Thursday, 13 November 2014

Announcement by Rechtskomitee LAMBDA (Austria's LGBT-rights organization) of future litigation in Strasbourg

Rechtskomitee LAMBDA (RKL), Austria´s LGBT-rights organization, have today announded that they will make a complaint to the European Court of Human Rights about the distinction created between opposite-sex married couples and same-sex couples in registered partnerships in respect of surnames.

The text of the announcement is as follows:

Second Name vs Family Name
Registered Partnership: Pink Triangle of Austria´s Law of Names Goes to Strasbourg

The Austrian Supreme Administrative Court just has decided not (!) to end the labelling of same-gender couples by a special category of names. Rechtskomitee LAMBDA (RKL), Austria´s LGBT-rights organization, now takes the case to the European Court of Human Rights.

2010 Austria introduced registered partnership but combined this progress for same-gender couples with extraordinary maliciousness. Who enters registered partnership, the Registered Partnership Bill established, loses his family name and receives a second name instead. “Second names” (“Nachname”) are a new name category. It has been introduced solely for persons in a registered, thus same-gender, partnership. A second name therefore labels a person as homosexual. Second names thus work as the Pink Triangle of Austria´s law of names.

The last time before when a particular social group had been labelled with a special category of names was by the "Second Decree on the Implementation of the Act on the Change of Family Names and First Names" of the year 1939. This decree had ordered the labelling of Jews by the obligatory first names Israel and Sara …

Constitutional Court not interested

Christina Bauer had registered her partnership with Daniela Bauer in Germany. Daniela Bauer, as a German citizen still has a family name, as her name is determined by German law. Christina Bauer is an Austrian citizen and therefore applied to the civil registry office to establish that she still has a family name. The office rejected her application and she turned to the high courts.

The Constitutional Court declined to hear the case (VfGH 23.06.2010, B 582/10).

And the Administrative Supreme Court declared the application inadmissible on the ground that she should have used another remedy (to get a decision on whether she still has a family name), namely to ask the civil registry to issue a partnership-certificate displaying her name as a family name instead of a second name (VwGH 29.11.2010, 2010/17/0080).

Christina Bauer did as the Administrative Supreme Court told her and applied to the City of Vienna to issue such a partnership-certificate. The magistrate refused on the basis that she already had a German partnership-certificate. The Vienna governor dismissed the appeal, stressed that Miss Bauer had lost her family name due to the registration of her partnership and denied that this violated her human rights.

Supreme Administrative Court fools the applicant

Christina Bauer again turned to the high courts. The Constitutional Court again declined to hear the case (VfGH 26.11.2012, B 1253/11). And the Administrative Supreme Court – despite its prior judgment (see above) – now ruled that Miss Bauer cannot claim an Austrian partnership-certificate (VwGH 23.09.2014, 2012/01/0005). Its judgment of 2010 to the opposite the court declared irrelevant. The court stressed that it changed its mind …

„This is clear denial of justice. Same-gender couples not just get labelled by a special name category but the courts even refuse to issue a decision on the lawfulness of this labelling“, says RKL-president and counsel of applicant Dr. Helmut Graupner, „But the fight is not over yet. We are taking the case to the European Court of Human Rights“.

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