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Cite as: (1988) 10 EHRR 394,  ECHR 28
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CASE OF INZE v. AUSTRIA
(Application no. 8695/79)
In the Inze case*,
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:
Mr. J. Cremona, President,
Mr. Thór Vilhjálmsson,
Mr. G. Lagergren,
Mr. F. Gölcüklü,
Mr. F. Matscher,
Mr. L.-E. Pettiti,
Mr. R. Bernhardt,
and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy Registrar,
Having deliberated in private on 25 April and 25 September 1987,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Austria recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government’s application referred to Article 48 (art. 48). Their object was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 14 of the Convention, taken together with Article 1 of Protocol No. 1 (art. 14+P1-1).
On 2 March 1987, after consulting, through the Registrar, the Agent of the Government, the Delegate of the Commission and the lawyer for the applicant, the President directed that the oral proceedings should open on 23 April 1987 (Rule 38). He had previously granted the applicant’s lawyer leave to use the German language in the proceedings (Rule 27 § 3).
On 1 April, the Commission submitted several documents. On 6 April, the applicant filed with the registry his claims for just satisfaction under Article 50 (art. 50) of the Convention.
As Mr. Ryssdal was unable to attend the hearing, Mr. Cremona, the Vice-President of the Court, acted as President of the Chamber (Rules 9 and 21 § 5).
There appeared before the Court:
- for the Government
Mr. H. Türk, Legal Adviser,
Ministry of Foreign Affairs, Agent,
Mr. N. Okresek, Federal Chancellery,
Mrs. I. Djalinous, Ministry of Justice, Advisers;
- for the Commission
Mr. S. Trechsel, Delegate;
- for the applicant
Mr. H. Walther, Rechtsanwalt, Counsel.
The Court heard their addresses and their replies to its questions. The Agent of the Government and counsel for the applicant filed a number of documents.
AS TO THE FACTS
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
The applicant’s mother died intestate on 18 April 1975 and left as her heirs, apart from the applicant, her husband and her second son. According to the provisions of the Civil Code, the widower was entitled to a one-fourth part of the inheritance (Article 757) and each of the sons (irrespective of their illegitimate or legitimate birth) to three-eighths thereof (Articles 732 and 754). In proceedings commenced ex officio before the Klagenfurt District Court (Bezirksgericht), the applicant, his step-father and his half-brother stated that they were willing to accept these shares. The District Court decided on 31 March 1976 that the declarations of acceptance were valid.
The applicant had claimed on 8 August 1975 that he should be called to take over his mother’s farm as he was the eldest son. He later submitted that the regulation giving precedence to legitimate children had in the meantime been abrogated, and that both his step-father and his half-brother were in any event excluded as being unfit to work the farm, under section 7(4) of the Provincial Act (see paragraph 25 below).
A. Classification of the farm
B. Determination of the heir
The District Court communicated its file to the Regional Court on 20 July 1977. After a hearing scheduled to take place on 16 January 1978 had been cancelled, the Regional Court returned the file to the District Court on 17 January 1978, with the request to take further evidence relating to the ability of the applicant’s half-brother to work the farm. The expert opinion was therefore to be supplemented in this respect, and the District Court was asked to add its own legal opinion when re-submitting the file (section 7(4) of the Provincial Act; see paragraph 25 below).
As regards the ability of the applicant’s half-brother to run the farm at the same time as continuing with his job as an unskilled worker, the expert answered in the affirmative. Not very much was required to be done on the farm and his workplace was not so far away as to prevent his daily presence on the property.
The Supreme Court also held that there was no reason to submit the matter to the Constitutional Court, on the following grounds.
As regards the conformity of section 7(2) with the constitutional provision in Article 14 (art. 14) of the Convention, Article 14 (art. 14) was applicable only in relation to the enjoyment of the rights and freedoms set forth in the Convention. In its opinion, the Convention did not deal with the question of hereditary succession, and Article 1 of Protocol No. 1 (P1-1), which secured the right to the peaceful enjoyment of possessions, did not exclude regulations providing for different rules of succession according to birth in wedlock or out of wedlock.
Furthermore, there was no doubt as to the compatibility of section 7(2) with the constitutional principle of equality. This principle required that legislation make no legal distinction based on the personal status of an individual unless this was justified by objective reasons. The impugned regulations in the Provincial Act did not, however, appear to be unjustified. Similar provisions also existed in the provincial legislation of Tyrol (Höfegesetz) and in the federal legislation for the other provinces (Anerbengesetz) and these limited illegitimate children’s rights even further, in that they could take over a hereditary farm only if they had been brought up on it.
The preparatory materials on this legislation showed that the precedence accorded to legitimate children was based on convictions of rural society. Neither was the regulation in question contradicted by attempts to assimilate the legal position of illegitimate children to that of legitimate children, because it reflected the special convictions and attitudes of the rural population which, among other things, also affected the legal position of the widower. Furthermore, the Supreme Court observed, the family was an important element of the legal organisation of human relationships. Having regard to all these circumstances, it could not be said that the regulations contained in the Provincial Act were not based on objective considerations.
"In pursuance of Article 14 § 1 of the Convention, the Republic of Austria reserves the right not to accord to a child born out of wedlock, as provided for in Article 9 of the Convention, the same right of succession in the estate of its father and of a member of its father’s family, as if it had been born in wedlock."
On 6 October 1980, the Supreme Court rejected the appeal as inadmissible, having regard to the binding effect of its previous final decision and to the absence of a legal possibility to re-open the procedure.
C. Settlement reached between the applicant and his half-brother
The judicial proceedings in the hereditary case were then terminated on 31 December 1981 by the transfer (Einantwortung) of the title to the whole farm to the applicant’s half-brother.
However, the separating-off of the piece of land, which consisted of forest, assigned to the applicant under the agreement still required the approval of certain administrative authorities, including in particular the competent forestry authority, having regard to the provisions of the Carinthian Provincial Forestry Act (Provincial Law Gazette, no. 77/1979). Certain difficulties arose in this respect. The piece of land was not sufficiently large for its separating-off to be permissible under the above Act except in the case of a predominant public interest, the existence of which the authority denied. The difficulties were apparently overcome after the Constitutional Court had in a different case found the relevant provisions of the Carinthian Provincial Forestry Act to be unconstitutional.
The land was then registered in the applicant’s name in the official land register. This has been confirmed in an extract from the land register, dated 13 January 1984.
II. THE RELEVANT LEGISLATION
A. Civil Code
"Capacity to inherit can be determined only when the estate actually passes. This is generally when the de cuius dies (Article 703)."
"Once he has accepted the inheritance, the heir represents the de cuius in respect of the estate. Both shall be regarded as being one and the same person as regards third parties. Until the heir has accepted the inheritance, the estate shall be treated as if it were still in the deceased’s possession."
"Where there is more than one heir, they shall be regarded, in respect of their joint right to inherit, as being one person. Until the estate is transferred by court order, the heirs shall be jointly and severally liable. The extent to which they shall be liable thereafter is laid down in the chapter on taking possession of the estate."
B. The Carinthian Hereditary Farms Act
The following provisions of this Act are relevant (translation from German):
Section 6 § 1
"If the estate of the owner of a farm devolves on several persons, only one person, the principal heir (Anerbe), may inherit the farm and its equipment ..."
"The principal heir shall be determined according to law and the order which it prescribes for the devolution of estates. When there are several heirs and no agreement can be reached among them, they shall be called to take over the farm in the following order:
(1) In general, male heirs shall take precedence over female, and older over younger heirs of the same sex; lots shall be drawn between heirs of the same age. Those more closely related shall, however, take precedence over those more distantly related.
(2) Children related by blood shall always take precedence over adopted children and legitimate children over illegitimate children.
(4) The following shall, in general, be excluded from taking over the farm:
(b) persons who, by reason of a mental or physical disability, seem incapable of running the farm themselves,
(d) persons who are prevented by their profession from managing the farm on the spot and working it in person.
... The decision regarding ... the existence of grounds of exclusion under paragraphs (b) to (e) shall be reserved to the court of first instance (Landesgericht and Kreisgericht), to which the District Court (Bezirksgericht) shall submit the file on the administration of the estate, together with its own opinion."
"When the estate is being divided, the farm (section 6) shall devolve on the principal heir, who shall become the estate’s debtor for the value of the farm free of charges."
"(1) The value of the farm shall be determined by agreement among the persons concerned.
(2) If no such agreement can be reached, the court shall call on experts to make an assessment, shall hear the municipal council and the parties and shall determine on an equitable basis the value of the farm in such a way that the principal heir is not burdened with undue financial difficulties (wohl bestehen kann)."
"(1) The law on reserved portions (Articles 765 and 766 of the Civil Code) is not affected by the regulations on division of estates.
(2) The value of reserved portions shall be assessed with reference to the value of the farm, determined in accordance with section 9(2) ..."
"If the deceased was the sole owner of the farm, the person taking it over shall be determined according to law and the order which it prescribes for the devolution of estates. If there are several heirs and no agreement has been reached among them, they shall be called to take over the farm in the following order:
1. Heirs who have been trained as farmers shall take precedence over those who have not. If several heirs have been trained as farmers, those who were brought up on the farm in question shall take precedence over those who were not.
2. Children, including adopted children, of the deceased shall take precedence over a surviving spouse; a surviving spouse shall, however, take precedence over descendants who were not brought up on the farm and over other relatives."
The explanatory report states that this provision is designed to eliminate, inter alia, the disadvantages suffered by illegitimate and adopted children as compared with legitimate children.
PROCEEDINGS BEFORE THE COMMISSION
FINAL SUBMISSIONS MADE BY THE GOVERNMENT TO THE COURT
"that in the present case the provisions of Article 1 of Protocol No. 1 (P1-1), whether taken alone or in conjunction with Article 14 (art. 14+P1-1) of the ... Convention, have not been violated and that, therefore, the facts underlying the dispute do not indicate any breach of the Convention by the Republic of Austria; and in eventu that the decision by the Court that there has been a breach of the Convention amounts in itself to adequate just satisfaction for the purposes of Article 50 (art. 50) of the Convention".
AS TO THE LAW
I. THE APPLICANT’S STATUS AS "VICTIM" (Article 25 of the Convention) (art. 25)
The applicant and the Commission took the opposite view; they pointed out in particular that the applicant had been in a weak negotiating position when he accepted the settlement.
II. THE ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1)
Article 14 (art. 14) of the Convention
"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... birth or other status."
Article 1 of Protocol No. 1 (P1-1)
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions ..."
The applicant did not allege a violation of Article 1 of Protocol No. 1 (P1-1), taken alone, and the Court does not find it necessary to examine this question ex officio; it suffices to ascertain whether his complaints fall within the ambit of this provision.
Like the Commission, the Court considers that the situation in the instant case is to be distinguished from that in the Marckx case. In the latter, the complaint concerned the potential right of the second applicant to inherit from the first applicant, who was still alive. Here, the applicant had already acquired by inheritance a right to a share of his deceased mother’s estate, including the farm, subject to a distribution of the assets in accordance with the Provincial Act. Under Articles 545, 547 and 550 of the Austrian Civil Code, on the death of the de cuius, the heirs automatically acquire their hereditary rights over his estate, which is vested in them pro indiviso (see paragraph 24 above).
Furthermore, the heirs had already accepted the shares provided for by the Civil Code and the Klagenfurt District Court had decided on 31 March 1976 that the declarations of acceptance were valid (see paragraph 9 above). The estate was therefore the joint property of the applicant and his co-heirs, although none of them had an immediate right to a specific asset.
The Court notes that the applicant did not challenge the system of hereditary farms as such, but only the criteria applicable to the choice of the principal heir. In this respect, section 7(2) of the Provincial Act gives precedence to legitimate over illegitimate children. Accordingly, in the instant case the farm in question went to the younger, legitimate, son, whereas the applicant was, on the sole ground of his illegitimate birth, deprived of any possibility of obtaining it.
The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law; the scope of this margin will vary according to the circumstances, the subject-matter and its background (ibid.).
In this respect, the Court recalls that the Convention is a living instrument, to be interpreted in the light of present-day conditions (see, amongst various authorities, the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 25, § 53). The question of equality between children born in and children born out of wedlock as regards their civil rights is today given importance in the member States of the Council of Europe. This is shown by the 1975 European Convention on the Legal Status of Children born out of Wedlock, which is presently in force in respect of nine member States of the Council of Europe. It was ratified by the Republic of Austria on 28 May 1980, with a reservation (see paragraph 21 above) which is not relevant to the facts of the present case. Very weighty reasons would accordingly have to be advanced before a difference of treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention (see, mutatis mutandis, the above-mentioned Abdulaziz, Cabales and Balkandali judgment, Series A no 94, p. 38, § 78).
In addition, the birth criterion reflected the convictions of the rural population and the social and economic condition of farmers. Again, illegitimate children, unlike legitimate children, were usually not brought up on their parents’ farm and did not have close links with it.
Finally, one had to bear in mind the special treatment reserved to the surviving spouse, who was normally entitled to stay on the farm and to be maintained by the principal heir.
Whilst it is true that the applicant’s mother could have made a will in his favour, this does not alter the fact that, in the instant case, he was deprived by law of the possibility of taking over the farm on her death intestate.
The Court wishes to make it clear that these proposed amendments cannot in themselves be taken as demonstrating that the previous rules were contrary to the Convention. They do however show that the aim of the legislation in question could also have been achieved by applying criteria other than that based on birth in or out of wedlock.
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
Mr. Inze claimed just satisfaction for pecuniary damage resulting from his inability to take over his mother’s farm and for costs and expenses. He made no claim for non-pecuniary damage and this is not a matter which the Court has to examine ex officio (see, mutatis mutandis, the Sunday Times judgment of 6 November 1980, Series A no. 38, p. 9, § 14).
It is true that Article 1 of Protocol No. 1 (P1-1) did not entitle the applicant to inherit the farm specifically. Nevertheless, he lost, because of the discrimination found by the Court, real opportunities of taking over the farm, which must be taken into account (see, amongst other authorities, mutatis mutandis, the Sporrong and Lönnroth judgment of 18 December 1984, Series A no. 88, p. 13, § 25).
Although the judicial settlement of 12 October 1981 (see paragraph 22 above) may have somewhat alleviated the financial consequences of the violation found by the Court, it did not completely efface - and did not therefore provide sufficient reparation for - the initial disadvantage suffered by the applicant (see paragraphs 32-33 above).
He subsequently put forward an alternative method which led to a figure of ATS 1,268,476.34. This represented the alleged market value of the farm in 1976 (ATS 1,455,000) less (a) the transfer value (ATS 197,481.83) of the legal shares due to his half-brother and his step-father (see paragraphs 9 and 13 above) and (b) the market value at that time (ATS 455,700) of the piece of land received under the judicial settlement (see paragraph 22 above). The relevant sums had been adjusted to take account of changes in the cost-of-living index up to January 1987.
Accordingly, the Court, taking all the relevant factors into account and, as required by Article 50 (art. 50), making an assessment on an equitable basis, awards Mr. Inze the sum of ATS 150,000.
B. Costs and expenses
In the absence of details as to the lawyer’s fees and sundry expenses, the Court awards the sum of ATS 23,000 for these items; to this should be added the ATS 2,539 for the expert’s fees.
As for the second and third amounts, the Government did not contest that the applicant had incurred liability to pay sums additional to those covered by the legal aid which he had received from the Council of Europe (see the Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 16, § 36). However, both they and the Commission argued that the figures claimed were excessive.
The Government questioned the way in which the applicant’s lawyer had calculated his fees, the amount of which was twice that provided for proceedings before the Austrian Supreme Court. In the view of the Commission’s Delegate, on the other hand, since the guidelines published by the Conference of the Austrian Bar Associations did not apply to the Convention institutions, the applicant’s lawyer could not be criticised in this respect. However, the Delegate agreed with the Government that short notes and letters written by the lawyer to Strasbourg should not have been charged in the same way as substantial submissions.
In the circumstances of the case, the Court is unable to award the totality of the sums claimed. It considers, on an equitable basis, that the applicant is entitled, subject as provided below, to be reimbursed ATS 50,000 referable to the proceedings before the Commission after their adjournment and those before the Court.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that the applicant can still claim to be a "victim" within the meaning of Article 25 (art. 25) of the Convention;
2. Holds that there has been a breach of Article 14 of the Convention, taken together with Article 1 of Protocol No. 1 (art. 14+P1-1);
3. Holds that the respondent State is to pay to the applicant, for damage, ATS 150,000 (one hundred and fifty thousand Austrian Schillings) and, for costs and expenses, the sum resulting from the calculations to be made in accordance with paragraph 57 of the judgment;
4. Rejects the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 28 October 1987.
* Note by the Registrar: The case is numbered 15/1986/113/161. The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.