CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 3 octobre 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sD8AE9261 { width:36.9pt; display:inline-block } .s1863C7A8 { width:149.78pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FOURTH SECTION DECISION Application no. 63543/19 Kurosch YAZDI against Austria   The European Court of Human Rights (Fourth Section), sitting on 3   October 2023 as a Committee composed of:   Faris Vehabović , President ,   Anja Seibert-Fohr,   Sebastian Răduleţu , judges , and Ilse Freiwirth, Deputy Section Registrar, Having regard to: the application (no. 63543/19) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4   December 2019 by an Austrian national, Mr Kurosch Yazdi, who was born in 1976 and lives in Leonding (“the applicant”) who was represented by Mr H. Blum, a lawyer practising in Linz; the decision to give notice of the complaints concerning Articles   6 and   8 of the Convention to the Austrian Government (“the Government”), represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1 .     The application concerns proceedings regarding custody of the applicant’s son, J., born in 2013. After their separation, in March 2017 the parents concluded a friendly settlement agreeing on shared custody, J.’s main care ( hauptsächliche Betreuung ) being with his mother, with regular contact rights for the applicant. Less than six months later the applicant requested sole custody and the transfer of J.’s main care to his household, arguing that the mother endangered J.’s well-being. Based on an expert report, at an oral hearing on 4 July 2018 the District Court Graz-West (hereinafter “the district court”) provisionally transferred J.’s main care to the applicant and J. moved in with him. It granted the mother regular contact rights with J. The Graz Regional Civil Court (hereinafter “the regional court”) upheld that decision. On 31 October 2018 the Supreme Court granted the mother’s extraordinary appeal and dismissed the applicant’s request for a temporary decision in the absence of any urgency. 2 .     On 21 November 2018, having obtained a supplementary expert opinion and conducted further oral hearings, the district court gave its ruling in the main proceedings, upholding the parents’ shared custody and transferring J.’s main care to the applicant with regular contact rights for his mother. It declared the decision provisionally binding and enforceable ( vorläufig verbindlich und vollstreckbar ). J. consequently continued to live in the applicant’s household. The district court established that – based on the results of the oral hearings and the expert reports – J. had a comparably good relationship and bonding with both parents. In principle, both parents showed pedagogical competence and custodial capacity ( pädagogische Kompetenz und Obsorgefähigkeit ). The difference was that the mother did not fully accept J.’s relationship with the applicant and that her attachment tolerance ( Bindungstoleranz ) was thus insufficient. This resulted in her making false accusations against the applicant which could irritate J. and make it hard for him to develop a long-lasting and secure bond with the applicant. Therefore, there was a negative prognosis for J.’s future development. In July 2018 the mother had started therapy in order to treat her weaknesses in attachment tolerance. The therapy would take six to twelve months. The mother also had difficulties with setting boundaries and providing structure, which resulted in J. displaying behavioural problems ( Verhaltensauffälligkeiten). She attended therapy sessions with J. at which the applicant was also present. From March   2018, positive development had been discernible in J.’s behaviour. From July 2018 (see paragraph 1 above) J. had been living with the applicant and his behaviour had further improved. For the time being and for the future it was more beneficial ( günstiger ) for J. to be in the applicant’s rather than in the mother’s main care. The change of residence (which the district court had in fact already ordered in its provisional decision dated 4 July 2018, see paragraph 1 above) would not endanger or irritate J. and was no risk factor for him since his main attachment figures remained the same. It was therefore “irrelevant if he switched from the mother’s to the father’s home”. Referring to Article 181 of the Civil Code (see paragraph 3 below), the district court concluded that J.’s well-being was best served when residing mainly with the applicant. J.’s mother challenged the transfer of J.’s main care. 3 .     The regional court upheld the outcome of the district court’s decision but based the reasoning on Article 180 § 3 rather than Article 181 of the Civil Code. It found that while Article 181 required an endangerment of the child’s well-being in order to restrict a parent’s custody rights, Article   180   §   3 allowed for a change of a final custody arrangement if the circumstances had significantly changed ( maßgebliche Änderung der Verhältnisse ). It noted, inter alia , the mother’s difficulties and J. having shown behavioural problems in the past and concluded that, should J. remain in the mother’s main care, this would result in a negative prognosis for his future development. Consequently, there had been a significant change in the circumstances. The mother lodged an extraordinary appeal against that decision. 4 .     On 29 May 2019 the Supreme Court admitted the mother’s appeal “for reasons of legal certainty” ( aus Gründen der Rechtssicherheit ) as provided for in Section 62 of the Non-Contentious Proceedings Act and overturned the district court’s and the regional court’s decisions, dismissing the applicant’s request for main care. The Supreme Court repeated the facts which the lower courts had established, based on detailed expert opinions and after having heard the parties, and which had not been disputed by the applicant. According to these facts and evidence, the mother’s weaknesses in attachment tolerance and her difficulties in setting boundaries had not had a negative effect on J.’s well ‑ being since J. had a comparably good relationship with both parents and his behavioural problems had started to improve since March 2018. The mother had started psychotherapy and positive development had been discernible. In its detailed reflections on J.’s best interests, the Supreme Court held that J.’s interests were not in danger when living with his mother so that Article 181 of the Civil Code was not applicable. For an examination of the question whether J.’s main care should change from the mother to the applicant under Article 180 § 3 of the Civil Code, a mere comparison of advantages ( Günstigkeitsvergleich) in development possibilities, based on a prognosis, as done by the regional court, was not sufficient. It was also important for the child’s best interests to keep the continuity of care and to give him a chance to a continuous development ( kontinuierliche Entwicklung ). The applicant’s request shortly after the custody settlement had contradicted this aim. The fact that the district court had temporarily transferred J.’s main care to the applicant could not be relied upon, since that decision had been unjustified. 5 .     The decision was served on 6 June 2019. In the same month, J. moved back in with his mother.   On 9 July 2021 the applicant lodged a new request with the district court, applying for J.’s main care. J. showed behavioural problems at school. On 27 July 2022, based on experts’ recommendations, the parents agreed in a settlement that J. should live in the applicant’s main care. In September 2022 he moved to the applicant’s household while the mother continued to have regular contact rights. 6.     Relying on Articles 6 and 8 of the Convention the applicant complained that the Supreme Court had not given sufficient reasons for admitting the mother’s extraordinary appeal; its decision had been unforeseeable, it had not been based on an oral hearing and it had not considered the child’s best interest. THE COURT’S ASSESSMENT As to whether the case should be struck out 7.     The Government, referring to Pisano v. Italy ((striking out) [GC], no.   36732/97, § 42, 24 October 2002), argued that the situation the applicant complained of no longer existed. The case should thus be struck out of the list of pending cases according to Article 37 § 1.b of the Convention. The applicant disagreed. 8.     Contrary to the case of Pisano (cited above), the circumstances complained of had not been resolved by the fact that J. moved back to live with the applicant in September 2022, considering that the effects of the alleged violation he had suffered between June 2019 and September 2022 had not been redressed (ibid., §   42; Penchevi v.   Bulgaria , no. 77818/12, §   49, 10   February 2015). Therefore, the Court rejects the Government’s strike-out request. It will accordingly continue to examine the parts of the application which have been communicated to the Government. Alleged violation of article 8 of the Convention 9.     The relevant principles regarding disputes between parents about custody and residence of their children were summarised in the case of etrov and X v. Russia (no. 23608/16, §§ 98-101, 23   October 2018). It was undisputed that the Supreme Court’s decision of 29 May 2019 (see paragraph   4 above) disclosed an interference with the applicant’s family life. The Court has to examine whether this interference complied with the requirements of Article   8   §   2 of the Convention. 10.     When assessing whether an interference with Article 8 had a legal basis, the Court’s role is confined to ascertaining whether the interpretation is compatible with the Convention ( Neulinger and Shuruk v.   Switzerland   [GC], no. 41615/07, §   100, ECHR 2010). The Supreme Court’s decision to admit the mother’s extraordinary appeal was based on Section   62 of the Non ‑ Contentious Proceedings Act (see paragraph 4 above). Its interpretation of Articles 180 and 181 of the Civil Code was in line with its previous case ‑ law (see, for example, decision dated 18   December 2014, no.   3   Ob   212/14v) and not manifestly unreasonable. It was therefore in accordance with the law. 11.     The Court accepts that the interference pursued the legitimate aim of protecting children from incessant custody proceedings and providing a stable and continuous custody situation. It remains to be determined whether it was “necessary in a democratic society”. 12.     When striking a fair balance between the interests of the child and those of the parents, domestic authorities must attach particular importance to the best interests of the child. The Court cannot assess whether the reasons advanced by the domestic courts were “sufficient” for the purposes of Article   8   §   2 without at the same time determining whether the decision ‑ making process, seen as a whole, was fair ( Petrov and X , cited above, §§   100 ‑ 01). 13 .     The applicant was assisted by counsel and had the opportunity to present his arguments in writing and orally. The facts established by the district court were based on detailed expert opinions which had not been contested by the applicant. The expert had been questioned by the parties during thorough oral hearings (contrast, Petrov and X., cited above, § 109; or   Penchevi , cited above, §   69, in neither of which case an expert opinion had been obtained). While the expert f ound it more beneficial for J. to live with the applicant, the Supreme Court explained that – based on the established facts – there was no reason to change J.’s main care, as a mere comparison of advantages did not constitute a sufficient reason for a change which contradicted the aim of the child’s continuous development. The Supreme Court saw the need to grant the mother’s extraordinary appeal in the interest of legal certainty and to clarify the requirements of Articles   180 and   181 of the Civil Code (see paragraph 3 above). The relevant legal questions had already been discussed in the mother’s appeals and in the applicant’s responses to the appeals and could thus have been foreseen by the applicant. Referring to its previous case-law (see the Supreme Court’s judgment no.   3   Ob   212/14v, cited above) in which it had emphasised the meaning of continuance in child welfare cases, the Supreme Court concluded that the applicant’s request six months after the parents’ friendly settlement had impeded the aim of a continuous upbringing of J. It found that contrary to the applicant’s argument, he could not rely on the fact that, following a provisional decision by the district court, J. had been living with him for several months, since that decision had not been justified (see paragraph   4 above). Based on those considerations the Court cannot agree with the applicant that the Supreme Court’s decision had been unforeseeable or that the decision-making process was in any other way unfair. The Court notes that a purely legal question concerning the protection of the child’s best interests had been at issue before the Supreme Court which the latter had dealt with based on the facts as established by the lower courts, without calling into question the expert’s findings. There had thus been no need for a further oral hearing or expert opinion. Consequently, the Court is satisfied that the procedural requirements implicit in Article 8 of the Convention were complied with. 14.     When assessing whether the Supreme Court struck a fair balance between the competing interests at stake, the Court notes that the scope of the order was limited to where J. would live (compare, Petrov and X. , cited above, § 104). Both parents had regular contacts with J. throughout the proceedings and actively exercised their custody rights. Within its large margin of appreciation (ibid., § 99 with reference to Sahin v.   Germany [GC], no.   30943/96, § 65, ECHR 2003-VIII) the Supreme Court assessed the inadequacies in the mother’s behaviour, the positive development from March 2018 following therapy sessions and the equally good relationship of J. with each of his parents, who were both in principle capable of caring for him (see paragraph 2 above). Not being able to consider circumstances which occurred after its decision (see paragraph 5 above), the Supreme Court concluded that the situation had not significantly changed so as to justify a change in the care arrangement settled on by the parents. 15.     The Court does not overlook the considerable burden it must have been for J. to move back and forth between his parents twice (see paragraphs   1 and   5 above). However, the parties did not dispute the fact established by the district court that changing the place of main care did not constitute a risk factor for J. (see paragraph 2 above). 16.     Overall, the Court can accept that the reasons given by the Supreme Court were relevant and sufficient within the state’s margin of appreciation. In consequence, the applicant’s complaint is inadmissible as being manifestly ill-founded pursuant to Article   35 §§ 3(a) and 4 of the Convention. alleged violation of article 6 § 1 of the convention 17.     Complaining of the unfairness of the proceedings before the Supreme Court the applicant also relied on Article 6 § 1 of the Convention. The difference between the purposes pursued by the safeguards afforded by Article   6   §   1 and Article 8, respectively, may justify an examination of the same set of facts under both Articles ( Görgülü v. Germany , no.   74969/01, §   58, 26 February 2004, with further references). 18.     The Court finds no indication that the proceedings before the Supreme Court infringed the fairness requirements at the heart of Article   6   §   1 (compare paragraph 13 above). The Supreme Court gave reasons to admit the mother’s extraordinary appeal. Its decision was based on the established facts and not unforeseeable. It addressed only questions of law which did not require an oral hearing. Overall, there is no indication that the proceedings were unfair or arbitrary. The complaint under Article 6 is therefore inadmissible as manifestly ill-founded pursuant to Article 35 §§ 3(a) and 4 of the Convention.   For these reasons, the Court, unanimously Declares the application inadmissible. Done in English and notified in writing on 26 October 2023.     Ilse Freiwirth   Faris Vehabović   Deputy Registrar   President