THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31061/96 by Andrzej CERNECKI against Austria

The European Court of Human Rights (Third Section) , sitting on 11 July 2000 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 28 March 1996 and registered on 19 April 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 1951 and living in Linz (Austria). He is represented before the Court by Mr Günter Tews , a lawyer practising in Linz .

A. The circumstances of the case [Note1]

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

The applicant is the father of two daughters born in wedlock in 1984 and 1985, respectively.

On 4 October 1995 the Linz District Court ( Bezirksgericht ) granted the petition of the applicant and his wife for divorce by consent. In the settlement regulating the legal consequences of the divorce, the applicant and his wife agreed, outside the framework of section 177 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) which was at that time under review by the Constitutional Court, to exercise joint custody over their daughters. The settlement provided that the applicant and his wife would share responsibility for their children. Further, it stated that the children would mainly live with their mother, the applicant being granted extensive access rights. It also contained provisions for the children’s maintenance. The settlement was subject to approval in separate custody proceedings.

On 6 February 1996 the Linz District Court refused to approve the settlement. Referring to section 177 § 2 of the Civil Code, the court found that joint custody could not be granted. The Court granted sole custody to the applicant’s divorced wife, noting that according to both parents’ submissions she was better suited to exercise custody. Thus, the transfer of custody was also in the interests of the children. Further, the court endorsed the settlement insofar as it concerned the applicant’s rights of access and his maintenance obligations. The applicant did not appeal against this decision.

B. Relevant domestic law and practice

Award of custody over children upon divorce or separation

Section 177 of the Civil Code provides as follows:

“(1) In case the marriage of the parents of a minor born in wedlock ends in divorce, or is dissolved or declared null and void, or in case the parents live 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 will 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 live 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 on certain important matters. Moreover, the law did not prevent parents who wished to share their parental rights after divorce from doing so in practice by mutual agreement, but provided a clear solution in case such agreement ceased to exist. 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 alone. It did not generally demand that joint custody be awarded to parents after divorce.

Rights of the parent not having custody

According to section 148 of the Civil Code, the parent not having custody has a right of access.

Moreover, according to section 178 of the Civil Code, 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.

COMPLAINT

The applicant complains under Article 5 of Protocol No. 7 that section 177 of the Civil Code, providing that sole custody over children has to be granted to one parent in case of divorce or separation, violates the right to equality between spouses. He argues that the impossibility to obtain joint custody, even when both spouses make a common proposal to this effect and are willing to share responsibility for their children after divorce, is not justified in the interests of the children. Moreover, he claims that the restrictions on the rights of the parent who does not have custody are too far-reaching.

THE LAW

The applicant complains about the impossibility for former spouses to obtain joint custody over their children after divorce. He invokes Article 5 of Protocol No. 7, which provides 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 marriage 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.”

The Government concede that the applicant did not have any effective remedy at his disposal. As to the merits, the Government submit that Article 5 of Protocol No. 7 only prohibits different treatment of spouses which is based on gender. Referring to the Constitutional Court’s judgment of 10 October 1995, they argue that section 177 of the Civil Code is in conformity with the Convention. In particular, Article 5 of Protocol No. 7 does not prohibit regulations which assign different legal positions to the former spouses with regard to their children after dissolution of marriage. In other words, it does not generally oblige the legislator to grant joint custody after divorce. Moreover, a look at the provisions regulating the rights of the non-custodial parent shows that the interference with that parent’s rights is kept to the necessary minimum. Finally, the Government argue that the law does not prevent the former spouses from exercising custody by consensus, in particular the parent having custody may grant the non-custodial parent participation rights beyond the scope of section 178 of the Civil Code. Thus, the award of sole custody is without practical relevance as long as there is agreement between the former spouses, while at the same time providing a clear solution if such agreement ceases to exist.

The applicant, while sharing the Government’s view as to exhaustion of domestic remedies, contests their arguments as to the merits. The applicant asserts that a general rule like section 177 of the Austrian Civil Code excluding any possibility to award joint custody after divorce is not necessary in the interests of the children. He points out that in many other European countries the law provides a possibility for awarding joint custody after divorce. Section 177 of the Civil Code prevents the courts from making an assessment of what is in the best interests of the children in a specific case. Moreover, the Government have not advanced any argument to show that, despite his and his  former wife’s wish to share custody after divorce, the award of sole custody to his former wife was in the best interests of their children. The mere fact that the provisions at issue may be disregarded in practice by the former spouses cannot demonstrate their conformity with the Convention.

The parties’ arguments raise the issue whether Article 5 of Protocol No. 7 only prohibits a difference in the treatment of spouses which is based on gender, as the Government claim, or, as the applicant’s position implies, whether it contains a general obligation to treat spouses equally in their family law relations. The scarce case-law which exists so far on Article 5 of Protocol No. 7 shows that it essentially imposes a positive obligation on States to provide a satisfactory legal framework under which spouses have equal rights and obligations concerning such matters as their relations with their children (cf. no. 32700/96, Dec. 9.9.98, D.R. 94, p. 94).

The Court notes that section 177 of the Austrian Civil Code excludes an award of joint custody after divorce except in the case where the former spouses continue to live in a common household. By attributing different legal positions to spouses in relation to their children after divorce, the provision interferes with the right to equality between spouses.

However, Article 5 of Protocol No. 7 does not prevent States from taking such measures as are “necessary in the interests of the children”. According to the Explanatory Report on Protocol No. 7, the case-law of the Convention organs, relating inter alia to Article 8 of the Convention, where they have stressed the need to take account of the interests of the child, is to be noted in this connection. The Court, therefore, considers that the necessity clause contained in Article 5 of Protocol No. 7 should be interpreted in the same way as the necessity clauses contained in other provisions of the Convention.

The Court recalls that according to its well-established case-law the notion of necessity implies that the interference complained of corresponds to a pressing social need, and in particular that it is proportionate to the legitimate aim pursued. In determining the necessity of an interference, a margin of appreciation is left to the Contracting States. This power of appreciation is not however, unlimited and in exercising it supervisory function the Court must determine whether the reasons adduced to justify the interference at issue are “relevant and sufficient” (see for instance the Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, p. 31-32, § 67-68; or the Johansen v. Norway judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, p. 1003-04, §§ 62-64).

The Government argue in particular that section 177 of the Civil Code does not prevent parents sharing custody in practice, whilst providing a clear solution for the custody of the children in case their agreement ceases to exist.

The Court accepts that the need to provide a clear solution for custody immediately upon divorce is apparent in all cases where the former spouses are unwilling or unable to exercise joint custody. Such clarity may still be desirable in cases like the present one where, upon divorce, spouses express a genuine wish to exercise joint custo dy. First, there is the simple fact that they no longer live in a common household, which tends to make communication between them more difficult and may result in contradictory decisions being taken or legal uncertainty wherever third persons, such a teachers or medical personnel, have to obtain the parents’ authorisation. The importance of this consideration is demonstrated by the fact that the only case in which section 177 of the Civil Code permits an award of joint custody after divorce is the rare one where the former spouses continue to live in a common household.

Secondly, even if divorced spouses have a genuine wish to exercise joint custody, a subsequent change of circumstances may hamper their good understanding. Thus, if an award of joint custody were possible upon divorce, it may nevertheless prove necessary at a later stage to re-open custody proceedings in order to award sole custody to one parent, thereby subjecting the children concerned to another change of their situation. In this case, the children are subjected to a period of uncertainty - which may take years - before a final decision on custody is taken. On balance, this seems to be a far heavier burden for the children to bear, than it is for parents, who agree de facto on joint custody after divorce without official endorsement of their agreement. The contested legislation does not prevent parents who agree to share custody from acting accordingly, while it avoids problems which the award of joint custody entails for the children when the parent’s agreement ceases to exist. The responsibility for the agreement and any difficulties related to a disruption are thus left with the former spouses. That can hardly be considered unreasonable, given that the children are those in most need of protection.

In sum, the Court is satisfied that there are relevant and sufficient reasons underlying the impugned legislation.

In addition, the Court notes, as was also pointed out by the Government, that the parent not having custody retains a certain number of rights, such as the right of access or the right to be informed and consulted as regards certain important decisions. Thus, the interference with the former spouses right to equality is not disproportionate to the aim of protecting the children by providing a clear solution for custody.

In conclusion, the Court finds that the legislator’s decision to exclude the possibility of joint custody after divorce whilst providing access and information rights to the parent not having custody, falls within the margin of appreciation left to the Contracting State. Consequently, there is no appearance of a violation of Article 5 of Protocol No. 7.

It follows that the application must 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 .

S. Dollé J.-P. Costa Registrar President

[Note1] Where the parties’ description of the facts differ their respective versions of the facts should be set out separately.