confirmed on appeal by the Regional Court
(Landesgericht) in Innsbruck on .. January, 1966, and again by the
Supreme Court (Oberster Gerichtshof) on .. March, 1966. The Supreme
Court also declined the Applicant's request that it should place the
question of the constitutionality of Article 21 of the Registration Act
before the Constitutional Court. The Applicants then brought
proceedings before the Constitutional Court complaining of the
Registrar's decision of .. July, 1965, which were rejected on ..
September, 1966, as being out of time.
The Applicants maintain that the refusal to issue a birth certificate
which does not indicate the religion of the parents of the second
Applicant constitutes a violation of the following Articles of the
Convention and the First Protocol:
Article 5: Because under various provisions, e.g. the Vagrancy Act
(Landstreichergesetz) persons who cannot produce an identity card can
be arrested and an identity card cannot be delivered without the
production of a birth certificate. The right to freedom and security
of the person is thus restricted.
Article 8: The respect for private life is violated by being forced
to declare one's religion.
Article 9: Because the right to religious freedom and the right to
change one's religion must include the right not to reveal one's
religion.
Article 10: Because the right of freedom of expression must include
the right not to publish one's personal opinion in matters relating to
religion and belief.
Article 11: Because the right of association implies the possession
of an identity card (Lichtbildausweis) which is only delivered on the
presentation of a birth certificate.
Article 12: Because the right to marry is dependent on the production
of a birth certificate.
Article 14: Because the issue of a birth certificate was refused on
the ground that the religion of the parents was not known thus
constituting a discrimination on religious grounds. Further the
Applicant states that the mention of the religion of a person's parents
on his birth certificate is likely to lead to his or his parents being
subjected to discriminatory treatment in Austria, the United States of
America and communist countries.
Protocol Article 1: Because the first Applicant is not able to claim
tax reduction on the birth of his son whose existence he can only prove
by producing a birth certificate.
Protocol Article 2: Because the second Applicant is deprived of his
right to education as he cannot be accepted in any school or
kindergarten without producing a birth certificate.
Protocol Article 3: Because without producing a birth certificate the
second Applicant is unable to take part in elections.
The Applicants request the Commission to declare that the refusal to
issue a birth certificate without indication of the parents' religion
constitutes a violation of the above mentioned articles of the
Convention and also to require the Austrian authorities to issue a
birth certificate which does not mention the parents' religion.
Proceedings before the Commission
Whereas, the proceedings before the Commission may be summarised as
follows:
The Application was lodged with the Secretariat of the Commission on
9th May, 1966, and entered in the special register provided for by Rule
13 of the Commission's Rules of Procedure on 25th July, 1966.
On 10th May, 1967, the case was submitted to a group of three members
for a preliminary examination in accordance with Rule 34 of the Rules
of Procedure. On 2nd June, 1967,the Commission examined the Application
and declared inadmissible the Applicant's complaints alleging
violations of Articles 5, 11, 12 and 14 of the Convention and Articles
1, 2 and 3 of the First Protocol. At the same time it decided to give
notice to the Austrian Government in accordance with Rule 45, paragraph
(3) (b) of its Rules of Procedure of the Applicants' complaints
relating to Articles 8, 9 and 10 of the Convention and to invite it to
submit its observations on the question of admissibility.
The Austrian Government submitted its observations on 7th August, 1967,
and the Applicant submitted his observations in reply on 12th
September, 1967.
Submissions of the parties
The submissions of the parties may be summarised as follows:
On the question of the exhaustion of the available domestic remedies
in accordance with Article 26 of the Convention
The Respondent Government submits: the Commission may only deal with
a matter after all domestic remedies have been exhausted, according to
the generally recognised rules of international law, and within a
period of six months from the date when the final decision was taken.
This rule, in the light of the Commission's consistent practice, is to
be interpreted to the effect that an Applicant must make use of all
domestic remedies accessible to him. The Applicant, indeed, appealed
against the Registrar's decision to the ordinary courts in accordance
with Article 45 of the Registration Act. He also appealed to the
Constitutional Court alleging a violation of his constitutional rights.
This remedy was clearly available to him and it therefore constituted
an essential step in exhausting the domestic remedies since only the
Constitutional Court can decide whether there has been a violation of
the fundamental rights in question. This appeal was, however, rejected
by the Constitutional Court in its decision of .. December, 1966, as
being out of time since the Applicant had not complied with the six
weeks' time limit laid down in Article 82, paragraph (1) of the
Constitutional Court Act.
The Applicant has thus forfeited his right to appeal to the Commission
since, according to its standing jurisprudence, Article 26 requires an
Applicant to make use of the domestic remedies within the periods
prescribed by the national law.
The appeal to the Constitutional Court would certainly have been an
effective remedy and the Applicant's statement in his letter to the
Commission of 21st July 1966, that an appeal to the Constitutional
Court was "useless" is incomprehensible and irrelevant. The fact that
the Supreme Court refused the Applicant's request to institute
proceedings with the Constitutional Court with a view to deciding
whether Article 45 of the Registration Act is compatible with the
Constitution can in no way be considered as a precedent with respect
to a future decision of the Constitutional Court.
The Respondent Government also submitted that the Applicant had failed
to make use of a further available remedy by way of appeal to the
Administrative Court.
In reply the Applicants submit that the Respondent Government in its
observations has emphasised that the Constitutional Court found that
the appeals lodged by the Applicants were not administrative appeals
but were before the ordinary courts, with the result that, by virtue
of Article 82 of the Constitutional Court Act, the Constitutional Court
was not competent in the matter as there had been no administrative
decision of last instance. In fact no administrative appeals were
available to the Applicants on account of the provisions of Article 45
of the Registration Act. The Respondent Government admits that only the
Constitutional Court can decide whether there is a violation of the
fundamental rights in question. It is therefore not clear why the point
is taken that the Applicants failed to apply to the Administrative
Court. In this connection it should be mentioned that according to
Article 131 of the Constitution, application can only be made to the
Administrative Court when all other available remedies have been
exhausted. Neither in the Constitution nor in the Administrative Court
Act is there any indication whether these remedies should be before
administrative authorities or before the courts. Since Article 45 of
the Registration Act imperatively prescribes a further remedy, that is
to say to the District Court, it may be presumed in view of the clear
terms of Article 131 of the Constitution that an application to the
Administrative Court would be an arbitrary and senseless act, since
until an application has been made to the District Court the legally
prescribed remedy has not been exhausted.
The Respondent Government, moreover, takes exception to the Applicants'
failure to apply directly to the Constitutional Court against the
decision of the Registration Officer. As the Government itself admits,
the Constitutional Court rejected the application which was made at a
later stage with the comment that the matter concerned a remedy before
the ordinary courts. As already mentioned, Article 82 of the
Constitutional Court Act imperatively prescribes that application can
only be made not the Constitutional Court against administrative
decisions of last instance. Article 45 of the Registration Act also
imperatively prescribes a remedy before the ordinary courts. The
Applicants made enquiries at the Registration Office and the Provincial
Administration and were informed that an attempt to exhaust the
administrative remedies by applying to the Provincial Administration
and the Ministry of the Interior would have been fruitless since the
Provincial Administration would have refused to deal with the matter
on the ground that it was not competent in view of the provisions of
Article 45 of the Registration Act. Since, therefore, all
administrative remedies were blocked and the only remedy prescribed by
the Act was before the ordinary courts and, furthermore, the
Constitutional Court was only accessible after the administrative
remedies had been exhausted, a direct application to the Constitutional
Court was not possible. It must be emphasised that under the
Registration Act there are no administrative remedies at all against
the decisions of the Registration Officer and thus no direct access to
the Constitutional Court. Once the matter has been dealt with in the
first place by the authority, no further administrative authority is
competent to deal with the matter but, as a matter of imperative law,
the ordinary courts (against whose decision no application to the
Constitutional Court is possible) are exclusively competent.
Nevertheless, in order to exhaust all available remedies the Applicant
chose an indirect course and, when appealing to the Supreme Court,
requested that Court to lay appeal before the Constitutional Court.
This procedure is in accordance with the constant jurisprudence of the
Commission of Human Rights which has in a number of cases decided that
the Supreme Court must be considered as the court of law instance since
under Austrian law there is no appeal to the Constitutional Court from
the decisions of the ordinary courts. Since this application was
refused by the Supreme Court the Applicants have, according to the
standing jurisprudence of the Commission, exhausted all domestic
remedies before the ordinary courts, which according to Article 45 of
the Registration Act, are the only remedies available.
The same reasoning demonstrates that the Supreme Court, which can of
its own motion place purely juridical (not administrative) matters
before the Constitutional Court, denied the Applicants access to the
Constitutional Court. The Applicants are therefore of the opinion that
their right to apply to the Constitutional Court in an administrative
matter has also been violated. This arises from the fact that Article
45 of the Registration Act prescribes an appeal to the ordinary courts
as a remedy in an administrative matter, with the result that following
the transfer of the matter to the ordinary courts, the access to the
Constitutional Court is barred.
Under Article 45 of the Registration Act an appeal to the District
Court is imperatively prescribed an further appeals can be directed
only to the higher courts. The exhaustion of the proper remedies is,
however, an imperative precondition for an application to the
Constitutional Court or the Administrative Court. The subsequent
application to the Constitutional Court was, therefore, bound to fail
but was nevertheless undertaken in order to demonstrate that no
available remedy had been neglected and also with the object of
obtaining a finding that in the opinion of Constitutional Court in the
present case the only available remedy was by means of an appeal to the
ordinary courts.
The Parties also made submissions concerning the alleged breaches of
Articles 3, 9 and 10 of the Convention.
THE LAW
Whereas, the Applicant alleges violations of Articles 8, 9 and 10 (Art.
8, 9, 10) of the Convention arising from the refusal by the authorities
of the town of Innsbruck to issue a birth certificate in respect of the
second Applicant, which did not state the religion of the first
Applicant and his wife as parents of the second Applicant; whereas it
is to be observed that, under Article 26 (Art. 26) of the Convention,
the Commission may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law; and whereas the Applicants failed to appeal in due
time directly to the Constitutional Court against the decision of the
town authorities of Innsbruck dated .. July, 1965; whereas in this
connection the Commission refers to the judgment of the Constitutional
Court of .. September, 1966, which states: "The decision of the town
authorities of Innsbruck dated .. July, 1965 was not challenged within
the period of six weeks prescribed by Article 82 paragraph (1) of the
Constitutional Court Act, 1953, by an appeal based on Article 144 of
the Federal Constitution"; whereas, therefore, he had not exhausted the
remedies available to him under Austrian law; whereas, moreover, an
examination of the case as it has been submitted, including an
examination made ex officio, does not disclose the existence of any
special circumstances which might have absolved the Applicant,
according to the generally recognised rules of international law, from
exhausting the domestic remedies at his disposal; whereas, in
particular, the Commission observes that the Applicant appealed against
the decision of the town authorities to the ordinary courts and
eventually to the Supreme Court in accordance with the express
provisions of Article 45 of the Registration Act and thereby exhausted
the remedies available before the ordinary courts; whereas, however,
this does not absolve him from pursuing the remedy available for an
alleged breach of his human and constitutional rights by means of a
direct appeal to the Constitutional Court within the time prescribed;
whereas, therefore, the condition as to the exhaustion of domestic
remedies laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-3)
of the Convention has not been complied with by the Applicant;
Whereas, the parties have also made submissions concerning the breaches
of Articles 8, 9 and 10 (Art. 8, 9, 10) of the Convention alleged by
the Applicants;
Whereas, however, the Commission's decision on the Applicant's failure
to exhaust the domestic remedies as required by Article 26 (Art. 26)
of the Convention is conclusive on the question of the admissibility
of the Application; whereas, therefore, it is not necessary further to
examine the violations of the Convention alleged by the Applicants;
Now therefore the Commission declares this application inadmissible.