Resolution CM/ResDH(2010)84[1]
Execution of the judgment of the European Court of Human Rights
Sylvester against Austria
(Application No. 36812/97, judgment of 24 April 2003, final on 24 July 2003)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the breach of the applicant’s right to respect for his family life due to the Austrian court’s failure to take adequate measures to enforce court decisions ordering the return of a child to her father living in the United States (violation of Article 8) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures, preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2010)84
Information about the measures to comply with the judgment in the case of
Sylvester against Austria
Introductory case summary
The case concerns the Austrian authorities’ failure to enforce a court decision rendered in December 1995 (and final two months later) under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This decision ordered that the first applicant’s daughter (the second applicant, born in 1994), unlawfully taken away by her mother, should be returned to him in the United States. After an unsuccessful attempt to enforce that decision in May 1996, the mother lodged an appeal before the Austrian courts which set aside the enforcement of the return order by decision of August 1996 (final in October 1996) on the grounds that, due to the considerable lapse of time since the two year-old child had lost contact with her father, there would be a risk of grave psychological harm if she was separated from her mother, who had become her main person of reference. Subsequently, the second applicant’s mother was awarded sole custody of the second applicant.
The European Court noted that, in cases of this kind, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences. A change in the relevant facts may exceptionally justify the non-enforcement of a final return order under The Hague Convention, but the change must not have been brought about by the state’s failure to take all measures that could have reasonably been expected. The Court noted important delays during the period when the domestic courts dealt with the appeal lodged by the mother against the enforcement of the return order. It also indicated that the domestic authorities took no measures to create the necessary conditions for executing that order while the lengthy enforcement proceedings were pending. Consequently, it found that the Austrian authorities had failed to take, without delay, all measures that could have been reasonably expected to enforce the return order, and thereby breached the father’s and daughter’s right to respect for their family life, by allowing the passage of time to determine the outcome of the custody proceedings (violation of Article 8).
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
20 000 EUR
22 682,61 EUR
44 682,61 EUR
Paid on 24/10/2003
b) Individual measures
The European Court awarded just satisfaction for non-pecuniary damages sustained by the first applicant.
When the Court’s judgment was rendered, the first applicant, Mr Sylvester, had an out-of-court agreement (from 2001) with the child’s mother for approximately 12 days’ visit in Austria a year. After the judgment the applicant sought in vain an agreement with the mother extending these visiting rights. On 4/04/2005, the United States authorities, on Mr Sylvester’s behalf, sent the Austrian authorities a request based on Article 21 of the Hague Convention concerning extended access rights. The Austrian Central Authority sent the application to the competent court. Mr Sylvester was granted free legal aid and an Austrian lawyer was appointed to represent him in the proceedings free of charge.
The Austrian authorities indicated that, according to § 271 (1) of the Civil Code, a guardian was to be appointed ex officio during the proceedings in the case of a conflict between the interests of the child and her/his legal representative and in case the interests of the child could not be taken care of by the court itself pursuant to its general duty to mediate between the parties in cases of this kind. Subsequently, the Graz District Court obtained an expert opinion by a child psychologist, who recommended that no contact between the applicant and his daughter was to take place until May 2006, except for telephone conversations if the daughter agreed to accept them. Four court hearings took place in 2005. In March 2006, the applicant, considering that the judicial proceedings had harmed his relationship with his daughter who had refused to talk to him on the telephone since July 2005, decided to discontinue the pursuit of legal proceedings and agreed with the mother to take up out-of-court negotiations to reach an agreement on his visiting rights. In this context, he could visit his daughter at Christmas 2006. Subsequently, the applicant confirmed that he had no intention to resume legal proceedings, although he has also submitted a number of complaints regarding the manner in which the proceedings have been handled at first instance.
The authorities underlined that proceedings could be resumed on one party’s request, in particular to address the additional grievances made by the applicant, and that in this context, the wishes of the second applicant, now 16 years old, would be taken into consideration (see Section 148§1 of the Civil Code, read in conjunction with Article 12 of the 1989 UN Convention on the Rights of the Child).
In view of the situation, and taking in particular into account the measures taken by the Austrian authorities in order to ensure that Mr Sylvester has if he so wishes adequate access to court in order to protect his and his child’s interests under the Convention, it seems that no further individual measure is required for the execution of the present judgment.
II.General measures
The Austrian authorities have adopted a series of measures to ensure the prompt enforcement of return orders or visiting rights under the 1980 Hague Convention.
(a) A new law, adopted in November 2003 which entered into force in January 2005, provides a concentration of competence to deal with requests for return based on the Hague Convention. This concentration aims at specialising the judges on these issues and will facilitate their training. The law also provides explicitly that decisions in non-contentious proceedings relating to the Hague Convention are to be adopted speedily.
(b) It is possible under Austrian legislation to request, as a preliminary urgent measure while the return proceedings are pending, a right of access to the child. When ordering such access, the competent court may, under the 2003 law, decide that visits to the child by the bereft parent should be supervised by a person accompanying the child, in order to prevent the removal of the child and also to re-establish personal contacts in cases where contacts with the child have become loose. In bigger urban areas (such as Vienna or Graz), special institutions have been created for holding such visits, which also offer the possibility of supervision by social workers.
(c) According to the above legislative reform, in non-contentious proceedings concerning the return of children and concerning access to a child under the Hague Convention, a practicing lawyer is appointed to represent the applicant free of charge and without pre-condition of a means test already at the initial stage of court proceedings at the first instance.
(d) Court orders on custody or visiting rights may also be enforced ex officio under the 2003 law. Execution can be ensured more swiftly through the use of “appropriate coercive measures”, such as coercive fines or detention, provided that such measures do not endanger the well-being of a child.
(e) Additional safeguards for the prompt enforcement of judicial decisions have been provided by the EC Council Regulation No. 2201/2003 (applicable as from 1/03/2005) concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.
As regards the particular problem of ensuring the active involvement of the competent state authorities in locating children who are hidden by their parents, both the Ministry of Justice acting as Central Authority under the Hague Convention and the courts have several possibilities to trace missing children, e.g. through the centralised residence registration system (Zentrales Melderegister) or by checking with regional registries of schools. Furthermore, police authorities may be called upon to help in locating children.
Lastly, the authorities underlined that given the direct effect enjoyed by the European Convention and the case-law of the European Court in Austrian law, the competent authorities are expected to align their practice to the Convention’s requirements under Article 8 as they result from this judgment so as to provide effective assistance to persons in the applicant’s position.
For this purpose, the judgment was published in German in various law journals (in particular the Newsletter of the Austrian Human Rights Institute, NL 2003, p. 89 (NL 03/2/08), available online at and in Ecolex 2003/799). The Ministry of Justice requested the Presidents of the higher courts of Vienna, Graz, Linz and Innsbruck to send the judgment out to all judicial authorities within their area of competence. All judgments of the European Court are accessible to judges, state attorneys and to the Central Authority under the 1980 Hague Convention through the Internet database of the Austrian Federal Chancellery (RIS).
III.Conclusions of the respondent state
The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Austria has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies
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