Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17771/91

by E.R.

against Switzerland

The European Commission of Human Rights sitting in private on 12

October 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. K. ROGGE, Deputy to the Secretary to the Commission,

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 31 October 1990

or 27 January 1991 by E.R. against Switzerland and registered on 7

February 1991 under file No. 17771/91;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows.

The applicant, a Swiss citizen born in 1944, is a business

employee residing in Zurich. Before the Commission he is represented

by Mr. L.A. Minelli, a lawyer residing at Forch in Switzerland.

Particular circumstances of the case

I.

On 24 March 1987 Ms. K. gave birth to a girl R. The applicant

from the beginning accepted paternity. On 26 March 1987 he declared

in writing that he supported the decision of Ms. K. to entrust the

child to foster parents who eventually might adopt the child. R. has

lived with foster parents since 30 March 1987. On 8 May 1987 Ms. K.

signed a declaration according to which she accepted a subsequent

adoption of R.

At the end of May 1987 the applicant wrote to the Youth

Secretariat of the Zurich-Land District, explaining that only with

difficulty could he accept that R. would no longer grow up with her

mother. However, after long conversations with Ms. K. he accepted her

decision. The applicant further wrote that the prospect never to be

allowed to see R. was incomprehensible and painful. By letter of 26

June 1987 the Youth Secretary G. replied that the applicant's

declaration to respect Ms. K.'s decision also implied that he would not

do anything that could endanger the future adoption; contacts between

the applicant and the child would only create unnecessary problems and

not lie in the child's interests.

II.

On 27 July 1987 the Oberengstringen Guardianship Office

(Vormundschaftsbehörde) declared that R.'s father was unknown and had

not taken care of the child. With reference inter alia to Article 265c

of the Swiss Civil Code (Zivilgesetzbuch; see below, Relevant domestic

law and practice) the Office ruled therefore that the father's consent

to R.'s adoption was not necessary. The Office also withdrew Ms. K.'s

parental custody over R. and appointed the Youth Secretary G. as the

child's guardian. The decision was not served on the applicant.

After September 1988 the applicant was represented by a lawyer.

In a letter of 5 September 1988 to the Oberengstringen

Guardianship Office, the applicant stated that he wished to rear R.

together with Ms. K., and that he had not consented to R.'s adoption

and did not intend to do so. A copy of this letter was sent to the

Youth Secretary G. who then transmitted a copy of the decision of the

Guardianship Office of 27 July 1987 to the applicant.

III.

The applicant unsuccessfully appealed against the decision of 27

July 1987 to the Zurich District Council (Bezirksrat). During these

proceedings he was heard by a member of the District Council.

The applicant's subsequent appeal to the Zurich Directorate of

Justice (Justizdirektion) was dismissed on 4 January 1990. In its

decision the Directorate found in particular that it could not be said

that the child's father was unknown. However, it considered the

conditions of Article 265c para. 2 of the Civil Code to be satisfied.

IV.

The applicant then filed an appeal (Berufung) with the Federal

Court (Bundesgericht). In the appeal statement, which was prepared by

a lawyer, the applicant explained in detail how he had shown a serious

interest in his child. He complained that the authorities' conduct

disclosed that they were determined to proceed to an adoption. Finally

he submitted that he intended to marry R.'s mother.

On 9 February 1990 the Zurich Directorate of Justice filed its

observations on the appeal, requesting the Federal Court to dismiss it.

The applicant only became aware of these observations on 6 September

1990, i.e. after the Federal Court had given its judgment.

In its observations the Directorate of Justice found inter alia

that the applicant, in his descriptions of the events, had left out

relevant parts, for instance his statement of May 1987. While he had

expressed an interest in visiting the child, he no longer pursued his

efforts once the guardian told him that this was not possible. The

Directorate found that in fact the applicant was not as helpless as he

was making himself out to be. No indications transpired from the

applicant's appeal concerning the recognition of paternity. The

applicant mostly raised claims which had been made in the proceedings

at issue and had no basis whatsoever. In fact the applicant no longer

even knew where he had unsuccessfully attempted to obtain a birth

certificate of the child.

On 20 April 1990, the Federal Court dismissed the appeal.

Notification of the operative part of the decision, stating that the

appeal was dismissed, was served on the applicant on 23 April 1990 and

received by him, at the earliest, on 25 April 1990. The reasons for

the decision were dispatched to the applicant's lawyer on 27 July 1990.

The judgment stated that the Federal Court followed the procedure

provided for in Section 60 paras. 1 and 2 of the Federal Judiciary Act

(Organisationsgesetz; see below, Relevant domestic law and practice).

In its decision the Federal Court found that the conditions of

Section 265c para. 2 of the Civil Code were met. The Court noted in

particular that upon R.'s birth the applicant had accepted that he was

not in a position to take care of her. In his letter at the end of May

1987 the applicant had not stated that he wanted an intensive contact

with R. but only that he was sad that she could not grow up with her

mother. Moreover, the applicant had not originally reacted to Youth

Secretary G.'s reply of 26 June 1987.

The Court noted that only a year later, on 5 September 1988, the

applicant had again contacted the Guardianship Office. However, he had

not explained in which way he would personally take care of the child.

The Court further found that the applicant had not himself applied for

legal recognition of his paternity; he had only done so in April 1989

when the Zurich District Council had set him a time-limit to prove his

paternity.

V.

On 21 December 1990 the Zurich District Court (Bezirksgericht)

ordered the applicant to pay a monthly subsistence allowance to R.

From this decision it also transpires that R.'s adoption has entered

into legal force.

Relevant domestic law and practice

I.

According to Article 265c of the Swiss Civil Code, consent of a

parent to a child's adoption need not be obtained "1. if he is unknown,

of unknown residence and absent for a longer period of time, or

permanently of unsound mind; 2. if he has not seriously taken care of

the child" ("1. wenn er unbekannt, mit unbekanntem Aufenthalt länger

abwesend oder dauernd urteilsunfähig ist, 2. wenn er sich um das Kind

nicht ernstlich gekümmert hat").

II.

According to Article 62 of the Federal Judiciary Act, upon appeal

an oral hearing takes place in principle before the Federal Court in

non-pecuniary civil cases. Article 60 deals with cases in which the

Federal Court may decide on the appeal without public deliberations.

Article 60 para. 2 states:

[Translation]

"1. The Federal Court may immediately or after obtaining a

reply, without public deliberations and unanimously,

a. decide that it will not deal with the appeal ...

...

2. The Federal Court may also, after the time-limit for an

accessory appeal has expired, at once or after obtaining a reply,

decide, provided it is unanimous, to dismiss the appeal if it

regards the appeal without any doubt as being unfounded."

[German]

"1. Das Bundesgericht kann sofort oder nach Einholung der

Antwort ohne öffentliche Beratung bei Einstimmigkeit

a. beschliessen, dass auf die Berufung nicht eingetreten

wird ..

...

2. Ebenso kann das Bundesgericht nach Ablauf der Frist für die

Anschlussberufung sofort oder nach Einholung der Antwort ohne

öffentliche Beratung bei Einstimmigkeit die Berufung abweisen,

wenn er sie ohne irgendwelchen Zweifel als unbegründet erachtet."

As regards the taking of evidence, Section 55 para. 1 c) states

that the appeal may not contain "statements which are directed against

the establishment of the facts, allegations of new facts, new

objections, contestations and means of evidence" ("das Vorbringen neuer

Tatsachen, neue Einreden, Bestreitungen und Beweismittel"). Section

63 para. 2 states, in so far as relevant:

[Translation]

"The Federal Court must in its decision rely on the determination

of the last Cantonal instance in respect of the factual

circumstances, except if they were reached in violation of rules

of evidence of Federal law."

[German]

"Das Bundesgericht hat seiner Entscheidung die Feststellungen der

letzten kantonalen Instanz über tatsächliche Verhältnisse

zugrunde zu legen, es wäre denn, dass sie unter Verletzung

bundesrechtlicher Beweisvorschriften zustande gekommen sind."

COMPLAINTS

1. Under Article 8 of the Convention the applicant complains of the

conduct of the Swiss authorities who did not obtain his consent for

R.'s adoption.

2. The applicant complains under Article 6 para. 1 of the Convention

that in these proceedings he was never heard by a court, the Zurich

authorities having been administrative bodies. He should have been

enabled to comment before the Federal Court on the statement made by

a previous instance, namely the Zurich Directorate of Justice of

9 February 1990, and to submit further requests for the taking of

evidence.

PROCEEDINGS BEFORE THE COMMISSION

By letter dated "October 1990" and postmarked 31 October 1990 the

applicant wrote to the Commission contesting "the release of my

daughter for adoption, without my consent, by the Federal Court in May

1990" ("Freigabe meiner Tochter zur Adoption ohne meine Zustimmung vom

Bundesgericht im Mai 1990"). No documents were included. In reply the

Secretariat informed the applicant of the conditions for filing an

application.

On 27 January 1991 the applicant's lawyer filed complaints under

Article 8 and on 28 January 1991 under Article 6 of the Convention.

In his application he stated that the Federal Court's decision of 20

April 1990 had been dispatched on Friday 27 July 1990 and could have

been received by the applicant on 28 July 1990 at the earliest.

The application was registered on 7 February 1991.

On 6 January 1992 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits in respect of the

complaint under Article 6 para. 1 of the Convention.

The Government's observations were received by letter dated 12

March 1992. The applicant submitted his observations on 17 April 1992.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention that his child was adopted without his consent. Under

Article 6 (Art. 6) of the Convention the applicant complains that he

could not comment on certain statements before the Federal Court, that

he was never heard by a court, and that he could not file further

requests for the taking of evidence.

2. The Commission observes that the applicant, in a letter to the

Commission dated "October 1990" and postmarked 31 October 1990,

contested "the release of (his) daughter for adoption, without (his)

consent, of the Federal Court in May 1990". The Commission considers

therefore that the complaint under Article 8 (Art. 8) of the Convention

was introduced on 31 October 1990. On the other hand, the complaints

under Article 6 para. 1 (Art. 6-1) of the Convention were first

introduced before the Commission by letter dated 28 January 1991.

3. The Government contend with regard to the applicant's complaints

under Articles 6 and 8 (Art. 6, 8) of the Convention that he has not

complied with the requirement as to the exhaustion of domestic remedies

under Article 26 (Art. 26) of the Convention as he failed to raise the

complaints he is now raising before the Commission in a public law

appeal to the Federal Court. While the Court could not have conducted

an oral hearing, it could have quashed the previous Cantonal decisions;

the Cantonal authorities would then have been obliged to take into

consideration the Federal Court's decision.

The applicant submits that in his appeal to the Federal Court he

clearly explained the facts and complained that he could not consent

to the adoption of his child. Moreover, in the appeal proceedings the

Court, the only judicial instance in the proceedings, was bound to

apply both Swiss law and the Convention. Even if he had filed a public

law appeal which would have been upheld by the Court, this would not

have altered the situation any more, as it concerned a period of time

three years before.

Under Article 26 (Art. 26) of the Convention the Commission may

only deal with a matter "after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law".

The Commission considers that in his appeal to the Federal Court

the applicant complained in substance that his daughter was adopted

without his consent. In respect of this complaint he has therefore

complied with the requirement under Article 26 (Art. 26) of the

Convention.

Insofar as the applicant complains about the fairness of the

proceedings before the Federal Court, the Commission notes that the

latter decided as the only court in the applicant's case. There were

no further remedies available to the applicant under Swiss law to

complain about the proceedings before the Federal Court. Also in this

respect the applicant has therefore complied with the requirement under

Article 26 (Art. 26) of the Convention.

3. The applicant complains under Article 8 (Art. 8) of the

Convention that his child was adopted without his consent.

Article 8 (Art. 8) of the Convention states:

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.

The Commission considers that the adoption of the applicant's

child without the applicant's consent amounts to an interference with

the applicant's right to respect for his family life within the meaning

of Article 8 para. 1 (Art. 8-1) of the Convention. The Commission must

therefore examine whether this interference was justified under Article

8 para. 2 (Art. 8-2) of the Convention.

The Commission observes that in the present case the domestic

authorities, when deciding on the adoption of the applicant's child,

invoked Article 265c of the Swiss Civil Code. According to this

provision, consent of a parent to the child's adoption need not be

obtained inter alia if the parent has not seriously taken care of the

child. The measure was therefore "in accordance with the law" within

the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

Moreover, when deciding on the necessity of the applicant's

consent to the adoption, the authorities considered that the applicant

had not shown a serious interest in his child who had grown up with her

foster parents. Thus, the Federal Court observed in its decision of

20 April 1990 that upon the child's birth the applicant had accepted

that he was not in a position to take care of her. In a letter in

May 1987 the applicant had not stated that he wanted an intensive

contact with his daughter. He had not at first reacted to the Youth

Secretary's letter of 26 June 1987; when a year later he had again

contacted the Guardianship Office, he had not explained how he would

personally take care of the child. Finally, the Court considered that

the applicant had not applied for legal recognition of his paternity;

he had only done so in April 1989 when he was set a time-limit to prove

his paternity.

The Commission thus considers that the interference with the

applicant's right to respect for his family life was "necessary in a

democratic society ... for the protection of health (and) morals (and)

the rights and freedoms of others", namely the child concerned.

The interference was therefore justified under Article 8 para. 2

(Art. 8-2) of the Convention. It follows that this part of the

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

4. Under Article 6 (Art. 6) of the Convention the applicant

complains that he was never heard by a court, that he could not comment

on certain statements before the Federal Court, and that he could not

submit further requests for the taking of evidence.

Article 6 para. 1 (Art. 6-1) of the Convention states, insofar

as relevant:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law."

a) As regards the complaints concerning the lack of an oral hearing

and the taking of evidence the Government submit that the applicant did

not comply with the requirement under Article 26 (Art. 26) in that he

did not file these complaints within six months after 25 April 1990

when he received the notification of the Federal Court's decision. The

subsequent written reasons of the judgment would not have assisted the

applicant in filing his application with the Commission.

In the applicant's view, it is the purpose of Article 26

(Art. 26) of the Convention that an application should only be filed

with the Commission when the domestic proceedings have definitely been

concluded.

Under Article 26 (Art. 26) of the Convention the Commission may

only deal with an application if it has been filed "within a period of

six months from the date on which the final decision was taken".

The Commission considers that the Federal Court dealt in its

judgment inter alia with the applicant's relations with his child.

The written reasons of the judgment would have enabled the applicant

to assess the prospects of his application to the Commission both with

regard to the complaint that no evidence was taken, and with regard to

the complaint that he did not have an oral hearing. The Commission

further recalls the decision of the European Court of Human Rights in

the Oberschlick case according to which "the six-month period mentioned

in Article 26 (Art. 26) of the Convention runs only as from the same

date as that which is relevant with regard to the final decision on the

merits" (see Eur. Court H.R., judgment of 23 May 1991, Series A no.

204, p. 22, para. 42).

In the present case the final decision on the merits was served

on the applicant on 28 July 1990. As he filed his complaints under

article 6 para. 1 (Art. 6-1) of the Convention on 28 January 1991, he

has in this respect complied with the requirement under Article 26

(Art. 26) of the Convention.

b) As regards the well-foundedness of the complaints the Government

submit that the applicant did not ask for an oral hearing before the

Federal Court; the Federal Judiciary Act itself did not envisage such

a right. As regards the taking of evidence, the Government submit that

the Federal Court is bound by Sections 55 para. 1 c) and 63 para. 2 of

the Federal Judiciary Act. Finally, the Government contend that the

applicant could have asked to comment on the statement of the

Directorate of Justice of the Canton of Zurich, although Section 60 of

the Federal Judiciary Act envisages the possibility that the court

decides on the appeal immediately, or after having obtained the reply

of the opposing party.

On the whole the Government acknowledge that the procedure before

the Federal Court does not entirely respect the guarantees of Article 6

(Art. 6) of the Convention. However, these issues cannot be

dissociated from the fact that the applicant did not invoke all the

remedies at his disposal within the meaning of Article 26 (Art. 26) of

the Convention, and the Government therefore conclude that the

applicant's complaints are unfounded.

The applicant submits that he was not entitled to ask for an oral

hearing. Moreover, he had no legal right to comment, in the

proceedings before the Federal Court, on the reply of the Directorate

of Justice of the Canton of Zurich. In fact, the statements of the

opposing party are as a rule served on a party after judgment has been

given; this also happened in the present case.

The Commission, having regard to the parties' submissions under

Article 6 para. 1 (Art. 6-1) of the Convention concerning the

proceedings before the Federal Court, considers that these complaints

raise complex issues of fact and law which can only be resolved by an

examination of the merits. This part of the application cannot,

therefore, be declared manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for

inadmissibility have been established.

For these reasons, the Commission, unanimously,

DECLARES INADMISSIBLE the applicant's complaints under Article 8

(Art. 8) of the Convention that his child was adopted without his

consent;

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the remainder of the application.

Deputy to the President

Secretary to the Commission of the Commission

(K. Rogge) (C.A. Nørgaard)

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E.R. v. SWITZERLAND

E.R. v. SWITZERLAND

LEXI