X v Austria - 8278/78 [1979] ECHR 6 (13 December 1979)

APPLICATION /REQUETE N° 8278/78

X.v/AUSTRIA
X.c/AUTRICHE

DECISION of 13 December 1979 on the admissibility of the application
DECISION du 13 decembre 1979 sur la recevabilitede la requete

Article 2 of the Convention: Even assuming that this provision guarantees the
right to physical integrity, a blood test does not interfere with this guarantee.

Article 5, paragraph 1, of the Convention : Leading a person by force to a
medical expert to undergo a blood test constitutes a deprivation of liberty.

Article 5, paragraph 1 lb) of the Convention : Judicial decision, based on a
decree, ordering that a person be brought by force to a medical expert to
undergo a blood test.

Article 8, paragraph 1, of the Convention: A compulsory medical intervention,
even minor, constitutes an-interference with the right to respect for private life.

Article 8, paragraph 2, of the Convention: A blood test ordered in the course of
paternity proceedings is an interference necessary for the protection of the
rights and fredoms of others.

Article 2 de la Convention : Memesit'on admet que cette disposition garantit te
droit a I'inte'griie' corporelle, un examen du sang ne pone pas atteinte a cette
garantie.

Article S, paragraphe 7, de la Convention: Le fait de conduire une personne de
force devant un midecin expert pour subir un examen du sang constitue une
privation de liberte.

Article 5, paragraphe 1, l/tt. b, de la Convention: Decision judiciaire, fond6e sur
un rGglement, ordonnant qu'une personne soit conduite de force devant un
mGdecin expert pour subir un examen du sang.

Article 8, paragraphe t, de la Convention : Une intervention me'dicaie forcie,
meme mineure, est une atteinte au droit au respect de la vie privGe.

- 154 -

Article 8, paragraphs 2, de la Convention : Un examen du sang ordonne au
cours d'une procedure en dteaveu de paternity est une ing&rence n£cessaire
d la protection des droits et liberte's d'autrui.

THE FACTS Vrancais : voir p. 157)

The applicant is an Austrian citizen, born in 1956 and living in Vienna
where he is studying.

He is represented before the Commission by MM. Stern, Aufricht, Stern,
barristers in Vienna.

The applicant was born as the son of Dr A. and Mrs B. who were married
at the time and got divorced irv.May 1957. In February 1975 Dr A. brought an
action againsl the applicant alleging that he was not the applicant's procreator.
He requested a declaratory judgment to this effect.

The Vienna Regional Court (Landesgerichtl ordered that the applicant,
being the defendant, should be submitted to a blood test in order to determine
whether or not he was the son of the plaintiff, Dr A. As the applicant refused to
undergo a blood test the Court ordered, on ... August 1977, that he be taken to
the medical expert by force. This order was based on Section 7 of a decree of
1943 (Verordnung GRGBI. 1943,1, p. 80). It was confirmed by the Vienna Court
of Appeal (Oberlandesgericht) on ... January 1978. This Court stated that the
decree of 1943 was still a valid law and that the obligation of parties or witnesses
to submit themselves to blood tests in alfiliation proceedings was reasonable
and necessary and not a typical nazi regulation. The applicant's submission that
change of name would be unacceptable for him was not a sufficient reason to
refuse the blood tesi. In so far as the applicant had, in the grounds of his appeal,
for the first time alleged that the blood test might have dangerous effects in
view of his blood composition, the Court stated that this new factual allegation
could not be taken into consideration in the Appeal Proceedings, but would
have to be considered by the trial court.

Complaints

The applicant considers that a blood test against his will would violate
Article 2 of the Convention.

He further considers thatthe use of force would not be justified by public
interests in his case because the question of paternity with regard to a 22-year-
old person could be determined by other means than forceful interference with
personal integrity.

The decree of 1943 is, in his opinion, based on nazi ideology which is
opposed to the principles of human rights and dignity.

- 155 -

Furthermore he submits that the order to take him by force to the medical
expert for the purpose of the blood test violates Article 5 of the Convention.

THE LAW

The applicant has complained that the Vienna Court ordered that he be
submitted by force to a blood test. The applicant has appealed against this order
and has undisputedly exhausted all domestic remedies.

1. The applicant has alleged a violation of the right to life as protected by
Article 2.1 of the Convention. This Article does, however, primarily provide
protection against deprivation of life only. Even assuming that physical integrity
may be seen as protected by this Article an insignificant intervention such as a
blood test does not amount to an interference prohibited by it. The applicant
has not submitted evidence that in his particular case a blood test would
medically create any danger to his life.

2. The applicant has further alleged that submitting him to a blood test
would violate Article 5 of the Convention which guarantees the right to liberty.
The Commission is of the opinion that enforcing a blood test on a person
is a deprivation of liberty even if this deprivation is of very short lengih.

However, as the respondent Government have rightly pointed out, sub-
paragraph 1.6 of Article 5 permits detention of a person for non-compliance
with the lawful order of the Court or in order to secure the fulfilment of any
obligation prescribed by law. Consequently, the enforcement of the Court order
here in question was a justified intervention with the applicant's right to liberty.

3. The Commission has finally examined the application under Article 8.1 of
the Convention which guarantees, inter alia, the right to respect for private life.
A compulsory medical intervention, even if it is of minor importance, must be
considered as an interference with this right (cf. decision on the admissibility of
Application No. 8239/78, Decisions & Reports 16 p. 184). However, the
Regional Court's order concerning the blood test was based on a decree of 1943
and the interference in question is consequently in accordance with the law (cf.
Golder Case, judgment of the European Court of Human Righis, 17 May 1975,
para. 45). In determining whether or not the blood test is compatible with
Article 8.1 of the Convention, regard must be had under paragraph 2 of the
Article to the purpose of that law. The Decree of 1943 uncontestedly makes it
possible to arrive at findings in paternity proceedings on the question whether
or not paternity relations exist between the parties concerned. As the
respondent Government have pointed out, various family rights, for example
the right to maintenance payments or the right of succession, depend on the
determination of paternity relations. The public has an interest in that the courts

- 156 -

have the power to make use of harmless scientifically proved methods of
obtaining evidence for the purpose of determining paternity relationships and
thereby determining paternity rights. These interests must prevail in the
circumstances of the present case over the applicant's interests in being
protected against interferences with his private life. Therefore the interference
complained of was in the opinion of the Commission proportionate to the
purpose sought and necessary in a democratic society for the protection of the
rights of others in the sense of paragraph 2 of Article 8 of the Convention.

4. An examination by the Commission of the application as it has been
submitted does for the above reasons not disclose any appearance of a violation
of the rights and fredoms set out in the Convention and in particular in the
Articles invoked by the applicant.

It follows that the application is manifestly ill-founded within the meaning
of Article 27.2 of the Convention.

For these reasons, the Commission

DECLARES THIS APPLICATION INADMISSIBLE.

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You are here: BAILII >> Databases >> European Court of Human Rights >> X v Austria - 8278/78 [1979] ECHR 6 (13 December 1979) URL: http://www.bailii.org/eu/cases/ECHR/1979/6.html Cite as: 18 DR 154, (1979) 18 DR 154, [1979] ECHR 6



	APPLICATION /REQUETE N° 8278/78 X.v/AUSTRIA X.c/AUTRICHE DECISION of 13 December 1979 on the admissibility of the application DECISION du 13 decembre 1979 sur la recevabilitede la requete

	*Article 2 of the Convention: Even assuming that this provision guarantees the right to physical integrity, a blood test does not interfere with this guarantee. Article 5, paragraph 1, of the Convention* : Leading a person by force to a medical expert to undergo a blood test constitutes a deprivation of liberty. *Article 5, paragraph 1 lb) of the Convention* : Judicial decision, based on a decree, ordering that a person be brought by force to a medical expert to undergo a blood test. *Article 8, paragraph 1, of the Convention: A compulsory medical intervention, even minor, constitutes an-interference with the right to respect for private life. Article 8, paragraph 2, of the Convention: A blood test ordered in the course of paternity proceedings is an interference necessary for the protection of the rights and fredoms of others. Article 2 de la Convention* : Memesit'on admet que cette disposition garantit te droit a I'inte'griie' corporelle, un examen du sang ne pone pas atteinte a cette garantie. *Article S, paragraphe 7, de la Convention: Le fait de conduire une personne de force devant un midecin expert pour subir un examen du sang constitue une privation de liberte. Article 5, paragraphe 1, l/tt. b, de la Convention: Decision judiciaire, fond6e sur un rGglement, ordonnant qu'une personne soit conduite de force devant un mGdecin expert pour subir un examen du sang. Article 8, paragraphe t, de la Convention* : Une intervention me'dicaie forcie, meme mineure, est une atteinte au droit au respect de la vie privGe. - 154 -



	*Article 8, paragraphs 2, de la Convention* : Un examen du sang ordonne au cours d'une procedure en dteaveu de paternity est une ing&rence n£cessaire d la protection des droits et liberte's d'autrui.

	THE FACTS Vrancais : voir p. 157) The applicant is an Austrian citizen, born in 1956 and living in Vienna where he is studying. He is represented before the Commission by MM. Stern, Aufricht, Stern, barristers in Vienna. The applicant was born as the son of Dr A. and Mrs B. who were married at the time and got divorced irv.May 1957. In February 1975 Dr A. brought an action againsl the applicant alleging that he was not the applicant's procreator. He requested a declaratory judgment to this effect. The Vienna Regional Court (Landesgerichtl ordered that the applicant, being the defendant, should be submitted to a blood test in order to determine whether or not he was the son of the plaintiff, Dr A. As the applicant refused to undergo a blood test the Court ordered, on ... August 1977, that he be taken to the medical expert by force. This order was based on Section 7 of a decree of 1943 (Verordnung GRGBI. 1943,1, p. 80). It was confirmed by the Vienna Court of Appeal (Oberlandesgericht) on ... January 1978. This Court stated that the decree of 1943 was still a valid law and that the obligation of parties or witnesses to submit themselves to blood tests in alfiliation proceedings was reasonable and necessary and not a typical nazi regulation. The applicant's submission that change of name would be unacceptable for him was not a sufficient reason to refuse the blood tesi. In so far as the applicant had, in the grounds of his appeal, for the first time alleged that the blood test might have dangerous effects in view of his blood composition, the Court stated that this new factual allegation could not be taken into consideration in the Appeal Proceedings, but would have to be considered by the trial court. Complaints The applicant considers that a blood test against his will would violate Article 2 of the Convention. He further considers thatthe use of force would not be justified by public interests in his case because the question of paternity with regard to a 22-year- old person could be determined by other means than forceful interference with personal integrity. The decree of 1943 is, in his opinion, based on nazi ideology which is opposed to the principles of human rights and dignity. - 155 -



	Furthermore he submits that the order to take him by force to the medical expert for the purpose of the blood test violates Article 5 of the Convention.

	THE LAW The applicant has complained that the Vienna Court ordered that he be submitted by force to a blood test. The applicant has appealed against this order and has undisputedly exhausted all domestic remedies. 1. The applicant has alleged a violation of the right to life as protected by Article 2.1 of the Convention. This Article does, however, primarily provide protection against deprivation of life only. Even assuming that physical integrity may be seen as protected by this Article an insignificant intervention such as a blood test does not amount to an interference prohibited by it. The applicant has not submitted evidence that in his particular case a blood test would medically create any danger to his life. 2. The applicant has further alleged that submitting him to a blood test would violate Article 5 of the Convention which guarantees the right to liberty. The Commission is of the opinion that enforcing a blood test on a person is a deprivation of liberty even if this deprivation is of very short lengih. However, as the respondent Government have rightly pointed out, sub- paragraph 1.6 of Article 5 permits detention of a person for non-compliance with the lawful order of the Court or in order to secure the fulfilment of any obligation prescribed by law. Consequently, the enforcement of the Court order here in question was a justified intervention with the applicant's right to liberty. 3. The Commission has finally examined the application under Article 8.1 of the Convention which guarantees, inter alia, the right to respect for private life. A compulsory medical intervention, even if it is of minor importance, must be considered as an interference with this right (cf. decision on the admissibility of Application No. 8239/78, Decisions & Reports 16 p. 184). However, the Regional Court's order concerning the blood test was based on a decree of 1943 and the interference in question is consequently in accordance with the law (cf. Golder Case, judgment of the European Court of Human Righis, 17 May 1975, para. 45). In determining whether or not the blood test is compatible with Article 8.1 of the Convention, regard must be had under paragraph 2 of the Article to the purpose of that law. The Decree of 1943 uncontestedly makes it possible to arrive at findings in paternity proceedings on the question whether or not paternity relations exist between the parties concerned. As the respondent Government have pointed out, various family rights, for example the right to maintenance payments or the right of succession, depend on the determination of paternity relations. The public has an interest in that the courts - 156 -

European Court of Human Rights