Inze v. Austria
From DADEL
Case Summary
Inze v. Austria
European Court of Human Rights
Application no. 8695/79
Judgment of 28/10/1987
The Applicant, Mr. Maximilian Inze, an Austrian citizen, alleges a violation of his rights under Article 1 of Protocol 1 taken alone and in conjunction with Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("Convention”).
Contents |
Facts
The Applicant was born out of wedlock to Ms. Theresia Inze in 1942. His mother later married Mr. Rudolf Fischer, and a son, Manfred Fischer, was born to the couple in 1954. The Applicant, along with his mother, her husband and half-brother lived on the farm belonging to his mother in Carinthia. At the age of 23, he left the farm and later married and settled down a few kilometers away.
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. Under the Civil Code, the widower was entitled to a one-fourth part of the inheritance and each of the sons (irrespective of their illegitimate or legitimate birth) to three-eighths thereof. In proceedings before the Klagenfurt District Court, the heirs expressed their willingness to accept these shares. Under the Carinthian Hereditary Farms Act of 1903, farms of a certain size may not be divided in the case of hereditary succession, instead, one of the heirs must take over the entire property and pay off the other heirs. The Applicant claimed on 8 August 1975 that he should be called to take over his mother's farm as he was the eldest son and that both his step-father and his half-brother were in any event excluded as being unfit to work the farm. The District Court appointed an expert and based on his opinion decided that the property had the character of a "hereditary farm" and fixed its value at 331,040 ATS. The question of the determination of the heir entitled to take over the farm was referred to the Klagenfurt Regional Court.
The Regional Court held that Applicant's half-brother's was entitled to inherit the farm. The Applicant appealed against this decision to the Graz Court of Appeal, claiming that the provision in section 7(2) of the Provincial Act which provides that "children related by blood shall always take precedence over adopted children and legitimate children over illegitimate children" had been abrogated by the new version of Article 754 § 1 of the Civil Code, enacted in 1970, and by Article 14 of the European Convention on Human Rights. He requested the court to submit the question of the constitutionality of the provision to the Constitutional Court. His appeal was dismissed. After confirming the Regional Court's finding that the Applicant's half-brother was not excluded, it stated that it had no doubts as to the constitutionality of the provision giving precedence to legitimate children. According to the Court of Appeal, the provision had an objective justification because it was a peculiarity of the rural family and economic structure that legitimate children typically lived with the family on the farm, whereas illegitimate children were not infrequently brought up elsewhere and therefore did not have the same close link with the farm as legitimate children.
The Applicant moved the Supreme Court against this decision. The Supreme Court rejected the appeal by a decision of 9 April 1980. After the European Convention on the Legal Status of Children born out of Wedlock of 15 October 1975 had entered into force in Austria, the Applicant again appealed to the Supreme Court, asking it to reconsider its earlier decision. However, this appeal was also turned down. The first-instance proceedings were resumed. As per a judicial settlement between the Applicant and his half-brother, the Applicant renounced any claim to take over his mother's hereditary farm. In return, he was to receive a certain piece of land which had been promised to him by his mother during her lifetime, but no other compensation. The judicial proceedings in the hereditary case were then terminated on 31 December 1981 by the transfer of the title to the whole farm to the Applicant's half-brother.
Admissibility
The Application was found to be admissible.
Merits
The Court recalled that Article 1 of Protocol No. 1 (P1-1) in substance guarantees the right of property. It distinguished the instant case from 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. The Court concluded that the facts at issue fall within the ambit of Article 1 of Protocol No. 1 (P1-1).
The Court emphasized that the Human Rights Convention is a living instrument, to be interpreted in the light of present-day conditions. As demonstrated by the 1975 European Convention on the Legal Status of Children born out of Wedlock, the equality of children born in and out of wedlock is an important matter for member States of Council of Europe. The said Convention was ratified by the Republic of Austria on 28 May 1980. Very strong rationale ought to be shown before a difference of treatment on the ground of birth out of wedlock can be considered not to violate the Human Rights Convention.
The argument relating to the convictions of the rural population on illegitimacy only reflected more traditional opinions. It noted that the Austrian government recognized the ongoing developments in rural society and have accordingly prepared a bill which takes them into account. In future, the attribution of a hereditary farm is to be based on particular factors, which include training for the running of farms and the fact of having been brought up on the particular property. The Court stressed that these proposed amendments cannot in themselves be taken as demonstrating that the previous rules were contrary to the Convention. However, the rules demonstrates that the aim of the legislation in question could also have been achieved by applying terms and conditions that did not include birth in or out of wedlock.
Decision
The Court found that there was a breach of Article 14 of the Convention, taken together with Article 1 of Protocol No. Article 1 of Protocol No. 1 did not entitle the Applicant to inherit the farm. But the court did find that because of discrimination he lost an opportunity to take over the farm. The Court, making an assessment on an equitable basis, awarded Mr. Inze the sum of ATS 150,000.
External links
Categories: Council of Europe | Jurisprudence | ECHR | Grounds | Birth | Austria