Moser v Austria</B> - 12643/02 [2010] ECHR 381 (4 March 2010)

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(Application No. 12643/02, judgment of 21 September 2006, final on 21 December 2006)

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 violations of the Convention found by the Court in this case concern the breach of the applicants’ (mother and son born in 2000) right to respect for their family life in that custody of the child was transferred to the Youth Welfare Office without exploring alternative solutions (violation of Article 8); it also concerns the breach of the principle of equality of arms for lack of opportunity for the first applicant to comment on reports of the Youth Welfare Office, the lack of a public hearing and lack of public pronouncement of the decisions (3 violations of Article 6, paragraph 1) (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

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

The case concerns a violation of the right to respect for family life of the applicants (mother and son, both Serbian nationals). Eight days after his birth in June 2000, the second applicant was placed with foster-parents by the Youth Welfare Office, and by a decision of 3/12/2000 the Juvenile Court transferred custody to the Youth Welfare Office. By an agreement concluded in 2005, which was still effective when the European Court delivered its judgment, the first applicant was granted visiting rights of two hours a month.

The European Court found this transfer of custody to be in violation of Article 8 for three reasons: first, because the authorities had failed to consider alternative measures allowing the applicants to stay together such as placing them in a mother and child centre; secondly, because regular contacts between the applicants had not been ensured while the proceedings were pending and thirdly, because the first applicant had not been sufficiently involved in the decision-making process (§73 of the judgment). The Youth Welfare Office based its request for a transfer of custody on the first applicant’s lack of financial means and accommodation and her unclear residence status, these reasons being endorsed by the Juvenile Court’s decision.

During the proceedings, the first applicant was not given the appropriate opportunity to comment on reports of the Youth Welfare Office, thus not involving her sufficiently in the decision-making process, this failure leading to a violation of the principle of equality of arms. Furthermore, the applicant did not receive a public hearing nor were the domestic courts’ decisions publicly pronounced (3 violations of Article 6§1).

The European Court awarded just satisfaction for non-pecuniary damages sustained by the first applicant.

In 2005 the foster-parents moved to Tulln, a town situated 36km from Vienna, where the visits are taking place since. The visits are conducted with the help of the social services to ensure that the relationship between the applicants is continued without putting the child in a situation of conflict. The foster-parents are not present during the visits due to the tense relationship between the first applicant and the foster-mother.

In June 2008 the foster-parents divorced. Since then the foster-mother has had sole custody of the child.

1) Proceedings on the first applicant’s request for extended visiting rights:

On 12/07/2007 the first applicant requested an extension of her visiting rights. On 22/05/2009, after having held several hearings, the Tulln District Court dismissed the applicant’s request, essentially on the ground of an expert opinon from a child psychologist appointed by the Court concluding that maintaining the existing visiting rights was in the best interest of the child. On the applicant’s appeal, on 7/10/2009 the St. Pölten Regional Court, after holding a hearing at which the first applicant, the foster-mother and the representative of the social services were heard, decided to extend the monthly visiting rights from two to three hours, and determined that further visits should take place around the applicants’ birthdays and Christmas.

It also ordered the Vienna Youth Welfare Office to inform the first applicant of all important developments concerning the second applicant. It dismissed the first applicant’s further request to see her son unaccompanied at shorter intervals. Acknowledging the difficulties incurred by all parties, the court appealed to mutual understanding of the various positions and welcomed the first applicant’s reasonable approach towards extending visiting rights smoothly according to the needs of the child.

On 15/10/2008 the Ministry of the Interior rejected the first applicant’s request to prolong her residence permit (proceedings having already been pending at the time of the European Court’s judgment) for failure to submit the necessary documents requested by the authorities. On 14/04/2009 the first applicant lodged a complaint with the Administrative Court against this decision. She also requested that suspensive effect be granted, which the Administrative Court granted on 17/04/2009. The proceedings are pending before the Administrative Court.

The Austrian authorities consider that given the direct effect granted to the Convention and the case-law of the European Court in Austria, the Administrative Court will examine the applicant’s situation in the light of the decision of 7/10/2009 concerning her visiting rights and taking into account her rights under Article 8 of the Convention as well as the European Court’s judgment in this case. The authorities moreover give assurances that her rights will be taken into consideration in future decisions concerning her situation with regard to her rights in respect of her child.

1) Violation of Article 8: The Austrian authorities stated that, considering the direct effect of the Convention and the European Court’s case-law in Austria, the publication of the judgment of the European Court and its dissemination to the competent authorities and courts should prevent similar violations. For this purpose, the Federal Chancellery, on 6/02/2007, sent out a summary of the judgment to the relevant Austrian authorities as well as to Parliament and courts (see http://www.bka.gv.at/DocView.axd?CobId=20443). A summary version of the judgment was published in German in the Newsletter of the Austrian Institute for Human Rights (NL 2006, p. 226, NL 06/5/02), available online at http://www.menschenrechte.ac.at/docs/06_5/06_5_02 together with a link to the Court’s judgments in English.

a) Equality of arms: The violation appears to be an isolated incident resulting from the particular circumstances of the case. In 2002, in the context of the Buchberger case (Section 6.2), the Austrian authorities provided several decisions of the Supreme Court to illustrate its constant jurisprudence according to which the principle of equality of arms is fully implemented, even in proceedings conducted under the
Non-Contentious Proceedings Act, as in the present case.

b) Lack of a public hearing and of public pronouncement: The reformed Austrian Non-Contentious Proceedings Act (entry into force on 1/01/2005) gives the judge discretion to hold family-law and guardianship proceedings in public and contains criteria for the exercise of such discretion (§ 50 of the judgment). It also allows for public pronouncement of decisions (Section 36 of the reformed Act). In this context, the publication and dissemination of the judgment mentioned above will enable domestic courts to apply theses provisions in accordance with the requirements of the Convention. It is also recalled that the judgments of the European Court against Austria in respect of cases under the Code of Civil Procedure are automatically transmitted to the President of the Supreme Court and the Presidents of the four Courts of Appeal (Oberlandesgerichte) with the request to disseminate it to all subordinate judicial authorities and to inform the authorities directly involved in the violation.

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violations 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 4 March 2010 at the 1078th meeting of the Ministers’ Deputies.

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total
-	8 000 EUR	6 694,74 EUR	14 694,74 EUR
Paid on 26/01/2007

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You are here: BAILII >> Databases >> European Court of Human Rights >> Moser v Austria</B> - 12643/02 [2010] ECHR 381 (4 March 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/381.html Cite as: [2010] ECHR 381