THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36222/97 by R.W and C. T.G.-W.

against Austria

The European Court of Human Rights (Third Section), sitting on 22 November 2001 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve ,

Mrs E. Steiner , judges , and Mr V. Berger , Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 23 April 1997 and registered on 26 May 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations and the supplementary observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, R.W. and C. T.G.-W. are Austrian nationals , born in 1962 and 1967 and living in Hallein and Oberndorf , respectively. They are represented before the Court by Mr G. Tews, a lawyer practising in Linz. The respondent Government are represented by Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A. The circumstances of the case

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

The applicants are the parents of a son born in wedlock in 1990.

On 30 June 1993 the Oberndorf District Court ( Bezirksgericht ) granted the applicants’ petition for divorce by consent. In the settlement regulating the legal consequences of the divorce the applicants agreed, contrary to section 177 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ), to continue exercising joint custody over their son. The settlement was subject to approval in separate custody proceedings.

On 13 January 1994 the Oberndorf District Court, in the custody proceedings, refused approval of the settlement on the ground that the law did not provide for joint custody after divorce except where the former spouses continued to live in a common household, which was not the applicants’ case. The applicants appealed against this decision. They submitted an expert opinion which, having regard to both applicants’ relationship with their son and their ability and willingness to care jointly for him, stated that awarding joint custody would be desirable in the interests of the child’s well-being.

On 6 April 1994, the Salzburg Regional Court ( Landesgericht ) adjourned the proceedings and requested the Constitutional Court ( Verfassungsgerichtshof ) to review the constitutionality of section 177 of the Civil Code. The Constitutional Court, by judgment of 10 October 1995 (see below), found that the said section was in conformity with the Constitution.

Thereupon, on 13 March 1996 the Salzburg Regional Court dismissed the applicants’ appeal. It noted that, having regard to the clear wording of section 177 of the Civil Code, the courts were not empowered to grant joint custody after divorce except where the former spouses continued to live in a common household, even where this would be in the interests of the child’s well-being in the circumstances of the particular case.

On 6 November 1996 the Supreme Court ( Oberster Gerichtshof ) dismissed the applicants’ appeal on points of law.

B. Relevant domestic law and practice

1. Award of custody over children upon divorce or separation

Section 177 of the Civil Code, in the version in force at the material time, provided as follows:

“(1) In the event that the marriage of the parents of a minor born in wedlock is dissolved or declared null and void, or that the parents have lived separately for more than a limited period, they may submit an agreement to the court stating which one of them will exercise sole custody over the child in the future. The court has to approve the agreement if it corresponds to the interests of the child’s well-being.

(2) If no agreement is reached within a reasonable time or if the agreement does not correspond to the interests of the child’s well-being, the court has to decide which parent should have the right to sole custody in the future. In case the parents have lived separately for more than a limited period the court only decides upon the request of one of them.

(3) Section 167 applies accordingly.”

Section 167 of the Civil Code provides, for children born out of wedlock, that the court may award joint custody to the parents upon their common request if they permanently live in a common household with the child and if such a ruling is not disadvantageous to the child’s well-being.

In a judgment of 10 October 1995, the Constitutional Court ruled on the constitutionality of section 177 of the Civil Code. It noted the Supreme Court’s constant case-law according to which section 177 excluded an award of joint custody to both parents in case of divorce, except in the rare case when they continued to live together with the child in a common household. As to Article 8 of the Convention, it found that the award of sole custody after divorce to one parent was an interference with the other parent’s right to respect for his or her family life, which was justified under the second paragraph of this Article. Given the legislator’s margin of appreciation, it was to be considered necessary for the protection of the rights of others. In particular, it was proportionate, as the parent not having custody retained a number of rights, such as the right of access and the right to be informed and heard as regards certain important matters. Moreover, the law did not prevent parents, who wished to share their parental rights after divorce, from doing so in practice. As to Article 5 of Protocol No. 7, the Constitutional Court found that this provision did not prevent the legislator from creating different legal positions for spouses after divorce as long as such differences were not based on gender only. It did not generally demand that joint custody be awarded to parents after divorce.

By amendment which entered into force on 1 July 2001 (Federal Gazette - Bundesgesetzblatt - 135/2000), section 177 of the Civil Code was changed. It now reads as follows.

“(1) In the event that the marriage of the parents of a minor born in wedlock is dissolved or declared null and void, the parents continue to exercise joint custody. They can, however - even for the purpose of changing an existing arrangement - submit an agreement concerning custody to the court which may provide for sole custody of one parent. ...

(2) Where the parents want to exercise joint custody they have to submit an agreement to the court stating with which parent the child has its main residence.

(3) The court has to approve the parents’ agreement to ensure that it is in the best interests of the child.”

A newly introduced section 177a provides that where an agreement about the child’s main residence is not achieved within a reasonable time, or where an agreement on custody is not reached or is not in the child’s best interests, the court has to award sole custody to one parent. Equally, where both parents exercise joint custody after dissolution of their marriage the court, upon the request of one of them, has to award sole custody to one parent according to the child’s best interests where an agreed solution cannot be reached.

2. Rights of the parent not having custody

According to section 148 of the Civil Code, in the version in force at the material time, the parent not having custody has a right of access.

Moreover, according to section 178 of the Civil Code in the version in force at the material time, the parent not having custody has the right to be informed by the other parent about certain measures listed in section 154 §§ 2 and 3 (which in cases of joint custody require the agreement of both parents), and has the right to be heard within a reasonable time. The submissions of the non-custodial parent are to be taken into account if the wishes expressed therein better serve the interests of the child’s well-being. The measures at issue include the change of the child’s first or family name, the entry into or secession from a church or other religious group, the child’s placement in care, the acquisition or renunciation of a particular nationality, the early termination of an apprenticeship or employment contract, the recognition of paternity of a child born out of wedlock, as well as certain important provisions concerning the child’s property.

Following the above-mentioned amendment of the Civil Code section 148 provides that the parent not living in a common household (be it that he/she is the non-custodial parent or that the parents exercise joint custody) has a right of access. Section 178 still contains the rights of the non-custodial parent, but has slightly strengthened his/her position in case he/she is prevented from exercising the right of access and in case the custodial parent fails to give the required information.

COMPLAINTS

The applicants complain that the impossibility at the material time under section 177 of the Civil Code to obtain joint custody after divorce, even in a case in which both spouses made a common proposal to this effect and were willing to share the responsibility for their child, was not justified in the interests of the child.

They invoke Article 8 alone and taken in conjunction with Article 14 of the Convention, as well as Article 5 of Protocol No. 7. Finally, they rely on Article 3 of the Convention.

THE LAW

The applicants complain about the impossibility when they divorced for former spouses to obtain joint custody over their children after divorce. They rely on Article 8 taken alone or in conjunction with Article 14 of the Convention, as well as Article 5 of Protocol No. 7 and Article 3 of the Convention.

Article 8 of the Convention, so far as relevant, reads as follows:

“1. Everyone has the right to respect for his private and family life, ...

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

Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 5 of Protocol No. 7 reads as follows:

“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marrigae and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.

Article 3 of the Convention prohibits, inter alia , inhuman and degrading treatment.

As to Article 5 of Protocol No. 7, the Government submit that the case does not differ from Cernecki v. Austria , (decision, no. 31061/96), which raised the same legal issue and was declared inadmissible by the Court on 11 July 2000. As to Article 8 of the Convention, the Government accept that the transfer of sole custody to one parent upon divorce constitutes an interference with the other parent’s right to respect for his family life. However, the necessity tests contained in Article 5 of Protocol No. 7 and in the second paragraph of Article 8, respectively, are essentially the same. For the reasons adduced by the Court under Article 5 of Protocol No. 7 in the above-mentioned Cernecki case, the legislator’s decision to exclude joint custody after divorce was also to be regarded as necessary for the “protection of the rights of others”, i.e. the children concerned, when examining the case under Article 8.

In addition the Government submit that the amendement of section 177 has entered into force on 1 July 2001. As section 177 (1) provides that an agreement on joint custody can also be made in order to change an existing arrangement, the applicants are now in a position to request the court to grant them joint custody.

The applicants agree that under Article 8 as well as under Article 5 of Protocol No. 7 the central question is whether a rule such as section 177 of the Austrian Civil Code (in the version which was in force at the material time) was necessary in the interests of the children. They contest that a general rule excluding any possibility to award joint custody after divorce can fulfil this requirement. As their case showed, the impugned provision prevented an assessment of the particular circumstances of the case, although an expert opinion considered that joint custody would be desirable in the child’s interests. Further, the applicants contend that in many other European countries the law provided a possibility to award joint custody after divorce. They submit, for example, that in Germany joint custody is awarded after divorce in more than 60% of all cases and rely in particular on a study elaborated for the German Ministry of Justice according to which joint custody is more likely than sole custody to reduce tension between the parents, to limit the negative effects of divorce on the children and to further contacts between the children and both parents.

The Court notes at the outset that according to the Government the applicants are in a position to request the court to grant them joint custody following the amendment of section 177 of the Civil Code (see above - relevant domestic law and practice). Thus, the question arises whether the applicants may still claim to be victims of the alleged violations. However, the Court is not called upon to decide this issue, as the application is in any case inadmissible for the following reasons.

The Court recalls that in the above-mentioned Cernecki v. Austria case it examined the issue under Article 5 of Protocol No. 7. Considering that the necessity clause in this Article should be interpreted in the same way as the necessity clauses in other provisions of the Convention, the Court found that the exclusion of a possibility to award joint custody after divorce fell within the margin of appreciation left to the Contracting State when assessing what was “necessary in the interests of the children”. The Court sees nothing to distinguish the present case from the Cernecki case. Thus, it concludes that there is no appearance of a violation of Article 5 of Protocol No. 7.

It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

Having regard to its above findings, the Court considers that there is no need to examine the applicants’ complaint separately under Article 8 either taken alone or taken in conjunction with Article 14 of the Convention.

Finally, the Court finds that the present application discloses no appearance whatsoever of a violation of Article 3 of the Convention. It follows that this complaint must also be rejected as being manifestly ill ‑ founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent B erger Georg R ess Registrar President