In the case of Hoffmann v. Austria*,
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention")** and the relevant provisions of the Rules of Court,
as a Chamber composed of the following judges: Mr R. Bernhardt, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr C. Russo,
Mr N. Valticos,
Mr I. Foighel,
Mr M.A. Lopes Rocha,
Mr G. Mifsud Bonnici,and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 29 January and
26 May 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 15/1992/360/434. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 13 April 1992,
within the three-month period laid down in Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 12875/87) against the Republic of Austria
lodged with the Commission under Article 25 (art. 25) by an
Austrian, Mrs Ingrid Hoffmann, on 20 February 1987. The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Austria
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Articles 8, 9 and 14
(art. 8, art. 9, art. 14) of the Convention and Article 2 of
Protocol No. 1 (P1-2).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that she wished to take part in the proceedings and designated
the lawyer who would represent her (Rule 30). The President gave
him leave to use the German language during the proceedings
(Rule 27 para. 3).
3. The Chamber to be constituted included ex officio
Mr F. Matscher, the elected judge of Austrian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 25 April 1992
the President drew by lot, in the presence of the Registrar, the
names of the other seven members, namely Mr L.-E Pettiti,
Mr B. Walsh, Mr R. Macdonald, Mr C. Russo, Mr N. Valticos,
Mr I. Foighel and Mr G. Mifsud Bonnici (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43). Mr Macdonald was
later replaced by Mr M.A. Lopes Rocha, substitute judge, as he
was unable to attend (Rules 22 para. 1 and 24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Austrian Government ("the Government"), the Delegate of
the Commission and the applicant's representative on the
organisation of the proceedings (Rules 37 para. 1 and 38).
Pursuant to the resulting orders and instructions, the Registrar
received the memorial of the applicant and the memorial of the
Government on 17 September 1992 and 21 September 1992
respectively. The Secretary to the Commission indicated that the
Delegate would submit her observations at the hearing.5. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 25 January 1993. The Court had held a preparatory meeting
beforehand. Mr R. Bernhardt, the Vice-President of the Court,
replaced Mr Ryssdal, who was unable to attend (Rule 21
para. 5, second sub-paragraph).
There appeared before the Court:
(a) for the Government
Mr W. Okresek, Federal Chancellery, Agent,
Mr F. Haug, Federal Ministry for Foreign Affairs,Adviser;(b) for the Commission
Mrs J. Liddy, Delegate;
(c) for the applicant
Mr R. Kohlhofer, Rechtsanwalt, Counsel,
Mr A. Garay, Avocat, Counsel,
Mr H. Renoldner, Adviser. The Court heard their addresses as well as replies to the
questions of some of its members.
AS TO THE FACTS
I. The particular circumstances of the case
A. Introduction
6. Mrs Ingrid Hoffmann is an Austrian citizen residing in
Gaissau. She is a housewife.
7. In 1980 Mrs Hoffmann - then Miss Berger - married Mr S.,
a telephone technician. At that time, they were both Roman
Catholics.
Two children were born to them, a son, Martin, in 1980
and a daughter, Sandra, in 1982. They were baptised as Roman
Catholics.
8. The applicant left the Roman Catholic Church to become a
Jehovah's Witness.
9. On 17 October 1983 the applicant instituted divorce
proceedings against Mr S. She left him in August or
September 1984 while the proceedings were still pending, taking
the children with her.
The divorce was pronounced on 12 June 1986.
B. Proceedings before the Innsbruck District Court
10. Following their separation, both the applicant and Mr S.
applied to the Innsbruck District Court (Bezirksgericht) to be
granted parental rights (Elternrechte) over the children.
Mr S. submitted that if the children were left in the
applicant's care, there was a risk that they would be brought up
in a way that would do them harm. He claimed that the
educational principles of the religious denomination to which the
applicant belonged were hostile to society, in that they
discouraged all intercourse with non-members, all expressions of
patriotism (such as singing the national anthem) and religious
tolerance. All this would lead to the children's social
isolation. In addition, the Jehovah's Witnesses' ban on blood
transfusions might give rise to situations in which their life
or their health was endangered.
With regard to the son, Martin, Mr S. noted that he would
eventually have to refuse to perform military service or even the
civilian service exacted in its stead.
The applicant claimed that she was better placed to take
care of the children, being in a position to devote herself to
them completely, and as a mother better able to provide them with
the necessary family environment. She alleged that Mr S. did not
even provide for their maintenance, as he was both legally and
morally bound to do. She acknowledged, however, that she
intended to bring the children up in her own faith.
The youth office of the Innsbruck District Authority
(Bezirkshauptmannschaft, Abteilung Jugendfürsorge) expressed a
preference for granting parental rights to the applicant; it
referred to, inter alia, the expert opinion of a child
psychologist.
11. By decision of 8 January 1986, the District Court granted
parental rights to the applicant and denied them to Mr S.
According to its reasoning, only the children's
well-being fell to be considered. The material living conditions
of both parents were such that either of them would be able to
take proper care of the children; however, the father would need
his mother's help. The children had stronger emotional ties with
the applicant, having lived with her for a year and a half
already, and separating them from her might cause them
psychological harm. It followed that it was preferable to leave
the children with the mother.
The District Court further observed:
"As against this, it has been stated by the children's
father, essentially as his only argument, that Ingrid
S.'s membership of the religious community of the
Jehovah's Witnesses has serious detrimental effects on
the children. As to this, it ought to be made clear
right away that in no case are parents' religious
convictions as such a relevant criterion in deciding on
parental rights and duties pursuant to Article 177
para. 2 of the Civil Code. These rights cannot be
refused to a parent or withheld from him for the sole
reason that he or she belongs to a religious minority. However, in the concrete case it needs to be examined
whether the mother's religious convictions have a
negative influence on her upbringing of the children
which should be taken into account and whether their
well-being is impaired as a result. It appears in
particular that Ingrid S. would not allow blood
transfusions to be given to her children; that for
herself she rejects communal celebration of such
customary holidays as Christmas or Easter; that the
children experience a certain tension in relation to an
environment which does not correspond to their faith; and
that their integration in societal institutions such as
kindergarten and school is made more difficult. However,
the father's apprehension of complete social isolation as
a result of the mother's religion does not appear
well-founded in the light of the established facts. In
addition, no possible dangers to either child's
development have appeared in the course of the
establishment of the facts. It is true that the facts adduced (blood transfusions,
holidays, impaired social integration) are in principle
capable of having detrimental effects on the children.
This point must now be examined in the context of the
particular case. It appears first of all that the
father's argument that Martin and Sandra would be exposed
in an emergency to serious danger to their life and
health by the refusal of a blood transfusion is not of
decisive importance. In the absence of parental
permission for a medically necessary blood transfusion to
either child, such permission can be replaced by a
judicial decision in accordance with Article 176 of the
Civil Code (compare the decision of the Innsbruck
Regional Court (Landesgericht) of 3 July 1979,
4R 128/79). In any case, according to this legal
provision, anyone can apply to the court for an order
that is necessary to ensure the welfare of the child when
the parent endangers it by his conduct. In view of this
possibility of applying to the court, which is available
at all times, no danger to the children need be inferred
from the mother's attitude to blood transfusions. As for Ingrid S.'s rejection of holidays, notice must be
taken of her express agreement to allow the father to
take the children on such occasions and celebrate them
with the children as he sees fit. The mother's religious
convictions thus do not deprive Martin and Sandra of the
possibility of celebrating these holidays in the usual
way, so that no detriment to the children can be found in
this regard either. Of the reservations with regard to the mother's
upbringing of the children resulting from her religion
the only remaining one of any significance is the
circumstance that Martin and Sandra will in later life
experience somewhat more difficulty in finding their way
in social groups as a result of the religious precepts of
the Jehovah's Witnesses and will find themselves to some
extent in a special position. However, the court cannot
consider this so detrimental to the children's welfare
that they should for that reason not be entrusted to
their mother, with whom they have such a close
psychological relationship and to whose care they are
accustomed. Careful consideration must lead to the
conclusion that in spite of more difficult social
integration, as discussed above, it appears to be more in
the interest of the children's welfare to grant parental
rights to the mother than to transfer them to the
father." C. Proceedings before the Innsbruck Regional Court
12. Mr S. appealed against the above decision to the
Innsbruck Regional Court (Landesgericht).
13. The Regional Court rejected the appeal by decision of
14 March 1986. Its grounds for so doing were the following:
"The main thrust of the appeal is to argue that the
decision of the first-instance court is incompatible with
the children's welfare in view of the mother's membership
of the religious community of the Jehovah's Witnesses.
In this connection, the appellant discusses the criteria
and objectives peculiar to that religious community and
the resulting social attitudes, which are in his opinion
wrong; it follows, in his view, that both children are
bound to suffer harm if the parental rights and duties
are assigned to the mother, and in particular that they
may be forced into social isolation removed from reality. The appellant's line of argument in this regard is
unsound. The Jehovah's Witnesses, formerly known as
Serious Bible Students, a community based upon their own
interpretation of the Bible, are not outlawed in Austria;
it may therefore be assumed that their objectives neither
infringe the law nor offend morality (see Article 16 of
the Basic Law in conjunction with Article 9 (art. 9) of
the European Convention on Human Rights). Therefore, the
mother's membership of that religious community cannot of
itself constitute a danger to the children's welfare ... Admittedly, the mother's religion will in all probability
affect the children's care and upbringing, and they may
come to experience a certain tension in relation to an
environment which does not correspond to their faith.
The first-instance court has already dealt at length with
part of the appellant's arguments that relate thereto and
has given detailed and conclusive reasons why the
father's objections against assigning the parental rights
and duties to the mother cannot in the final instance be
decisive. The new points raised on appeal - relating to
a lack of understanding of democracy and a lack of
subordination to the State - cannot cast doubt on the
first-instance decision as regards the children's
welfare; it suffices in this respect to recall the legal
recognition of the religious community of the Jehovah's
Witnesses, which meant, contrary to the appellant's
allegation, that the first-instance court did not in fact
need to seek ex officio an expert opinion on the
objectives or the 'nature' of the Jehovah's Witnesses.
Nor were the first-instance proceedings incomplete
because no expert medical opinion was sought regarding
the question, which was raised anew on appeal, of blood
transfusions, which are rejected by the Jehovah's
Witnesses; in the event that a judicial remedy (a
decision pursuant to Article 176 of the Civil Code)
arrives too late, it will in the final instance be up to
the physician treating the patient, when confronted with
the problem, to reach a decision, with a view in the
first place to life-saving medical action and only in the
second place taking into account the rejection of blood
transfusions which is peculiar to the Jehovah's
Witnesses. The appellant's further line of argument - to the effect
that a properly arranged transfer of the children to
himself and properly arranged visiting rights for the
mother could not cause the same shock as had the mother's
forcible removal of the children, and that the decision
under appeal had legalised her unilateral action - also
fails to convince. The appellant overlooks the fact
that, in view of the paramount importance of the
children's welfare, the way in which they reached the
place where they are currently being taken care of is not
necessarily decisive. Even illegal conduct would be of
relevance only to the extent that it might, in an
individual case, be possible to infer therefrom a lack of
suitability for care or upbringing; it is not otherwise
decisive for determining the attribution of parental
rights and duties whether or not the parent concerned has
taken charge of the children without authorisation. It
remains true, however, that both children have for a long
time developed harmoniously in the mother's care, that
there is a closer relationship with her than with the
father, and that, whatever the religious or philosophical
views of the mother, neither child has suffered any harm
in his or her physical or - particularly - psychological
development; in fact the appellant could not seriously
claim that they had actually suffered in the latter
respect." D. Proceedings before the Supreme Court
14. Mr S. lodged an appeal on points of law
(außerordentlicher Revisionsrekurs) with the Supreme Court
(Oberster Gerichtshof).
15. By decision of 3 September 1986, the Supreme Court
overturned the judgment of the Innsbruck Regional Court, granting
parental rights to Mr S. instead of the applicant. It gave the
following reasons:
"The appellant has not hitherto claimed that the children
belonged to the Roman Catholic faith; however, he has
stated, and it has in fact been established, that the
mother is bringing them up according to the principles of
the Jehovah's Witnesses' teaching. It is also
uncontested that the children do not belong to this
confession. The lower courts had therefore to examine
whether or not the mother's bringing up the children in
this way contravened the provisions of the Federal Law of
1985 on the Religious Education of Children (Bundesgesetz
über die religiöse Kindererziehung), BGBl
(Bundesgesetzblatt, Federal official Gazette) 1985/155
(re-enactment of the Law of 15 July 1921 on the Religious
Education of Children, dRGB (deutsches Reichsgesetzblatt,
German Reich Gazette) I. 939). According to Article 1 of
the 1921 Act the religious education of a child shall be
decided upon by an agreement freely entered into by the
parents, in so far as the responsibility for his or her
care and upbringing is vested in them. Such an agreement
may be revoked at any time and is terminated by the death
of either spouse. Article 2, paragraph 1, of the 1921
Act lays down that if such an agreement does not or
ceases to exist, the provisions of the Civil Code on the
care and upbringing of children shall extend to their
religious education. However, according to Article 2,
paragraph 2 of the 1921 Act, during the existence of the
marriage neither parent may decide without the consent of
the other that the child is to be brought up in a faith
different from that shared by both parents at the time of
the marriage or from that in which he or she has hitherto
been brought up. Since in any case the children do not belong to the faith
of the Jehovah's Witnesses, their education according to
the principles of this sect (which is not, as the
appellant rightly points out, a recognised religious
community: see Adamovich-Funk, Österreichisches
Verfassungsrecht, [Austrian Constitutional Law], Vol. 3,
p. 415) contravenes Article 2, paragraph 2, of the
1921 Act. The Regional Court's failure to apply this
provision is obviously in breach of the law. Moreover, the lower courts also failed in their decisions
to give due consideration to the children's
welfare ... . That the mother, as has been established,
would refuse to consent to the children's receiving a
necessary blood transfusion constitutes a danger to their
well-being, since requesting a court to substitute its
consent for that of the mother ... may in urgent cases
involve a life-threatening delay and medical intervention
without seeking the approval of the person entitled to
take care of the child is considered contrary to the
law ... . It has also been established that if the
children are educated according to the religious teaching
of the Jehovah's Witnesses, they will become social
outcasts. In the initial decision as to which of the
spouses is to have the right to provide care and
upbringing, these circumstances cannot be ignored.
Although it is preferable for young children to be taken
care of by their mother ..., this applies only provided
that all other things are equal ... . There is no
maternal privilege as regards the attribution of parental
right ... . The stress caused to the children by being
transferred to the care of the other parent, which in any
case is usually transitory, has to be accepted in their
own best interests ... . The file contains no
documentary basis for the assumption that a change to
another carer 'would with a high degree of probability
cause the children serious psychological harm' ... .
Even according to the opinion of the lower courts, the
father is able to see to the children's upbringing, since
they have a good relationship with him and with their
grandmother, who would take charge of their care and
upbringing during the father's absence at work; the
availability of accommodation for the children in the
house of the father's parents is assured. Therefore,
only transfer of parental rights and duties to the father
is in the children's interest."II. Jehovah's witnesses
16. Numbering about four million worldwide not counting
uninitiated sympathisers, the Jehovah's Witnesses form a
particular religious movement. It originated in America in the
1870s. Formerly known by names such as International Bible
Students, the Jehovah's Witnesses took their present name in
1931.
17. A central feature of Jehovah's Witness doctrine is the
belief that the Holy Scriptures in the original Hebrew and Greek
are the revealed word of Jehovah God and must therefore be taken
as literal truth.
The refusal to accept blood transfusions is based on
several scriptural references, most notably Acts 15: 28-29, which
reads (New World translation):
"For the holy spirit and we ourselves have favored adding
no further burden to you, except these necessary things,
to keep abstaining from things sacrificed to idols and
from blood and from things strangled and from
fornication. If you carefully keep yourselves from these
things, you will prosper ..."III. Relevant domestic law
A. The Civil Code
18. Article 177 of the Austrian Civil Code (Allgemeines
Bürgerliches Gesetzbuch) deals with the custody of children in
an event such as the dissolution of their parents' marriage by
divorce. It reads:
"(1) Where the marriage between the parents of a
legitimate minor has been dissolved, annulled or declared
void, or where the parents are separated other than
merely for a temporary period, they may submit to the
court an agreement concerning which of them shall in the
future have custody of the child. The court shall
approve the agreement if it is in the interests of the
child's welfare. (2) Where no agreement is reached within a reasonable
time, or if the agreement reached is not in the interest
of the child's welfare, the court shall decide which
parent is to have sole custody of the child in the
future; in the case of a separation of the parents which
is not merely temporary, such a decision shall be taken
only on application by one of them."19. Both during and after the parents' marriage, the court
may be called upon to substitute its approval or consent for that
of the parents (or parent). The relevant provision is
Article 176, which reads:
"Where the conduct of the parents threatens the welfare
of a minor, the court shall be required, irrespective of
who has applied to it, to make the orders necessary for
the protection of the child's welfare. Such an order may
also be made on application by one of the parents when
the parents have failed to reach an agreement concerning
a matter of importance to the child. In particular the
court may withdraw custody of a child, either wholly or
in part, including rights of approval and consent
provided by law. In individual cases the court is also
required to substitute its approval or consent for
parental approval or consent required by law, when there
is no justified reason for refusal."20. In taking decisions under Articles 176 and 177, the
courts follow the criteria set out in Article 178a, which reads:
"In assessing the interests of the minor, his or her
personality and needs must be duly taken into
consideration, particularly his or her talents,
abilities, inclinations and developmental opportunities,
as well as the material circumstances of the parents." B. Regulation of religious life
21. Religious freedom is guaranteed by Article 14 of the
Basic Law (Staatsgrundgesetz), which reads:
"(1) Complete freedom of beliefs and conscience is
guaranteed to everyone. (2) Enjoyment of civil and political rights shall be
independent of religious confessions; however, a
religious confession may not stand in the way of civic
duties. (3) No one shall be compelled to take any church-related
action or to participate in any church-related
celebration, except in pursuance of a power conferred by
law on another person to whose authority he is subject."22. Austria has a system of recognition of religious
communities. It is governed by the Act of 20 May 1874 concerning
the Legal Recognition of Religious Communities (Gesetz betreffend
die gesetzliche Anerkennung von Religionsgesellschaften), RGBl
(Reichsgesetzblatt, Official Gazette of the Austrian Empire)
1874/68. Only five religious communities are so recognised,
among them the Roman Catholic Church but not the Jehovah's
Witnesses. Religious groupings without legal recognition have
legal personality as "societies" (Vereine) under the general law.
23. The religious education of children is governed by the
Federal Act on the Religious Education of Children, which
re-enacted a German law dating from 1921 that was incorporated
into Austrian law in 1939 (see paragraph 15 above).
Article 1 reads:
"The religious education of a child shall be decided upon
by an agreement freely entered into by the parents, in so
far as the responsibility for the child's care and
upbringing is vested in them. Such an agreement may be
revoked at any time and is terminated by the death of
either spouse." Article 2 reads:
"(1) If such an agreement does not or ceases to exist,the
provisions of the Civil Code on the care and upbringing
of children shall extend to their religious education. (2) During the existence of their marriage neither parent
may decide without the consent of the other that the
child is to be brought up in a faith different from that
shared by both parents at the time of their marriage or
from that in which he or she has hitherto been brought
up, or that a child is to cease to attend religious
education classes. (3) In the absence of such consent, application may be
made for the mediation of, or a decision by, the
guardianship court. In any such decision the interests
of education shall be paramount even in cases not covered
by Article 176 of the Civil Code. Before the decision is
taken the child's parents, and if necessary relatives,
relatives by marriage and teachers, must be heard if this
is possible without significant delays or
disproportionate costs. The child itself must be heard
if it has reached the age of ten." C. Medical action
24. The need for parental permission for administering blood
transfusions to minors follows from the law governing medical
action in general.
Thus, the Hospitals Act (Krankenanstaltengesetz),
BGBl 1/1957, lays down in Article 8:
"(1)...
(2) Hospital patients may be medically treated only in
accordance with the principles and recognised methods of
medical science. (3) Special curative treatments including surgical
operations may be carried out on a patient only with his
consent, but if the patient has not yet reached the age
of eighteen or if because he lacks mental maturity or
health he cannot assess the necessity or usefulness of
the treatment, only with the consent of his legal
representative. Consent is not required if the treatment
is so urgently necessary that the delay involved in
obtaining the consent of the patient or his legal
representative or in appointing a legal representative
would endanger his life or would entail the danger of
serious harm to his health. The medical director of the
hospital or the doctor responsible for the management of
the hospital department concerned shall decide on the
necessity and urgency of treatment."25. It is a criminal offence to administer medical treatment
without the requisite consent; this follows from Article 110 of
the Criminal Code (Strafgesetzbuch), which reads:
"(1) Whoever treats another person, even according to the
rules of medical science, without having obtained that
person's consent, shall be liable to imprisonment for up
to six months or to a fine of up to 360 daily rates. (2) If the offender has failed to obtain the consent of
the patient because he assumed that a delay in the
treatment would entail a serious risk for the life or
health of the patient, he shall be punished according to
paragraph 1 only if the assumed risk did not exist and if
by taking due care ... he could have been aware of this. (3) The offender shall be punished only at the request of
the person who underwent unauthorised treatment."PROCEEDINGS BEFORE THE COMMISSION
26. Mrs Hoffmann applied to the Commission on
20 February 1987. She complained that she had been denied
custody of the children on the ground of her religious
convictions. She invoked her right to respect for her family
life (Article 8 of the Convention) (art. 8), her right to freedom
of religion (Article 9) (art. 9) and her right to ensure the
education of her children in conformity with her own religious
convictions (Article 2 of Protocol No. 1) (P1-2); she further
claimed that she had been discriminated against on the ground of
religion (Article 14) (art. 14).
27. The application (no. 12875/87) was declared admissible on
10 July 1990. In its report of 16 January 1992 (Article 31)
(art. 31), the Commission expressed the opinion:
(a) by eight votes to six, that there had been a
violation of Article 8 read in conjunction with Article 14
(art. 14+8);
(b) by twelve votes to two, that no separate issue arose
in regard to Article 9 (art. 9) taken separately or in
conjunction with Article 14 (art. 14+9);
(c) unanimously, that there had been no violation of
Article 2 of Protocol No. 1 (P1-2).
The full text of the Commission's opinion and of the
separate opinions contained in the report is reproduced as an
annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment
(volume 255-C of Series A of the Publications of the Court), but
a copy of the Commission's report is available from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8), TAKEN ALONE AND
IN CONJUNCTION WITH ARTICLE 14 (art. 14+8)28. The applicant complained that the Austrian Supreme Court
had awarded parental rights over the children Martin and Sandra
to their father in preference to herself, because she was a
member of the religious community of Jehovah's Witnesses; she
claimed a violation of her rights under Article 8 (art. 8) of the
Convention, both taken alone and read in conjunction with
Article 14 (art. 14+8).
The Government denied that there had been a violation at
all, whereas the Commission agreed that there had been a
violation of Article 8 taken in conjunction with Article 14
(art. 14+8).
29. According to Article 8 para. 1 (art. 8-1) of the
Convention, "Everyone has the right to respect for his private
and family life, his home and his correspondence."
The Court notes at the outset that the children had lived
with the applicant for two years after she had left with them
before the judgment of the Supreme Court of 3 September 1986
compelled the applicant to give them up to their father. The
Supreme Court's decision therefore constitutes an interference
with the applicant's right to respect for her family life and the
case thus falls within the ambit of Article 8 (art. 8). The fact
relied on by the Government in support of the opposite view,
namely that the Supreme Court's decision was taken in the context
of a dispute between private individuals, makes no difference in
this respect.
A. Alleged violation of Article 8 taken in conjunction with
Article 14 (art. 14+8)30. In view of the nature of the allegations made, the Court,
like the Commission, considers it appropriate to examine the
present case under Article 8 taken in conjunction with
Article 14 (art. 14+8), which reads as follows:
"The enjoyment of the rights and freedoms set forth in
[the] 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."31. In the enjoyment of the rights and freedoms guaranteed by
the Convention, Article 14 (art. 14) affords protection against
different treatment, without an objective and reasonable
justification, of persons in similar situations (see, amongst
other authorities, the Sunday Times v. the United Kingdom
(no. 2) judgment of 26 November 1991, Series A no. 217, p. 32,
para. 58).
It must first be determined whether the applicant can
claim to have undergone different treatment.
32. In awarding parental rights - claimed by both parties -
to the mother in preference to the father, the Innsbruck District
Court and Regional Court had to deal with the question whether
the applicant was fit to bear responsibility for the children's
care and upbringing. In so doing they took account of the
practical consequences of the religious convictions of the
Jehovah's Witnesses, including their rejection of holidays such
as Christmas and Easter which are customarily celebrated by the
majority of the Austrian population, their opposition to the
administration of blood transfusions, and in general their
position as a social minority living by its own distinctive
rules. The District and Regional Courts took note of the
applicant's statement to the effect that she was prepared to
allow the children to celebrate holidays with their father, who
had remained Roman Catholic, and to allow the administration of
blood transfusions to the children if and when required by law;
they also considered the psychological relationship existing
between the children (who were very young at the time) and the
applicant and her general suitability as a carer.
In assessing the interests of the children, the Supreme
Court considered the possible effects on their social life of
being associated with a particular religious minority and the
hazards attaching to the applicant's total rejection of blood
transfusions not only for herself but - in the absence of a court
order - for her children as well; that is, possible negative
effects of her membership of the religious community of Jehovah's
Witnesses. It weighed them against the possibility that
transferring the children to the care of their father might cause
them psychological stress, which in its opinion had to be
accepted in their own best interests.
33. This Court does not deny that, depending on the
circumstances of the case, the factors relied on by the Austrian
Supreme Court in support of its decision may in themselves be
capable of tipping the scales in favour of one parent rather than
the other. However, the Supreme Court also introduced a new
element, namely the Federal Act on the Religious Education of
Children (see paragraphs 15 and 23 above). This factor was
clearly decisive for the Supreme Court.
The European Court therefore accepts that there has been
a difference in treatment and that that difference was on the
ground of religion; this conclusion is supported by the tone and
phrasing of the Supreme Court's considerations regarding the
practical consequences of the applicant's religion.
Such a difference in treatment is discriminatory in the
absence of an "objective and reasonable justification", that is,
if it is not justified by a "legitimate aim" and if there is no
"reasonable relationship of proportionality between the means
employed and the aim sought to be realised" (see, amongst other
authorities, the Darby v. Sweden judgment of 23 October 1990,
Series A no. 187, p. 12, para. 31).
34. The aim pursued by the judgment of the Supreme Court was
a legitimate one, namely the protection of the health and rights
of the children; it must now be examined whether the second
requirement was also satisfied.
35. In the present context, reference may be made to
Article 5 of Protocol No. 7 (P7-5), which entered into force for
Austria on 1 November 1988; although it was not prayed in aid in
the present proceedings, it provides for the fundamental equality
of spouses inter alia as regards parental rights and makes it
clear that in cases of this nature the interests of the children
are paramount.
36. In so far as the Austrian Supreme Court did not rely
solely on the Federal Act on the Religious Education of Children,
it weighed the facts differently from the courts below, whose
reasoning was moreover supported by psychological expert opinion.
Notwithstanding any possible arguments to the contrary, a
distinction based essentially on a difference in religion alone
is not acceptable.
The Court therefore cannot find that a reasonable
relationship of proportionality existed between the means
employed and the aim pursued; there has accordingly been a
violation of Article 8 taken in conjunction with Article 14
(art. 14+8).
B. Alleged violation of Article 8 (art. 8) taken alone
37. In view of the conclusion reached in paragraph 36 above,
the Court does not consider it necessary to rule on the
allegation of a violation of Article 8 (art. 8) taken alone; the
arguments advanced in this respect are in any case the same as
those examined in respect of Article 8 taken in conjunction with
Article 14 (art. 14+8).
II. ALLEGED VIOLATION OF ARTICLE 9 (art. 9)
38. The Court considers, as did the Commission, that no
separate issue arises under Article 9 (art. 9) either taken alone
or read in conjunction with Article 14 (art. 14+9), since the
factual circumstances relied on as the basis of this complaint
are the same as those which are at the root of the complaint
under Article 8 taken in conjunction with Article 14 (art. 14+8),
of which a violation has been found.
III. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 (P1-2)
39. The applicant's complaint under Article 2 of
Protocol No. 1 (P1-2) was not pursued before the Court, which
finds no reason to examine it of its own motion.
IV. APPLICATION OF ARTICLE 50 (art. 50)
40. According to Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting party is completely or partially in conflict
with the obligations arising from the ... Convention, and
if the internal law of the said Party allows only partial
reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured
party." The applicant made no claim in respect of non-pecuniary
damages but she claimed ATS 75,000 in respect of costs and
expenses actually incurred before the Convention organs and not
covered by legal aid.
The Commission expressed no opinion as to this claim.
The Government found it acceptable; the Court agrees.
FOR THESE REASONS, THE COURT
1. Holds by five votes to four that there has been a
violation of Article 8 in conjunction with Article 14
(art. 14+8);2. Holds unanimously that it is unnecessary to rule on the
allegation of a violation of Article 8 (art. 8) taken
alone;3. Holds unanimously that no separate issue arises under
Article 9 (art. 9), either taken alone or in conjunction
with Article 14 (art. 14+9);4. Holds unanimously that it is not necessary to rule on the
allegation of a violation of Article 2 of Protocol No. 1
(P2-1);5. Holds by eight votes to one that the respondent State is
to pay to the applicant, within three months, for costs
and expenses, 75,000 (seventy-five thousand) Austrian
Schillings. Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
23 June 1993.
Signed: Rudolf BERNHARDT
PresidentSigned: Marc-André EISSEN
Registrar In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the
following separate opinions are annexed to this judgment:
- dissenting opinion of Mr Matscher;
- partly dissenting opinion of Mr Walsh;
- dissenting opinion of Mr Valticos;
- dissenting opinion of Mr Mifsud Bonnici.Initialled: R.B.
Initialled: M.A.E.
DISSENTING OPINION OF JUDGE MATSCHER
(Translation)
I feel unable to subscribe to the reasoning and the
conclusion of the majority as regards the alleged violation of
Article 8 taken in conjunction with Article 14 (art. 14+8).
1. First of all it is necessary to examine whether there
really was an interference by a public authority with the
applicant's family life within the meaning of Article 8 (art. 8).
When they separated, the parents did not reach agreement on
custody of the children, both parties claiming it for themselves
in the competent courts. At first instance and on appeal the
courts found for the mother, while the Supreme Court decided in
favour of the father. The case therefore concerned a private
dispute between two individuals - each of whom was equally
entitled from the beginning - which the courts, to which the
parties turned as they had failed to reach an agreement, had to
decide on the basis of the applicable law, since the fact that
the mother had - without authorisation - taken the children away
with her did not give her any additional rights. Accordingly,
the fact that the children were taken back to their father's home
following the final decision of the Supreme Court was not in
itself an interference with the mother's rights within the
meaning of Article 8 (art. 8).
2. Even assuming that there was an interference, the
following should be noted.
The only criterion on which the courts should base their
decision in a case such as this is the welfare of the children.
The Supreme Court determined the welfare of the children
differently from the courts below. It is not for the Strasbourg
Court to substitute its assessment for that of the competent
State authorities, which enjoy a wide margin of appreciation in
the matter. But it is nevertheless the Court's duty to review
whether the choice made by these authorities was within the
margin of appreciation that the Convention grants them and did
not infringe the rights secured in it.
In this instance it did not. The Supreme Court attached
more importance to the adverse effects on the children's welfare
which might result from the mother's membership of the religious
community of the Jehovah's Witnesses. It did not therefore
discriminate against the mother's religion as such but merely
took into consideration certain consequences which belonging to
that religion might entail for the well-being of the children,
and this would seem to me to be wholly legitimate.
Furthermore, the Supreme Court criticised the courts
below for neglecting the fact that, in deciding on the children's
future religious education unilaterally, the mother had infringed
the provisions of the 1921 Act.
3. Even though I do not find in the present case any
violation of Article 8 taken together with Article 14
(art. 14+8), I have to deprecate the phrasing of some of the
reasons given in the Supreme Court's judgment. But as the Court
has noted many times, inept and unfortunate phrasing in a
judicial decision does not on its own constitute a violation of
the Convention.
PARTLY DISSENTING OPINION OF JUDGE WALSH
1. I do not agree that in this case there was a violation of
Articles 8 and 14 (art. 14+8) taken together, or alone, by reason
of the Supreme Court's decision which overturned the decision of
the lower court by withdrawing from the applicant the custody of
her children. The refusal was grounded on the fear that the
children's welfare could be put at risk by reason of the
applicant's intention not to permit a blood transfusion, if
medically necessary, to either of her children should the
occasion arise unless ordered to do so by a court.
2. The mother's attitude was dictated by the tenets of the
religious society or sect she had joined subsequent to the birth
of her children. She had become a member of Jehovah's Witnesses
after quitting the Catholic Church and she had accepted the view
that to permit blood transfusion for her children, who were in
her custody, would be morally wrong. Her children had remained
members of the Catholic Church, as had her husband. Her children
had no known objection to a necessary blood transfusion. In
effect the applicant was imposing her religious beliefs upon the
life and health of her children and in disregard of the rights
of the father and of the provisions of the Religious Education
of Children Act 1921.
3. The father's notice of appeal to the Supreme Court
specifically mentioned the withholding of possible blood
transfusion as the reason for seeking a reversal of the order of
the lower court. That was an objective ground which a court
might or might not, in any given case, regard as a sufficient
ground for the transfer of custody. That is not a matter upon
which this Court could usurp the discretion of the national
court. The matter before the Supreme Court was a question of the
hazard of the health of the children. In gauging the seriousness
of the hazard the Supreme Court recognised that the cause of the
hazard was, admittedly, the applicant's new religious views. The
reason or motives for the creation of the hazard are but
secondary to the objective effect of the existence of the hazard.
If the applicant's attitude was not traceable to a religious
belief the question before the national court would remain
essentially the same. The fact that the hazard was brought into
existence by a religious belief not shared by those upon whom it
was sought to impose it does not create a situation where the
removal of the hazard must necessarily, if at all, be regarded
as a discrimination on the grounds of religious belief. The
national court's duty was to evaluate or weigh the effects as
distinct from the cause.
4. The appeal to the Supreme Court was heard before the
divorce of the parents became final. After that a different
legal situation arose which could give rise to a further recourse
to the national courts in consequence of the effect of the
divorce on the provisions of the Religious Education of Children
Act 1921. That is a situation which is not before this Court.
5. I agree with the decision of the Court in relation to
Article 8 (art. 8) taken alone, Article 9 (art. 9) and
Article 2 of Protocol No. 1 (P1-2).
DISSENTING OPINION OF JUDGE VALTICOS
(Translation)
I am unable to share the opinion of the majority of the
Chamber that there was in the present case a violation of
Articles 8 and 14 (art. 8, art. 14) of the Convention, in that
the Supreme Court's decision refusing to grant Mrs Hoffmann
custody of her children constituted discrimination on the grounds
of religion.
It is in fact clear, in my opinion, that the said
decision by the Supreme Court was not based on the sole fact that
Mrs Hoffmann was a Jehovah's Witness, but essentially on the
consequences that this would have had for the children's future.
The question would surely not have arisen in the case of a
different religion not having the special characteristics of
Jehovah's Witnesses. Thus the refusal to have blood transfusions
could, whatever has been said, have endangered the children's
health and even their lives. The peculiarities of this
religion's tenets of faith would have led to the children being
set apart from normal social life and would have contributed to
marginalising them and restricting their future and their
development. The children had admittedly not yet been accepted
into the faith of Jehovah's Witnesses, but the mother took them
with her to the Sunday meetings. Since she made weekly visits
for spreading her faith (admittedly without being accompanied by
her children), it was to be expected that her children would also
become objects of her proselytising zeal, it being natural for
her to wish to ensure what she regarded as their salvation.
It should thus have been held that the Supreme Court's
decision resulted not from "a distinction based essentially on
a difference in religion alone", as the majority of the Court
declared, but from the legitimate concern to protect the future
of the Hoffmann children.
DISSENTING OPINION OF JUDGE MIFSUD BONNICI
I am unable to agree with the five members of the Court
who make up the majority. My reasons are the following:
1. Article 8 (art. 8) of the Convention prohibits
interference by a public authority with the exercise of the right
of one's private and family life, home and correspondence.
2. In my opinion, a fundamental distinction must be made
between interference and intervention. Interference implies that
action whereby one interposes or meddles in something, without
having the right to do so. Intervention, on the other hand, is
that action whereby one steps in-between, to prevent or hinder
a harm which otherwise will occur.
3. Usually, whenever a marriage breaks down, one or both of
the parties requests the court to intervene; as did the applicant
and her husband, in the instant case. The first necessary
intervention therefore came from the Innsbruck District Court.
This first decision of the court was appealed from by the
husband, to the Regional Court, and a second (extraordinary)
appeal was eventually made to the Supreme Court of Austria.
4. Each one of these courts had to reach a decision with
regard to the care and custody of the children of the marriage.
Each one of them was by law obliged to intervene and I cannot see
how one can consider these decisions to be interferences by a
public authority in the private and family life of the applicant.
Rather, these were all necessary interventions, the like of which
occur in their hundreds in the daily court life of all the States
of the Council of Europe.
5. The Supreme Court's decision reversed the previous two
judgments in that it held that those decisions did not conform
with the provisions of the Federal Law of 15 July 1921, which
regulated the problem of the religious education of children.
6. This law provides that the question of the religious
education of children is to be regulated as follows:
(a) on marriage the question shall be settled by the free
agreement of the partners;
(b) the original agreement may be changed by mutual agreement
of the parents at any time;
(c) the father or the mother cannot unilaterally change the
agreement;
(d) when one of them dies, the agreement lapses.
7. The Supreme Court of Austria decided that the religious
education of the Hoffmann children had to be regulated according
to the original agreement freely entered into between the
parents. The breakup of the marriage did not authorise either
one of the parents, or the court, to change the original
agreement.
8. The appeal to the Supreme Court was lodged on points of
law, mainly on the omission of the lower courts to take account
of the 1921 law. This could not in fact be disputed, and one
cannot see how the Supreme Court could, in its turn, ignore that
law as well. It follows that its decision had to be based on
both the elements already in the file and the law of 1921. I
cannot see how because of this addition the decision violates the
Convention. The lawyer of the applicant, in the oral pleadings,
submitted that "the decision of the Supreme Court contradicts
Austrian law". I do not believe that I am entitled to hear and
decide appeals from the Supreme Court of Austria on the
provisions of Austrian law and as to whether Austrian court
decisions contradict Austrian law.
9. In view of all this, I consider all the submissions on
the merits or demerits of the applicant's religion as being
irrelevant to the issue. The only relevant issue is whether the
applicant is entitled or not to vary the original agreement on
religious instruction which she had reached with her husband,
irrespective of the religion to which that agreement referred.
And this issue as regulated by Austrian law does not violate the
Convention.
10. For these reasons I cannot find that either the decision
of the Supreme Court of Austria or the Austrian Federal Law on
Religious Instruction are in violation of the Convention. Since
I find the application completely unfounded, I am not prepared
to grant anything under Article 50 (art. 50).