THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32899/96 by Waltraud BUCHBERGER against Austria

The European Court of Human Rights (Third Section), sitting on 23 January 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 16 July 1996 and registered on 9 September 1996,

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 submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Austrian national, born in 1958 and living in Wels . She is the mother of two children: T., born on 8 April 1993, and A., born on 17 December 1994. She is represented before the Court by Mr. J. Minichmayr of Hintermayr , Krüger , Haunschmidt and Minichmayr , a partnership of lawyers practising in Linz (Austria).

A. The circumstances of the case

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

On 31 March 1995 the Youth Welfare Office ( Jugendwohlfahrtsträger ) at the Linz -Land District Administrative Authority ( Bezirkshauptmannschaft ), pursuant to section 215 of the Austrian Civil Code ( Allgemeines Bürgerliches Gesetzbuch ), took the applicant’s children, T. and A., provisionally into their care. It noted that on the morning of that day, the applicant, who delivers newspapers, had come back late from work and her children had been at home without supervision for approximately 45 minutes. The applicant’s neighbour, who had seen T. alone in the garden at around 8.30 a.m., had contacted the District Administrative Authority. The Youth Welfare Office placed the children with a socio -pedagogical facility in Salzburg for an evaluation of their development.

On 4 April 1995 the Youth Welfare Office requested the formal transfer of the custody of the children to it before the Enns District Court ( Bezirksgericht ). The Youth Welfare Office, relying on section 215 of the Civil Code, claimed that the living conditions of the children were chaotic. It did not submit a formal statement of reasons, but promised to do so later.

On 24 April 1995 the applicant, assisted by counsel, requested the District Court to order the Youth Welfare Office to return T. and A. to her.

On 10 May 1995 the District Court rejected the Youth Welfare Office’s request and ordered that T. and A. be promptly returned to their mother’s custody. The District Court found that the removal of the children from their mother was unlawful, as the Youth Welfare Office had failed to submit a formal statement of reasons giving arguments in support of the children’s removal and the transfer of their custody. The court observed that, without such a statement, it could not take the evidence necessary to verify whether the Youth Welfare Office’s request was well-founded. Consequently, the court was not in a position to decide on the merits.

On 11 May 1995 the Youth Welfare Office appealed and refused to give T. and A. back to their mother. On 16 May 1995 it supplemented its appeal arguing that the applicant was incapable of bringing up T. and A. It submitted that on the early morning of 31 March 1995 the children had been at home alone. T. was wandering about in the garden alone at 0°C, wearing only pyjamas. In support of its arguments, the Youth Welfare Office filed, inter alia , a fax of the Enns rural police ( Gendarmerieposten ) of 31 March 1995, certificates of 5 April 1995 concerning the children’s condition of health issued by a medical officer ( Amtsarzt ), and the transcripts of the statements of the applicant’s neighbour before the District Administrative Authority.

On 6 June 1995 the Steyr Regional Court ( Landesgericht ) quashed the District Court’s decision and remitted the case back to the District Court, instructing the latter to take a new decision after having supplemented its proceedings ( Verfahrensergänzung ). The Regional Court found that, taking the ex officio character of the custody proceedings ( Pflegschaftsverfahren ) into account, it had been for the District Court to investigate the facts sufficiently in order to reach a decision. In particular the Youth Welfare Office should have been given the opportunity to correct its procedural mistake by submitting a formal statement of reasons.

On 27 June 1995 the Salzburg socio -pedagogical centre ( Sozialpädagogisches Zentrum ) submitted a report to the Enns District Court.

On 28 June 1995 the applicant was heard with regard to the events of 31 March 1995. She submitted that on the morning of that day, she had suffered from a migraine attack and therefore had been unable to return home in time. Normally she returned before her seventeen year old son, H., who also lived with her, left for work. That day she had unsuccessfully tried to contact a friend of hers to look after her children.

On 30 June 1995 the District Court, heard the father of T. and A., who did not live with them. He was opposed to the transfer of custody to the Youth Welfare Office as he considered that the applicant took care of the children satisfactorily. He himself was not in a position to take care of them.

On 31 July 1995 the District Court again dismissed the Youth Welfare Office’s request for the transfer of custody but ordered the applicant to undergo, together with her children and their father, a family therapy. It instructed the Youth Welfare Office to ensure that the applicant complied with this condition. In refusing the transfer of custody, the District Court relied, inter alia , on the public health officer’s certificates according to which A. had been in a good physical and psychological state, as well as T., although the medical officer had also found a retardation in the latter’s linguistic skills and striking deficiencies in his social behaviour. The applicant’s approach to her children was positive in general. According to the District Court, there existed no danger that the incident of 31 March 1995 could recur, because two persons, Mr K. and Ms L., had accepted to look after A. and T. in case the applicant should come home late from work.

The District Court found that, under sections 176 a and 178 a of the Civil Code, the right of custody may only be withdrawn if the child’s well-being was endangered and if this was substantiated by compelling arguments. The court noted that the living conditions at the applicant’s place were below average. Nevertheless the children’s well-being was not in danger. The incident which led to the taking away of T. and A. was a unique one and the applicant cared sufficiently for her children, having regard both to their psychological and physical well-being. Moreover the applicant still breast-fed A. The court concluded that the requested transfer of custody was not justified.

On 31 July 1995 the Youth Welfare Office appealed. The Office argued, inter alia , that Mr K., a former life-companion of the applicant, was unsuitable to look after the children and that Ms L. had informed the District Administrative Authority that she had never promised the applicant to look after the children nor was she prepared to do so.

In the course of the appeal proceedings, the Youth Welfare Office submitted further evidence, namely a report dated 16 August 1995 with several annexes. Furthermore, the Regional Court obtained several court files all concerning the applicant: one file concerning custody proceedings relating to her son R., one concerning criminal proceedings against P.F. and the applicant for ill treatment of her son R., and one concerning eviction proceedings against the applicant. This evidence was not communicated to the applicant.

On 16 August 1995 the Steyr Regional Court granted the appeal and transferred custody of the applicant’s children to the Youth Welfare Office, pursuant to section 176 a of the Austrian Civil Code. The Regional Court found that the taking of evidence by the court of first instance had been incomplete. Since the courts had the obligation to safeguard the well-being of the children, it was necessary to decide not merely on the basis of the evidence which existed at first instance but to take into account all subsequent developments and, if necessary, to re-assess the evidence or to supplement the investigations.

On the basis of the evidence meanwhile obtained, the Regional Court found that the well-being of T. and A. would not be safeguarded if they were to stay with their mother. The children’s living conditions were desolate and chaotic; the applicant was apparently not willing to co-operate with the Youth Welfare Office and she did not make any efforts to undergo therapy, together with the children, as had been ordered by the District Court in its decision of 31 July 1995. Moreover, T. and A. no longer stayed with the applicant but with her “ex-companion”, as the applicant was due to be evicted from her apartment on 31 August 1995. As from 1 August 1995 the applicant had rented a house in La. According to information obtained from the owner, the house was extremely desolate and hardly fit for habitation. On a visit to La. by a staff member of th e Youth Welfare Office on 16 August 1995, the applicant had not permitted the official to enter her home on the grounds of desolate living conditions and the decrepit state of the building. She did not disclose the identity of the friend with whom she had placed the two children T. and A. in Linz .

The Regional Court also noted that the applicant’s elder sons, R. and H., had been placed in a children’s home from September 1989 to July 1991 as the applicant had not taken adequate care of them. After returning to the applicant, R. had been subject to systematic and repeated abuse by P.F., the applicant’s then companion, who had almost daily beaten R. and had treated him in a degrading manner. In 1993 R. had been committed to hospital because of injuries inflicted on him by P.F. Thereupon criminal proceedings against the applicant and P.F. for abuse of minors had been instituted. In November 1994 P.F. had been convicted of this offence and sentenced to six months’ imprisonment. The applicant had been acquitted. At the same time, custody of R. had been transferred to the Youth Welfare Office. He was no longer living with the applicant. In the Regional Court’s view these events, even though the applicant had been acquitted of the criminal charges, showed that she was incapable of effectively caring for her children. Having regard to the abuse and suffering of R., it was implausible that she had not noticed anything.

The Regional Court also considered that, having regard to the retardation in T.’s development and the deficiencies in his social behaviour, there was no guarantee that either he or his brother A. would develop normally if they were to remain with their mother.

On 9 November 1995, the Supreme Court ( Oberster Gerichtshof ) rejected the applicant’s extraordinary appeal on points of law ( außerordentlicher Revisionsrekurs ) on the ground that the case did not involve questions of law of fundamental importance.

B. Relevant domestic law

Under section 215 § 1 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ), the competent Youth Welfare Office shall apply for court orders regarding questions of custody which are necessary in order to ensure a child’s well-being. In case of imminent danger, the Youth Welfare Office shall also make the necessary provisional arrangements concerning care and custody until the competent court has decided.

Under section 176 a of the Civil Code, the competent court shall transfer custody to the Youth Welfare Office, even against the wish of the parents, if the well-being of a child is at risk and it is necessary to remove the child from his or her habitual environment, unless the child can be placed with a relative or other qualified persons close to the child.

COMPLAINTS

The applicant complains that the decision of the Regional Court transferring the custody of her sons T. and A. to the Youth Welfare Office violated her right to respect for family life, guaranteed by Article 8 of the Convention. She further complains under Article 6 § 1 of the Convention that the appeal proceedings were unfair because the Regional Court relied on fresh evidence of which she had not been informed and, thus, she had had no opportunity to react thereto.

THE LAW

1.  The applicant complains that the decision of the Regional Court transferring the custody of her sons T. and A. to the Youth Welfare Office violated her right to respect for family life, guaranteed by Article 8 of the Convention.

Article 8 of the Convention 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.”

The Government accept that there has been an interference with the applicant’s right to respect for her family life as guaranteed by Article 8 § 1 of the Convention. However, the measure was justified under Article 8 § 2, being in accordance with the law - Section 176 of the Civil Code - and having pursued the legitimate aims of the protection of health or morals and the protection of the rights and freedoms of others. The Government further contend that the measure was necessary in a democratic society within the meaning of Article 8 § 2 and that the Austrian authorities have not overstepped their margin of appreciation.

As regards the necessity test, the Government submit that the measure of transferring custody to the Youth Welfare Office corresponded to the urgent social need to improve the educational and developmental situation of the children A. and T.  According to the findings of the Regional Court, the situation of the children had been serious: their living conditions were desolate and unhygienic, and the applicant had failed to exercise adequate care and had shown herself to be incapable of doing so. In respect of the child T., this situation had already led to a retardation of his personal, particularly linguistic, development and to behavioural disturbances. In August 1995 the applicant had not had the children with her at all but had placed them in the custody of a former companion whose identity had not been disclosed to the Youth Welfare Office. More moderate means such as educational support for parents ( Erziehungshilfe ) could not have been used as the applicant refused to co-operate with the Youth Welfare Office. It had also not been possible to transfer custody of the children to a close relative as no such person was available. Even though custody was removed from the applicant she maintained certain minimum rights, such as visiting them and being heard before important decisions on educational issues were taken, which had the purpose of maintaining family links and to make possible the family’s later reunification.

The Government acknowledged further that Article 8 also implied certain procedural requirements, namely that parents must be sufficiently involved in the whole decision-making process. In their view this had been the case. The District Court and the Regional Court had dealt with the transfer of custody in non-contentious proceedings which guarantee that parents are sufficiently involved. In non-contentious proceedings the courts have the duty to investigate all important elements of the case ex officio and to establish the true facts beyond the mere submissions of the parties. They must take account of all new relevant circumstances even at the appeal stage.

This is disputed by the applicant. She submits that there has been a violation of Article 8 of the Convention as, in the circumstances of the case, the decision of the Regional Court was disproportionate. The Regional Court should have resorted to a less drastic measure, such as helping her with the children’s education. Meanwhile she has given birth to two more children, a daughter born in December 1996 and a son born in July 1998. She was and is taking adequate care of these children and the competent Youth Welfare Office, a different one, has found no reason to intervene.

The Court considers, in the light of the parties’ submissions, that the applicant’s co m plaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, ther e fore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2.  The applicant further complains that the appeal proceedings were unfair because the Regional Court relied on fresh evidence of which she had not been informed and, thus, had no opportunity to react thereto. She relies on Article 6 § 1 which, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government submit that the proceedings at issue complied with Article 6 § 1 of the Convention. Decisions on the transfer of custody, as with other proceedings in family law matters, are conducted on a non-contentious basis and are less formal since measures in this field have to be taken swiftly and are not governed by formal rules on the taking of evidence. The courts have to examine all relevant issues ex officio as it is considered important that decisions are taken in full knowledge of all the relevant facts and the latest developments of them.

In the present case all the fresh evidence on which the Regional Court relied had been familiar to the applicant because it related to court proceedings to which she had been a party and where she had been able to present her point of view. As regards the report by the Youth Welfare Office, it related to a meeting with the applicant and therefore she knew the facts mentioned therein. Since the Regional Court did not rely on evidence which was new to the applicant, her rights under Article 6 § 1 have not been violated.

This is disputed by the applicant.

The Court considers, in the light of the parties’ submissions, that the applicant’s co m plaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, ther e fore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President