CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 juillet 1990

.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. 12875/87                       by Ingrid HOFFMANN                       against Austria             The European Commission of Human Rights sitting in private on 10 July 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   H.G. SCHERMERS                   H. DANELIUS              Sir   Basil HALL              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                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 February 1987 by Ingrid HOFFMANN against Austria and registered on 15 April 1987 under file No. 12875/87;           Having regard to        -   the report provided for in Rule 40 of the Rules of Procedure         of the Commission;        -   the Commission's decision of 13 December 1988 to bring         the application to the notice of the respondent Government         and invite them to submit written observations on its         admissibility and merits;        -   the observations submitted by the respondent Government on         14 April 1989 and the observations in reply submitted         by the applicant on 19 June 1989;        -   the parties' submissions at the oral hearing on 10 July 1990;           Having deliberated;           Decides as follows:   THE FACTS           The facts agreed by the parties may be summarised as follows:           The applicant is an Austrian citizen born in 1958 who resides in Innsbruck.   She is represented by Rechtsanwalt Dr.   Reinhard Kohlhofer of Vienna.           The applicant married in 1980.   The husband was a Roman Catholic.   Two children, a boy and a girl, were born to the couple in 1980 and 1982 respectively.   They were baptised as Roman Catholics. The applicant subsequently joined the Jehovah's Witnesses.   The children did not become Jehovah's Witnesses.           In 1984 the marriage broke down.   In August the applicant left the matrimonial home together with the children.   Divorce proceedings were subsequently instituted.   The divorce was finally pronounced in June 1986.           While the divorce proceedings were still pending, both parents applied to be granted custody of the children.   The applicant claimed that she was better qualified than her husband to care for the children to whom she could devote her full time.   The husband allegedly did not fulfil his obligation to pay maintenance for them.           The husband, on the other hand, opposed the grant of custody to the applicant, mainly on the ground that she was a Jehovah's Witness. The principles of education applied by this sect were allegedly against society (gemeinschaftsfeindlich) and intolerant.   They forbade contacts with persons of a different faith, the participation in school prayers and even harmless festivities such as the celebration of birthdays.   They also forbade patriotic manifestations such as the singing of the national anthem and, in particular, the son would suffer from this as he would have to refuse both military and civil service. Finally, there could be a danger to the life and health of the children as the Jehovah's Witnesses objected to blood transfusions.   By these principles of education the children would be unjustifiably separated from society, in particular, in kindergarten and later in school.   The applicant had already refused to send the boy to the kindergarten.           The youth office of the Innsbruck District Authority (Bezirkshauptmannschaft, Abteilung Jugendfürsorge) pronounced itself in favour of granting custodial rights to the applicant.   This view was also supported by the report of an expert on child psychology.           On 8 January 1986, the District Court (Bezirksgericht) of Innsbruck granted the applicant's application and rejected that of her husband.   It noted that the applicant did not work and therefore could devote much time to the children.   The fact that she did not send the boy to kindergarten was based on the consideration that he should not leave home too early and that there were enough contacts with other children in the neighbourhood.   She planned to send him to kindergarten in the following year.   The applicant was capable of looking after the children and caring for their education, and she actually did so.   If custody were to be given the father, who worked, they would be looked after by his mother with whom they had good contacts and who was capable of assuming that function and willing to do so.   The children had good relations with their father but the most important person for them was their mother.   According to the psychological expert opinion a separation from her would be a shock for the children.           The Court noted that the applicant had joined the Jehovah's Witnesses some time ago and that she also tried to organise her daily life in conformity with the principles of this religious group. Accordingly she would refuse consent to a blood transfusion, but she would nevertheless comply with a judicial decision ordering it.   She refused to celebrate Christmas or Easter according to the local customs with the children, but was not opposed to the children doing so with their father.   She went to meetings of the Jehovah's Witnesses twice a week, once in the evening and once on Sunday morning.   During the evening meetings the children were looked after by a baby-sitter, but she took them with her for the Sunday meeting.   She also made missionary visits about once a week, without being accompanied by the children.           While the principles of the Jehovah's Witnesses thus influenced to a certain degree the education of the children and made their integration in society more difficult, it had nevertheless not been proven that they would be completely isolated from their social environment.   Other negative influences on the living circumstances and the development of the children had not been established.   The parties disagreed on whether or not education of the children according to the principles of the Jehovah's Witnesses would push them to the margin of society (in eine gesellschaftliche Aussenseiter- position gedrängt).   However, the psychological expert had thoroughly dealt with that aspect and had concluded that, despite certain difficulties which must be expected concerning the children's integration in kindergarten or school, serious isolation from society had not occurred so far and was not to be feared in future. The applicant herself had stated that she wished to prevent isolation of her children.   The children were open-minded and capable of social contacts; they showed the signs of a harmonious development.   In conclusion the psychologist had recommended that the mother be granted custody of the children.           The custody decision was to be based exclusively on the interests of the children, having regard to the living conditions of the parents and the emotional links of the children to them.   In the present case both parents were capable of caring for and educating the children, but the father could do so only with the assistance of his mother.   Furthermore, the children had a stronger emotional link to the applicant who had looked after them for one and a half years.   During this period the children had become accustomed to the situation and had developed in a good and harmonious manner.   A change of the situation by the separation of the children from their mother would expose them to a shock and would probably lead to grave repercussions on their eventual well-being.   In the case of awarding custodial rights to the father, the children would have to be educated mainly by their grandmother.   Thus leaving them with their mother was justified since education by one of the parents must, in principle, be given precedence over education by grandparents.           The fact that the applicant belonged to the Jehovah's Witnesses and thus to a religious minority was not in itself a reason to withhold custodial rights from her.   The religious denomination of the parents was not a relevant legal criterion for the determination of parental rights according to Section 177 of the Civil Code.   In the present case it had, nevertheless, to be examined whether the religion of the applicant could have a negative influence on the education of the children and on their legitimate interests.   However, it had not been established that the children would be totally isolated from society because of their mother's religion.   The fact that she would not consent to blood transfusions was not decisive because her consent could be replaced by a judicial decision under Section 176 of the Civil Code.   The fact that she refused to celebrate festivities such as Easter or Christmas with the children was not decisive either because she had expressly declared that she would not oppose the celebration of such festivities by the children with their father. The only relevant disadvantage of the applicant's religion for the children thus was the fact that their education in conformity with the principles of this religion might, to a certain degree, interfere with their social integration.   However, this was not sufficient to conclude that the interests of the children would be so gravely impaired that to separate them from their mother, with whom they had close emotional links and to whom they were accustomed, was justified. In all circumstances, it appeared to be in the best interest of the children to award the custodial rights to the mother and not to the father.           The appeal (Rekurs) of the applicant's husband against this decision was rejected by the Innsbruck Regional Court (Landesgericht) on 14 March 1986, without the applicant having been heard on that appeal.   The Regional Court noted that the appeal was essentially based on the argument that the education of the children according to the applicant's religion would lead to wrong social attitudes (soziale Fehleinstellungen) and damage to the children because of unrealistic social isolation (soziale und realitätsfremde Isolation).   However, the Jehovah's Witnesses were a religious community not outlawed in Austria.   It must be assumed that their aims were neither unlawful nor contrary to accepted moral principles.   In view of the constitutional right to freedom of religion (Article 16 of the Basic Law on the Rights of Citizens and Article 9 of the Convention) the applicant's membership of this religious group could not therefore in itself constitute a danger to the children's interests.   While it was probable that the applicant's religion would affect the children's integration in society, the District Court had conclusively explained why the father's objections in this respect were ultimately unfounded. His new arguments did not justify another conclusion.   It was not necessary to obtain an expert opinion on the nature of the Jehovah's Witnesses, in particular their alleged lack of democratic understanding and insufficient subordination to the State.   They were a recognised religious community.   Nor was a medical expert opinion on the question of blood transfusions called for.   In case of urgency, where a judicial decision under Section 176 of the Civil Code might come too late, the medical practitioner concerned could take a decision based primarily on concern for the protection of life and only subsidiarily on the religious principles of the Jehovah's Witnesses.   Finally, it was irrelevant whether or not the applicant had acted unlawfully when taking the children with her.   Unlawful behaviour could only be relevant if it revealed a lack of aptitude for education.   This was not the case here as both children had developed harmoniously under the care of their mother and had not suffered any physical or mental damage from the latter's religion.           The applicant's husband lodged a further appeal (außer- ordentlicher Revisionsrekurs) to the Supreme Court (Oberster Gerichtshof) and the applicant was again not heard on this appeal.   On 3 September 1986 the Supreme Court allowed the appeal on the ground that the decisions of the courts below had been manifestly unlawful (offenbare Gesetzwidrigkeit) within the meaning of Section 16 of the Non-Contentious Proceedings Act (Ausserstreitgesetz).           The Supreme Court noted the father's submission that the children had earlier been educated in the spirit of the Roman Catholic Church, and that therefore their education by their mother according to the principles of the Jehovah's Witnesses violated the provisions of the Religious Education Act (Gesetz über die religiöse Kinder- erziehung, Law Gazette of the German Reich, 1921 I p. 939, re-enacted by Austrian Federal Law Gazette No. 155/1984), and also the best interest of the children.   The courts below had not examined whether the education of the children, who uncontestably were not Jehovah's Witnesses, according to the principles of this religious community violated the provisions of that Act.   According to Section 1 of the Act it was for the parents to agree on the religious education of their children.   The agreement could be revoked at any time.   If it no longer existed, Section 2 para. 1 stipulated that the principles of the Civil Code concerning child care and education were applicable. It was, however, inadmissible for one parent during the existence of the marriage to decide without the consent of the other parent that the child should be educated according to the principles of a different religion from that to which both parents had belonged at the time of marriage, or according to which the child had hitherto been educated. The education of the applicant's children in accordance with the principles of the Jehovah's Witnesses, a religious group which was not a State-recognised religious community (anerkannte Religionsgesell- schaft) and to which they did not belong, manifestly violated this provision.           Moreover, the courts below had also disregarded the children's best interest.   The applicant's refusal of consent to blood transfusions violated the children's interests because the invocation of the court to replace the consent could lead to delays endangering their life while an operation without the consent of the parent having custody would be unlawful.   The children would also be pushed to the margin of society.   These circumstances could not be disregarded when deciding for the first time which of the parents should be given custody.   While as a rule award of the custody of small children to the mother was justified, this was so only if the conditions concerning both parents were equivalent.   The mother had no priority to be accorded custody.   The disadvantages connected with a change of custody were as a rule only of limited duration and had to be accepted in the children's best interest.   There was no basis in the file for assuming that a change in the person having custodial rights would seriously affect the children's state of mind.   According to the facts established by the courts below the father was capable of educating the children with the assistance of his mother.   The children were on good terms both with him and their grandmother.   Therefore it was only by awarding the custodial rights to the father that the children's best interest could be preserved.   COMPLAINTS           The applicant originally complained of violations of her rights under Articles 9 and 14 of the Convention and under Article 2 of Protocol No. 1.   In her observations in reply to the Government's submissions she also invoked Article 8 of the Convention.           At the oral hearing on 10 July 1990 the applicant further invoked Article 6 of the Convention concerning the unilateral conduct of the appeal proceedings before the Regional Court and the Supreme Court in which she was not heard.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 20 February 1987 and registered on 15 April 1987.           On 13 December 1988, the Commission gave notice of the application to the respondent Government inviting them, in accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to submit before 10 March 1989 observations in writing on the admissibility and merits of the application.   In addition to the provisions of the Convention initially invoked by the applicant, the Commission also referred to Article 8 of the Convention in this context.           Following an extension of the time limit, the Government submitted their observations on 14 April 1989.   Following an extension of the time limit set for her reply, the applicant replied on 19 June 1989.           On 12 March 1990 the Commission decided to hold a hearing with the parties on the admissibility and merits of the case.           On 27 June 1990 the applicant submitted a preparatory note for the hearing and further material.           The hearing took place on 10 July 1990, the parties being represented as follows:           - the Government by their Agent, Botschafter Dr.   Helmut Türk, Head of the International Law Department, Federal Ministry of Foreign Affairs, who was assisted by Univ.   Ass.   Dr.   Stefan Rosenmayr, of the Constitutional Law Department, Federal Chancellery, and Staatsanwältin Dr.   Ulrike Kathrein, of the Federal Ministry of Justice, Advisers;           - the applicant, who was also present herself, by Rechtsanwalt Dr.   Reinhard Kohlhofer, Vienna, as counsel, and the following German advisers:   Rechtsanwalt Armin Pikl and Rechtsanwalt Dr.   Klaus-Peter Heym, Neu-Isenburg, Rechtsanwalt Andreas Paul, Frankfurt/Main, and Mr.   Willy K. Pohl, Selters.   THE LAW   1.       The applicant complains of the decision of the Austrian Supreme Court of 3 September 1986 by which the custody of her two children was transferred to her ex-husband on the ground that she was a Jehovah's Witness and the education of the children according to the principles of this belief was unlawful and contrary to the childrens' best interest.   She invokes Articles 8 (Art. 8), 9 (Art. 9) and 14 (Art. 14) of the Convention and Article 2 of Protocol No. 1 (P1-2) to the Convention.   These provisions read as follows:   Article 8 (Art. 8) of the Convention   "1.       Everyone has the right to respect for his private and family life, his home and his correspondence.   2.       There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."   Article 9 (Art. 9) of the Convention   "1.   Everyone has the right to freedom of thought, conscience and religion;   this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.   2.   Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."   Article 2 of Protocol No. 1 (P1-2) to the Convention   "No person shall be denied the right to education.   In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."   Article 14 (Art. 14) of the Convention   "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."   2.       The Government submit that the applicant has failed to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention insofar    as her complaint under Article 2 of Protocol No. 1 (P1-2) is concerned. According to the applicable provision of the Religious Education Act the children were to be educated as Roman Catholics.   If the applicant   wished to educate them as Jehovah's Witnesses she should have made an    application to the guardianship court under Section 2 para. 3 of this    Act.   As she did not do so, the domestic remedies were not exhausted in this respect.           The Commission notes, however, that the case does not concern proceedings aimed at changing the childrens' religious education. At the relevant time the applicant did not purport to make such a decision, nor did she educate the children with a view to influencing them to become Jehovah's Witnesses.   Only her own religious convictions as a Jehovah's Witness had certain repercussions on their education. The Supreme Court considered this as sufficient to assume a violation of the Religious Education Act and to deprive the applicant of the custody of her children.   In the custody proceedings, at issue here, the applicant could not take any further remedies after the Supreme Court's decision.   In the earlier proceedings she had asserted her claim that the way in which she actually educated the children was not sufficient to refuse her custody of the children.   The Commission concludes that, with regard to the claim under Article 2 of Protocol No. 1 (P1-2), insofar as this provision is being invoked in relation to the custody decision, domestic remedies have been exhausted.   3.       The applicant claims that the Supreme Court's decision to refuse her custody of the children, on the ground that it was inadmissible to educate them under the influence of religious convictions which she held as a Jehovah's Witness, violated her right to respect for her family life (Article 8 of the Convention), her right to freedom of religion (Article 9 of the Convention) and her right to ensure her children's education in conformity with her own religious convictions (Article 2 of Protocol No. 1).   The applicant further complains that the refusal of custody was based on her religion and therefore discriminatory (Article 14 of the Convention).           The Government deny any interference with the Convention rights invoked by the applicant.           As regards Article 8 (Art. 8), the Government claim that the Supreme Court only decided a private law dispute between the applicant and her   husband.   Even if this could be seen as a State interference with    family life, it would be justified under Article 8 para. 2 (Art. 8-2).   Following   the divorce no parent could claim an absolute right to be granted    custody of the children.   The decision was based on the predominant interests of the children, and the applicant's rights were not   restricted more than necessary.           As regards Article 9 (Art. 9) the Government claim that the Supreme   Court's decision did not interfere with the exercise of the applicant's religious freedom and even if it did, the interference would be justified under Article 9 para. 2 (Art. 9-2) as being necessary for the    protection of the rights of others and the protection of health.           As regards Article 2 of Protocol No. 1 (P1-2), the Government deny an interference because the applicant's children were not in a school or other institution required to respect the applicant's religious convictions, and because even after the transfer of custody the applicant had a limited right to influence the religious education of her children.           The Government also deny the applicability of Article 14 (Art. 14) of the Convention insofar as there was no interference with the applicant's rights under Article 8 (Art. 8) or 9 (Art. 9).   In any event they claim that the Supreme Court's decision was not discriminatory; it was necessary to transfer the custody to only one of the parents and the husband's rights concerning the religious education of the children would have been similarly affected if the custody had been granted to the applicant. The decision was based on the children's best interest as it aimed at preventing their being pushed to the margin of society and at protecting their health in case of the necessity of a blood transfusion.   4.       In the light of the parties' submissions, the Commission considers that the case raises complex issues which require to be determined as to the merits, in particular as regards the question whether the applicant has been discriminated against, on the ground of her religion, in the enjoyment of her right to respect for her family life (Article 14 read in conjunction with Article 8 of the Convention).   The issues under Article 9 of the Convention and Article 2 of Protocol No. 1 (P1-2) cannot be separated from this main issue. The application therefore cannot be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.       At the oral hearing on 10 July 1990 the applicant stated that due to the unilateral nature of the proceedings on her husband's appeals before the Regional Court and the Supreme Court, in which she was not heard at all, there has also been a violation of Article 6 (Art. 6) of the Convention.   She claimed that this issue had already been raised in her first letter to the Commission of 20 February 1987.           The Commission notes, however, that in that letter the applicant only stated that she had not been able to combat the views adopted by the Supreme Court as to their substance, since it had quashed the opposite decisions of the courts below and had immediately decided on the merits, without any further proceedings ("Eine inhaltliche Bekämpfung der vom Obersten Gerichtshof vertretenen Auffassung war mir nicht möglich, da der Oberste Gerichtshof in der zitierten Entscheidung die gegenteiligen Entscheidungen der Unterinstanzen aufgehoben und sofort, ohne weiteres Verfahren, entschieden hat").   This statement, made in the context of arguments on exhaustion of domestic remedies, was not a separate complaint. Therefore the Commission is not seised of an application concerning that issue.           For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.   Secretary to the Commission          President of the Commission         (H. C. KRÜGER)                        (C. A. NØRGAARD)