FIRST SECTION

DECISION

Application no . 1566/08 Zybeyde SAHIN against Austria

The European Court of Human Rights (First Section), sitting on 28 August 2012 as a Chamber composed of:

Nina Vajić , President, Peer Lorenzen , Elisabeth Steiner , Mirjana Lazarova Trajkovska , Julia Laffranque , Linos-Alexandre Sicilianos , Erik Møse , judges,

and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 15 November 2007,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Zybeyde Sahin , is an Austrian national who was born in 1974 and lives in Innsbruck . She is represented before the Court by Mr L. Szabo , a lawyer practising in Innsbruck . The Austrian Government (“the Government”) are represented by their Agent, Ambassador H. Tichy , Head of the International Law Department at the Federal Ministry for European and International Affairs.

The circumstances of the case

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

3. The applicant and her husband had two children: a daughter D, born in 1997, and a son S, born in 1999. Following allegations against the applicant ’ s husband of violence against the children and sexual abuse of D, the Innsbruck Youth Welfare Office ( Jugendwohlfahrtsträger ) removed both children from their home and placed them in a children ’ s home as a provisional measure on 20 December 2005, having found the children to be in imminent danger as required by Article 215 § 1 of the Civil Code.

a. The custody proceedings before the civil courts

4. In compliance with the time-limit set out in Article 215 § 1 of the Civil Code, the Youth Welfare Office thereafter, on 27 December 2005, applied to the Innsbruck District Court ( Bezirksgericht Innsbruck ) seeking to be awarded custody of the children for the purposes of their care and education and to have their placement in a children ’ s home approved.

5. The applicant and her husband denied the allegations of domestic violence or sexual abuse and requested the court to dismiss the authority ’ s application for custody.

6. The District Court promptly heard the applicant and her husband, the children ’ s teachers, other witnesses and commissioned an expert opinion. Following its investigation, on 24 February 2006 the Innsbruck District Court dismissed the Youth Welfare Office ’ s custody application, but ordered the parents to attend weekly psychotherapy sessions offered by a specialised association and to allow the children to receive psychological counselling if recommended by the association.

7. The children were returned to their parents on 3 March 2006.

8. The Youth Welfare Office appealed against the District Court ’ s decision, but on 5 May 2006 the Innsbruck Regional Court ( Landesgericht Innsbruck ) dismissed the appeal.

b. The proceedings before the Independent Administrative Panel and the Constitutional Court

9. In addition to the above civil proceedings, the applicant applied on 29 January 2006 to the Tyrol Independent Administrative Panel ( Unabhängiger Verwaltungssenat Tirol ) and con test ed the measures taken by the Youth Welfare Office. She requested it to rule that the Youth Welfare Office had violated her rights by removing the children on 20 December 2005, complaining that the children had been taken away without the applicant having first given evidence, and arguing that until the court had issued a decision their placement in a children ’ s home had been without any legal basis. She also argued that the provisional removal of the children from their home on the basis of suspicions of domestic violence had been disproportionate.

10. On 29 March 2006 the Independent Administrative Panel rejected the application. It found that the measures were based on the provisions of the Civil Code and not on the administrative law. Thus, only the civil courts were competent to decide on the lawfulness of the measure.

11. The applicant lodged a complaint with the Constitutional Court against that decision under Article 144 of the Federal Constitution.

12. On 20 June 2007 the Constitutional Court dismissed the complaint confirming its case-law whereby a provisional measure implemented by the Youth Welfare Office pursuant to Article 215 § 1 of the Civil Code was a measure under civil law. Accordingly, the administrative authorities had no jurisdiction to decide on the applicant ’ s application.

13. The Constitutional Court ’ s judgment was served on the applicant ’ s counsel on 12 July 2007.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Article 215 of the Civil Code

14. Under Article 215 § 1 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ), the competent Youth Welfare Office must apply for court orders regarding custody measures which are necessary in order to ensure a child ’ s well-being. Where a child is in imminent danger, the Youth Welfare Office must also make the necessary provisional arrangements concerning care and custody until the competent court has given a decision. Such provisional arrangements have to be notified to the competent District Court immediately, at the la test within eight days.

B. Articles 138 and 144 of the Federal Constitution

15. Article 138 of the Federal Constitution ( Bundesverfassungsgesetz ) provides that the Constitutional Court decides on conflicts of jurisdiction between the courts and the administrative authorities.

Under Article 144 of the Federal Constitution, an application can be lodged with the Constitutional Court alleging a violation of a constitutional right as the result of a decision of the administrative authorities, including the Independent Administrative Panels.

C . Official Liability

16. Pursuant to section 1 of the Official Liability Act ( Amtshaftungsgesetz ), the Federation, the Länder , districts, municipalities, other bodies of public law and the institutions of social insurance (hereinafter named “legal entities”; Rechtsträger ) are liable pursuant to the relevant civil law for any damages caused deliberately or negligently by unlawful acts carried out by their officials in the execution and enforcement of the law. Sections 8 and 9 of the Official Liability Act provide that, as a first step, an injured party shall demand a written statement of the legal entity, against which a claim of damages is to be raised, indicating whether the legal entity at issue accepts or rejects the claim for damages. Such a statement shall be rendered within three months. After expiration of the delay of three months and in the event the legal entity does not accept the claim (in full), the injured party can lodge an action for damages with the competent Regional Civil Court .

COMPLAINTS

17. The applicant complained under Article 8 of the Convention of the provisional placement of her children in a children ’ s home.

18. She further complained under Articles 6 and 13 of the Convention of lack of access to a court to have the lawfulness of the provisional placement of the children in a children ’ s home examined in that all the courts and panels to which she had applied had declined jurisdiction to rule on the lawfulness of that measure.

THE LAW

A. The applicant ’ s complaint under Article 8 of the Convention

19. The applicant complained that the provisional placement of her children in a children ’ s home violated her right to respect for her family life. In this context she relied on Article 8 of the Convention, which 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.”

20. The Government acknowledged that the provisional placement of the children in a children ’ s home constituted an interference with the applicant ’ s rights under Article 8. However, the Government firstly maintained that in their opinion the complaint was inadmissible for non ‑ exhaustion of domestic remedies. As regards the substance of the complaint, they asserted that the interference was in accordance with the law, namely Article 215 § 1 of the Civil Code and pursued the legitimate aim of the prevention of crime against the children and the protection of the health and the rights of the children. In view of the overriding principle of the well-being of the child because of the severity of the suspicions raised against the children ’ s father, the provisional measure had also been proportionate. In the situation of possible imminent danger for the children ’ s well-being the authority could not have ta ken any less invasive measures.

21. The applicant contested those arguments and argued that the provisional measure applied by the Youth Welfare Office had not been proportionate and that there had been less invasive measures open to the latter. She further stated that the Austrian authorities never had to prove that the provisional measure had been in the children ’ s best interests, and that the children had suffered considerably during their time in the children ’ s home.

22. As regards the Government ’ s objection that the complaint was inadmissible for non-exhaustion of domestic remedies, the Court considers it not necessary to examine that argument, because it finds the complaint in any event to be inadmiss ible for the following reasons.

23. The Court reiterates the relevant facts of the present case with regard to the applicant ’ s complaint under Article 8 of the Convention: on 20 D ecember 2005, the Youth Welfare Office exercised its competence under Article 215 § 1 of the Civil Code and removed the applicant ’ s two children from their home applying a provisional measure due to serious allegations of abuse. On 27 December 2005, within the delay foreseen by the law, the Youth Welfare Office notified the competent District Court of the provisional measure and the children ’ s removal and lodged the necessary motions for the award of custody for the children. After hearing the parties and further witnesses and after receipt of a psychological expert opinion, the domestic court dismissed the motion of the Youth Welfare Office, and on 3 March 2006 the children returned home.

24. The provisional measure exercised by the Youth Welfare Office undoubtedly constituted an interference with the applicant ’ s right to respect for her family life (see among other authorities, Johansen v. Norway , 7 August 1996, § 52, Reports of Judgments and Decisions 1996 ‑ III). The measure was taken pursuant to Article 215 § 1 of the Civil Code which, inter alia , foresees such intervention where a child is considered to be in imminent danger as to its well-being. The applicant did not before the civil courts argue that the measure was unlawful as such and the Court has neither found any reason to hold that any formal requirements under Article 215 § 1 of the Civil Code were set aside. The Court further notes that the Youth Welfare Office submitted a motion for transfer of custody within the legally foreseen – and very short – delay to the competent court for decision. The court examined the motion by the Youth Welfare Office in detail; it heard statements of the applicant and children ’ s father, of teachers of the children and obtained a psychological expert opinion to finally decide not to transfer custody to the Youth Welfare Office. The court established that the children could return to their parents under the condition of weekly psychotherapy sessions and ongoing supervision. The Court finds that the domestic court made a diligent and expeditious examination of the Youth Welfare Office ’ s motion for transfer of custody and sees no indication that those proceedings were unfair.

25. The Court notes that the applicant actually benefitted from the domestic legal and judicial safeguards in place which were designed in the domestic law and judicial practice to protect the applicant ’ s rights under Article 8 in the event of the execution of a provisional measure by the Youth Welfare Office (see mutatis mutandis , Johansen , cited above, § 64 and also with regard to the necessity of a careful assessment of the impact of a care measure see mutatis mutandis , K. and T. v. Finland [GC], no. 25702/94, § 166, ECHR 2001 ‑ VII, Kutzner v. Germany , no. 46544/99, § 67, ECHR 2002 ‑ I and P. , C. and S. v. the United Kingdom , no. 56547/00, § 116, ECHR 2002 ‑ VI). In this context, the Court notes that a successful challenge of a provisional measure under Article 215 § 1 of the Civil Code in the subsequent main proceedings before the civil court does not automatically render the provisional measure itself unlawful.

26. The Court therefore concludes that in the present case the domestic court successfully exercised its role as a legal and judicial safeguard in relation to an interference with the applicant ’ s rights under Article 8 of the Convention and in fact resolved the matter at the national level. Therefore, her complaint under Article 8 should be rejected as manifestly ill-founded pursuant to Article 35 § 3 (a) and 4 of the Convention.

B. The applicant ’ s complaints under Articles 6 and 13 of the Convention

27. The applicant relied in her complaint of lack of access to a court on both Article 6 and Article 13 of the Convention. However, the Court will examine the complaint solely under Article 6, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

28. The Government firstly asserted that the applicant had failed to exhaust the domestic remedies, in particular since she did not lodge an application with the competent District Court to have the lawfulness of th e provisional measure examined.

29. With regard to the question of exhaustion of domestic remedies, the applicant argued in particular that she had not had a legal remedy by which to challenge her children ’ s provisional placement in a children ’ s home and to have that measure declared unlawful. The result of the present case showed that neither the civil courts nor the administrative courts would give a decision on the lawfulness of the provisional placement of her two children in a children ’ s home.

30. First, the Court reiterates that where a question of access to a court is raised, the issue of exhaustion of domestic remedies under Article 35 of the Convention does not arise. Thus, the Court dismisses the Government ’ s objection.

31. As to the substance of the complaint, the Court reiterates the relevant facts in the context of the complaint under Article 6 of the Convention. After the Youth Welfare Office enforced a provisional measure under Article 215 § 1 of the Civil Code, it lodged a motion with the competent civil courts for transfer of custody. The applicant, on the other hand, lodged an application with the Independent Administrative Panel and subsequently a complaint against the Independent Administrative Panel ’ s decision with the Constitutional Court . The applicant did not lodge a motion with the competent civil court to have the provisional measure declared unlawful, nor did she initiate official liability proceedings.

32. The Court observes that the applicant desired to obtain by way of her application with the Independent Administrative Panel a declaration on the alleged unlawfulness of the provisional measure she and her children had been subjected to. Such a declaration would have served as an acknowledgment by the domestic authorities and would probably have strengthened the applicant ’ s position in official lia bility proceedings for damages.

33. The Court finds that an examination of that specific complaint would raise questions as to the applicability of Article 6 to such a purely declaratory decision on the lawfulness of a provisional measure under section 215 § 1 of the Civil Code (see mutatis mutandis K.T. v. Norway , no. 26664/03, §§ 82 et sequ ., 25 September 2008) considering that the applicability of Article 6 necessitates the existence of a dispute over an “arguable claim” that is genuine and serious and must be directly decisive for the right in question (see, among many other authorities, Z and Others v . the United Kingdom [GC], no. 29392/95, § 87, ECHR 2001 ‑ V and the authorities cited therein, McElhinney v. Ireland [GC], no. 31253/96, § 23, ECHR 2001 ‑ XI (extracts) and Masson and Van Zon v. the Netherlands , 28 September 1995, § 44, Series A no. 327 ‑ A). However, the Court does not find it necessary to go further into this question because it finds that in any event the complaint is manifestly ill-founded for the following reasons.

34. For the purposes of an examination of the applicant ’ s complaint under the Convention, the subject matter raised before the Court concerns the question whether or not the applicant had access to a court to obtain a determination of any of her civil rights.

35. The Court finds, while looking at the overall objective of the applicant ’ s request, that she in fact had had access to a court on a domestic level: insofar as the applicant alleged that she suffered damages caused deliberately or negligently by an unlawful act of a legal entity, she had the recourse open to her to initiate official liability proceedings before the civil courts (see paragraph 16 above). The applicant did not need any declaratory decision to initiate official liability proceedings. The applicant therefore had access to a court as regards her complaint of an allegedly unlawful provisional measu re by the Youth Welfare Office.

36. It follows that the complaint under Article 6 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Nina Vajić Registrar President