Published on 14 March 2022

FOURTH SECTION

Application no. 63543/19 Kurosch YAZDI against Austria lodged on 4 December 2019 communicated on 21 February 2022

SUBJECT MATTER OF THE CASE

The application concerns custody proceedings regarding the applicant’s and his ex-wife’s son, J., born in 2013. The parents had concluded a friendly settlement in which they had agreed on shared custody and J.’s main residence with his mother with regular contacts between J. and the applicant. Six months later the applicant lodged a new request for a transfer of J.’s main residence and for sole custody arguing that the mother acted in a manner contrary to J.’s best interest. Based on an expert report and following an oral hearing on 4 July 2018, the District Court Graz-West (hereinafter “the district court”) provisionally transferred J.’s main residence to the applicant and J. moved in with him, which meant moving to another city and changing the kindergarten. On 21 November 2018 the district court gave its final ruling, upholding the parents’ shared custody and transferring J.’s main care ( hauptsächliche Betreuung ) to the applicant. It established that – based on the results of several oral hearings and the recommendations of the appointed expert – J.’s well-being was best served when residing mainly with the applicant while enjoying regular contacts with his mother. The Graz Regional Civil Court (hereinafter “the regional court”) upheld this decision. On 29 May 2019 the Supreme Court admitted the mother’s extraordinary appeal “for reasons of legal certainty” ( aus Gründen der Rechtssicherheit ), overturned the district court’s and the regional court’s decisions and dismissed the applicant’s requests, arguing that none of the legal requirements for a change of custody, namely an endangerment of the child as required by Article 181 of the Civil Code, or a significant change of the circumstances ( maßgebliche Änderung der Verhältnisse ), as required by Article 180 § 3 of the Civil Code, had been met. The decision was served on 6 June 2019. J. moved back with his mother after having lived with the applicant for eleven months.

Relying on Articles 6 and 8 of the Convention the applicant complained that the Supreme Court’s decision amounted to a violation of his rights to a fair hearing and to respect for his family life. The Supreme Court had not given sufficient reasons for admitting the mother’s extraordinary appeal, its decision had been unforeseeable and it had not considered the child’s best interest.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention ( Elsholz v. Germany [GC], no. 25735/94, § 66, ECHR 2000 ‑ VIII; Görgülü v. Germany , no. 74969/01, § 58, 26 February 2004)?

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, did the Supreme Court examine the entire family situation and the best interest of the child with sufficient thoroughness, striking a fair balance between the different interests involved (see Petrov and X v. Russia , no. 23608/16, §§ 98, 106, 23 October 2018)?

Has the decision-making process leading to the Supreme Court’s decision been fair and such as to ensure due respect for the interests safeguarded by Article 8 (see Görgülü , cited above, § 52; Z.J. v. Lithuania , no. 60092/12, § 100, 29 April 2014; and Penchevi v. Bulgaria , no. 77818/12, § 75, 10 February 2015)?

3. Following the Supreme Court’s ruling dated 29 May 2019, have there been further changes in J.’s custody? If so, the applicant is requested to provide the text of the related court decision(s).

4. The applicant is requested to submit a full copy of the provisional decision taken by the district court on 4 July 2018.