Lexploria

Application No. 12875/87

Ingrid HOFFMANN

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 16 January 1992)

TABLE OF CONTENTS

I. INTRODUCTION

(paras. 1 - 20) .........................................1

A. The application

(paras. 2 - 4) ..................................1

B. The proceedings

(paras. 5 - 15) .................................1

C. The present Report

(paras. 16 - 20) ................................2

II. ESTABLISHMENT OF THE FACTS

(paras. 21 - 64) ........................................4

A. The particular circumstances of the case

(paras. 21 - 39) ................................4

1. The institution of custody proceedings

concerning the applicant's children

(paras. 21 - 25) ............................4

2. The decision of the District Court

(paras. 26 - 30) ............................4

3. The decision of the Regional Court

(paras. 31 - 35) ............................6

4. The decision of the Supreme Court

(paras. 36 - 39) ............................7

B. Relevant domestic law and practice

(paras. 40 - 64) ................................8

1. The provisions on child custody in the

Civil Code

(paras. 40 - 42) ............................8

2. The Religious Education Act

(para. 43) .................................10

3. Law and practice concerning

blood transfusions

(paras. 44 - 60) ...........................11

4. Procedural provisions

(paras. 61 - 64) ...........................15

III. OPINION OF THE COMMISSION

(paras. 65 - 118) ......................................17

A. Complaints declared admissible

(para. 65) .....................................17

B. Points at issue

(para. 66) .....................................17

- ii -

C. As to the alleged violation of Article 8 of

the Convention, read in isolation or in

conjunction with Article 14 of the Convention

(paras. 67 - 105) ..............................17

1. Interference with the applicant's family

life (Article 8 para. 1)

(paras. 70 - 75) ...........................18

2. Justification of the interference

(Article 8 para. 2 and Article 14)

(paras. 76 - 104) ..........................18

a) Lawfulness

(paras. 79 - 82) ........................19

b) Legitimate aim

(para. 83) ..............................20

c) Necessity in a democratic society

and non-discrimination

(paras. 84 - 104) .......................20

Conclusion

(para. 105) ....................................24

D. As to the alleged violation of Article 9 of the

Convention, read in isolation or in conjunction

with Article 14 of the Convention

(paras. 106 - 110) .............................25

Conclusion

(para. 110) ....................................25

E. As to the alleged violation of Article 2 of

Protocol No. 1, read in isolation or in

conjunction with Article 14 of the Convention

(paras. 111 - 115) ............................25

Conclusion

(para. 115) ....................................26

F. Recapitulation

(paras. 116 - 118) .............................26

SEPARATE OPINION of MM. C.A. NØRGAARD and G. JÖRUNDSSON ........27

DISSENTING OPINION of Mr. F. ERMACORA .........................28

DISSENTING OPINION of Mr. H.G. SCHERMERS .......................30

PARTLY DISSENTING OPINION of Sir Basil HALL ....................34

DISSENTING OPINION of Mr. L. LOUCAIDES .........................35

APPENDIX I : HISTORY OF THE PROCEEDINGS ..................38

APPENDIX II : DECISION ON THE ADMISSIBILITY ...............40

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is an Austrian citizen born in 1958 who lives in

Innsbruck. She is represented by Mr. Reinhard Kohlhofer, a lawyer

practising in Vienna.

3. The application is directed against Austria. The respondent

Government are represented by their Agent, Mr. Helmut Türk, Head of the

International Law Department of the Federal Ministry of Foreign

Affairs.

4. The applicant, a Jehovah's Witness, complains that she was

deprived of the custody of her two children on the ground of her

religious convictions. She invokes her right to respect for her family

life (Article 8 of the Convention), her right to freedom of religion

(Article 9 of the Convention), and her right to ensure the education

of her children in conformity with her own religious convictions

(Article 2 of Protocol No. 1). She further claims that the refusal of

custody was discriminatory (Article 14 of the Convention).

B. The proceedings

5. The application was introduced on 20 February 1987 and registered

on 15 April 1987.

6. On 13 December 1988, the Commission gave notice of the

application to the respondent Government inviting them to submit before

10 March 1989 observations in writing on the admissibility and merits

of the application.

7. Following an extension of the time-limit, the Government

submitted their observations on 14 April 1989. Following an extension

of the time-limit set for her reply, the applicant replied on

19 June 1989.

8. On 12 March 1990 the Commission decided to hold a hearing with

the parties on the admissibility and merits of the case.

9. At the hearing on 10 July 1990, the Government were represented

by their Agent, Mr. Helmut Türk, Mr. Stefan Rosenmayr, of the

Constitutional Law Department, Federal Chancellery, and

Mrs. Ulrike Kathrein of the Federal Ministry of Justice, as advisers;

the applicant, who was present, was represented by

Mr. Reinhard Kohlhofer and by the following German lawyers as advisers:

Messrs. Armin Pikl and Klaus-Peter Heym, Neu-Isenburg,

Mr. Andreas Paul, Frankfurt/Main, and Mr. Willy K. Pohl, Selters.

10. Following the hearing, the Commission declared the application

admissible.

11. The Government were invited to submit, before 17 September 1990,

information concerning the practice in cases of Jehovah's Witnesses who

refuse blood transfusions. Following communication of the

admissibility decision, the parties were further invited to submit any

supplementary legal observations before 22 October 1990. On 5 October,

following an extension of the relevant time-limit, the Government

submitted the requested information.

12. The applicant was invited to comment before 16 November 1990 on

the information submitted by the Government. This time-limit and that

for the submission of legal observations was extended at her request

to 14 December 1990. On 14 December 1990 the applicant submitted legal

observations and comments on the material submitted by the Government.

She also submitted information of her own on the same subject, which

she supplemented in January 1991.

13. The Government likewise submitted additional material on

27 February 1991.

14. On 9 November 1990 the Commission granted free legal aid to the

applicant.

15. After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, also placed itself

at the disposal of the parties with a view to securing a friendly

settlement. In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be

effected.

C. The present Report

16. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

17. The text of this Report was adopted on 16 January 1992 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

18. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the

Convention.

19. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

20. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

1. The institution of custody proceedings concerning

the applicant's children

21. The applicant married in 1980. Both the applicant and her

husband were Roman Catholics at that time. Two children, a boy and a

girl, were born to the couple in 1980 and 1982 respectively. They were

baptised as Roman Catholics. The applicant subsequently joined the

Jehovah's Witnesses. The children did not become Jehovah's Witnesses.

22. In 1984 the marriage broke down. In August the applicant left

the matrimonial home together with the children. Divorce proceedings

were subsequently instituted. The divorce was finally pronounced in

June 1986.

23. While the divorce proceedings were still pending, both parents

applied to be granted custody of the children. The applicant claimed

that she was better qualified than her husband to care for the children

to whom she could devote her full time. The husband allegedly did not

fulfil his obligation to pay maintenance for them.

24. The husband, on the other hand, opposed the grant of custody to

the applicant, mainly on the ground that she was a Jehovah's Witness.

The husband contended that principles of education applied by this sect

were hostile to society (gemeinschaftsfeindlich) and intolerant. They

forbade contacts with persons of a different faith, the participation

in school prayers and even harmless festivities such as the celebration

of birthdays. They also forbade patriotic manifestations such as the

singing of the national anthem and, in particular, the son would suffer

from this as he would have to refuse both military and civil service.

Finally, there could be a danger to the life and health of the children

as the Jehovah's Witnesses objected to blood transfusions. By these

principles of education the children would be unjustifiably separated

from society, in particular, in kindergarten and later in school. The

applicant had already refused to send the boy to the kindergarten.

25. The youth office of the Innsbruck District Authority

(Bezirkshauptmannschaft, Abteilung Jugendfürsorge) pronounced itself

in favour of granting custodial rights to the applicant. This view was

also supported by the report of an expert on child psychology.

2. The decision of the District Court

26. On 8 January 1986, the District Court (Bezirksgericht) of

Innsbruck granted the applicant's application and rejected that of her

husband. It noted that the applicant did not work and therefore could

devote much time to the children. She did not send the boy to

kindergarten because she considered that he should not leave home too

early and that there were enough contacts with other children in the

neighbourhood. She planned to send him to kindergarten in the

following year. The applicant looked after the children and cared for

their education. If custody were to be given the father, who worked,

they would be looked after by his mother with whom they had good

contacts and who was capable of assuming that function and willing to

do so. The children had good relations with their father but the most

important person for them was their mother. According to the

psychological expert opinion a separation from her would be a shock for

the children.

27. The Court noted that the applicant had joined the Jehovah's

Witnesses some time ago and that she also tried to organise her daily

life in conformity with the principles of this religious group.

Accordingly she would refuse consent to a blood transfusion, but she

would nevertheless comply with a judicial decision ordering it. She

refused to celebrate Christmas or Easter according to the local customs

with the children, but was not opposed to the children doing so with

their father. She went to meetings of the Jehovah's Witnesses twice

a week, once in the evening and once on Sunday morning. During the

evening meetings the children were looked after by a baby-sitter, but

she took them with her for the Sunday meeting. She also made

missionary visits about once a week, without being accompanied by the

children.

28. While the principles of the Jehovah's Witnesses thus influenced

to a certain degree the education of the children and made their

integration in society more difficult, it had nevertheless not been

proven that they would be completely isolated from their social

environment. Other negative influences on the living circumstances and

the development of the children had not been established. The parties

disagreed on whether or not education of the children according to the

principles of the Jehovah's Witnesses would push them to the margin of

society (in eine gesellschaftliche Aussenseiterposition gedrängt).

However, the psychological expert had thoroughly dealt with that aspect

and had concluded that, despite certain difficulties which must be

expected concerning the children's integration in kindergarten or

school, serious isolation from society had not occurred so far and was

not to be feared in future. The applicant had stated that she wished

to prevent isolation of her children. The children were open-minded

and capable of social contacts; they showed the signs of a harmonious

development. The psychologist had recommended that the mother be

granted custody of the children.

29. The custody decision was to be based exclusively on the interests

of the children, having regard to the living conditions of the parents

and the emotional links of the children to them. Both parents were

capable of caring for and educating the children, but the father could

do so only with the assistance of his mother. Furthermore, the

children had a stronger emotional link to the applicant who had looked

after them for one and a half years. During this period the children

had become accustomed to the situation and had developed in a good and

harmonious manner. A change of the situation by the separation of the

children from their mother would expose them to a shock and would

probably lead to grave repercussions on their eventual well-being. In

the case of awarding custodial rights to the father, the children would

have to be educated mainly by their grandmother. Thus leaving them

with their mother was justified since education by one of the parents

must, in principle, be given precedence over education by grandparents.

30. The fact that the applicant belonged to the Jehovah's Witnesses

and thus to a religious minority was not in itself a reason to withhold

custodial rights from her. The religious denomination of the parents

was not a relevant legal criterion for the determination of parental

rights according to Section 177 of the Civil Code. The Court had,

nevertheless, examined whether the religion of the applicant could have

a negative influence on the education of the children and on their

legitimate interests. However, it had not been established that the

children would be totally isolated from society because of their

mother's religion. The fact that she would not consent to blood

transfusions was not decisive because her consent could be replaced by

a judicial decision under Section 176 of the Civil Code. The fact that

she refused to celebrate festivities such as Easter or Christmas with

the children was not decisive either because she had declared that she

would not oppose the celebration of such festivities by the children

with their father. The only relevant disadvantage of the applicant's

religion for the children thus was the fact that their education in

conformity with the principles of this religion might, to a certain

degree, interfere with their social integration. However, this was not

sufficient to conclude that the interests of the children would be so

gravely impaired that to separate them from their mother, with whom

they had close emotional links and to whom they were accustomed, was

justified. It thus appeared to be in the best interest of the children

to award the custodial rights to the mother and not to the father.

3. The decision of the Regional Court

31. The appeal (Rekurs) of the applicant's husband against this

decision was rejected by the Innsbruck Regional Court (Landesgericht)

on 14 March 1986. The appeal was essentially based on the argument

that the education of the children according to the applicant's

religion would lead to wrong social attitudes (soziale

Fehleinstellungen) and damage to the children because of unrealistic

social isolation (soziale und realitätsfremde Isolation).

32. The Regional Court considered, however, that the Jehovah's

Witnesses were a religious community not outlawed in Austria. It must

be assumed that their aims were neither unlawful nor contrary to

accepted moral principles. In view of the constitutional right to

freedom of religion (Article 16 of the Basic Law on the Rights of

Citizens and Article 9 of the Convention) the applicant's membership

of this religious group could not therefore in itself constitute a

danger to the children's interests.

33. While it was probable that the applicant's religion would affect

the children's integration in society, the District Court had

conclusively explained why the father's objections in this respect were

ultimately unfounded. His new arguments did not justify another

conclusion. It was not necessary to obtain an expert opinion on the

nature of the Jehovah's Witnesses, in particular their alleged lack of

democratic understanding and insufficient subordination to the State.

They were a recognised religious community.

34. Nor was a medical expert opinion on the question of blood

transfusions called for. In case of urgency, where a judicial decision

under Section 176 of the Civil Code might come too late, the medical

practitioner concerned could take a decision based primarily on concern

for the protection of life and only subsidiarily on the religious

principles of the Jehovah's Witnesses.

35. Finally, it was irrelevant whether or not the applicant had acted

unlawfully when taking the children with her. Unlawful behaviour could

only be relevant if it revealed a lack of aptitude for education. This

was not the case here as both children had developed harmoniously under

the care of their mother and had not suffered any physical or mental

damage from the latter's religion.

4. The decision of the Supreme Court

36. The applicant's husband lodged a further appeal

(außerordentlicher Revisionsrekurs) to the Supreme Court (Oberster

Gerichtshof). He submitted that the children had earlier been educated

in the spirit of the Roman Catholic Church, and that therefore their

education by their mother according to the principles of the Jehovah's

Witnesses violated the provisions of the Religious Education Act

(Gesetz über die religiöse Kindererziehung, Law Gazette of the German

Reich, 1921 I p. 939, re-enacted by Austrian Federal Law Gazette

No. 155/1984), and also the best interest of the children. On

3 September 1986 the Supreme Court allowed the appeal on the ground

that the decisions of the courts below were manifestly unlawful

(offenbare Gesetzwidrigkeit) within the meaning of Section 16 of the

Non-Contentious Proceedings Act (Ausserstreitgesetz).

37. The Supreme Court noted that the courts below had not examined

whether the education of the children, who incontestably were not

Jehovah's Witnesses, according to the principles of this religious

community violated the provisions of the Religious Education Act.

According to Section 1 of the Act it was for the parents to agree on

the religious education of their children. The agreement could be

revoked at any time. If it no longer existed, Section 2 para. 1

stipulated that the principles of the Civil Code concerning child care

and education were applicable. It was, however, inadmissible for one

parent during the existence of the marriage to decide without the

consent of the other parent that the child should be educated according

to the principles of a different religion from that to which both

parents had belonged at the time of marriage, or according to which the

child had hitherto been educated. The education of the applicant's

children in accordance with the principles of the Jehovah's Witnesses,

a religious group which was not a State-recognised religious community

(anerkannte Religionsgesellschaft) and to which they did not belong,

manifestly violated this provision.

38. Moreover, the courts below had also disregarded the children's

best interest. The applicant's refusal of consent to blood

transfusions violated the children's interests because the invocation

of the court to replace the consent could lead to delays endangering

their life while an operation without the consent of the parent having

custody was regarded as unlawful. The children would also be pushed

to the margin of society. These circumstances could not be disregarded

when deciding for the first time which of the parents should be given

custody. While as a rule award of the custody of small children to the

mother was justified, this was so only if the conditions concerning

both parents were equivalent. The mother had no priority to be

accorded custody.

39. The disadvantages connected with a change of custody were as a

rule only of limited duration and had to be accepted in the children's

best interest. There was no basis in the file for assuming that a

change in the person having custodial rights would seriously affect the

children's state of mind. According to the facts established by the

courts below the father was capable of educating the children with the

assistance of his mother. The children were on good terms both with

him and their grandmother. Therefore it was only by awarding the

custodial rights to the father that the children's best interest could

be preserved.

B. Relevant domestic law and practice

1. The provisions on child custody in the Civil Code

40. The Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch -

ABGB) in the version of 1977 contains a number of provisions on child

custody in Sections 137 et seq. The provision dealing specifically

with the custody of children in the case of a divorce or separation of

the parents is Section 177 which reads as follows:

"(1) Ist die Ehe der Eltern eines minderjährigen ehelichen Kindes

geschieden, aufgehoben oder für nichtig erklärt worden oder leben

die Eltern nicht bloss vorübergehend getrennt, so können sie dem

Gericht eine Vereinbarung darüber unterbreiten, wem von ihnen

künftig die Obsorge für das Kind allein zukommen soll. Das

Gericht hat die Vereinbarung zu genehmigen, wenn sie dem Wohl des

Kindes entspricht.

(2) Kommt innerhalb angemessener Frist eine Vereinbarung nicht

zustande oder entspricht sie nicht dem Wohl des Kindes, so hat

das Gericht, im Fall nicht bloss vorübergehender Trennung der

Eltern jedoch nur auf Antrag eines Elternteils, zu entscheiden,

welchem Elternteil die Obsorge für das Kind künftig allein

zukommt."

(Translation)

"(1) Where the marriage between the parents of an under-age

legitimate child has been dissolved or annulled, or where the

parents are separated other than for a temporary period, they may

submit to the court an agreement stating which of them shall in

future have custody of the child. The court shall approve the

agreement when it is in the interest of the child's welfare.

(2) Where no agreement is reached within a reasonable time, or

if it is not in the interest of the child's welfare, the court

shall decide which parent is to have sole custody of the child

in the future; in the case of a not merely temporary separation

of the parents such a decision shall be taken only on application

of one of them."

41. Furthermore, a court may at any time make orders to withdraw or

restrict custodial rights of a parent if the child's welfare is in

danger. In this respect Section 176 para. 1 of the Civil Code provides

the following:

"Gefährden die Eltern durch ihr Verhalten das Wohl des

minderjährigen Kindes, so hat das Gericht, von wem immer es

angerufen wird, die zur Sicherung des Wohles des Kindes nötigen

Verfügungen zu treffen; eine solche Verfügung kann auf Antrag

eines Elternteils auch ergehen, wenn die Eltern in einer

wichtigen Angelegenheit des Kindes kein Einvernehmen erzielen.

Besonders darf das Gericht die Obsorge für das Kind ganz oder

teilweise, auch gesetzlich vorgesehene Einwilligungs- und

Zustimmungsrechte, entziehen. Im Einzelfall hat das Gericht auch

eine gesetzlich erforderliche Einwilligung oder Zustimmung eines

Elternteils zu ersetzen, wenn keine gerechtfertigten Gründe für

die Weigerung vorliegen."

(Translation)

"Where the conduct of the parents threatens the welfare of an

under-age child, the court shall be required, irrespective of who

has made application to it, to make the orders necessary for the

protection of the child's welfare; such order may also be made

on application from one of the parents when the parents have

reached no agreement concerning a matter of importance to the

child. In particular the court may withdraw custody of a child,

either wholly or in part, including rights of agreement and

consent provided by law. In individual cases the court is also

required to act in loco parentis in providing approval or consent

required of parents by law, when there is no justifiable reason

for such agreement or consent to be withheld."

42. In decisions under Sections 176 and 177 the courts have to

observe inter alia the following principles laid down in

Sections 178a. and 178b. of the Civil Code:

"§ 178a. Bei Beurteilung des Kindeswohls sind die Persönlichkeit

des Kindes und seine Bedürfnisse, besonders seine Anlagen,

Fähigkeiten, Neigungen und Entwicklungsmöglichkeiten, sowie die

Lebensverhältnisse der Eltern entsprechend zu berücksichtigen.

§ 178b. Vor Verfügungen, die die Pflege oder Erziehung eines

Kindes betreffen, hat das Gericht das Kind tunlichst persönlich

zu hören; ein noch nicht zehnjähriges Kind kann auch durch den

Jugendwohlfahrtsträger oder in anderer geeigneter Weise befragt

werden. Das Kind ist nicht zu hören, wenn durch die Befragung

oder durch einen Aufschub der Verfügung das Wohl des Kindes

gefährdet wäre oder im Hinblick auf das Alter oder die

Entwicklung des Kindes eine Meinungsäusserung nicht zu erwarten

ist."

(Translation)

"S 178a. In assessing the welfare of the child, the personality

and needs of the child must be taken into consideration,

particularly his talents, abilities, inclinations and

developmental opportunities, as well as the material

circumstances of the parents.

S 178b. Before making orders affecting the care or education of

a child, the court shall where possible hear the child in person;

a child which has not yet reached the age of ten may also be

questioned by the youth welfare officer or in some other

appropriate manner. The child shall not be heard in cases where

the questioning, or the postponement of the order, would

jeopardise the child's welfare or where no expression of opinion

can be expected in view of the child's age or development."

2. The Religious Education Act

43. The Federal Religious Education Act (Bundesgesetz über die

religiöse Kindererziehung), which is a re-enactment (Wieder-

verlautbarung) of German legislation introduced in Austria in 1939,

provides inter alia the following:

"§ 1. Über die religiöse Erziehung eines Kindes bestimmt die

freie Einigung der Eltern, soweit ihnen die Pflege und Erziehung

zustehen. Die Einigung ist jederzeit widerruflich und wird durch

den Tod eines Ehegatten gelöst.

§ 2. (1) Besteht eine solche Einigung nicht oder nicht mehr, so

gelten auch für die religiöse Erziehung die Vorschriften des ABGB

über die Pflege und Erziehung.

(2) Es kann jedoch während bestehender Ehe von keinem Elternteil

ohne die Zustimmung des anderen bestimmt werden, dass das Kind

in einem anderen als dem zur Zeit der Eheschliessung gemeinsamen

Bekenntnis oder in einem anderen Bekenntnis als bisher erzogen,

oder dass ein Kind vom Religionsunterricht abgemeldet werden

soll.

(3) Wird die Zustimmung nicht erteilt, so kann die Vermittlung

oder Entscheidung des Vormundschaftsgerichts beantragt werden.

Für die Entscheidung sind, auch soweit ein Fall des § 176 ABGB

nicht vorliegt, die Zwecke der Erziehung massgebend. Vor der

Entscheidung sind die Ehegatten sowie erforderlichenfalls

Verwandte, Verschwägerte und die Lehrer des Kindes zu hören, wenn

es ohne erhebliche Verzögerung oder unverhältnismässige Kosten

geschehen kann. Das Kind ist zu hören, wenn es das zehnte Jahr

vollendet hat."

(Translation)

"§ 1. The religious education of a child shall be decided upon

by mutual agreement between the parents, in so far as the

responsibility for the child's care and upbringing is vested in

them. Such agreement may be revoked at any time and is

terminated on the death of one of the parents.

§ 2. (1) In the absence of such agreement or where such agreement

has ceased, the provisions of the Civil Code on the care and

education of children shall extend to their religious education.

(2) For the duration of their marriage neither parent may decide

without the consent of the other parent that the child is to be

brought up in a faith different from that shared by both parents

at the time of their marriage, or in a different faith from that

in which it has hitherto been brought up, or that a child is to

cease to attend religious education classes.

(3) In the absence of such consent, it shall be possible to apply

for the mediation of, or a decision by, the guardianship court.

In any such decision the interests of education shall be

paramount even in cases not covered by section 176 of the Civil

Code. Before the decision is taken the child's parents, and if

necessary relatives, relatives by marriage and teachers, must be

heard if this is possible without significant delays or

disproportionate costs. The child itself must be heard if it has

reached the age of ten."

3. Law and practice concerning blood transfusions

44. There are no specific provisions in Austrian law regulating the

administration of blood transfusions in cases where a patient or his

legal representative raises objections. This question must therefore

be solved on the basis of the general law applicable to medical

treatment, i.e. the relevant provisions of the Hospitals Act

(Krankenanstaltengesetz) and of the Penal Code (Strafgesetzbuch).

45. Section 8 of the Hospitals Act reads as follows:

"(1) Der ärztliche Dienst muss so eingerichtet sein, dass

ärztliche Hilfe in der Anstalt jederzeit sofort erreichbar ist.

(2) Pfleglinge von Krankenanstalten dürfen nur nach den

Grundsätzen und anerkannten Methoden der medizinischen

Wissenschaft ärztlich behandelt werden.

(3) Besondere Heilbehandlungen einschliesslich operativer

Eingriffe dürfen an einem Pflegling nur mit dessen Zustimmung,

wenn aber der Pflegling das 18. Lebensjahr noch nicht

zurückgelegt hat oder er mangels geistiger Reife oder Gesundheit

die Notwendigkeit oder Zweckmässigkeit der Behandlung nicht

beurteilen kann, nur mit Zustimmung seines gesetzlichen

Vertreters durchgeführt werden. Die Zustimmung ist nicht

erforderlich, wenn die Behandlung so dringend notwendig ist, dass

der mit der Einholung der Zustimmung des Pfleglings oder seines

gesetzlichen Vertreters oder mit der Bestellung eines

gesetzlichen Vertreters verbundene Aufschub das Leben gefährden

würde oder mit der Gefahr einer schweren Schädigung der

Gesundheit verbunden wäre. Über die Notwendigkeit und

Dringlichkeit einer Behandlung entscheidet der ärztliche Leiter

der Krankenanstalt oder der für die Leitung der betreffenden

Anstaltsabteilung verantwortliche Arzt."

(Translation)

"(1) The medical service shall be organised in such a manner that

medical assistance is available at any time immediately in the

hospital.

(2) Patients of hospitals may only be treated medically in

accordance with the principles and recognised methods of medical

science.

(3) Special curative treatments including surgical operations may

be administered to a patient only with the latter's consent, but

where the patient has not yet reached the age of 18 or where he

cannot assess the necessity or usefulness of the treatment, only

with the consent of his legal representative. Such consent is

not required where the treatment is so urgently necessary that

the delay entailed by obtaining the consent of the patient or his

legal representative or by the appointment of a legal

representative would endanger the patient's life or would entail

the danger of grave damage to his health. The medical director

of the hospital or the physician responsible for the management

of the hospital division concerned shall decide on the necessity

and urgency of a treatment."

46. Section 110 of the Penal Code contains the following special

provision on unauthorised medical treatment:

"(1) Wer einen anderen ohne dessen Einwilligung, wenn auch nach

den Regeln der medizinischen Wissenschaft, behandelt, ist mit

Freiheitsstrafe bis zu sechs Monaten oder mit Geldstrafe bis zu

360 Tagessätzen zu bestrafen.

(2) Hat der Täter die Einwilligung des Behandelten in der Annahme

nicht eingeholt, dass durch den Aufschub der Behandlung das Leben

oder die Gesundheit des Behandelten ernstlich gefährdet wäre, so

ist er nach Abs. 1 nur zu bestrafen, wenn die vermeintliche

Gefahr nicht bestanden hat und er sich dessen bei Aufwendung der

nötigen Sorgfalt (§ 6) hätte bewusst sein können.

(3) Der Täter ist nur auf Verlangen des eigenmächtig Behandelten

zu verfolgen."

(Translation)

"(1) Whoever treats another person, even according to the rules

of medical science, without having obtained that person's

consent, shall be liable to imprisonment of up to six months or

to a fine of up to 360 daily rates.

(2) If the offender has failed to obtain the consent of the

patient because he assumed that a delay in the treatment would

entail a serious risk for the life or health of the patient, he

shall be punished according to para. 1 only if the assumed risk

did not exist and if by applying the necessary diligence ... he

could have been aware of this.

(3) The offender shall be punished only at the request of the

person having undergone unauthorised treatment."

47. Other relevant provisions of the Penal Code are those on

inflicting bodily harm (Körperverletzung), a public prosecution

offence: Section 83 - inflicting bodily harm, Section 84 - serious

bodily harm, Section 85 - bodily harm with serious permanent

consequences, and Section 86 - bodily harm with lethal consequences;

the offences under Sections 84-86 are further qualified if committed

deliberately (Section 87); less serious sanctions apply if bodily harm

is inflicted by negligent behaviour (Section 88), and if this is the

consequence of the exercise of medical professions, criminal liability

is under certain conditions restricted to gross negligence

(Section 88 para. 2). Finally, consent by the person concerned

generally excludes the unlawfulness of the act in question if it is not

as such contra bonos mores (Section 90 para. 1).

48. Apart from the Supreme Court decision in the present case, there

is apparently no specific case-law of the Austrian courts dealing

particularly with the question of administration of a blood transfusion

in cases where the patient or his legal representative has refused to

give his consent thereto.

49. It is not contested that legal writers tend to the view that in

cases of medically indicated blood transfusions the necessary consent

of the legal representative may be replaced by a decision of the

guardianship court under Section 176 of the Civil Code and that in

urgent cases where such a decision cannot be obtained in time, the

operation may be carried out even without the consent of the legal

representative. The applicant has submitted references to a

considerable number of publications in which this view has been

expressed.

50. At the request of the Commission both parties have submitted

information on the practice of Austrian hospitals in cases where

Jehovah's Witnesses refuse consent to blood transfusions. The

Government reported on the experience of hospitals in Vienna,

Carinthia, Salzburg, the Tyrol and Upper Austria. The applicant

submitted material on the situation in Graz.

51. In Vienna, which has by far the largest number of hospitals and

patients in Austria, the hospitals department of the City

Administration in 1987 issued a circular instruction to doctors of

public hospitals. It distinguishes between cases in which a Jehovah's

Witness refuses a blood transfusion for himself, and cases where he

does so as legal representative of another person. In the first group

of cases the refusal shall be taken into account, even if it creates

a risk to the life of the patient, provided that the refusal has been

expressly declared and the patient is in a state of mind which does not

exclude realisation of the consequences of his decision. In such cases

a criminal prosecution of the treating doctor for assisting in suicide

(Section 78 of the Penal Code) is not to be feared. On the other hand,

if the refusal is declared by a Jehovah's Witness as legal

representative of a person lacking legal capacity to act for himself,

in particular a minor, this refusal is to be seen as a violation of the

duty to protect the life and health of that person. In such cases the

right of consent of the legal representative is not unlimited, it can

be replaced by a court decision. In urgent cases where the time needed

for securing a court decision would create a risk to the life of the

patient or of a permanent deterioration of his state of health, the

blood transfusion can be carried out against the will of the legal

representative, provided that no alternative therapy is available and

the blood transfusion thus constitutes the only possibility of

preserving the patient's life. In such cases it must be expected that

the court would give its consent to the operation.

52. There has been no case in Vienna in which Jehovah's Witnesses

brought proceedings for unauthorised medical treatment. There was

however a case in 1986 where the death of a patient was probably the

consequence of the refusal to consent to a blood transfusion.

53. In Graz, the second largest city of Austria, the surgical clinic

of the university has specialised since 1978 in heart surgery of

Jehovah's Witnesses without blood transfusions. Until October 1990,

81 patients were examined with a view to the application of blood

saving methods. In 11 cases an operation with such methods was refused

because of excessive risks. Seventy patients were operated on without

use of blood transfusions, 24 of them being under the age of 15. Eight

patients, including 2 children, died after the operation, the overall

mortality rate (11,4 %) being above average. However, in no case was

the death the direct consequence of the non-application of blood

transfusions. In one or two cases an indirect link was possible.

54. In another report covering the experiences in Graz during the

period until 1988 (ten years) it was stated that 66 patients had been

operated on, open heart surgery being applied in 47 cases including

11 cases of children. With one exception the operation of all

children was successful. One child died after the operation for

reasons not connected with the use of blood saving methods. In the

case of children the risks of blood saving operations were therefore

not essentially higher than those of operations with blood

transfusions. There were, however, greater risks in the case of older

patients, in particular as regards by-pass operations. Exclusively due

to complications in this category the overall mortality rate (10,5%)

was above average. The treatment with blood saving methods had been

refused because of excessive risks in the case of 9 patients. There

was thus a requirement for the strict selection of patients eligible

for operations with blood saving methods.

55. Both of the above reports mentioned that blood saving methods

developed for Jehovah's Witnesses were now also widely used for other

patients in order to avoid complications which could result from blood

transfusions, in particular in connection with the AIDS problem.

56. A third report of 1990 deals especially with heart operations of

children up to the age of 17. There had been 23 patients and 27

operations with blood saving methods. All operations except one were

successful. The death of one child after the operation was not the

consequence of the use of blood saving methods.

57. The reports provided by the Provincial Government of Carinthia

referred to several cases in which the refusal of Jehovah's Witnesses

to consent to blood transfusions had raised problems. There had been

two cases where patients died after refusing blood transfusions. Three

patients were not treated in Carinthian hospitals because of their

refusal of blood transfusions. Two were transferred to hospitals in

Graz and Linz where, according to the applicant, they underwent

successful operations without blood transfusions. The third patient

was subsequently, according to the applicant, treated in Graz by

bloodless surgery. According to a report submitted by the Government

she was finally persuaded to consent to a blood transfusion. The

Carinthian Government furthermore stated that in several other cases

the duration of the treatment was prolonged due to refusal of blood

transfusions.

58. The report of the Provincial Government of Salzburg referred to

three cases of children in which the custody was withdrawn from the

parents at short notice after they had refused to consent to blood

transfusions. One hospital had been able to secure the consent to

blood transfusions from Jehovah's Witnesses in all cases where they

were of vital importance. In cases which were not urgent this hospital

refrained from operations, and this had not had lethal consequences or

resulted in other serious complications. The period of recovery had

however been prolonged in several cases. In another hospital a patient

had died in May 1990 after refusing a transfusion. In the public

hospitals of the province of Salzburg there had been no deaths, but

several cases of serious complications and prolongations of treatment

after refusals of blood transfusions by Jehovah's Witnesses.

59. The report of the Provincial Government of the Tyrol referred to

the death of a Jehovah's Witnesss in August 1990 after a traffic

accident following which the patient had refused a blood transfusion.

In another case in 1986 there had been serious complications, but no

lethal consequences. In a third case, the consent to an urgently

necessary operation had been enforced by a judicial decision. There

were several other cases in which Jehovah's Witnesses had refused blood

transfusions, but no deaths or other complications had occurred.

60. The Provincial Government of Upper Austria submitted reports of

nine hospitals three of which referred to deaths after refusal of blood

transfusions and several others to complications and difficult

situations for the treating medical staff and the patients themselves.

There were also reports from areas where Jehovah's Witnesses live in

greater numbers and where therefore the problem arises more frequently.

The hospitals in those areas reported that they had no problems with

small operations, that they refused orthopedical operations without

blood transfusions, and that in several cases they had been able

eventually to secure consent to a necessary operation. In one case in

Gmunden the life of a child was saved by securing a judicial decision.

4. Procedural provisions

61. Proceedings involving custody decisions after the divorce or

separation of the parents, and proceedings concerning the application

of the Religious Education Act are governed by the Code of

Non-Contentious Proceedings (Ausserstreitgesetz).

62. According to this Code, the District Court, (Bezirksgericht) is

competent in first instance. An appeal (Rekurs) to the Regional Court

(Landesgericht, Kreisgericht) is always possible (Section 9), but the

possibilities to appeal further to the Supreme Court (Oberster

Gerichtshof) are restricted. In the version in force at the time of

the facts of the present case, Section 16 para. 1 of the Code read as

follows:

"Hat in Gegenständen ausser Streitsachen das Obergericht den

Bescheid des unteren Richters bestätigt, so findet nur im Falle

einer offenbaren Gesetz- oder Aktenwidrigkeit der Entscheidung

oder einer begangenen Nullität die Beschwerde an den Obersten

Gerichtshof statt."

(Translation)

"If in non-contentious proceedings the Appellate Court has

confirmed the decision of the lower judge, an appeal to the

Supreme Court is open only in cases of manifest unlawfulness or

contradiction to the file or if a nullity has been committed."

63. Generally, non-contentious proceedings are characterised by the

informal nature of the procedure which is not regulated in very much

detail. Section 2 para. 2 of the Code lays down the basic guidelines

to be observed by the courts, including the following:

"(5) Alle Umstände und Verhältnisse, welche auf die richterliche

Verfügung Einfluss haben, hat das Gericht von Amts wegen zu

untersuchen, darüber die Parteien selbst oder andere von der

Sache unterrichtete Personen, nötigenfalls auch Sachverständige,

zu vernehmen, oder auf andere schickliche Art Erkundigungen

einzuziehen, und alle zur näheren Aufklärung dienlichen Urkunden

abzufordern.

(6) In nichtstreitigen Rechtssachen ist das Gericht auch auf die

von den Parteien nicht angebrachten, aber ihm auf andere Art

bekannt gewordenen Tatumstände und vorzüglich auf frühere

gerichtliche Verhandlungen über dieselbe Angelegenheit Bedacht

zu nehmen verpflichtet."

(Translation)

"(5) All facts and circumstances which might be relevant for the

judicial decision shall be investigated by the Court ex officio;

in this respect it shall hear the parties themselves or other

informed persons and, if necessary, also experts, or make

investigations in an appropriate manner and request the

submission of all documents which may contribute to a

clarification of the matter.

(6) In non-contentious proceedings the Court is obliged to take

into consideration also facts not submitted by the parties but

which have come to its knowledge in another manner and in

particular previous judicial proceedings concerning the same

matter."

64. As regards appeals against decisions of first instance,

Section 10 of the Code provides that the parties are not prevented from

referring to new facts or evidence. There is no analogous provision

concerning further appeals to the Supreme Court. In the applicant's

submission the Supreme Court's jurisdiction is therefore limited to

examining points of law on the basis of the facts established by the

lower courts. The Government, while not contesting this rule, submit

that in the particular case the Supreme Court did not overstep the

limits of its jurisdiction.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

65. The Commission declared admissible the applicant's complaints

that the Supreme Court's decision to refuse her custody of her

children, on the ground of her religious convictions, violated her

right to respect for her family life (Article 8 (Art. 8) of the

Convention), her right to freedom of religion (Article 9 of the

Convention) and her right to ensure her children's education in

conformity with her own religious convictions (Article 2 of Protocol

No. 1 (P2-1)), and that she had been discriminated against in the

enjoyment of her above rights under the Convention on the ground of her

religion (Article 14 (Art. 14) of the Convention).

B. Points at issue

66. Accordingly, the issues to be determined are

- whether there has been a violation of Article 8 (Art. 8) of the

Convention, taken in isolation or in conjunction with Article 14

(Art. 14) of the Convention;

- whether there has been a violation of Article 9 (Art. 9) of the

Convention, taken in isolation or in conjunction with Article 14

(Art. 14) of the Convention;

- whether there has been a violation of Article 2 of Protocol No. 1

(P2-1), taken in isolation or in conjunction with Article 14 (Art.

14) of the Convention.

C. As to the alleged violation of Article 8 (Art. 8) of the

Convention, read in isolation or in conjunction with Article 14

(Art. 14) of the Convention

67. The applicant alleges a violation of the Convention in that she

was refused the custody for her children on the sole ground of her

belonging to the Jehovah's Witnesses. The Commission is of the opinion

that this allegation should be analysed as falling primarily within the

scope of Article 8 read in conjunction with Article 14 (Art. 8+14) of

the Convention.

68. Article 8 (Art. 8) of the Convention reads 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."

69. Article 14 (Art. 14) of the Convention provides:

"The enjoyment of the rights and freedoms set forth in this

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."

1. Interference with the applicant's family life

(Article 8 para. 1 (Art. 8-1))

70. The applicant claims that the Supreme Court's decision depriving

her of the custody of her two children unjustifiably interfered with

her right to respect for her family life.

71. The Government submit that there has been no interference by a

State authority with the applicant's right to respect for her family

life, the Supreme Court having only decided a private law dispute

between the applicant and her husband.

72. The Commission recalls that Article 8 (Art. 8) is applicable to

custody decisions not only if children are taken into public care (cf.

Eur. Court H.R., judgments of 8 July 1987 in the British child custody

cases, Series A nos. 120-121; Olsson judgment of 24 March 1988,

Series A no. 130; Eriksson judgment of 22 June 1989, Series A no. 156),

but also if they concern the award of custody to one of the parents

after a divorce or separation (cf. No. 1449/62, X. v. Netherlands,

Dec. 16.1.63, Yearbook 6 p. 262; No. 2699/63, X. v. FRG, Dec. 1.4.68,

Yearbook 11 p. 366; No. 7770/77, X. v. FRG, Dec. 2.5.78, D.R. 14

p. 175; No. 9893/82, Pedersen v. Denmark, Dec. 13.10.83, D.R. 37 p. 50;

No. 11526/85, W. v. FRG, Dec. 10.10.86, D.R. 50 p. 219 and

No. 12246/86, Irlen v. FRG, Dec. 13.7.87, D.R. 53 p. 225). It follows

from this case-law that a refusal of custody may constitute an

interference with family life.

73. The applicant lived with her children until the date of the

Supreme Court's decision. She took them with her when she left the

matrimonial home and the lower courts awarded her custody after a full

investigation into all relevant facts including reports by the youth

office and a psychological expert. The children came into the custody

of the applicant's ex-husband and were removed from her as a

consequence of the Supreme Court's decision. By this decision the

respondent State restricted the applicant's legal position vis-à-vis

her children and her family life with them.

74. There has accordingly been an interference with the applicant's

right to respect for her family life.

75. Article 8 (Art. 8) is therefore applicable and consequently also

Article 14 (Art. 14).

2. Justification of the interference (Article 8 para. 2 and

Article 14 (Art. 8-2, 14))

76. In order to be compatible with the Convention, any interference

with a right set out in Article 8 para. 1 (Art. 8-1) requires to be

justified under Article 8 para. 2 (Art. 8-2), i.e. it must:

- be in accordance with the law;

- pursue one or more of the legitimate aims mentioned in this

provision; and

- be necessary in a democratic society.

77. The applicant contests the justification of the interference

mainly on the ground that she was discriminated against because of her

religious convictions. In this respect the Commission recalls the

Court's statements in the Belgian Linguistic case according to which:

"Article 8 (Art. 8) must be applied not only in isolation but

also having regard to the guarantee laid down in

Article 14 (Art. 14).

While it is true that this guarantee has no independent existence

in the sense that under the terms of Article 14 (Art. 14) it

relates solely to 'rights and freedoms set forth in the

Convention', a measure which in itself is in conformity with the

requirements of the Article enshrining the right or freedom in

question may however infringe this Article when read in

conjunction with Article 14 (Art. 14) for the reason that it is

of a discriminatory nature...

In such cases there would be a violation of a guaranteed right

or freedom as it is proclaimed by the relevant Article read in

conjunction with Article 14 (Art. 14). It is as though the

latter formed an integral part of each of the Articles laying

down rights and freedoms."

(Eur. Court H.R., judgment of 23 July 1968, Series A no. 5, p. 33

para. 8 in fine and para. 9)

78. The Commission therefore finds it appropriate in the present case

to examine the substantive justification of the interference under

Article 8 para. 2 in conjunction with Article 14 (Art. 8-2+14) (paras.

84 ff. below). Accordingly it does not consider it necessary to make

a separate finding under Article 8 (Art. 8) taken in isolation.

a) Lawfulness

79. The Government contend that the custody decision complained of

was based on the Austrian Civil Code and the Religious Education Act,

and that the Supreme Court observed the procedural provisions

circumscribing its jurisdiction.

80. The applicant claims that it was inadmissible to base the custody

decision exclusively on her religious convictions. Moreover, the

Supreme Court misapplied substantive law regarding the admissibility

of urgent medical treatment contrary to the will of the custodial

parent. The Supreme Court also overstepped the limits of its

jurisdiction in that it not only considered the question of manifest

unlawfulness, i.e. the failure of the lower courts to take into account

the provisions of the Religious Education Act, but also the question

of the best interest of the children; it thus exercised powers of

judicial discretion which went beyond the functions legally assigned

to it in the special appeals procedure concerned. The Supreme Court

also disregarded the binding effect of facts established by the court

of first instance, namely that the applicant had not educated the

children as Jehovah's Witnesses, but that their education had only been

influenced by her own living according to the principles of this

religious community; the Supreme Court further disregarded the

established facts concerning the question whether the transfer of

custody to the father would cause a shock to the children.

81. Austrian law contains a number of provisions including, in

particular, Sections 177 and 178a of the Civil Code, which regulate

with a sufficient degree of precision and foreseeability what

principles have to be applied in custody decisions after the breakdown

of a marriage (cf. mutatis mutandis, Eur. Court H.R., Sunday Times

judgment of 26 April 1979, Series A no. 30, p. 31 para. 49). It is for

the domestic courts, and in particular the highest jurisdiction such

as the Supreme Court, to interpret the law and to clarify the legal

situation.

82. In the present case the Supreme Court was competent to correct

any manifest unlawfulness such as the failure of the lower courts to

take into account the provisions of the Religious Education Act. The

applicant has failed to show that the Supreme Court acted ultra vires

or that it applied the relevant laws and procedural principles in an

arbitrary manner. The Commission therefore accepts that the

interference complained of was "in accordance with the law".

b) Legitimate aim

83. The parties agree that the measure complained of pursued at least

one legitimate purpose under Article 8 para. 2 (Art. 8-2), namely the

protection of the rights and freedoms of others. The applicable

legislation and the decision in the particular case were primarily

designed to protect the rights of the children concerned. In addition,

they also took into account the rights of the applicant's ex-husband

who, like the applicant herself, could invoke Article 8 (Art. 8) of the

Convention. The Commission therefore accepts that the measure

complained of pursued a legitimate aim covered by Article 8 para. 2

(Art. 8-2) of the Convention.

c) Necessity in a democratic society and non-discrimination

84. The Government claim that after the breakdown of the marriage it

was necessary to award the custody of the children to either one or the

other of the parents, and that in this respect the applicant could not

invoke a better right than her ex-husband. The predominant

consideration both under the Convention and under national law was the

best interest of the children which, the Government claim, was fully

taken into account in the Supreme Court's decision. In particular this

decision aimed at preventing the social marginalisation of the children

by their being educated under the influence of the applicant's

religious convictions and at protecting their health in case of the

necessity of a blood transfusion. The Supreme Court did not restrict

the applicant's rights more than necessary and therefore did not

overstep the margin of appreciation left to the national authorities

by Article 8 (Art. 8).

85. Concerning the necessity to protect the children's health, the

Government further submit that within the last few years 8 cases were

reported in Austria in which the refusal of consent to blood

transfusions by a Jehovah's Witness had apparently caused the death of

the patient. In general the refusal also caused prolonged treatment

and increased the pain and cost of the medical treatment. In cases

where children were involved the hospitals often applied to the

competent court which temporarily removed the guardianship of the

parents or substituted a judge's decision for the lacking consent.

However, there could still be cases where such a decision would come

too late and where it would be unlawful to administer a blood

transfusion against the express will of the parents.

86. The Government contest the alleged violation of Article 14

(Art. 14) on the ground that it was necessary to award the custody to

either one or the other of the parents and that a decision taken in

conformity with the law and without arbitrariness cannot amount to

discrimination in this respect. The education of the children in

accordance with the principles of the Jehovah's Witnesses without a

previous agreement of the parents and without judicial approval

violated the provisions of the Religious Education Act. Apart from

this the Supreme Court had based its decision on the danger of the

children becoming social outsiders at a crucial step of their

development and on the danger to their health caused by a likely

refusal of blood transfusions. The applicant had shown that she

intended to place her own religious convictions above the welfare of

her children. If the custody had not been awarded to the father, he

could have complained of discrimination on better grounds than the

applicant because he and the children were members of the same

religious community.

87. The applicant submits that the Supreme Court based its decision

exclusively on her religious convictions as a Jehovah's Witness. It

did not consider the concrete circumstances under which the children

lived with her, but rather examined in abstracto whether their

upbringing under the influence of this religion was in their best

interest. Apart from referring to the provisions of the Religious

Education Act for the purpose of justifying the exercise of its

jurisdiction, the Supreme Court focused on two issues: social

marginalisation and refusal of blood transfusions. In both respects

it came to conclusions which cannot be justified as being necessary in

a democratic society. The criterion of social marginalisation could

be applied to members of any minorities as a means to strip them of

their parental rights. This is incompatible with the spirit of a

pluralistic democratic society in which minority rights must be

respected.

88. According to the applicant it is incorrect to assume that the

transfer of custody to a parent who is likely to refuse blood

transfusions necessarily endangers the health of the children. Medical

progress makes it possible to carry out many operations including open

heart surgery without recurring to blood transfusions, and medical

centres specialising in such operations exist in Austria. Where a

transfusion is unavoidable, the required consent of the custodial

parent can be replaced at short notice by a judicial decision under

Section 176 of the Civil Code. The practice in Austria shows the

effectiveness of this procedure. Section 176 also provides for the

possibility of excluding the right of consent from the custody

decision from the outset. The applicant further submits that in an

urgent case where a judicial decision would come too late, the medical

treatment is admissible also without the consent of the custodial

parent. This is shown by the practice of Austrian hospitals as laid

down, e.g., in the Vienna Circular Instructions, and is also the

unanimous view of legal writers which is not contradicted by any

judicial decision except the one handed down by the Supreme Court in

her case. Thus the applicant's opposition to blood transfusions

because of her religious convictions could not possibly endanger her

children's health. The law provided a whole range of solutions to

overcome this problem and therefore it was disproportionate to withhold

her the custody of the children on this ground.

89. In this context the applicant has also commented on the material

obtained from Austrian hospitals and medical authorities. She contests

that the deaths referred to by the Government were each time the direct

consequence of the refusal to consent to a blood transfusion.

According to her, the information provided by the Government is neither

representative nor reliable. Without knowing the details of the cases

the applicant cannot check them. In any event in the two big medical

centres of Austria, Vienna and Graz, where about 2/3 of the Austrian

population is cared for, the medical treatment of Jehovah's Witnesses

is carried out without any risk to the patients. In particular the

experiences in Graz show that especially with regard to minors, the

risk during bloodless surgery is only negligibly higher than when using

foreign blood, even in cases of major heart surgery. There was not a

single case of death due to non-application of a blood transfusion.

90. The applicant also refers to the development of medical science

in general which shows a tendency to avoid blood transfusions on

medical grounds, inter alia in connection with the Aids problem. She

has submitted a voluminous documentation concerning the treatment not

only of Jehovah's Witnesses, but also of other categories of patients

by blood saving methods.

91. The Commission notes that, under Article 8 (Art. 8) of the

Convention, the applicant could not claim an absolute right to custody

of the children. In view of the breakdown of her marriage it was

necessary to award the custody to either one or the other of the

parents. The predominant consideration in this respect must be the

best interest of the children, including the protection of their health

and morals. Apart from this, the State authorities have a wide margin

of appreciation as to the factors to be taken into account (cf. the

decisions referred to in para. 72 above).

92. In the present case the relevant facts were established by the

two lower courts whose findings in this respect were binding on the

Supreme Court, the latter's functions being limited to a review on

points of law. Apart from the consequences of the applicant's

religion, which were eventually regarded as decisive by the Supreme

Court, the factors in question included the aptitude of both parents

to educate the children, the harmonious development of the children

under their mother's care, the fact that they were emotionally more

attached to the mother than to the father, the fact that the father

could not himself assume the actual care for the children but had to

rely on the assistance of his mother, and the continuity of the

educational situation.

93. After weighing all the arguments, the lower courts came to the

conclusion that it was in the best interest of the children to grant

the applicant the custody notwithstanding certain disadvantages which

her religion could bring about for the children. Also in this respect

the lower courts investigated the relevant facts of the particular case

in detail, although they did not take into account the provisions of

the Religious Education Act.

94. According to the findings made, the applicant's religious

convictions influenced her entire life-style. Her living according to

the principles of the Jehovah's Witnesses affected the children's

education. The applicant took the children with her to some, but not

all, religious ceremonies or manifestations of the Jehovah's Witnesses

which she attended. But she also allowed them to celebrate religious

festivities with their father according to Catholic customs. No

finding was made of a deliberate education of the children as Jehovah's

Witnesses. It is also clear that prior to the custody decision the

applicant did not take any steps to change the religion of the

children. The influence of the Jehovah's Witnesses on them could lead

to some difficulties for their social integration, but the applicant

did not herself wish their isolation from society. The applicant might

refuse consent to a blood transfusion, but the lower courts considered

that the legal situation provided a solution to this problem.

95. The Supreme Court overruled the decisions of the lower courts on

grounds which were all closely related to the applicant's religious

convictions as a Jehovah's Witness: her behaviour as regards the

religious education of the children, danger of their social

marginalisation, and danger to their health resulting from a likely

refusal of blood transfusions.

96. The Commission notes that the Supreme Court thus came to a

different decision because the applicant is a member of the Jehovah's

Witnesses. Whether or not this constitutes a discrimination in the

sense of Article 14 (Art. 14) depends on whether objective and

reasonable grounds exist for the distinction operated here. The

difference of treatment must pursue a legitimate aim and there must be

a reasonable relationship of proportionality between the means employed

and the aim sought to be realised (cf. mutatis mutandis Eur. Court

H.R., Belgian Linguistic judgment of 23 July 1968, Series A no. 6, p.

34, para. 10; Abdulaziz, Cabales and Balkandali judgment of 28 May

1985, Series A no. 94; Inze judgment of 28 October 1987, Series A no.

126; and Darby judgment of 23 October 1990, Series A no. 187).

97. The Commission considers it relevant for the interpretation of

Article 14 (Art. 14), in so far as it concerns discrimination on the

ground of religion, that freedom of religion, as guaranteed by Article

9 (Art. 9) of the Convention, may be subjected to restrictions

necessary in a democratic society inter alia "for the protection of the

rights and freedoms of others". The application in child custody cases

of legal provisions which are designed to protect legitimate rights of

third persons cannot therefore be regarded as discriminatory, if

concomitant repercussions on a parent's freedom of religion are

unavoidable, i.e. if the children's best interests cannot be protected

in another way.

98. In the present case the first ground invoked by the Supreme Court

for refusing the applicant the custody was her behaviour concerning the

religious education of the children. It assumed that the applicant in

fact educated the children "according to the principles of the

Jehovah's Witnesses" and found that this was contrary to the provisions

of the Religious Education Act which the lower courts had not taken

into account. The Supreme Court was of the view that the Religious

Education Act demanded the transfer of custody to the father.

99. The Commission recalls that according to the facts established

by the lower courts the applicant had not deliberately educated the

children as Jehovah's Witnesses. They had remained Roman Catholics and

were allowed to celebrate festivities with their father according to

Catholic customs. It appears that the Supreme Court's view was

essentially based on the influence which the applicant's exercise of

her own religion had on the children and which, having regard to the

nature of this religion, could hardly be avoided if the children

remained with the mother.

100. On the basis of the Supreme Court's argumentation any member of

the Jehovah's Witnesses whose spouse and children belong to a different

religion could be regarded as violating the provisions of the Religious

Education Act by the mere exercise of his or her religion, and must

fear in the event of the breakdown of the marriage that he or she will

be refused custody of the children on this very ground, although

otherwise both parents would be apt to educate their children.

101. In the Commission's opinion the Supreme Court applied a

criterion concerning the duties in the area of religious education

which will normally exclude any Jehovah's Witness in a mixed marriage

from being granted custody in the case of divorce where otherwise both

parents are apt to educate the children. The Commission notes that

Jehovah's Witnesses are a legal association under Austrian law.

Wherever a religious association is a lawful organisation it must be

the consequence that a differentiation because of membership in this

denomination needs very stringent justification. The Commission cannot

see that the general statement on education made by the Supreme Court

is such a justification. The fact in itself that the applicant is

influenced by her own religion cannot be sufficient.

102. The Supreme Court further considered that the children's contact

with the Jehovah's Witnesses was likely to create a danger of their

social marginalisation. The Commission does not find this

consideration relevant under Article 14 (Art. 14) of the Convention as

the practice of the religion of the Jehovah's Witnesses is lawful in

Austria. It is incompatible with the concept of a pluralistic

democratic society to assume that members of a minority group will

automatically be socially marginalised. The applicant's children do

not even belong to the minority in question; the assumed danger derived

only from their contact with the applicant, she being a member of a

minority group.

103. As regards refusal of consent to blood transfusions Austrian law

and practice provides solutions where a danger for the health or life

of children exists. In this context the Commission notes the practice

of replacing parents' consent by a judicial decision at short notice.

The Commission is aware of the views taken in Austrian legal literature

on this issue. The applicant has also referred to a possibility of

suspending the right of consent in the custody decision, in which case

the above risk would be excluded. The Commission further notes the

information given by both parties on medical centres equipped to

perform surgery avoiding, as far as possible, transfusions of another

person's blood. It has not been alleged that any measures to deprive

parents of custody are taken in Austria where both parents belong to

the Jehovah's Witnesses. Under these circumstances the Commission

cannot find a justification for the decision to deprive the applicant

of the custody based only on her membership in the religious community

of the Jehovah's Witnesses.

104. Since no justification has been established, the Commission finds

for the reasons outlined that the differentiation made by the Supreme

Court was discriminatory in the sense of Article 14 (Art. 14).

Conclusion

105. The Commission concludes, by 8 votes to 6, that there has been a

violation of Article 8 read in conjunction with Article 14 (Art. 8+14)

of the Convention in that the applicant was discriminated against, on

the ground of her religion, in the enjoyment of her right to respect

for her family life.

D. As to the alleged violation of Article 9 (Art. 9) of the

Convention,read in isolation or in conjunction with Article 14

(Art. 14) of the Convention

106. Article 9 (Art. 9) of the Convention reads as follows:

"1. Everyone has the right to freedom of thought, conscience and

religion; this right includes freedom to change his religion or

belief and freedom, either alone or in community with others and

in public or private, to manifest his religion or belief, in

worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be

subject only to such limitations as are prescribed by law and are

necessary in a democratic society in the interests of public

safety, for the protection of public order, health or morals, or

for the protection of the rights and freedoms of others."

107. The applicant alleges a violation of this provision in that the

Supreme Court's decision implied unjustified restrictions on the

exercise of her right to freedom of religion, in particular as regards

the religious education of her children at home. She claims that she

has been discriminated against also in this respect.

108. The Government contest the applicability of Article 9 (Art. 9),

and consequently also of Article 14 of the Convention, because in their

view there has been no interference with the applicant's exercise of

her freedom of religion. Notwithstanding the Supreme Court's decision

refusing her the custody of her children, she was and remained able to

practise her religion as she wished. But even assuming there had been

interference with her rights under Article 9 (Art. 9), the Government

consider it as justified for the reasons invoked under Article 8

(Art. 8) of the Convention, and not discriminatory.

109. As regards the complaint of a violation of Article 9 (Art. 9)

taken separately or in conjunction with Article 14 (Art. 14) of the

Convention, the Commission notes that the basis of this complaint is

the same as that which has already been considered by the Commission

in regard to Article 8 in conjunction with Article 14 (Art. 8+14)

(para. 105). The Commission therefore finds no additional issue

arising in regard to Article 9 (Art. 9) taken separately or in

conjunction with Article 14 (Art. 14).

Conclusion

110. The Commission concludes, by 12 votes to 2, that no separate

issue arises in regard to Article 9 (Art. 9) taken separately or in

conjunction with Article 14 (Art. 14) of the Convention.

E. As to the alleged violation of Article 2 of Protocol No. 1

(P2-1), read in isolation or in conjunction with Article 14

(Art. 14) of the Convention

111. Article 2 of Protocol No. 1 (P2-1) reads as follows:

"No person shall be denied the right to education. In the

exercise of any functions which it assumes in relation to

education and to teaching, the State shall respect the right of

parents to ensure such education and teaching in conformity with

their own religious and philosophical convictions."

112. The applicant alleges a violation of this provision in that she

was not allowed to ensure the education of her children in accordance

with her own religious convictions. She claims that she has been

discriminated against also in this respect.

113. The Government contest the applicability of Article 2 of Protocol

No. 1 (P2-1), and consequently also of Article 14 (Art. 14) of the

Convention, because in their view there has been no interference with

the applicant's right to education of her children in conformity with

her religious convictions. They submit in particular that this right

concerns the education of children in public schools, whereas at the

relevant time the applicant's children were still brought up at home.

But even assuming that there had been an interference, the Government

consider it as justified for the reasons invoked under Article 8

(Art. 8) of the Convention, and not discriminatory.

114. The Commission considers that the functions which the State

assumes in relation to education and teaching are not in issue in the

present case. The Supreme Court applied the Religious Education Act

only in relation to the religious education of the applicant's children

at home.

Conclusion

115. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 2 of Protocol No. 1 (P2-1), read in

isolation or in conjunction with Article 14 (Art. 14) of the

Convention.

F. Recapitulation

116. The Commission concludes, by 8 votes to 6, that there has been a

violation of Article 8 read in conjunction with Article 14 (Art. 8+14)

of the Convention in that the applicant was discriminated against, on

the ground of her religion, in the enjoyment of her right to respect

for her family life (cf. para. 105 above)

117. The Commission concludes, by 12 votes to 2, that no separate

issue arises in regard to Article 9 (Art. 9) taken separately or in

conjunction with Article 14 (Art. 14) of the Convention (cf. para. 110

above).

118. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 2 of Protocol No. 1 (P2-1), read in

isolation or in conjunction with Article 14 (Art. 14) of the Convention

(cf. para. 115 above).

Secretary to the Commission President of the Commission

(H.-C. KRÜGER) (C.A. NØRGAARD)

Separate Opinion of MM. C.A. NØRGAARD and G. JÖRUNDSSON

We have voted with the majority on the Commission's conclusions

set out in para. 105, para. 110 and para. 115.

We are however of the opinion that the applicant's complaint that

Article 8 taken alone has been violated ought to be dealt with

separately.

We agree that there has been an interference with the applicant's

right to respect for family life (para. 74), that the interference was

"in accordance with law" (para. 82) and that it pursued a legitimate

aim covered by Article 8 para. 2 of the Convention (para. 83).

With regard to "the necessity in a democratic society" we find -

based on arguments similar to those expressed in the Commission's

Report, paras. 84 to 102 - that the interference cannot be considered

as being necessary in a democratic society and we are thus of the

opinion that Article 8 taken alone has been violated.

Dissenting Opinion of Mr. F. ERMACORA

The majority of the Commission found that the Supreme Court's

decision of 6 September 1986 to grant the custody of the children to

the father and not to the mother violated Article 8 in conjunction with

Article 14 of the Convention. I disagree with this conclusion.

The two children of the applicant were baptised as Roman

Catholics (in 1980 and 1982 respectively). The mother has joined the

Jehovah's Witnesses. The children remained Catholics. The father to

whom custody has been granted does not belong to the Jehovah's

Witnesses.

Under Austrian law the religious education of children up to the

age of 14 is in the hands of the parents. In the absence of parental

consent the guardianship courts are competent to decide the matter.

In regard to the education of children in general the provisions of

civil law are to be applied. If there is no agreement between the

parents the court has to decide which parent shall have the sole

custody. The Religious Education Act therefore contains provisions

similar to the Civil Code.

By its decision of 6 September 1986, the Supreme Court granted

the custody and therefore the right to religious education solely to

the father and not to the mother, being a Jehovah's Witness. In

particular it took into account the fact that by the mother's education

the children would be brought into a marginal social position due to

her religion. This education is not only characterised by the respect

of some Catholic holidays, but it can have a very important integrative

effect on the daily life of the children (table prayers, Sunday masses,

respect of moral behaviour, etc.). Education is certainly different

in a Catholic house from the daily life in a non-Catholic house.

The private rights of the applicant must respect also the "rights

of others". In the present case the right of the father and the right

of the Catholic children fall under the concept of "rights of others".

The "rights of others" are not limited to their views on religious

education but also concern their attitude in daily life. This can

fundamentally change when the non-Catholic mother would have the

custody over the children and not the Catholic father.

The factual life of children growing up in a Catholic environment

as in the Tyrol is much less complicated than if they lived in an

environment of Jehovah's Witnesses. Since in daily life of Jehovah's

Witnesses religious attitudes predominate, this must come into conflict

with a Catholic environment and must - at least for a certain number

of years - endanger the childrens' development.

Up to the decision of the Supreme Court, the applicant obviously

educated the children against the provisions of the Religious Education

Act. In the circumstances the court had to take into account the clear

provisions of this Act when deciding about the general problem of

custody. At least in regard to the religious education the court was

bound to respect the Religious Education Act as a binding element of

its decision.

The risk to the childrens' health if they would be put in a

Jehovah's Witnesses environment has been discussed in abstracto in

regard to a possible refusal of consent to a blood transfusion. For

Jehovah's Witnesses a blood transfusion is certainly much more

difficult than for members of the Catholic church. I do not claim that

in the case of a necessary blood transfusion an acceptable solution

cannot be found, but there is certainly a risk.

In my opinion, the interference with the mother's rights brought

about by the Supreme Court's decision can be justified by a series of

elements which are included in the concept of the "rights of others"

(religious education, education in general in a sceptical community,

reasons of health, etc.). Therefore, I find that the decision of the

Supreme Court in the case of Ingrid Hoffmann remained within the limits

of Article 8 para. 2 of the Convention.

Dissenting Opinion of Mr. H.G. SCHERMERS

I disagree with the reasoning of the Report. In my submission,

Articles 8 and 9 are not applicable to the assignment of children to

either one parent after divorce, and Article 14 only for some kinds of

discrimination.

A. Article 8

Sometimes it is necessary to take children in public care. Then

the authorities separate children from parents. This is a serious

infringement of family life and should be permitted only when it is

necessary in a democratic society for one of the reasons mentioned in

Article 8 para. 2 (usually for the interest of the child).

This is not, however, the situation in the present case. The

authorities had no wish whatsoever to separate children from their

parents or otherwise to infringe family life. It were the parents

themselves who decided to disrupt the family. The task of the

authorities (the Austrian courts) was to solve a dispute between

parents: who should have the care of the children? This kind of

solving a legal dispute between parents is not covered by Article 8

(nor by Article 9). When the courts decide in favour of one parent

rather than the other they do not (and usually cannot) demonstrate that

that was necessary in a democratic society. Often the other solution

would also be acceptable. It is the task of the national authorities,

or the national courts, to solve a dispute, to assign the children to

either one parent.

On what grounds could such an assignment be made? What should

a court do when both parents are equally willing and able to care for

the children? As a decision must be taken secondary arguments may then

be decisive. One parent may have more time or more facilities

available than the other for educating the children. If the more

important secondary arguments are also equal, the courts may finally

have to turn to less important arguments in order to find a solution

to the dispute between the parents. To weigh the different arguments

is the task of the national courts. They hear (or, rather, should

hear) the parties. The Commission is neither competent nor able to

redo such weighing. This means that in the present case no Convention

right is involved, apart - perhaps - of Article 6, but that is not

covered by the complaint.

B. Article 9

The question arises whether, in weighing the grounds for and

against each of the parents, religious arguments may be taken into

account. Does Article 9 require that no weight may be attached to

religion at all?

I agree that objectively one cannot establish that one religion

is better for a child than another, and that one cannot prove that a

religious education makes a child happier than a non-religious one.

But that does not mean that religion cannot be taken into account at

all. For many people religion is one of the main forces in life. It

must be unacceptable for many parents to ignore religion entirely. The

attention given to religion in Article 2 of the First Protocol also

indicates its importance in education. The availability of religious

education with one parent may certainly be taken into account in cases

where the parents have agreed on that education. In last instance

secondary consequences of religion may play a role. When all other

factors are equal the fact that one parent is away for two evenings a

week at a bridge club may finally be the decisive factor in favour of

the other parent. Why would that be different if the absence is

because of a religious activity? When all other factors are equal the

fact that a child may come in a more isolated position when assigned

to one parent or the fact that there might be a small chance of

difficulties when a blood transfusion might be needed can become the

decisive factors for assigning the child to the other parent. Also,

the fact that the parents at some prior occasion agreed that the

children would receive a Roman Catholic education may just sway the

balance in favour of the parent who can best offer such an education.

The influence such factors may have mainly depends on the question

whether and to what extent other factors are available.

C. Article 14 in conjunction with Articles 8 and 9

Whenever a court assigns children to one parent it discriminates

against the other. Choosing is by definition discriminating. Always

when after divorce the children are attributed to one parent, the other

may claim a violation of Article 14, in conjunction with Article 8.

Two questions arise: (a) Is this kind of discrimination covered

by Article 14? (b) If it is covered by Article 14, has the Article

been infringed in the present case?

(a) Does Article 14 mean that in making his choice the judge may not

take account of any of the factors mentioned in the Article? May

language, religion, national or social origin, property, birth or other

status ("toute autre situation" in the French text is still wider) not

at all be taken into account when the judge makes his choice between

the parents? Would that not force the judge to base his choice on

rather irrelevant factors?

Article 14 does not contain a general prohibition of

discrimination, it prohibits discrimination only with respect to the

rights and freedoms set forth in the Convention. Therefore, when a

Government takes children in public care, they may not discriminate.

Under no circumstances children may be taken into care because of the

religion, the social origin or the lack of property of the parents.

But in the present case the authorities do not interfere in the family.

They only act after family life has been terminated. They choose

whether the new family shall be with the father or with the mother.

Unlike in the case of taking children into public care the authorities

have no option of abstaining from acting. The case is fundamentally

different from the one for which Article 14 has been adopted.

(b) In the Inze case a choice had to be made between the heirs of a

farmer. Only one of them could inherit the farm. There too I pleaded

that such choice could be made on any objective grounds without

Article 14 being applicable (Eur. Court H.R., Inze judgment of

28 October 1987, Series A no. 126, p. 30, no. 2). The Court, however,

unanimously found a violation of Article 14 in the fact that Austrian

law attributed the farm to the oldest legitimate son rather than to the

oldest son. Does this solve our question? Has the Court decided that

whenever national authorities have to choose between different options,

they are not permitted to take any of the factors into account which

are enumerated in Article 14? I think not, for three reasons.

1. In the Inze case the choosing was not specifically related to the

case at hand. The choice was made in a general regulatory way, by law.

Legitimate children always took precedence over illegitimate ones, sons

always over daughters, irrespective of their qualities and irrespective

of their attachment to the farm. Furthermore, the criteria mentioned

in the law were not the most appropriate ones. In later Austrian

legislation heirs who have been trained as farmers take precedence over

those who have not and those who were brought up on the farm take

precedence over those who were not, which clearly are better criteria.

However, in the case of parental control there is no legislation

providing that one kind of parent takes precedence over another. Such

legislation would indeed be discriminatory and contrary to Article 14.

But in the present case the judge must decide on the factors of the

case at hand and then it seems appropriate that he should be permitted

to take all possible factors into account.

2. Factors such as race or illegitimate birth are entirely out of

control of the person concerned. One can choose or change one's

religion, language or political opinion, one cannot choose or change

one's race or birth. This may mean that the taking into account of

race or birth in any choice may be more unfair than taking account of

other factors. Choosing partly on the ground of race or birth may be

an unacceptable insult in itself, and may therefore never be permitted.

But this does not hold true for all grounds enumerated in Article 14.

Choosing on the ground of e.g. political opinion is a normal phenomenon

at many occasions, such as the appointment of cabinet ministers.

Choosing on the ground of religion is equally normal for e.g. clergy

and teachers in religious schools. This leads to the conclusion that

in cases where a choice must be made, race and birth should be entirely

ignored, not so much because of discrimination (there is discrimination

in the choice anyway) but because the taking into account is offensive

in itself. Other factors, such as property and sex (young children are

often placed with the mother because she is a woman) may, however, be

taken into consideration.

3. The Court uses a rather flexible definition of discrimination:

a difference of treatment is discriminatory under Article 14 if it "has

no objective and reasonable justification". This means that in the

Inze case it would have been in conformity with Article 14 to give

precedence to an heir who had been trained as a farmer or to an heir

who was brought up on the farm in question (which could be seen as

discrimination on the ground of education). Probably the Court would

have accepted that precedence is given to sons over daughters

(discrimination on the ground of sex), but the justification by the

Austrian Government, that illegitimate children are often not related

to the surviving spouse and not living on the farm was considered

insufficiently objective. In the present case there are many objective

and reasonable criteria justifying a choice for settling the children

with the father. The philosophy of Jehovah's Witnesses is more than

religion. It is also a way of life. In practice, the Jehovah's

Witnesses live according to strict rules, which to a large extent

isolate them from other people. They consider their children as

incorporated in the "family" of the sect which may well mean that they

are no longer seen as members of their natural family. In practice,

the philosophy of the Jehovah's Witnesses may result in the childrens'

relationship with the father and the grandparents being completely

severed. In my opinion that offers an objective and reasonable

justification for placing the children with the father.

D. The Commission's reasoning

For the reasons mentioned above I do not agree with the way the

Commission applies Article 14 in the present case. But, even if

Article 14 is applicable in conjunction with Article 8 the weighing of

the arguments could be different. In paragraph 100 it is submitted

that on the basis of the Supreme Court's argumentation any member of

the Jehovah's Witnesses whose spouse and children belong to a different

religion could be regarded as violating the provisions of the Religious

Education Act by the mere exercise of his or her religion. This,

however, is in no way a discrimination of Jehovah's Witnesses, because

the same would apply to any member of any other religion whose spouse

and children belong to a different religion. The act concerns any

change of the religion of the children without the agreement of both

parents.

In paragraph 101 of the Report the Commission expresses the

opinion that the criterion applied by the Supreme Court would normally

exclude any Jehovah's Witnesses in a mixed marriage from being granted

custody in the case of divorce where otherwise both parents are apt to

educate the children. This is true when both parents are about equally

apt to educate, because membership of Jehovah's Witnesses is seen - and

in my opinion on good grounds - as a handicap for the education of

children. Therefore, all other things being equal, the Jehovah's

Witness will be the less suitable custodian. This does not exclude

Jehovah's Witnesses completely, however. In the majority of cases both

parents will not be equally apt to educate, apart from the arguments

based on religion. The disadvantages connected to membership of

Jehovah's Witnesses may well be outbalanced by other disadvantages at

the other side, either of a religious or of any other nature. The

conclusion that Jehovah's Witnesses will normally be excluded seems,

therefore, insufficiently founded.

Neither do I consider it justified to read in the Supreme Court's

judgment that the Supreme Court assumes that members of a minority

group will automatically be socially marginalised (para. 102). The

Jehovah's Witnesses are a very particular community which keeps itself

separate from many aspects of society. The conclusion that they are

marginalised is founded on their behaviour, not on their quality as a

minority group. The conclusion, therefore, is not automatically

applicable to other minority groups.

Partly Dissenting Opinion of Sir Basil HALL

While I accept, like the majority of the Commission, that there

has in this case been a violation of Article 8 in conjunction with

Article 14 (para. 104), I do not think that it is unnecessary to reach

a finding in respect of the complaint under Article 8 taken alone. I

share the views expressed in the separate opinion of Mr. Nørgaard and

Mr. Jörundsson that there has been a violation of Article 8.

I also think that a separate issue does arise under Article 9 and

that there has been a violation of that Article. It has been

recognised that a measure taken after the expression of an opinion or

after an assembly has taken place may constitute a limitation or

restriction on the exercise of the right to freedom of expression given

by Article 10 or the right to freedom of peaceful assembly given by

Article 11 (see the Ezelin judgment of 26 April 1991, Series A no. 202,

p. 18, para. 39, and cases there cited). Such a measure may be a

disproportionate interference because of the severity of a penal or

disciplinary punishment. In this case the removal of the applicant's

young children was a measure taken because the applicant manifested her

belief in worship, teaching, practice or observance in the tenets of

Jehovah's Witnesses. Although the measure was not penal or

disciplinary in nature, for the applicant the effect - the loss of her

children - must have been more serious than any penalty or disciplinary

measure would have been. Furthermore, having regard to the grounds of

the decision of the Supreme Court if there should be a change in

circumstances so that custody of the children again became an issue,

if she continued to be a Jehovah's Witness she would be unlikely to

have regained custody. Her position too would be affected should she

re-marry and have further children. I therefore consider that the

decision of the court did amount to a limitation on her freedom to

manifest her religion or belief.

For the same reasons that have led to the conclusion that the

interference with the exercise of the applicant's right to respect for

her family life have not been shown to be necessary in a democratic

society, I conclude that the limitation of her rights under Article 9

have not been shown to be necessary.

Accordingly, there has been a violation of that Article.

Dissenting Opinion of Mr. L. LOUCAIDES

I am unable to agree with the decision of the majority that, in

this case, there has been a violation Article 8 read in conjunction

with Article 14 of the Convention. I do not share the view that the

applicant was discriminated against, on the ground of her religion, in

the enjoyment of her right to respect for her family life. I believe

that the decision of the Supreme Court in Austria to refuse the

applicant the custody of her children and grant this custody to their

father was a legitimate interference with the above-mentioned right of

the applicant as necessary in a democratic society for the protection

of the rights of the children in accordance with paragraph 2 of

Article 8 of the Convention.

The decision of the Supreme Court was in my view based on

objective and reasonable criteria and the predominant consideration

applied by the court was the best interest of the children, including

the protection of their health. The court did not deprive the

applicant of her children on the ground of her religious denomination

or her religious convictions as such. What the court clearly did, in

my opinion, was to take into account certain dangers to the welfare of

the children which happened to be related to the religious convictions

of the applicant. I believe that the course followed by the court was

absolutely legitimate and cannot justify a complaint for discrimination

on the ground of religion. In deciding what the best interest of the

children was, the court was entitled to take into account all possible

risks to their welfare even if such risks were related to the religious

convictions of their mother. The following distinction in my view is

clear: it is one thing to refuse custody of children to a mother simply

because of her religious denomination or convictions and an entirely

different matter to refuse such custody because of possible adverse

effects on the welfare of the children as a consequence of attitudes

and behaviour flowing from relevant religious convictions of the

mother. The first is, in my opinion, impermissible but the second is

absolutely legitimate.

The Supreme Court has, inter alia, based its decision on the fact

that the applicant, because of her religious convictions, would refuse

her consent to any blood transfusion should her children ever require

one. According to the Supreme Court, the applicant's refusal of

consent to blood transfusion violated the children's interest because

the invocation of the court to replace the consent could lead to delays

endangering their life while an operation without the consent of the

parent having custody was regarded by the court as unlawful. I find

the court's approach as reasonably related to the best interest of the

children and certainly well within the wide margin of appreciation that

State authorities have regarding the factors that may be taken into

account in deciding questions of custody of children. The court's

decision is not arbitrary or discriminatory against the applicant.

Although it is correct that Austrian law and practice provide

solutions where a danger to the health or life of children exists and

parents refuse to consent to blood transfusions, including the

possibility of replacing parents' consent by a judicial decision at

short notice, the fact remains that delays endangering the life of the

children pending the application of such solutions cannot be excluded.

Notwithstanding the availability of the solutions in question and of

medical services specialised in operations without blood transfusions

there remains an ultimate risk which, in my opinion, can legitimately

be taken into account in a custody decision as the present one. In

this respect it is useful to point out that Article 9 of the Convention

(which here is relevant for the interpretation of Article 14) also

allows restrictions on the exercise of freedom of religion "for the

protection ... of health".

In reaching my conclusions, I have also taken into account the

fact that there is no express clear provision in the Austrian law

allowing blood transfusion to children under the care of their parents

without the consent of the latter and that the Supreme Court of Austria

itself expressed the view that an operation without the consent of the

parent having custody would be unlawful.

The applicant was certainly free to adhere to her own religious

convictions but this freedom could not entitle her to impose the

negative effects of her religious attitude on her children. It is

useful, in this respect, to quote the answer of the applicant to a

question put to her through her lawyer during the hearing of the case

as follows:

Question: "Assuming the consent of the parents is required under

Austrian law in an emergency case where a judicial decision

authorising a blood transfusion is impossible to meet the

situation, would your client give her consent to a blood

transfusion, if, by withholding her consent the death of her

child would possibly be a consequence?"

Applicant: "On this subject I should say I am not able to tell

you at present how I would act if such a situation arose where

my children needed blood. But, at present, I am convinced that

I would not consent to a blood transfusion. But I would be in

favour of any medical treatment."

Therefore, I find that the respondent Government was right in

submitting that the applicant was placing her religious convictions

above the welfare of her children and that the impugned decision of the

Supreme Court was not unreasonable. It should be noted that although

the probability that a blood transfusion could become necessary may be

relatively small, the material submitted by the parties shows that

grave situations confronting the competent medical authorities with

extremely difficult problems in cases of refusal of blood transfusions

do in fact arise on a considerable scale.

I may add here that, in my opinion, the primary duty for care of

children rests with their parents. Therefore, if for any reason the

parents are not, in any respect, prepared to perform such duty I do not

see how they can at the same time claim that they should be excused for

their conduct and be regarded as fit in all the circumstances to take

care of their children by invoking the fact that their failure and the

ensuing problems of the children could in any case be remedied by the

State.

The fact referred to in the decision of the majority that "it has

not been alleged that any measures to deprive parents of custody are

taken in Austria where both parents belong to the Jehovah's Witnesses"

(para. 103 of the Report), is not, in my view, of any particular

significance in the context of the facts of the present case. The

Supreme Court in Austria had to make a choice between giving custody

of the children to the mother who, because of her religious

convictions, would not consent to blood transfusion in case that was

necessary for the protection of the health of her children, and giving

the custody to the father whose convictions did not prevent him from

giving such consent. In such a situation it was reasonably open to the

court to take into consideration the relevant attitude of the mother

in choosing to grant custody of the children to the father. In any

case, on the material presented before the Commission, the possibility

of the courts depriving parents of the custody of their children when

both parents belong to the Jehovah's Witnesses, in a given case where

the problem of consent to blood transfusion is raised, has not been

excluded. Such a question does not seem to have been tested before the

Austrian courts and in any case is neither directly relevant nor

decisive in respect of the present case.

In conclusion, I find that, taking into consideration all the

relevant facts and circumstances of the case, the decision of the

Supreme Court was based on objective and reasonable criteria relevant

to the matters in issue and that the differential treatment complained

of does not amount to discrimination based on the applicant's religious

convictions.

APPENDIX I

HISTORY OF THE PROCEEDINGS BEFORE THE COMMISSION

DATE ITEM

____________________________________________________________________

A. Examination of admissibility

20.2.87 Introduction of the application

15.4.87 Registration of the application

13.12.88 Decision of the Commission to invite the

Government to submit observations in

writing on the admissibility and merits

of the application.

21.3.89 Extension of time limit at Government's

request.

11.4.89 Further extension of time limit at

Government's request

14.4.89 Government's observations

9.6.89 Extension of time-limit at applicant's

request

19.6.89 Applicant's observations

12.3.90 Commission's decision to invite the parties

to an oral hearing

27.6.90 Applicant's preparatory note for the hearing

10.7.90 Oral hearing on admissibility and merits,

Commission's decision to declare the application

admissible.

B. Examination of the merits

12.7.90 Government invited to submit information on

medical treatment of Jehovah's Witnesses

7.9.90 Decision on admissibility communicated to

the parties who are invited to submit additional

observations on the merits.

5.10.90 Government submit requested information

15.10.90 Government inform the Commission that they have

no additional observations on the merits to make

17.10.90 Applicant invited to comment on information

provided by the Government

9.11.90 Commission decides to grant legal aid to the

applicant

12.11.90 Extension of time-limit at applicant's request

6.12.90 Further extension of time-limit at applicant's

request

8.12.90 Consideration of the state of the proceedings

14.12.90 Applicant's comments on information provided by

the Government, submission of information and

legal observations by the applicant

1.91 Applicant submits supplementary information

27.2.91 Government submit supplementary information

6.7.91 Consideration of state of the proceedings

7.12.91 Consideration of state of the proceedings

7.1.92 Commission's deliberations on the merits and

final votes

14.1.92 Further deliberations on the merits

16.1.92 Adoption of the present Report

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HOFFMANN v. AUSTRIA

HOFFMANN v. AUSTRIA

LEXI