AS TO THE ADMISSIBILITY OF

                      Application No. 14013/88

                      by M. and R.T. and F.

                      against Austria

        The European Commission of Human Rights sitting in private

on 14 December 1989, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  E. BUSUTTIL

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  J. CAMPINOS

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  L. LOUCAIDES

             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 August 1987

by M. and R.T. and F. against Austria and registered on 11 July 1988

under file No. 14013/88;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicants, a married couple and their children, are

Austrian citizens living in Vienna. Mr. T. was born in 1931, his

wife in 1958 and their children R. in February 1981, A. in December

1981 and R. in November 1983.  They are represented by Mr. Jandl,

a lawyer in Vienna.

        The facts submitted may be summarised as follows:

        On 14 February 1986 R., A. and R. were taken away from their

parents and committed to a children's home (Zentralkinder- heim) in

Vienna where they stayed until 18 June 1986.  On that day a single

judge of the Youth Court (Jugendgerichtshof) in Vienna ordered their

immediate return to the home of their parents.  In the same decision

the Court approved the committal to the children's home but refused

the youth authorities' request to prolong it.  However, the Court

ordered that the parents be assisted and supervised in the children's

upbringing (gerichtliche Erziehungshilfe).  The applicant parents

state that they accepted this measure because they had been told that

otherwise the children would not be allowed to return home.

        It is stated in the Youth Court's decision that the family has

been known to the youth authorities for years and that the co-operation

with the parents had always been difficult.  On 14 August 1985 a

social worker had been alarmed by a neighbour and found that the

children had bruises on their backs.  A private kindergarten had

also reported that traces of ill-treatment were found on the children

and on 14 February 1986 another neighbour denounced an event of

ill-treatment.

        In these circumstances, so the Court concluded, there was

reason to suspect the parents of ill-treating the children and the

committal to a home was therefore justified, although further

investigations did not confirm the initial suspicion.  In fact, so the

Court stated, the anonymous denunciations could not be confirmed by

objective evidence.  However, an examination of the children carried

out during their stay in the children's home revealed that they were

underdeveloped for their age (starkes entwicklungsmässiges Defizit).

It followed that the parents, while not being unfit for their

children's education, at least needed educational support.

        The applicant mother appealed from the Youth Court's order

insofar as it approved the children's committal to a home.  The appeal

was rejected by a chamber of the Vienna Youth Court on 22 October 1986.

The Court stated that, in view of the then existing suspicion of the

children's ill-treatment and the lack of the parents' readiness to

co-operate with the authorities, a less stringent measure than the

committal to a home could not have been taken.  The parents' attitude

also explained why no attempt was made to contact them first in order

to verify whether the allegation of ill-treatment made by others was

correct.  The Court noted that the applicant parents contacted the

Youth Office (Jugendamt) on 17 February 1986 and that the mother saw

the children in the home on 18 February 1986.  It concluded that they

also had sufficient opportunities to defend their case before the

decision of 18 June 1986 was given.

        The applicant mother then lodged an appeal on points of law

(Revisionsrekurs) to the Supreme Court.  This appeal was rejected on

13 January 1987.  The Court pointed out in its decision that the Youth

Office, in requesting the Youth Court's approval of the measure taken

against the applicants, had stated that since 1984 neighbours had

constantly reported on the harsh manner in which the parents treated

their children and that the parents reacted negatively to repeated

offers to have their children spend the daytime in a municipal home.

The mother often reacted violently when she had to contact the youth

authorities and once said she could even beat her own children to

death, this was nobody else's concern.  Social workers had learnt from

the neighbours that there were repeated noisy quarrels between the

parents and that they often beat their children violently.

Consequently, in the Court's opinion, there was reason to take

immediate action under Sec. 26 (2) of the Youth Welfare Act (JWG)

which authorises the youth authorities to take appropriate measures as

guardian or curator (Vormund oder gesetzlicher Amtskurator) without

prior consent of the court where there is a foreseeable danger (Gefahr

im Verzug).

        The applicants also lodged a constitutional appeal.  The

Constitutional Court (Verfassungsgerichtshof) thereupon first examined

ex officio whether or not Sec. 26 (2) of the Youth Welfare Act (JWG)

was compatible with the Constitution.  On 8 October 1987 it decided

that there was no reason to quash the provision in question as being

unconstitutional.  It found that in taking measures under this

provision the youth authorities acted as a guardian (Vormund) and thus

exercised private law rights and duties which could be subject to

control only by the civil courts.

        On 12 October 1987 the Constitutional Court dismissed the

applicants' constitutional appeal on the ground that it lacked

jurisdiction.

        On 1 August 1988 the Youth Court set aside its order of 18

June 1986 stating that it was no longer necessary to supervise the

children's upbringing as the parents now voluntarily collaborated with

the social assistant and the children were well taken care of.

COMPLAINTS

        The applicants submit that the committal to the children's

home was a deprivation of liberty which could not be justified under

Article 5 para. 1 (d) of the Convention as there had not been any

concrete reasons to suspect the parents of ill-treating their

children.  The authorities wrongly relied on anonymous statements of

neighbours without verifying them, e.g. by hearing the parents or the

doctor of the family.

        The applicants further invoke Article 6 of the Convention.

They submit that their counsel was first denied access to the file of

the youth authorities.  They also consider that the decision on the

committal to a children's home concerned their civil rights and

should, in view of their immediate effect, have been taken by a court

and not an administrative body.  They also consider that the

proceedings leading to the decision of 14 February 1986 were unfair as

they were not heard and given the opportunity to comment on the

anonymous accusations made against them by neighbours.  They were heard

in the absence of their counsel before the Youth Court.  The Court

based its findings only on reports and investigations made after the

event of 14 February 1986.

        The applicants also invoke Article 8 of the Convention and

argue that the measure taken against them was disproportionate.  They

submit that the children were examined by a doctor after the committal

to a children's home on 15 February 1986.  Although he found no traces

of ill-treatment the children were kept in the home until 20 June 1986.

        In view of the sudden and surprising nature of the measure

taken against them, the applicants further consider that Articles 8

and 3 of the Convention were violated.

        Finally, they consider that Article 8 was also violated in view

of the fact that they were allowed access to their children only once

a fortnight and that they had no remedy to complain of this regulation

except by complaining of the committal as such.

THE LAW

1.      The applicants have first invoked Article 5 (Art. 5) of the

Convention which guarantees the right to liberty.

        While the protection afforded by this provision also covers

minors, it has to be noted at the outset that the care and upbringing

of children normally and necessarily require the imposition of various

restrictions on the child's liberty.  Thus the children in a school or

in another educational or recreational institution must abide by certain

rules which limit their freedom of movement and their liberty in other

respects without there being a deprivation of liberty in the sense of

Article 5 (Art. 5) (Eur. Court H.R., Nielsen case, judgment of 28

November 1988, Series A, no. 144, para. 61).  In the present case the

Austrian authorities assumed the right of care and custody with regard

to the three children, R., A. and R., and committed them to a public

children's home.  It has not been shown by the applicants that the

conditions in this home deprived the children of their liberty.  It

follows that to this extent the application is manifestly ill-founded

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

2.      The applicants have further invoked Article 6 of the

Convention which guarantees in paragraph 1 (Art. 6-1) first sentence

that in   the determination of civil rights and obligations everyone

is entitled  to a fair and public hearing within a reasonable time.

        The applicants first argue that in view of the immediate

effect of the measure taken in their case it should have been decided

by a court and not an administrative authority.

        It is true that Article 6 para. 1 (Art. 6-1) embodies the

"right to a court", nevertheless it does not oblige the Contracting

States to submit disputes over "civil rights and obligations" to a

procedure conducted at each of its stages before "tribunals", meeting

the various requirements of this Article (Art. 6).  It has been

recognised in the Court's jurisprudence that demands of flexibility

and efficiency,  which are fully compatible with the protection of

human rights, may justify prior intervention of administrative bodies

(Eur. Court H.R., Case of Le Compte, Van Leuven and de Meyere judgment

of 23 June 1981, Series A no. 43, p. 23 para. 51).  In this context

even such drastic measures as deprivation of liberty may be effected

by administrative authorities without prior authorisation by a court

(see Article 5  para. 1 (c) (Art. 5-1-c) and (d)(Art. 5-1-d)).

        As far as the alleged unfairness of the proceedings is

concerned, the Commission has regard to their particular nature.  Not

only was the applicant parents' right to care and custody over the

children at stake, but also primarily the children's right to be

protected against ill-treatment or any other treatment detrimental to

their physical and mental development.  This justifies that initially

the applicants' counsel was not allowed access to the files of the

youth authorities and that the applicant parents were heard in the

absence of their lawyer.  The hearing mainly concerned matters of

facts relating to the relationship between the parents and their

children and it was important for the Court to get a precise

impression about the applicant parents' attitude, views and actions in

regard to the children.  For this purpose, counsel's presence was not

required.  As to access to the files, there is nothing to show that

the alleged refusal by the authorities at the first stage of the

proceedings to allow the applicants' counsel to inspect the files

prevented the applicants from invoking their rights in an effective

manner in the proceedings.

        The Commission concludes that there is no appearance of a

violation of Article 6 (Art. 6) of the Convention insofar as it

guarantees the right to a fair hearing.  It follows that to this

extent the application is likewise manifestly ill-founded within the

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

3.      The applicants' have also invoked Article 8 (Art. 8) of the

Convention which guarantees the right to respect for private and

family life.  In addition they consider Article 3 (Art. 3) to be

violated, which forbids, inter alia, degrading treatment.

a)      While they do not seem to contest that the measure taken by

the Austrian youth authorities in their case was in accordance with

Austrian law and taken for the protection of the health and well-being

of the three children, they submit that it was disproportionate and

therefore not "necessary in a democratic society".  In their opinion

the measure complained of even amounted to inhuman or degrading

treatment within the meaning of Article 3 (Art. 3) of the Convention

in view of its sudden and surprising nature.  They further argue

that, shortly after the committal to the home, the children were

examined by a doctor who should have found out that the committal was

unjustified.

        The Commission cannot find, however, that the committal of the

children to a public childrens' home was arbitrary or that the period

during which they were kept there was arbitrarily prolonged.  Even if,

after their admission to the home, the children did not bear any

visible signs of ill-treatment the authorities had, as found in the

Youth Court's decision, sufficient reason to suspect that the children

were not treated in a correct manner.  In fact, there are forms of

ill-treatment which are not easily discovered by way of a preliminary

medical examination.  In particular, as far as children of a young age

are concerned, a period of observation may be necessary to find out

whether they were exposed within their family to physical or mental

ill-treatment.  It is also evident that once the youth authorities

have reason to suspect that children are not correctly treated by

their parents, immediate action is required in the interest of

protecting their physical and mental health.  The Commission finally

notes that, according to the findings of the Youth Court, which the

applicant parents do not contest, the stay in the home and the

examination carried out during this stay revealed that the children

were underdeveloped for their age.

        The Commission also notes that on 1 August 1988 the Youth

Court set aside its order of 18 June 1986 stating that it was no

longer necessary to supervise the children's upbringing as the parents

now had voluntarily collaborated with the social assistant and the

children were well taken care of.

        In these circumstances the Commission cannot find that the

measure complained of was so disproportionate to the legitimate aim

pursued as to amount to a violation of Article 8 (Art. 8) of the

Convention nor  was it implemented in a manner contrary to Article 3

(Art. 3) of the Convention.

b)      The fact that the applicant parents could, according to their

submissions, only visit the children once a fortnight, also does not,

in the circumstances of the present case, reveal any appearance of a

violation of Article 8 (Art. 8) of the Convention. Where investigations

on suspected ill-treatment of children are carried out, it may be

necessary to remove the children from the influence of their parents.

        There is consequently no appearance of a violation of Article 8

(Art. 8) of the Convention and to this extent the application is again

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4.      The applicant parents have finally complained that they did

not have access to a court to have the extent of their right to visit

their children determined in proceedings separate from those which

concerned the lawfulness of their children's committal to a children's

home.  The Commission notes, however, that these proceedings were

instituted immediately after the measure in question was taken and

terminated within the relatively short period of four months.

Furthermore, the question of the extent and frequency of visits by the

parents to their children was closely related to the question of

whether the children had been ill-treated by their parents.  In

these circumstances the Commission cannot find that the alleged

impossibility for the parents to complain to a court about the

regulation concerning their right to visit their children during the

provisional period of the children's care in a public children's home

amounted to a violation of Article 6 (Art. 6) of the Convention, given

the fact  that a court was seized of the matter immediately after the

intervention of the youth authorities and decided about four weeks

later that the children should be returned to their parents.

        It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the  Convention.

        For these reasons, the Comission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission              President of the Commission

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