CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 décembre 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 14013/88                       by M. and R.T. and F.                       against Austria             The European Commission of Human Rights sitting in private on 14 December 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 20 August 1987 by M. and R.T. and F. against Austria and registered on 11 July 1988 under file No. 14013/88;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicants, a married couple and their children, are Austrian citizens living in Vienna. Mr. T. was born in 1931, his wife in 1958 and their children R. in February 1981, A. in December 1981 and R. in November 1983.   They are represented by Mr. Jandl, a lawyer in Vienna.           The facts submitted may be summarised as follows:           On 14 February 1986 R., A. and R. were taken away from their parents and committed to a children's home (Zentralkinder- heim) in Vienna where they stayed until 18 June 1986.   On that day a single judge of the Youth Court (Jugendgerichtshof) in Vienna ordered their immediate return to the home of their parents.   In the same decision the Court approved the committal to the children's home but refused the youth authorities' request to prolong it.   However, the Court ordered that the parents be assisted and supervised in the children's upbringing (gerichtliche Erziehungshilfe).   The applicant parents state that they accepted this measure because they had been told that otherwise the children would not be allowed to return home.           It is stated in the Youth Court's decision that the family has been known to the youth authorities for years and that the co-operation with the parents had always been difficult.   On 14 August 1985 a social worker had been alarmed by a neighbour and found that the children had bruises on their backs.   A private kindergarten had also reported that traces of ill-treatment were found on the children and on 14 February 1986 another neighbour denounced an event of ill-treatment.           In these circumstances, so the Court concluded, there was reason to suspect the parents of ill-treating the children and the committal to a home was therefore justified, although further investigations did not confirm the initial suspicion.   In fact, so the Court stated, the anonymous denunciations could not be confirmed by objective evidence.   However, an examination of the children carried out during their stay in the children's home revealed that they were underdeveloped for their age (starkes entwicklungsmässiges Defizit). It followed that the parents, while not being unfit for their children's education, at least needed educational support.           The applicant mother appealed from the Youth Court's order insofar as it approved the children's committal to a home.   The appeal was rejected by a chamber of the Vienna Youth Court on 22 October 1986. The Court stated that, in view of the then existing suspicion of the children's ill-treatment and the lack of the parents' readiness to co-operate with the authorities, a less stringent measure than the committal to a home could not have been taken.   The parents' attitude also explained why no attempt was made to contact them first in order to verify whether the allegation of ill-treatment made by others was correct.   The Court noted that the applicant parents contacted the Youth Office (Jugendamt) on 17 February 1986 and that the mother saw the children in the home on 18 February 1986.   It concluded that they also had sufficient opportunities to defend their case before the decision of 18 June 1986 was given.           The applicant mother then lodged an appeal on points of law (Revisionsrekurs) to the Supreme Court.   This appeal was rejected on 13 January 1987.   The Court pointed out in its decision that the Youth Office, in requesting the Youth Court's approval of the measure taken against the applicants, had stated that since 1984 neighbours had constantly reported on the harsh manner in which the parents treated their children and that the parents reacted negatively to repeated offers to have their children spend the daytime in a municipal home. The mother often reacted violently when she had to contact the youth authorities and once said she could even beat her own children to death, this was nobody else's concern.   Social workers had learnt from the neighbours that there were repeated noisy quarrels between the parents and that they often beat their children violently. Consequently, in the Court's opinion, there was reason to take immediate action under Sec. 26 (2) of the Youth Welfare Act (JWG) which authorises the youth authorities to take appropriate measures as guardian or curator (Vormund oder gesetzlicher Amtskurator) without prior consent of the court where there is a foreseeable danger (Gefahr im Verzug).           The applicants also lodged a constitutional appeal.   The Constitutional Court (Verfassungsgerichtshof) thereupon first examined ex officio whether or not Sec. 26 (2) of the Youth Welfare Act (JWG) was compatible with the Constitution.   On 8 October 1987 it decided that there was no reason to quash the provision in question as being unconstitutional.   It found that in taking measures under this provision the youth authorities acted as a guardian (Vormund) and thus exercised private law rights and duties which could be subject to control only by the civil courts.           On 12 October 1987 the Constitutional Court dismissed the applicants' constitutional appeal on the ground that it lacked jurisdiction.           On 1 August 1988 the Youth Court set aside its order of 18 June 1986 stating that it was no longer necessary to supervise the children's upbringing as the parents now voluntarily collaborated with the social assistant and the children were well taken care of.   COMPLAINTS           The applicants submit that the committal to the children's home was a deprivation of liberty which could not be justified under Article 5 para. 1 (d) of the Convention as there had not been any concrete reasons to suspect the parents of ill-treating their children.   The authorities wrongly relied on anonymous statements of neighbours without verifying them, e.g. by hearing the parents or the doctor of the family.           The applicants further invoke Article 6 of the Convention. They submit that their counsel was first denied access to the file of the youth authorities.   They also consider that the decision on the committal to a children's home concerned their civil rights and should, in view of their immediate effect, have been taken by a court and not an administrative body.   They also consider that the proceedings leading to the decision of 14 February 1986 were unfair as they were not heard and given the opportunity to comment on the anonymous accusations made against them by neighbours.   They were heard in the absence of their counsel before the Youth Court.   The Court based its findings only on reports and investigations made after the event of 14 February 1986.           The applicants also invoke Article 8 of the Convention and argue that the measure taken against them was disproportionate.   They submit that the children were examined by a doctor after the committal to a children's home on 15 February 1986.   Although he found no traces of ill-treatment the children were kept in the home until 20 June 1986.           In view of the sudden and surprising nature of the measure taken against them, the applicants further consider that Articles 8 and 3 of the Convention were violated.           Finally, they consider that Article 8 was also violated in view of the fact that they were allowed access to their children only once a fortnight and that they had no remedy to complain of this regulation except by complaining of the committal as such.   THE LAW   1.       The applicants have first invoked Article 5 (Art. 5) of the Convention which guarantees the right to liberty.           While the protection afforded by this provision also covers minors, it has to be noted at the outset that the care and upbringing of children normally and necessarily require the imposition of various restrictions on the child's liberty.   Thus the children in a school or in another educational or recreational institution must abide by certain rules which limit their freedom of movement and their liberty in other respects without there being a deprivation of liberty in the sense of Article 5 (Art. 5) (Eur. Court H.R., Nielsen case, judgment of 28 November 1988, Series A, no. 144, para. 61).   In the present case the Austrian authorities assumed the right of care and custody with regard to the three children, R., A. and R., and committed them to a public children's home.   It has not been shown by the applicants that the conditions in this home deprived the children of their liberty.   It follows that to this extent the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicants have further invoked Article 6 of the Convention which guarantees in paragraph 1 (Art. 6-1) first sentence that in    the determination of civil rights and obligations everyone is entitled   to a fair and public hearing within a reasonable time.           The applicants first argue that in view of the immediate effect of the measure taken in their case it should have been decided by a court and not an administrative authority.           It is true that Article 6 para. 1 (Art. 6-1) embodies the "right to a court", nevertheless it does not oblige the Contracting States to submit disputes over "civil rights and obligations" to a procedure conducted at each of its stages before "tribunals", meeting the various requirements of this Article (Art. 6).   It has been recognised in the Court's jurisprudence that demands of flexibility and efficiency,   which are fully compatible with the protection of human rights, may justify prior intervention of administrative bodies (Eur. Court H.R., Case of Le Compte, Van Leuven and de Meyere judgment of 23 June 1981, Series A no. 43, p. 23 para. 51).   In this context even such drastic measures as deprivation of liberty may be effected by administrative authorities without prior authorisation by a court (see Article 5   para. 1 (c) (Art. 5-1-c) and (d)(Art. 5-1-d)).           As far as the alleged unfairness of the proceedings is concerned, the Commission has regard to their particular nature.   Not only was the applicant parents' right to care and custody over the children at stake, but also primarily the children's right to be protected against ill-treatment or any other treatment detrimental to their physical and mental development.   This justifies that initially the applicants' counsel was not allowed access to the files of the youth authorities and that the applicant parents were heard in the absence of their lawyer.   The hearing mainly concerned matters of facts relating to the relationship between the parents and their children and it was important for the Court to get a precise impression about the applicant parents' attitude, views and actions in regard to the children.   For this purpose, counsel's presence was not required.   As to access to the files, there is nothing to show that the alleged refusal by the authorities at the first stage of the proceedings to allow the applicants' counsel to inspect the files prevented the applicants from invoking their rights in an effective manner in the proceedings.           The Commission concludes that there is no appearance of a violation of Article 6 (Art. 6) of the Convention insofar as it guarantees the right to a fair hearing.   It follows that to this extent the application is likewise manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicants' have also invoked Article 8 (Art. 8) of the Convention which guarantees the right to respect for private and family life.   In addition they consider Article 3 (Art. 3) to be violated, which forbids, inter alia, degrading treatment.   a)       While they do not seem to contest that the measure taken by the Austrian youth authorities in their case was in accordance with Austrian law and taken for the protection of the health and well-being of the three children, they submit that it was disproportionate and therefore not "necessary in a democratic society".   In their opinion the measure complained of even amounted to inhuman or degrading treatment within the meaning of Article 3 (Art. 3) of the Convention in view of its sudden and surprising nature.   They further argue that, shortly after the committal to the home, the children were examined by a doctor who should have found out that the committal was unjustified.           The Commission cannot find, however, that the committal of the children to a public childrens' home was arbitrary or that the period during which they were kept there was arbitrarily prolonged.   Even if, after their admission to the home, the children did not bear any visible signs of ill-treatment the authorities had, as found in the Youth Court's decision, sufficient reason to suspect that the children were not treated in a correct manner.   In fact, there are forms of ill-treatment which are not easily discovered by way of a preliminary medical examination.   In particular, as far as children of a young age are concerned, a period of observation may be necessary to find out whether they were exposed within their family to physical or mental ill-treatment.   It is also evident that once the youth authorities have reason to suspect that children are not correctly treated by their parents, immediate action is required in the interest of protecting their physical and mental health.   The Commission finally notes that, according to the findings of the Youth Court, which the applicant parents do not contest, the stay in the home and the examination carried out during this stay revealed that the children were underdeveloped for their age.           The Commission also notes that on 1 August 1988 the Youth Court set aside its order of 18 June 1986 stating that it was no longer necessary to supervise the children's upbringing as the parents now had voluntarily collaborated with the social assistant and the children were well taken care of.           In these circumstances the Commission cannot find that the measure complained of was so disproportionate to the legitimate aim pursued as to amount to a violation of Article 8 (Art. 8) of the Convention nor   was it implemented in a manner contrary to Article 3 (Art. 3) of the Convention.   b)       The fact that the applicant parents could, according to their submissions, only visit the children once a fortnight, also does not, in the circumstances of the present case, reveal any appearance of a violation of Article 8 (Art. 8) of the Convention. Where investigations on suspected ill-treatment of children are carried out, it may be necessary to remove the children from the influence of their parents.           There is consequently no appearance of a violation of Article 8 (Art. 8) of the Convention and to this extent the application is again manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicant parents have finally complained that they did not have access to a court to have the extent of their right to visit their children determined in proceedings separate from those which concerned the lawfulness of their children's committal to a children's home.   The Commission notes, however, that these proceedings were instituted immediately after the measure in question was taken and terminated within the relatively short period of four months. Furthermore, the question of the extent and frequency of visits by the parents to their children was closely related to the question of whether the children had been ill-treated by their parents.   In these circumstances the Commission cannot find that the alleged impossibility for the parents to complain to a court about the regulation concerning their right to visit their children during the provisional period of the children's care in a public children's home amounted to a violation of Article 6 (Art. 6) of the Convention, given the fact   that a court was seized of the matter immediately after the intervention of the youth authorities and decided about four weeks later that the children should be returned to their parents.           It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the   Convention.           For these reasons, the Comission           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission               President of the Commission             (H.C. KRÜGER)                             (C.A. NØRGAARD)