AS TO THE ADMISSIBILITY OF

                      Application No. 12875/87

                      by Ingrid HOFFMANN

                      against Austria

        The European Commission of Human Rights sitting in private

on 10 July 1990, 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

                  A.V. ALMEIDA RIBEIRO

             Mr.  H.C. KRÜGER, 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 20 February 1987

by Ingrid HOFFMANN against Austria and registered on 15 April 1987

under file No. 12875/87;

        Having regard to

     -  the report provided for in Rule 40 of the Rules of Procedure

        of the Commission;

     -  the Commission's decision of 13 December 1988 to bring

        the application to the notice of the respondent Government

        and invite them to submit written observations on its

        admissibility and merits;

     -  the observations submitted by the respondent Government on

        14 April 1989 and the observations in reply submitted

        by the applicant on 19 June 1989;

     -  the parties' submissions at the oral hearing on 10 July 1990;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts agreed by the parties may be summarised as

follows:

        The applicant is an Austrian citizen born in 1958 who resides

in Innsbruck.  She is represented by Rechtsanwalt Dr.  Reinhard

Kohlhofer of Vienna.

        The applicant married in 1980.  The husband was a Roman

Catholic.  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.

        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.

        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.

        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 principles of education applied by this sect were allegedly against

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.

        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.

        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.  The fact that she did not

send the boy to kindergarten was based on the consideration 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 was capable of

looking after the children and caring for their education, and she

actually did so.  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.

        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.

        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 Aussenseiter-

position 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 herself 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.  In conclusion the psychologist had recommended that the

mother be granted custody of the children.

        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.  In

the present case 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.

        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.  In the

present case it had, nevertheless, to be 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 expressly 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.

In all circumstances, it appeared to be in the best interest of the

children to award the custodial rights to the mother and not to the

father.

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

decision was rejected by the Innsbruck Regional Court (Landesgericht)

on 14 March 1986, without the applicant having been heard on that

appeal.  The Regional Court noted that 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).  However,

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.  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.  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.  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.

        The applicant's husband lodged a further appeal (außer-

ordentlicher Revisionsrekurs) to the Supreme Court (Oberster

Gerichtshof) and the applicant was again not heard on this appeal.  On

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

that the decisions of the courts below had been manifestly unlawful

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

Non-Contentious Proceedings Act (Ausserstreitgesetz).

        The Supreme Court noted the father's submission 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 Kinder-

erziehung, 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.  The courts below had not examined

whether the education of the children, who uncontestably were not

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

community violated the provisions of that 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 Religionsgesell-

schaft) and to which they did not belong, manifestly violated this

provision.

        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 would be 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.  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.

COMPLAINTS

        The applicant originally complained of violations of her

rights under Articles 9 and 14 of the Convention and under Article 2

of Protocol No. 1.  In her observations in reply to the Government's

submissions she also invoked Article 8 of the Convention.

        At the oral hearing on 10 July 1990 the applicant further

invoked Article 6 of the Convention concerning the unilateral conduct

of the appeal proceedings before the Regional Court and the Supreme

Court in which she was not heard.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 20 February 1987 and

registered on 15 April 1987.

        On 13 December 1988, the Commission gave notice of the

application to the respondent Government inviting them, in accordance

with Rule 42 para. 2 (b) of the Rules of Procedure, to submit before

10 March 1989 observations in writing on the admissibility and merits

of the application.  In addition to the provisions of the Convention

initially invoked by the applicant, the Commission also referred to

Article 8 of the Convention in this context.

        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.

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

the parties on the admissibility and merits of the case.

        On 27 June 1990 the applicant submitted a preparatory note for

the hearing and further material.

        The hearing took place on 10 July 1990, the parties being

represented as follows:

        - the Government by their Agent, Botschafter Dr.  Helmut

Türk, Head of the International Law Department, Federal Ministry of

Foreign Affairs, who was assisted by Univ.  Ass.  Dr.  Stefan Rosenmayr,

of the Constitutional Law Department, Federal Chancellery, and

Staatsanwältin Dr.  Ulrike Kathrein, of the Federal Ministry of

Justice, Advisers;

        - the applicant, who was also present herself, by

Rechtsanwalt Dr.  Reinhard Kohlhofer, Vienna, as counsel, and the

following German advisers:  Rechtsanwalt Armin Pikl and Rechtsanwalt

Dr.  Klaus-Peter Heym, Neu-Isenburg, Rechtsanwalt Andreas Paul,

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

THE LAW

1.      The applicant complains of the decision of the Austrian

Supreme Court of 3 September 1986 by which the custody of her two

children was transferred to her ex-husband on the ground that she was

a Jehovah's Witness and the education of the children according to the

principles of this belief was unlawful and contrary to the childrens'

best interest.  She invokes Articles 8 (Art. 8), 9 (Art. 9) and

14 (Art. 14) of the Convention and Article 2 of Protocol No. 1 (P1-2)

to the Convention.  These provisions read as follows:

Article 8 (Art. 8) of the Convention

"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."

Article 9 (Art. 9) of the Convention

"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."

Article 2 of Protocol No. 1 (P1-2) to the Convention

"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."

Article 14 (Art. 14) of the Convention

"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."

2.      The Government submit that the applicant has failed to exhaust

domestic remedies as required by Article 26 (Art. 26) of the

Convention insofar   as her complaint under Article 2 of Protocol

No. 1 (P1-2) is concerned. According to the applicable provision of

the Religious Education Act the children were to be educated as Roman

Catholics.  If the applicant  wished to educate them as Jehovah's

Witnesses she should have made an   application to the guardianship

court under Section 2 para. 3 of this   Act.  As she did not do so,

the domestic remedies were not exhausted in this respect.

        The Commission notes, however, that the case does not concern

proceedings aimed at changing the childrens' religious education.

At the relevant time the applicant did not purport to make such a

decision, nor did she educate the children with a view to influencing

them to become Jehovah's Witnesses.  Only her own religious convictions

as a Jehovah's Witness had certain repercussions on their education.

The Supreme Court considered this as sufficient to assume a violation

of the Religious Education Act and to deprive the applicant of the

custody of her children.  In the custody proceedings, at issue here,

the applicant could not take any further remedies after the Supreme

Court's decision.  In the earlier proceedings she had asserted her

claim that the way in which she actually educated the children was not

sufficient to refuse her custody of the children.  The Commission

concludes that, with regard to the claim under Article 2 of Protocol

No. 1 (P1-2), insofar as this provision is being invoked in relation

to the custody decision, domestic remedies have been exhausted.

3.      The applicant claims that the Supreme Court's decision to

refuse her custody of the children, on the ground that it was

inadmissible to educate them under the influence of religious

convictions which she held as a Jehovah's Witness, violated 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 her children's education in conformity with her own

religious convictions (Article 2 of Protocol No. 1).  The applicant

further complains that the refusal of custody was based on her

religion and therefore discriminatory (Article 14 of the Convention).

        The Government deny any interference with the Convention

rights invoked by the applicant.

        As regards Article 8 (Art. 8), the Government claim that the

Supreme Court only decided a private law dispute between the applicant

and her  husband.  Even if this could be seen as a State interference

with   family life, it would be justified under Article 8 para. 2

(Art. 8-2).  Following  the divorce no parent could claim an absolute

right to be granted   custody of the children.  The decision was based

on the predominant interests of the children, and the applicant's

rights were not  restricted more than necessary.

        As regards Article 9 (Art. 9) the Government claim that the

Supreme  Court's decision did not interfere with the exercise of the

applicant's religious freedom and even if it did, the interference

would be justified under Article 9 para. 2 (Art. 9-2) as being

necessary for the   protection of the rights of others and the

protection of health.

        As regards Article 2 of Protocol No. 1 (P1-2), the Government

deny an interference because the applicant's children were not in a

school or other institution required to respect the applicant's

religious convictions, and because even after the transfer of custody

the applicant had a limited right to influence the religious education

of her children.

        The Government also deny the applicability of Article 14

(Art. 14) of the Convention insofar as there was no interference with

the applicant's rights under Article 8 (Art. 8) or 9 (Art. 9).  In any

event they claim that the Supreme Court's decision was not

discriminatory; it was necessary to transfer the custody to only one

of the parents and the husband's rights concerning the religious

education of the children would have been similarly affected if the

custody had been granted to the applicant. The decision was based on

the children's best interest as it aimed at preventing their being

pushed to the margin of society and at protecting their health in case

of the necessity of a blood transfusion.

4.      In the light of the parties' submissions, the Commission

considers that the case raises complex issues which require to be

determined as to the merits, in particular as regards the question

whether the applicant has been discriminated against, on the ground of

her religion, in the enjoyment of her right to respect for her family

life (Article 14 read in conjunction with Article 8 of the

Convention).  The issues under Article 9 of the Convention and Article

2 of Protocol No. 1 (P1-2) cannot be separated from this main issue.

The application therefore cannot be rejected as being manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5.      At the oral hearing on 10 July 1990 the applicant

stated that due to the unilateral nature of the proceedings on her

husband's appeals before the Regional Court and the Supreme Court, in

which she was not heard at all, there has also been a violation of

Article 6 (Art. 6) of the Convention.  She claimed that this issue had

already been raised in her first letter to the Commission of 20

February 1987.

        The Commission notes, however, that in that letter the

applicant only stated that she had not been able to combat the views

adopted by the Supreme Court as to their substance, since it had

quashed the opposite decisions of the courts below and had immediately

decided on the merits, without any further proceedings ("Eine

inhaltliche Bekämpfung der vom Obersten Gerichtshof vertretenen

Auffassung war mir nicht möglich, da der Oberste Gerichtshof in der

zitierten Entscheidung die gegenteiligen Entscheidungen der

Unterinstanzen aufgehoben und sofort, ohne weiteres Verfahren,

entschieden hat").  This statement, made in the context of arguments

on exhaustion of domestic remedies, was not a separate complaint.

Therefore the Commission is not seised of an application concerning

that issue.

        For these reasons, the Commission

        DECLARES THE APPLICATION ADMISSIBLE,

        without prejudging the merits of the case.

Secretary to the Commission         President of the Commission

    (H. C. KRÜGER)                       (C. A. NØRGAARD)