Wolf v. Austria



AS TO THE ADMISSIBILITY OF

Application No. 25080/94

by Elisabeth WOLF

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 4 September 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 15 June 1994 by

Elisabeth WOLF against Austria and registered on 5 September 1994 under

file No. 25080/94;

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 applicant, born in 1957, is an Austrian national residing in

Vienna. In the proceedings before the Commission she is represented by

Mrs. B. Weirather, a lawyer practising in Innsbruck.

A. Particular circumstances of the case

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 25 May 1992 the applicant, whose maiden name was Loibner, was

married to Mr. Wolf. Both, she and her husband wanted to keep their

former family names. However, S. 93 para. 1 of the Austrian Civil Code

(Allgemeines Bürgerliches Gesetzbuch), in the version applicable at the

time, provided that spouses had to assume one of their names as their

common family name. In case they did not provide otherwise, the

husband's family name was to become the common family name.

Accordingly, the applicant is now called Wolf.

On 28 February 1994 the Constitutional Court (Verfassungs-

gerichtshof), referring to its decision of 18 December 1993, in which

it had already ruled on the constitutionality of S. 93 of the Civil

Code, rejected the applicant's complaint.

B. Relevant domestic law

Civil Code

S. 93 para. 1 of the Civil Code (Allgemeines Bürgerliches

Gesetzbuch), in the version which was applicable when the applicant

concluded her marriage, provided that the spouses had to assume a

common family name, i.e. the name of one of the spouses which they had,

before or at the time of the marriage, declared that they intended to

assume in a public document or a document certified by a notary public.

In case the spouses did not make such a declaration the husband's name

became the common family name.

On 1 May 1995 an amendment of the Civil Code entered into force

(Federal Law Gazette Nr. 1995/25). S. 93 para. 1 remained unchanged.

However, S. 93 para. 3 states that the spouse, who would have to give

up her name in accordance with paragraph 1, may, before or at the time

of the marriage, in a public document or a document certified by a

notary public, declare that she wants to keep her name. In this case

both spouses keep their former family names.

Law on Civil Status

Also on 1 May 1995 an amendment to the Law on Civil Status

(Personenstandsgesetz) entered into force (Federal Law Gazette

Nr. 1995/25). S. 72a para. 4 provides that persons who had to assume

their spouses' family name upon concluding a marriage before

1 May 1995, may declare that they intended to assume their former

family name again.

COMPLAINTS

The applicant complains that S. 93 of the Austrian Civil Code is

discriminatory in that she had to assume her husband's name. She

submits in particular that there is no objective reason why the wife

should give up her name if the spouses did not agree on their common

family name. She invokes Article 8 alone and in combination with

Article 14, as well as Article 12 in combination with Article 14 and

Article 5 of Protocol No. 7.

THE LAW

The applicant complains that S. 93 of the Austrian Civil Code is

discriminatory in that she had to assume her husband's name. She

invokes Article 8 (Art. 8) alone and in combination with Article 14

(Art. 8+14), as well as Article 12 in combination with Article 14 and

Article 5 of Protocol No. 7 (Art. 12+14+P7-5).

Before examining the applicant's complaint, the Commission has

to consider whether the applicant can still claim to be a victim of a

violation of the Convention rights invoked by her.

Article 25 para. 1 (Art. 25-1) of the Convention is worded as

follows:

"The Commission may receive petitions addressed to the Secretary

General of the Council of Europe from any person, non-

governmental organisation or group of individuals claiming to be

the victim of a violation by one of the High Contracting Parties

of the rights set forth in this Convention, ... ".

The Commission notes that the relevant domestic law has changed

since the introduction of the application. Under S. 93 of the Austrian

Civil Code in the version which entered into force on 1 May 1995, both

spouses retain their former names, if the wife declares before or at

the time of the marriage that she wants to keep her name. Moreover,

this amendment was given retroactive effect in that persons who had to

assume their spouses' family name upon concluding a marriage before

1 May 1995, may declare that they intended to assume their former

family name again in accordance with S. 72a para. 4 of the Law on Civil

Status.

Having regard to the amendment of the Austrian law, which enables

the applicant to assume her former family name, the Commission

considers that she can no longer claim to be a victim within the

meaning of Article 25 (Art. 25) of the Convention of a violation of

Article 8 (Art. 8) of the Convention alone or in combination with

Article 14 (Art. 8+14), or of Article 5 of Protocol No. 7 (Art. 8+P7-5)

(see mutatis mutandis No. 14723/89, Dec. 9.7.1992, D.R. 73 pp. 81, 94).

It follows that the application is 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.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber