FIRST SECTION

Application no. 15706/08 Richard KAISER against Austria lodged on 11 March 2008

STATEMENT OF FACTS

The applicant, Mr Richard Kaiser, is a German national, who was born in 1964 and lives in Passau .

A. The circumstances of the case

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

The applicant is the father of E., A., and K., all born in wedlock in 2002, 2003 and 2005 respectively.

1. The proceedings regarding an interim injunction ordering the applicant to leave the joint apartment

On 3 March 2006 the Favoriten District Court ( Bezirksgericht Favoriten ) issued an interim injunction for the duration of three months upon request of the applicant ’ s minor children represented by the Vienna Youth Welfare Service ( Amt fü r Jugend und Familie ), and ordered the applicant to leave the joint household and the immediate surroundings of the family ’ s apartment, prohibited him to return to the apartment, prohibited him to contact his wife and children, ordered him to avoid any meetings with them and prohibited him access to the children ’ s kindergarten.

The children ’ s mother had alleged a repeated sexual abuse by the applicant of his elder daughter. The District Court had interviewed the children ’ s mother, the applicant and a social worker. It had also taken into account a short report of a first examination of the applicant ’ s eldest daughter by a psychologist at a Viennese hospital. The girl had told the psychologist of severe abuse by her father and had shown graphically what she had meant on anatomical puppets. The District Court found the girl ’ s mother ’ s testimony of the perceived skin abrasions on the girl and her description of the events credible and trustworthy. Overall, the massive and seemingly substantiated allegations of sexual abuse by the applicant indicated a real risk for the children ’ s wellbeing. Since the children and their mother had a need to be provided with housing, the court ordered the applicant to leave the joint apartment.

On 30 March 2006 the applicant ’ s wife lodged an action for divorce. In May 2006 the children, in the meantime represented by their mother, requested the continuation of the interim measure, which was, also with a reference to pending criminal investigations against the applicant, granted until the termination of the divorce proceedings.

The applicant was indicted by the Vienna Public Prosecutor on 15 May 2006. On 18 October 2006 the Vienna Regional Court ( Landesgericht für Strafsachen Wien ), sitting with two professional and two lay judges, acquitted the applicant of the suspicion of sexual abuse of minors and abuse of a relationship of authority. It found that the witnesses heard in the course of the oral hearing had not been able to verify the suspicions. Furthermore, the psychological expert had stated that the child ’ s ability to tell of past events or experiences was not sufficiently developed.

Thereupon, on 13 November 2006 the applicant requested the lifting of the interim injunction with a reference to his acquittal. However, on 18 April 2007, the Favoriten District Court dismissed the request stating that the Regional Court had acquitted the applicant pursuant to section 259 no. 3 Code of Criminal Procedure ( Strafprozeßordnung ), so only because the applicant ’ s guilt could not be established by the criminal court. The applicant however had not shown the District Court why and how a risk for the children had ceased to exist. Therefore, there was no reason to lift the interim injunction.

The applicant appealed on 7 May 2007. On 6 June 2007 the Vienna Regional Court ( Landesgericht Wien ) dismissed the appeal and found that contrary to the applicant ’ s belief an acquittal in the criminal proceedings was not as such sufficient to substantiate the lack of the risk perceived as the basis for the interim injunction. The court established that there was no binding effect of the civil courts to the decisions rendered by the criminal courts. It explained that the civil judge would be bound by a criminal conviction only as regards the strictly necessary established facts that were the base of the conviction. The civil judge therefore was not entitled to make statements of facts that differ from the ones already established and that presented the grounds for a criminal conviction. However, the applicant ’ s simple reference to his acquittal alone was not sufficient to prove that the basis for believing that there was a risk for the applicant ’ s children had ceased to exist. It confirmed the District Court ’ s assessment that the objective of the interim injunction, namely to secure the wellbeing of the children, had not become redundant, referring again to the fact that the acquittal was only a result of the “ in dubio pro reo ”-principle, and that there still was a suspicion of sexual abuse which sufficed to assume a risk for a child ’ s wellbeing.

On 23 October 2007 the Supreme Court ( Oberster Gerichtshof ) dismissed the applicant ’ s extraordinary appeal as unfounded. Referring to its own jurisprudence it confirmed the assessment of the lower courts that the lifting of an interim injunction required the cessation of the need to protect because of a change of circumstances; a change of the provided evidence was not automatically understood as such a reason. The question whether the applicant ’ s acquittal changed the risk situation of the children had to be answered in the negative, since the evidence assessment in the criminal proceedings had to be considered new evidence in the civil proceedings, which did not as such constitute a reason to lift the interim injunction. If the suspicion of abuse persisted, the risk situation had not changed. The Supreme Court also confirmed that the criminal acquittal had no binding effect for the civil courts. As concerns the applicant ’ s arguments lodged under Article 6 § 2 of the Convention it referred to the Court ’ s judgment in Rushiti v. Austria (see no. 28389/95, 21 March 2000 ), but distinguished that case from the present one: in Rushiti , the Court had assumed a link between the criminal responsibility of the accused and the right to compensation to such a degree that the decisions on the latter issue can be regarded as a consequence and, to some extent, the concomitant of the decision on the former (see ibid., § 27). However, such a link was missing with regard to the civil jurisdiction, for the following reasons: criminal proceedings concerned a public claim; the accused was opposed by the state. The victim was not a party to the proceedings and in general, the criminal courts did not rule on a victim ’ s damage claims. A binding effect of an acquittal for the civil courts would mean a violation of the principle of equality of arms in respect of the victim, if he or she tried to lodge a civil claim for damages. The separation of civil and criminal matters resulted from the different subject matters. A binding effect of a conviction was justified by the fact that in such a case a criminal court had established the accused ’ s responsibility and guilt. However, in the case of an acquittal, the establishment of the facts had remained open. To then exclude the victim from the pursuit of a possible civil claim would represent a violation of the victim ’ s fundamental rights. The acquittal could therefore only serve as an indication of a diminution of the risk situation for the children, but no more.

On 19 May 2009 the Favoriten District Court lifted the interim measure, since on 2 March 2009 the divorce proceedings were terminated.

2. Information regarding the custody proceedings

It seems that on 13 November 2006 the applicant requested an arrangement of access rights for him to see his children. On 31 May 2007 the Vienna Youth Welfare Service rendered a report stating in its conclusion that the contact of the children to their father was very important, but that, in view of the problematic overall situation, the visits should take place in a protected environment. The mother had firstly opposed the idea of access of the applicant to the children, but had professed to be able to agree to accompanied visits in a protected environment and in her presence. The applicant had referred to his acquittal and stated the desire to re-establish a relationship with his children. The social worker confirmed a safe and healthy environment of the children with their mother, but also referred to the importance of a relationship of the children with their father.

On 4 July 2007 the applicant and his wife agreed on a settlement before the Favoriten District Court with the following provisions: preliminary sole custody for the three minor children was granted to the children ’ s mother. The applicant was granted a regular accompanied access right, normally every two weeks for two hours on the premises of a Viennese association for families. The visits were also attended by the children ’ s mother and a social worker from the association.

On 9 February 2010 the applicant and his former wife agreed before the Favoriten District Court on the staying of the custody/access rights and alimony proceedings ( Ruhen des Verfahrens ). The applicant informed the Court that since February 2010 the applicant and his former wife agreed on the applicant ’ s access to his three children amicably. The applicant in the meantime lived in Germany and travelled to Vienna in the course of the school holidays to see his children.

B. Relevant domestic law

Section 259 no. 3 of the Code of Criminal Procedure , in force at the relevant time, provided as follows:

"The accused shall be acquitted by judgment of the court:

...

3. where the court finds that the act giving rise to the prosecution is not an offence under the law or that the alleged offence was not made out or that it has not been established that the accused committed the act of which he is accused or that circumstances exist which deprive the act in question of its criminal character or that the continuation of the prosecution is ruled out on grounds other than those set out in paragraphs 1 and 2."

COMPLAINTS

The applicant complains under Article 6 § 2 of the Convention of the assessment of his acquittal in the criminal proceedings by the civil courts.

The applicant also complains under Article 8 of the Convention that his access and visiting rights had been disproportionally limited.

QUESTIONS TO THE PARTIES

1. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case , in particular with regard to the proceedings on the applicant ’ s request to lift the interim injunction ?

2. Has there been a violation of the applicant ’ s right to respect for his family life contrary to Article 8 of the Convention , in particular as regards the access rights to his children ?