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CASE OF MOSER v. AUSTRIA - 12643/02 [2006] ECHR 799 (21 September 2006)
URL: http://www.bailii.org/eu/cases/ECHR/2006/799.html
Cite as:
[2006] ECHR 12643/02,
[2007] Fam Law 20,
[2006] 3 FCR 107,
[2007] 1 FLR 702,
[2006] ECHR 799
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FIRST SECTION
CASE OF MOSER v. AUSTRIA
(Application no. 12643/02)
JUDGMENT
STRASBOURG
21 September 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Moser v. Austria,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mr C.L. Rozakis,
President,
Mr L. Loucaides,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 31 August 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no. 12643/02)
against the Republic of Austria lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by Zlatica and
Luca Moser, citizens of the Republic of Serbia (“the
applicants”), on 13 March 2002.
The applicants, who had been granted legal aid, were
represented by Mr H. Pochieser, a lawyer practising in Vienna. The
Austrian Government (“the Government”) were represented
by their Agent, Ambassador Ferdinand Trauttmansdorff, Head of the
International Law Department at the Federal Ministry of Foreign
Affairs. The Government of Serbia did not make use of their right to
intervene (Article 36 § 1 of the Convention).
The applicants alleged, in particular, that the
transfer of custody over the second applicant to the Youth Welfare
Office violated their right to respect for their family life and
discriminated against them, that the lack of involvement of the first
applicant in the custody proceedings violated their right to respect
for their family life and rendered the proceedings unfair and that
these proceedings were conducted without any public hearing and any
public pronouncement of the decisions.
The application was allocated to the First Section of
the Court (Rule 52 § 1 of the Rules of Court). Within
that Section, the Chamber that would consider the case (Article 27 §
1 of the Convention) was constituted as provided in Rule 26 § 1.
By a decision of 19 May 2005 the Court declared the
application partly admissible.
The applicants and the Government each filed
observations on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The first applicant, born in 1973, has
been living in Austria since 1991 and had a residence and work permit
until November 1997. On 27 August 1999 the Vienna Federal Police
Authority (Bundespolizeidirektion) issued a five-year
residence prohibition against her for illegal employment. The
residence prohibition was lifted in 2004 (see below, C.).
8. On 20 December 1999 she married an
Austrian citizen, Mr M.
On 8 June 2000 the first applicant gave birth to the
second applicant in a hospital in Vienna.
A. Proceedings concerning the transfer of custody of
the second applicant to the Youth Welfare Office
On 9 June 2000 the Vienna Youth Welfare Office (Amt
für Jugend und Familie) ordered that the second applicant
should not accompany the first applicant upon her departure from
hospital since her unclear personal and financial situation and lack
of a residence permit would endanger the child’s welfare.
On 16 June 2000 the Youth Welfare Office, relying on
Section 176a of the Civil Code (Allgemeines Bürgerliches
Gesetzbuch) requested the Vienna Juvenile Court
(Jugendgerichtshof) that custody as regards the care and
education of the second applicant be transferred to it. The Youth
Welfare Office noted that the first applicant had, at first,
incorrectly informed the hospital about her personal data, in
particular on her name and residence. According to the Youth Welfare
Office she had also expressed the wish to place the child with foster
parents. One day after she had given birth, she had changed her mind
and wanted to keep the child. Upon inquiries undertaken by the Youth
Welfare Office, her real name, the periods of her lawful residence in
Austria and her marriage to Mr M. had been discovered. Confronted
with these facts, she had been very upset, had refused to give any
further information and had insisted on keeping her child. Given her
completely unclear situation, the means of existence of the second
applicant were at risk and a transfer of custody to the Youth Welfare
Office was necessary.
On the same day, the first applicant left the
hospital. The second applicant was placed with foster parents.
On 11 August 2000 Mr M. instituted proceedings
contesting paternity (Ehelichkeitsbestreitungsklage) of the
second applicant.
On 3 December 2000 the Juvenile Court granted the
Youth Welfare Office’s request of 16 June 2000.
It noted in its reasoning that, on 2 August 2000, the
first applicant had appeared at the court of her own motion, had
given her new address in the 20th District of Vienna and
further information on her situation and had insisted to have her son
back. She had alleged that she obtained financial support from her
husband, although she was no longer living with him.
Relying on a report by the Youth Welfare Office of 1
September 2000, the court noted that the first applicant had not
cooperated with that office. In particular, it had not been possible
to arrange a visit at her husband’s address and she had not
kept her appointments with the Youth Welfare Office. On 23 August
2000 the first applicant had contacted the Youth Welfare Office and
had informed it about her address at the 20th District
of Vienna, where she was allegedly supported by a Ms M. That Office’s
subsequent visit at Ms M.’s apartment had shown that Ms M. was
not prepared to further support the first applicant. Given that she
was living with her three children in an apartment of 40 square
meters, she could not accommodate the applicant and her son.
Relying further on a report by the Juvenile Court
Assistance Office (Jugendgerichtshilfe) of 2 November 2000,
the court noted that the first applicant had admitted in a meeting
that a baby needed orderly conditions, which she could not offer at
that moment. Otherwise, she had given evasive answers and, on
questions she had been uncomfortable with, she had started crying or
had complained that nobody was helping her. The Assistance Office’s
visit at the foster parents’ home had shown that the second
applicant had got accustomed to them. Until that date, the first
applicant twice had a right of access at the parents-child centre
(Eltern-Kind-Zentrum). The first time, she had not appeared at
all, the second time she had been thirty minutes late. The foster
parents had subsequently met her by chance and had arranged a short
meeting at a nearby parking.
In sum, the court stated that the first applicant was
still in a very unstable and obscure situation, which was not
enhanced by her unlawful residence in Austria, and which did not
entitle her to financial aid. It was also not possible to cooperate
with her, as she partly did not keep appointments and lacked any
willingness to make active contributions. In order to assure the
second applicant’s positive development, it was necessary to
transfer custody of the second applicant to the Youth Welfare Office
and to have him in care of foster parents.
The Juvenile Court’s decision was served on the
first applicant on 20 December 2000.
On 3 January 2001 the first applicant, now assisted by
counsel, appealed against this decision, in which she made the
following submissions.
She had been desperate when giving birth, due to the
fact that her husband was not the second applicant’s father,
but a certain Mr U. She stated, that being married to an Austrian
national, she had a right to reside in Austria. According to the
Administrative Court’s case-law the residence prohibition
against her would have to be lifted. However, in her contacts with
the Juvenile Court and the other authorities involved she had not
obtained any support to regulate her residence status or any help to
preserve her relationship with her child. She had gained the
impression that from the very beginning they were determined to place
her child with foster parents.
She had also wished to make use of her access rights.
However, the first time, she had not found the address, the second
time she had been late, had met the foster parents and had briefly
seen her son. She had asked the foster parents to inform the
authorities that she had been late on account of an unfortunate
obstruction.
Finally, the applicant noted that the decision of 3
December had been served on her shortly before Christmas, namely on
20 December. It had been impossible to obtain legal advice from the
service institutions. Not being familiar with legal matters, she had
not been in a position to procure the case-file and had only handed
out the decision to her newly appointed counsel, who had returned
from holidays one day before the appeal was lodged. Once paternity of
Mr U. was established, maintenance payments for the second applicant
would be secured. As to her housing situation, she was still
accommodated at her friend’s place. Finally, she requested that
an expert opinion be obtained to prove that she was capable of taking
care of her child and that meanwhile she be granted a right of access
to the second applicant once a week.
On 19 January 2001 the Vienna Juvenile Court, sitting
as an Appeal Court, dismissed the appeal against the decision of 3
December 2000 without holding a hearing and confirmed the lower
court’s decision.
It noted that the first applicant had only disputed
the facts established by the lower court by alleging that she had not
received any support by the authorities. However, this reproach was
to be rejected in the light of the reports by the Youth Welfare
Office and the Assistance Office. The lower court had correctly
decided on the basis of these facts and the first applicant’s
situation at the time of its decision. Any positive developments
concerning her situation, as alleged in her appeal, were not to be
taken into consideration, but could be taken into account upon a new
request. Under Section 176 of the Civil Code the court had to
undertake measures to ensure the child’s welfare, if it was at
risk due to the parents’ conduct. The court had to transfer
custody, entirely or in part, to the Youth Welfare Office, even
against the wish of the legal guardian, when a child’s entire
dislocation from his or her habitual environment was necessary and a
placement with relatives or other qualified persons close to the
child was not possible. The first applicant’s completely
unclear financial and personal situation, in particular as regards
her residence, and her incapability to cooperate constructively with
the Youth Welfare Office – as had been established by the lower
court – constituted a situation, which endangered the child’s
well-being. Referring to the Supreme Court’s case-law in
custody matters, it did not allow an ordinary appeal on points of law
(ordentlicher Revisionsrekurs), pursuant to Section 14 §
1 of the Non-Contentious Proceedings Act (Außerstreitgesetz).
On 12 February 2001 the first applicant requested the
Appeal Court to allow her ordinary appeal on points of law
(nachträgliche Zulassung des ordentlichen Revisionsrekurses).
She complained that she had not been sufficiently
involved in the proceedings, in particular, that access to the court
files had not been possible. She further complained that the courts’
decisions were not in line with this Court’s case-law under
Article 8 of the Convention. She asserted that the authorities
involved had not even attempted to take measures which would have
allowed her son to stay with her, such as placing her in a
mother-child centre for instance.
Furthermore, relying on Article 6 of the Convention,
she complained that there were no public and oral hearings in the
custody proceedings and the decisions were not pronounced publicly.
The courts’ taking of evidence had been insufficient. As
regards the second applicant, she complained that he had no legal
standing in the proceedings, where he could claim his right to
respect for family life with her, pursuant to Article 8 of the
Convention, which was also in breach of Article 6 of the Convention.
Relying on Article 14 in conjunction with Article 8 of the
Convention, she complained of discrimination on the ground of her
nationality. Had she been an Austrian citizen or citizen of any other
member State of the European Union, she would have had the right to
placement in a mother-child centre.
On 30 May 2001 the Liesing District Court allowed Mr
M.’s action contesting paternity of the second applicant. This
decision became final.
On 20 August 2001 the Vienna Juvenile Court, sitting
as an Appeal Court, referring again to the Supreme Court’s
case-law in custody matters, refused to allow the ordinary appeal on
points of law, as in its decision of 19 January 2001, it had not
departed from that case-law. There was no other reason to allow the
ordinary appeal on points of law under Section 14 § 1 of the
Non-Contentious Proceedings Act, as it did not raise any important
legal issue. Further, it noted that access to the court file had been
possible throughout the proceedings. The decision was served on 13
September 2001.
B. Further proceedings concerning the applicant’s
access rights
On 9 December 2002 the applicant requested the
District Court to be granted the right to see the second applicant
every other Friday from 1 p.m. until Sunday 6 p.m.
While the case was pending before the Liesing District
Court the first applicant was allowed to see her son in the presence
of a representative of the Youth Welfare Office once a month on
Mondays from 1.30 p.m. until 3 p.m. in a visitors’ café
(Besuchscafé) run by the Youth Welfare Office.
On 4 February 2004 the Liesing District Court
dismissed the applicant’s request. Upon the first applicant’s
appeal, the Vienna Regional Civil Court (Landesgericht für
Zivilrechtssachen) quashed this decision and ordered the court to
issue a new decision.
During the District Court’s hearing on 15 July
2004, at which the first applicant, assisted by counsel, the foster
parents and a social worker were present, the parties reached an
agreement that the first applicant was allowed to see the second
applicant in three-week-intervals in the presence of the foster
mother on Wednesdays from 2.30 p.m. until 5 p.m.
On 6 October 2004 the court held another hearing and
by a decision of 8 October 2004 amended the agreement of 15 July
2004 in that the meetings were to be held again in the visitors’
café.
On 11 March 2005 an expert in child psychology
submitted an opinion, stating that the second applicant was caught in
a loyalty conflict between this foster parents and the first
applicant. Nevertheless, contacts with the first applicant in
intervals of three to four weeks were in his interest.
On 5 April 2005 a further agreement was reached which
grants the first applicant access rights once a month from 3 p.m. to
5 p.m. and in addition on her birthday on the second applicant’s
birthday and at Christmas. The contacts take place at the visitors’
café.
The first applicant has so far not filed a request to
re-transfer custody of the second applicant to her, but considers
that regular visits serve to prepare a re-transfer of custody.
C. Proceedings relating to the first applicant’s
request to lift the residence prohibition against her
On 20 October 2000 the first applicant filed a request
with the Vienna Federal Police Authority (Bundespolizeidirektion)
that the residence prohibition be lifted.
On 17 January 2001 the first applicant supplemented
her request that the residence prohibition be lifted and argued that
leaving Austria would mean losing her child and would impede her
efforts of obtaining custody of the second applicant.
On 17 April 2001 the Federal Police Authority
dismissed the first applicant’s request of 20 October 2000. On
6 November 2001 the Vienna Public Security Authority
(Sicherheitsdirektion) dismissed the first applicant’s
appeal.
On 24 February 2003 the Constitutional Court, allowing
the first applicant’s complaint, quashed the Public Security
Authority’s decision and remitted the case to it. The court
found that the authority had failed to take proper account of the
first applicant’s right under Article 8 of the Convention.
On 22 April 2003 the Public Security Authority quashed
the Federal Police Authority’s decision of 17 April 2001.
Subsequently, the residence prohibition was lifted and on 12 November
2004, the applicant was granted a residence permit for a limited
duration.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Transfer of custody
Section 176 of the Civil Code empowers the courts to
withdraw or restrict custody. So far as relevant, the version in
force at the material time, read as follows:
“1. If the parents put the well-being
of the minor child at risk, on account of their conduct, the court
shall take the decisions necessary to ensure the well-being of the
child, ... In particular, the court may withdraw entirely or in part
custody for the child, ...”
Section 176a of the Civil Code, in the version in
force at the material time, read as follows:
“If the child’s well-being is at risk,
therefore requiring the complete removal of the child from his/her
previous environment against the will of the person entitled to raise
the child, and if the child cannot be accommodated with relatives or
other suitable persons close to the child, the court shall transfer
custody of the child entirely or in part to the youth welfare
institution. The youth welfare institution may transfer the exercise
of custody to third parties.”
B. Placement in a mother-child centre
Section 14 of the 1990 Vienna Youth Welfare Act
(Wiener Jugend-wohlfahrtsgesetz) deals with social services
for parents, babies and young children. Section 14 § 2 (3)
mentions the placement of mothers/fathers with babies or young
children in crisis apartments, specialised centres or other
institutions as one of these services. According to Section 3 of that
Act youth welfare is to be granted to all persons residing in Vienna.
There is no enforceable right to social services, such
as a placement under Section 14 § 2 (3). Consequently, no legal
remedy lies against the refusal or the failure to grant social
services.
General social services, designed to help persons in
an emergency situation, are provided for in the Vienna Social
Services Act (Wiener Sozialhilfegesetz). Austrian nationals
and certain groups of foreigners who are lawfully resident in Austria
(e.g. nationals of countries having concluded a reciprocity agreement
with Austria, persons with refugee status or nationals of member
States of the European Economic Area) are entitled to benefits or
services under this Act.
C. Non-Contentious Proceedings Act
The Non-Contentious Proceedings Act 1854
(Außerstreitgesetz), in the version in force at the
material time, did not contain any specific provision on hearings. It
was the Austrian courts’ practice and the understanding of
academic writers that hearings under this act were not public (see
Fasching, Lehrbuch des österreichischen
Zivilprozessrechts, Wien, 1984, marginal number 682,
and Gögl, Der Beweis im Verfahren außer
Streitsachen, ÖJZ 1956, 344 (347)).
On 1 January 2005 a new Non-Contentious Proceedings
Act entered into force replacing the 1854 Act. It provides for the
conduct of oral and public hearings (Sections 18 and 19) as a general
rule and leaves it to the discretion of the court to decide whether
or not the public should be excluded, for instance for the protection
of the persons involved in a particular case.
In family-law and guardianship proceedings, Section
140 provides for oral hearings open only to the parties. The court
may decide to hold a public hearing, unless protected details of a
person’s private and family life are discussed, a party opposes
a public hearing or if such a hearing would be incompatible with the
child’s well-being.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The applicants complained that the transfer of custody
of the second applicant to the Youth Welfare Office violated their
right to respect for family life as guaranteed by Article 8 of the
Convention, which provides as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. The parties’ submissions
The applicants maintained that the authorities,
instead of transferring custody of the second applicant to the Youth
Welfare Office, should have ordered a less intrusive measure such as
a placement in a mother-child centre. However, the Youth Welfare
Office never offered any constructive alternative proposal to the
transfer of custody. The Juvenile Court’s finding that the
first applicant had not co-operated was exclusively based on the
reports of the Youth Welfare Office. Given the lack of an oral
hearing in custody proceedings under the Non-Contentious Proceedings
Act, the first applicant had not been able to challenge these
findings. The applicants contested the Government’s statement
as untrue insofar as it concerned the second applicant’s
father, whose name and address the first applicant had disclosed in
her appeal of 3 January 2001.
Moreover, the first applicant complained that she had
not been given an opportunity to comment on the reports on which the
Juvenile Court relied in its decision of 3 December 2000.
The Government argued that the interference with the
applicants’ right to respect for their family life was
justified under Article 8 § 2 of the Convention. It was
prescribed by law, namely by Sections 176 and 176a of the Civil Code,
and it pursued legitimate aims, namely the protection of health or
morals and of the rights and freedoms of the second applicant.
In the Government’s view, the measure was also
necessary in a democratic society as it met an urgent need, namely to
secure the second applicant’s well-being. Referring to the
findings of the Vienna Juvenile Court, the Government maintained that
the first applicant had been unable to offer her son adequate lodging
conditions and to secure a regular income. In addition, the residence
prohibition issued against the first applicant had still been in
force at the material time.
Furthermore, the Austrian authorities had not
overstepped their margin of appreciation and the measure was
proportionate to the legitimate aim pursued. The Government asserted
in particular, that the authorities had attempted to find alternative
solutions. However, as was stressed in the Juvenile Court Assistance
Office’s report of 2 November 2000, the first applicant did not
cooperate with the authorities. The alternative proposal made by her,
namely that a friend of hers with whom she was staying could also
accommodate the second applicant proved to be unrealistic in view of
the limited size of the apartment and the number of persons already
living there. The alternative of placing the second applicant with
relatives or other persons close to the child, as provided for by
Section 176 a of the Civil Code, was not available either, since the
first applicant’s husband had refused any co-operation and she
had not disclosed the name of the second applicant’s father. In
sum, less intrusive measures had not been available.
The Government maintained that the Austrian courts had
complied with the procedural requirements inherent in Article 8. They
pointed out that proceedings under the Non-Contentious Proceedings
Act are governed by the principles of flexibility and expediency. The
first-instance court took its decision, after having heard the first
applicant on 2 August 2000 and having obtained the reports of the
Youth Welfare Office of 1 September 2000 and the Vienna Court
Assistance Office of 2 November 2000. Furthermore, the first
applicant had raised the complaint concerning her alleged
insufficient involvement for the first time in her application to the
Court.
Finally, the Government pointed out that the first
applicant had access rights and that custody of the second applicant
was only transferred on a temporary basis, and had to be
re-transferred immediately, when no further impairment of the child’s
well-being was to be feared. Thus far, the first applicant had not
submitted any motion for a re-transfer of custody.
B. The Court’s assessment
The Court notes at the outset that the first applicant
is also complaining on behalf of her son, the second applicant. In
accordance with the Court’s case-law she is entitled to do so,
given that the present case concerns a conflict over a minor’s
interests opposing the first applicant as his natural mother and the
authorities having custody over him. Her standing as the natural
mother suffices to afford her the necessary power to apply to the
Court on her son’s behalf, too, in order to protect his
interests (see, Scozzari and Giunta v. Italy [GC], nos.
39221/98 and 41963/98, § 138, ECHR 2000 VIII).
Furthermore the Court observes that the applicants do
not complain about the order given immediately after the second
applicant’s birth which prohibited the hospital from handing
him over to the first applicant, but about the subsequent transfer of
custody to the Youth Welfare Office.
It is not in dispute that the transfer of custody
constitutes an interference with the applicants’ right to
respect for their family life. This interference will only be
justified if it complies with the requirements set out in Article 8 §
2 of the Convention.
The interference had a basis in domestic law, namely
Articles 176 and 176a of the Civil Code, and served a legitimate aim
in that it was intended to protect the “heath and morals”
and “the rights and freedoms” of the second applicant.
The parties’ argument concentrated on the
necessity of the interference. The Court reiterates that in order to
determine whether the impugned measures were “necessary in a
democratic society”, it has to consider whether, in the light
of the case as a whole, the reasons adduced to justify them were
relevant and sufficient for the purposes of Article 8 § 2 (see,
among many other authorities, K. and T. v. Finland [GC],
no. 25702/94, § 154, ECHR 2001 VII; Kutzner v.
Germany, no. 46544/99, § 65, ECHR 2002 I; P.,
C. and S. v. the United Kingdom, no. 56547/00, § 114,
ECHR 2002-VI; all with a reference to Olsson v. Sweden (no. 1),
judgment of 24 March 1988, Series A no. 130, p. 32, § 68). It
will also have regard to the obligation which the State has in
principle to enable the ties between parents and their children to be
preserved (Kutzner, ibid.).
In doing so, it is not the Court’s task to
substitute itself for the domestic authorities in the exercise of
their responsibilities for the regulation of the public care of
children and the rights of parents whose children have been taken
into care, but rather to review under the Convention the decisions
that those authorities have taken in their exercise of their power of
appreciation (see the above-cited cases, K. and T. v. Finland,
§ 154; Kutzner, § 66, and P., C. and S v. the
United Kingdom, § 115, and Hokkanen v. Finland,
judgment of 23 September 1994, Series A no. 299 A, p. 20, §
55).
The margin of appreciation to be accorded to the
competent national authorities will vary in the light of the nature
of the issues and the seriousness of the interests at stake. Thus,
the Court recognises that the authorities enjoy a wide margin of
appreciation in assessing the necessity of taking a child into care,
the Court must still be satisfied in the particular case that there
existed circumstances justifying the removal of the child, and it is
for the respondent State to establish that a careful assessment of
the impact of the proposed care measure on the parents and the child,
as well as of the possible alternatives to taking the child into
public care was carried out prior to the implementation of such a
measure (see, in particular, P., C. and S. v. the United Kingdom,
cited above, § 116, and K. and T. v. Finland, cited
above, § 166). Following any removal into care, a
stricter scrutiny is called for in respect of any further limitations
by the authorities, for example on parental rights of access, as such
further restrictions entail the danger that the family relations
between the parents and the child are effectively curtailed (P.,
C. and S. v. the United Kingdom, § 117, and Kutzner,
§ 67, both cited above).
Moreover, it is the Court’s well established
case-law that Article 8 contains implicit procedural requirements.
What is to be determined is whether, having regard to the particular
circumstances of the case and notably the serious nature of the
decisions to be taken, the parents have been involved in the
decision-making process, seen as a whole, to a degree sufficient to
provide them with the requisite protection of their interests
(Elsholz v. Germany [GC], no. 25735/94, § 52, ECHR
2000 VIII, P., C. and S. v. the United Kingdom,
cited above, § 119, and Venema v. the Netherlands, no.
35731/97, § 91, ECHR 2002 X, with references to W. v.
the United Kingdom, judgment of 8 July 1987, Series A no. 121,
pp. 28-29, § 64).
The Court observes that, unlike in most child care
cases, the reason for the transfer of custody of the second applicant
did not lie in the first applicant’s incapacity to care for him
on account of any physical or mental illness or on account of any
violent or abusive conduct (see, in contrast, the above
cited-cases, Scozzari and Giunta, §§ 149-50, K.
and T. v. Finland, § 173, and P., C. and S. v. the
United Kingdom, § 134). It was based solely on her lack of
appropriate accommodation and financial means and her unclear
residence status, i.e. her precarious situation which would have made
it difficult for her to care for a very young child.
In the Court’s view, a case like the present one
called for a particularly careful examination of possible
alternatives to taking the second applicant into public care. The
Government argued in essence that the courts examined alternative
measures and dismissed them as not being practicable. Moreover, they
alleged that the first applicant herself failed to co-operate. The
applicants, for their part, maintained that no alternatives
whatsoever were proposed or assessed by the authorities.
The Court does not share the applicants’ view
that the authorities made no assessment of alternatives at all. In
fact, the courts noted that there was no possibility to place the
second applicant with any relatives and they examined and dismissed
the alternative proposed by the first applicant to lodge her and the
second applicant with a friend of hers. However, no positive action
was taken to explore possibilities which would have allowed the
applicants to remain together, for instance by placing them in a
mother-child centre. In this connection, the Court notes that
according to the Government the fact that the applicants were
foreigners did not exclude them from admission to a mother child
centre under the Vienna Youth Welfare Act. However, this possibility
was apparently not contemplated and no other measures such as
clarifying the applicant’s residence status were taken. In this
connection, the Court notes that the residence prohibition against
the applicant was subsequently quashed by the Constitutional Court as
being at variance with her rights under Article 8.
This failure to make a full assessment of all possible
alternatives is aggravated by the fact that no measures were taken to
establish and maintain the contact between the applicants while the
proceedings were pending. This is particularly serious given that
they did not have a chance to bond in the first place, since the
second applicant had been removed immediately after his birth. It
follows from the Juvenile Court’s decision of 3 December 2000
that in the six months between the second applicant’s birth and
the decision transferring custody to the Youth Welfare Office, the
first applicant had only twice been given an opportunity to see her
son. Referring to reports of the Youth Welfare Office and the
Juvenile Court Assistance Office, the court found that she had not
properly exercised her access rights and had generally failed to
co-operate with the authorities. However, the applicant alleges that
she had not been able to comment on these reports.
At this juncture the Court will turn to the question
whether the procedural requirements inherent in Article 8 were
complied with. The Court notes, firstly, that the first applicant was
only heard once by the Juvenile Court, namely on 2 August 2000 when
she had appeared in court of her own motion to give information on
her situation. Secondly, the Court notes that, in its decision of 3
December 2000, the Juvenile Court relied on a report of the Youth
Welfare Office of 1 September 2000 and a report of the Juvenile Court
Assistance Office of 2 November 2000 which had not been served on the
applicant and on which she had had no possibility to comment (see, as
a similar case, Buchberger v. Austria, no. 32899/96, §
43, 20 December 2001). Thirdly, the Court observes that the first
applicant was not assisted by counsel in the proceedings before the
Juvenile Court. The appeal proceedings, in which she was represented,
were conducted without any hearing and it cannot be said that the
deficiency of the first instance proceedings was remedied by the
opportunity to comment on the reports at issue in the appeal, since
the appellate court did not examine the first applicant’s
complaint that no alternatives to the transfer of custody had been
explored but repeated the assessment contained in the reports that
she had failed to co-operate. As regards the alleged failure to
exercise her access rights, the appellate court did not reply to her
submissions at all. In sum, the Court considers that the first
applicant was not involved in the decision-making process to a degree
required for the protection of her interests.
Having regard to the authorities’ failure to
examine all possible alternatives to transferring custody of the
second applicant to the Youth Welfare Office, their failure to ensure
regular contacts between the applicants following their separation
and the first applicant’s insufficient involvement in the
decision making process, the Court considers that although the
reasons relied on by the domestic courts were relevant, they were not
sufficient to justify such a serious interference with the
applicants’ family life. Notwithstanding the domestic
authorities’ margin of appreciation, the interference was
therefore not proportionate to the legitimate aims pursued.
Consequently, there has been a violation of Article 8
of the Convention as regards the transfer of custody of the second
applicant to the Youth Welfare Office.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 8
The applicants also complained of discrimination on
account of their nationality, alleging that they would have been
placed in a mother-child centre if they were Austrian nationals or
nationals of another member state of the European Union. They rely on
Article 8 taken in conjunction with Article 14 of the Convention
which reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
As to the legal basis for placement in a mother-child
centre, the applicants asserted that it was to be found in the Vienna
Social Services Act, which applied only to Austrian citizens and
certain groups of foreigners who were lawfully residing in Austria.
The Government submitted that a placement in a
mother-child centre was a social service provided for by Section 14 §
2 (3) of the 1990 Vienna Youth Welfare Act, which applied to all
persons resident in Vienna (Section 3 of that Act).
The Court notes that the Act relied on by the
Government specifically mentions the placement of mothers and babies
or young children in specialised centres and does not make access to
them dependent on nationality. For nationals and non-nationals alike
there is no right to placement which may only be granted on the basis
of availability. Thus, the law itself does not distinguish on the
basis of nationality and there is no indication in the file that the
failure to examine the possibility of a placement, which the Court
has already examined in the context of Article 8 was based on the
applicants’ status as foreigners.
Consequently, there has been no violation of Article
14 taken in conjunction with Article 8.
III. ALLEGED VIOLATIONS OF ARTICLES 6 OF THE CONVENTION
The first applicant raised further complaints under
Article 6 of the Convention which so far as relevant, reads as
follows:
“1. In the determination of his civil
rights and obligations ..., everyone is entitled to a fair and public
hearing ... Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the interests
of morals, public order or national security in a democratic society,
where the interests of juveniles or the protection of the private
life of the parties so require, or to the extent strictly necessary
in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice.”
A. The lack of a possibility to comment on the reports
relied on by the Juvenile Court
The first applicant complained that she had not been
given an opportunity to comment on the reports on which the Juvenile
Court relied in its decision of 3 December 2000. In the proceedings
of first instance, she had not been assisted by counsel, and the
judge had failed to instruct her of her right to examine her file and
to make copies.
The Government asserted that the applicant had had the
possibility to examine the case-file throughout the entire
proceedings. However, she had not made use of this possibility.
Furthermore, the first applicant had raised this complaint for the
first time in her application to the Court.
The Court notes that the Government have not
explicitly made a plea of non-exhaustion. In any case, the Court
observes that the applicant had raised the complaint about the
allegedly insufficient access to the file and about the lack of her
involvement in the proceedings in her request to allow her ordinary
appeal on points of law.
The Court observes that the above complaint resembles
the issue raised in the case of Buchberger v. Austria (cited
above, §§ 43-45 and 49 51, 20 December 2001),
also concerning a transfer of custody to the Youth Welfare Office in
which the Court found violations of both Articles 6 and 8 of the
Convention on the ground that the applicant had not been sufficiently
involved in the proceedings, inter alia in that the applicant
had not been informed of and given the possibility to comment on
reports by the Youth Welfare Office.
Having regard to the difference between the purpose
pursued by the respective safeguards afforded by Article 6 § 1
and Article 8 (see, McMichael v. the United Kingdom, judgment
of 24 February 1995, Series A no. 307 B, p. 57, § 91), the
Court considers it necessary in the present case to examine the first
applicant’s complaint also under Article 6 § 1 and, more
precisely under the principle of equality of arms, since the Youth
Welfare Office was the party opposing the first applicant in the
proceedings.
The principle of equality of arms - one of the
elements of the broader concept of a fair trial - requires that each
party should be afforded a reasonable opportunity to present his or
her case under conditions that do not place him or her at a
substantial disadvantage vis-à-vis his or her opponent (see,
among many other authorities, Dombo Beheer B.V. v. the
Netherlands, judgment of 27 October 1993, Series A no. 274, p.
19, § 33). Each part must be given the opportunity to have
knowledge of and to comment on the observations filed or evidence
adduced by the other party (see, for instance, Ruiz-Mateos v.
Spain, judgment of 23 June 1993, Series A no. 262, p. 25, §
63; Nideröst-Huber v. Switzerland, judgment of
18 February 1997, Reports of Judgments and Decisions
1997-I, p. 108, § 24; Buchberger, cited above, §
50).
It is not disputed that the courts relied on reports
by the Youth Welfare Office and the Juvenile Court Assistance Office
and that the first applicant had not been given a possibility to
comment on them. The Court is not convinced by the Government’s
argument that the applicant had access to the file throughout the
proceedings. It was not for the applicant, who was moreover
unrepresented in the first instance proceedings, to inspect the
case-file in order to become aware of any reports filed by the
opposite party, but for the courts to inform her and to provide her
with an opportunity to comment thereon.
Having further regard to the considerations under
Article 8, the Court finds that there has been a violation of Article
6 § 1 in that the proceedings breached the principle of equality
of arms.
B. The lack of a public hearing
The first applicant further complained under Article 6
§ 1 that she did not have a public oral hearing. She asserted
that the Juvenile Court had “heard” her rather in the
form of obtaining a witness statement than by conducting an
adversarial hearing. In any case, she had no public hearing although
the domestic courts had not examined whether there were specific
circumstances which justified excluding the public from the present
proceedings.
The Government asserted that the Juvenile Court had
heard the applicant in person on 2 August 2000. As to the question
whether there should have been a public hearing, the Government
asserted that the 1854 Non-Contentious Proceedings Act left it to the
discretion of the court whether or not to hold a hearing in public.
However, the right to a public hearing was not absolute and an
exclusion of the public was admissible under Article 6 § 1 of
the Convention, inter alia, in the interests of a minor or for
the protection of the private life of the parties. Referring to B.
and P. v. the United Kingdom (nos. 36337/97 and 35974/97, §
38, ECHR 2001-III), the Government argued that court proceedings
involving custody decisions of minors were prime examples of such
justified exclusion of the public. Finally, they submitted that the
applicant had not asked for a public hearing.
According to the Court’s case-law, the right to
a public hearing under Article 6 entails an entitlement to an “oral
hearing” unless there are exceptional circumstances that
justify dispensing with such a hearing (see, for instance, Stallinger
and Kuso v. Austria, judgment of 23 April 1997, Reports
1997-II, pp. 679-80, § 51, and Allan Jacobsson v. Sweden
(no. 2), judgment of 19 February 1998, Reports 1998-I, p.
168, § 46).
In the present case, there were no such circumstances.
Neither did the proceedings concern highly technical issues or purely
legal questions (see, as regards these criteria, Schuler-Zgraggen
v. Switzerland, judgment of 24 June 1993, Series A no. 263,
pp. 19-20, § 58, and Varela Assalino v. Portugal (dec.),
no. 64336/01, 25 April 2002). Thus, the first applicant was entitled
to a hearing. The Court does not share the Government’s view
that the first applicant’s questioning on 2 August 2000
qualified as a hearing for the purpose of Article 6 § 1. It
observes that the first applicant had appeared before the Juvenile
Court of her own motion. Moreover, it follows from the Juvenile
Court’s decision of 3 December 2000 that she gave some factual
information on her situation. However, there is no indication that
this “hearing” of the first applicant encompassed all
factual and legal aspects of the case. The appellate Court did not
hold a hearing either.
In any case, it remains to be examined whether the
first applicant was entitled to a public hearing. The Court
reiterates that the public character of proceedings protects
litigants against the administration of justice in secret with no
public scrutiny; it is also one of the means whereby confidence in
the courts can be maintained. By rendering the administration of
justice visible, publicity contributes to the achievement of the aim
of Article 6 § 1, a fair hearing, the guarantee of which is one
of the foundations of a democratic society (see B. and P. v. the
United Kingdom, cited above, § 36 with a reference to
Sutter v. Switzerland, judgment of 22 February 1984, Series A
no. 74, p. 12, § 26).
However, the requirement to hold a public hearing is
subject to exceptions. This is apparent from the text of Article 6 §
1 itself, which contains the provision that “the press and
public may be excluded from all or part of the trial ... where the
interests of juveniles or the private life of the parties so require,
or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests
of justice”. Moreover, it is established in the Court’s
case-law that, even in a criminal law context where there is a high
expectation of publicity, it may on occasion be necessary under
Article 6 to limit the open and public nature of proceedings in
order, for example, to protect the safety or privacy of witnesses or
to promote the free exchange of information and opinion in the
pursuit of justice (B. and P. v. the United Kingdom, cited
above, § 37 with further references).
In B. and P. v. the United Kingdom (cited
above, § 39) the Court found that it was inconsistent with
Article 6 § 1 for a State to designate an entire class of cases
as an exception to the general rule of public hearings where
considered necessary in the interests of morals, public order or
national security or where required by the interests of juveniles or
the protection of the private life of the parties. It noted moreover,
that the child residence proceedings which were at stake, were prime
examples of proceedings where the exclusion of the press and public
may be justified in order to protect the privacy of the child and
parties and to avoid prejudicing the interests of justice.
The Court considers that there are a number of
elements which distinguish the present case from B. and P. v. the
United Kingdom. In that case, the Court attached weight to the
fact that the courts had discretion under the Children Act to hold
proceedings in public if merited by the special features of the case
and a judge was obliged to consider whether or not to exercise his or
her discretion in this respect if requested by one of the parties.
The Court noted that in both cases the domestic courts had given
reasons for their refusal to hear the case in public and that their
decision was moreover subject to appeal (ibid., § 40). The Court
notes that the Austrian Non-Contentious Proceedings Act now in force
gives the judge discretion to hold family-law and guardianship
proceedings in public and contains criteria for the exercise of such
discretion. However, no such safeguards were provided for in the 1854
Non-Contentious Proceedings Act. It is therefore not decisive that
the applicant did not request a public hearing, since domestic law
did not provide for such a possibility (see Osinger v. Austria,
no. 54645/00, § 49, 24 March 2005, and Diennet v. France,
judgment of 26 September 1995, Series A no. 325-A, p. 14, §
31) and the courts’ practice was to hold hearings in camera.
Moreover, the case of B. and P. v. the United
Kingdom concerned the parents’ dispute over a child’s
residence, thus, a dispute between family members, i.e. individual
parties. The present case concerns the transfer of custody of the
first applicant’s son to a public institution, namely the Youth
Welfare Office, thus, opposing an individual to the State. The Court
considers that in this sphere, the reasons for excluding a case from
public scrutiny must be subject to careful examination. This was not
the position in the present case, since the law was silent on the
issue and the courts simply followed a long-established practice to
hold hearings in camera without considering the special features of
the case.
98 Having regard to these considerations, the Court finds
that lack of a public hearing was in breach of Article 6 § 1 of
the Convention.
C. The lack of any public pronouncement of the
decisions
The first applicant complained that the courts’
decisions in the custody proceedings were not pronounced publicly.
The Government submitted that a public pronouncement
of decisions in proceedings where the public had been excluded would
undermine the objective pursued, namely to secure the protection of
the private sphere to the persons involved in custody proceedings.
Referring to the case of Sutter (cited above, p. 14, §§
33-34), the Government pointed out that under Austrian law any person
who could establish a legal interest in receiving a decision was
entitled to consult the file and to obtain copies. In
addition, decisions of special interest were published on a broad
scale electronically in the Federal Legal Information System, whereby
the decisions of the Supreme Court and appellate courts were given
priority over first-instance court decisions.
The Court has applied the requirement of the public
pronouncement of judgments with some degree of flexibility. Thus, it
has held that despite the wording which would seem to suggest that
reading out in open court is required, other means of rendering a
judgment public may be compatible with Article 6 § 1. As a
general rule, the form of publicity to be given to the judgment under
domestic law must be assessed in the light of the special features of
the proceedings in question and by reference to the object and
purpose of Article 6 § 1. In making this assessment, account
must be taken of the entirety of the proceedings (see, B. and P.
v. the United Kingdom, previously cited, § 45; Pretto and
Others v. Italy, judgment of 8 December 1983, Series A no. 71, p.
12, §§ 25 27; and Axen v. Germany, judgment of
8 December 1983, Series A no. 72, pp. 13-14, §§
30-32).
It is not disputed that none of the courts’
decisions was pronounced publicly. Therefore, it remains to be
examined whether publicity was sufficiently ensured by other means.
In the case of B. and P. v. the United Kingdom (cited above,
§§ 46-48), the Court found that alternative means of
giving the public access to the courts’ decisions, similar to
those referred to by the Government in the present case, were
sufficient. In doing so, it relied on the fact that the courts were
entitled to hold proceedings in camera. In the case of Sutter v.
Switzerland (cited above, p. 14, §§ 33-34) to which the
Government referred, the Court found that the publicity requirement
was satisfied by the fact that anyone who established an interest
could consult or obtain a copy of the full text of the Military Court
of Cassation, together with the fact that that court’s most
important judgments were published in an official collection.
However, in that case a public hearing had been held by the lower
instance and the Court had regard to the particular nature of the
issues dealt with by the military Court of Cassation.
The Court finds that in the present case, in which
dispensing with a public hearing was not justified in the
circumstances, the above means of rendering the decisions public,
namely giving persons who establish a legal interest in the case
access to the file and publishing decisions of special interest,
mostly of the appellate courts or the Supreme Court, did not suffice
to comply with the requirements of Article 6 § 1.
Consequently there has been a violation of Article 6
on account of the failure to pronounce the courts’ decisions
publicly.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The first applicant requested compensation for
non-pecuniary damage in respect of the violation of her and son’s
right to respect of their family life. She claims 30,000 euros (EUR)
for herself and EUR 50,000 for the second applicant.
The Government asserted that these claims were
excessive. They noted in particular that the Court had awarded 80,000
Austrian schillings (that is EUR 5,813.83) in the comparable case of
Buchberger (cited above, § 56).
The Court considers that, as far as Article 6 is
concerned, the finding of violations constitutes sufficient just
satisfaction for any non-pecuniary damage the first applicant may
have suffered.
However, as regards the violation of Article 8, the
Court considers that the shortcomings of the custody proceedings must
have caused the first applicant distress and anxiety, which are not
sufficiently compensated by the finding of a violation. Having regard
to the sums awarded in comparable cases and making an assessment on
an equitable basis, the Court awards the first applicant EUR 8,000
for non-pecuniary damage.
In contrast, the Court does not find that the
deficiencies of the custody proceedings had any direct effect on the
second applicant (see, mutatis mutandis, P., C. and S. v.
the United Kingdom, cited above, § 150). Moreover, it is not
for the Court to speculate what the outcome of the proceedings would
have been had they been in compliance with the requirements of
Article 8. In respect of the second applicant, the Court therefore
considers that the finding of a violation of Article 8 constitutes
sufficient just satisfaction for any non-pecuniary damage he may have
suffered.
B. Costs and expenses
The first applicant requested the reimbursement of
EUR 2,416.12, inclusive of VAT, for costs incurred in the domestic
proceedings concerning the transfer of custody and in subsequent
proceedings relating to her access rights and of EUR 7,705.80,
inclusive of value-added tax (VAT), for costs incurred in the
Convention proceedings.
In addition she requested reimbursement of costs
incurred in the domestic proceedings relating to her request to annul
the residence prohibition against her and in further proceedings
concerning her request for a residence permit. These costs amount to
EUR 5,554.19 inclusive of VAT.
The Government commented that only the costs of the
appeals against the decision to transfer custody of the second
applicant were recoverable, whereas there was no direct link between
the alleged violations at issue in the present case and the costs
incurred in subsequent proceedings relating to the first applicant’s
access rights and her residence status.
Regarding the costs of the Convention proceedings,
the Government pointed out that the first applicant was granted legal
aid and that the application was only partially declared admissible.
The Court reiterates that costs incurred in the
domestic proceedings may only be reimbursed as far as they were
necessary in order to prevent or redress the violation found (see,
for instance, Buchberger, cited above, § 58). In the
present case only the costs incurred for the appeal and the appeal on
points of law lodged in the custody proceedings fulfil this
condition. These costs amount to EUR 694.74 including VAT.
As to the Convention proceedings, the Court notes
that the applicants had the benefit of legal aid. Moreover, as the
Government pointed out, their application was only partially declared
admissible. The Court notes however, that only two rather minor
complaints were declared inadmissible. Having regard to these
considerations, the Court awards EUR 6,000, including VAT, in
respect of costs and expenses incurred in the Convention proceedings.
Consequently a total amount of EUR 6,694.74,
inclusive of VAT, is awarded under the head of costs and expenses.
C. Default interest
The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of Article
8 of the Convention;
Holds that there has been no violation of
Article 14 taken in conjunction with Article 8;
Holds that there has been a violation of Article
6 on account of the failure to give the first applicant an
opportunity to comment on the reports of the Youth Welfare Office and
the Juvenile Court Assistance Office;
Holds that there has been a violation of Article
6 on account of the failure to hold a public hearing;
Holds that there has been a violation of Article
6 on account of the failure to pronounce the judgments in those
proceedings publicly;
Holds
(a) that the respondent State is to pay the first
applicant, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 8,000 (eight thousand euros) in respect of
non-pecuniary damage and EUR 6,694.74 (six thousand six hundred
ninety-four euros and seventy-four cents) in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
Holds that the finding of a violation of Article
8 constitutes in itself sufficient just satisfaction for any
non-pecuniary damage the second applicant may have suffered;
Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 21 September 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President