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)
Full & Egal Universal Law Academy