DISSENTING OPINION OF JUDGE VALTICOS

(Translation)

I am unable to share the opinion of the majority of the Chamber that there was in the present case a violation of Articles 8 and 14 (art. 8, art. 14) of the Convention, in that the Supreme Court ’ s decision refusing to grant Mrs Hoffmann custody of her children constituted discrimination on the grounds of religion.

It is in fact clear, in my opinion, that the said decision by the Supreme Court was not based on the sole fact that Mrs Hoffmann was a Jehovah ’ s Witness, but essentially on the consequences that this would have had for the children ’ s future. The question would surely not have arisen in the case of a different religion not having the special characteristics of Jehovah ’ s Witnesses. Thus the refusal to have blood transfusions could, whatever has been said, have endangered the children ’ s health and even their lives. The peculiarities of this religion ’ s tenets of faith would have led to the children being set apart from normal social life and would have contributed to marginalising them and restricting their future and their development. The children had admittedly not yet been accepted into the faith of Jehovah ’ s Witnesses, but the mother took them with her to the Sunday meetings. Since she made weekly visits for spreading her faith (admittedly without being accompanied by her children), it was to be expected that her children would also become objects of her proselytising zeal, it being natural for her to wish to ensure what she regarded as their salvation.

It should thus have been held that the Supreme Court ’ s decision resulted not from "a distinction based essentially on a difference in religion alone", as the majority of the Court declared, but from the legitimate concern to protect the future of the Hoffmann children.

DISSENTING OPINION OF JUDGE MIFSUD BONNICI

I am unable to agree with the five members of the Court who make up the majority. My reasons are the following:

1. Article 8 (art. 8) of the Convention prohibits interference by a public authority with the exercise of the right of one ’ s private and family life, home and correspondence.

2. In my opinion, a fundamental distinction must be made between interference and intervention. Interference implies that action whereby one interposes or meddles in something, without having the right to do so. Intervention, on the other hand, is that action whereby one steps in-between, to prevent or hinder a harm which otherwise will occur.

3. Usually, whenever a marriage breaks down, one or both of the parties requests the court to intervene; as did the applicant and her husband, in the instant case. The first necessary intervention therefore came from the Innsbruck District Court. This first decision of the court was appealed from by the husband, to the Regional Court , and a second (extraordinary) appeal was eventually made to the Supreme Court of Austria.

4. Each one of these courts had to reach a decision with regard to the care and custody of the children of the marriage. Each one of them was by law obliged to intervene and I cannot see how one can consider these decisions to be interferences by a public authority in the private and family life of the applicant. Rather, these were all necessary interventions, the like of which occur in their hundreds in the daily court life of all the States of the Council of Europe.

5. The Supreme Court ’ s decision reversed the previous two judgments in that it held that those decisions did not conform with the provisions of the Federal Law of 15 July 1921 , which regulated the problem of the religious education of children.

6. This law provides that the question of the religious education of children is to be regulated as follows:

(a) on marriage the question shall be settled by the free agreement of the partners;

(b) the original agreement may be changed by mutual agreement of the parents at any time;

(c) the father or the mother cannot unilaterally change the agreement;

(d) when one of them dies, the agreement lapses.

7. The Supreme Court of Austria decided that the religious education of the Hoffmann children had to be regulated according to the original agreement freely entered into between the parents. The breakup of the marriage did not authorise either one of the parents, or the court, to change the original agreement.

8. The appeal to the Supreme Court was lodged on points of law, mainly on the omission of the lower courts to take account of the 1921 law. This could not in fact be disputed, and one cannot see how the Supreme Court could, in its turn, ignore that law as well. It follows that its decision had to be based on both the elements already in the file and the law of 1921. I cannot see how because of this addition the decision violates the Convention. The lawyer of the applicant, in the oral pleadings, submitted that "the decision of the Supreme Court contradicts Austrian law". I do not believe that I am entitled to hear and decide appeals from the Supreme Court of Austria on the provisions of Austrian law and as to whether Austrian court decisions contradict Austrian law.

9. In view of all this, I consider all the submissions on the merits or demerits of the applicant ’ s religion as being irrelevant to the issue. The only relevant issue is whether the applicant is entitled or not to vary the original agreement on religious instruction which she had reached with her husband, irrespective of the religion to which that agreement referred. And this issue as regulated by Austrian law does not violate the Convention.

10. For these reasons I cannot find that either the decision of the Supreme Court of Austria or the Austrian Federal Law on Religious Instruction are in violation of the Convention. Since I find the application completely unfounded, I am not prepared to grant anything under Article 50 (art. 50).

[*]  The case is numbered 15/1992/360/434.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 255-C of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.