FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21949/03 
by Refet ESKI 
against Austria

The European Court of Human Rights (First Section), sitting on 2 March 2006 as a Chamber composed of:

Mr C.L. Rozakis, President
Mr L. Loucaides
Mrs F. Tulkens
Mrs E. Steiner
Mr K. Hajiyev
Mr D. Spielmann, 
Mr S.E. Jebens, judges,

and Mr S. Quesada, Deputy Section Registrar,

Having regard to the above application lodged on 10 July 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Refet Eski, is an Austrian national, who was born in 1963 and lives in Vienna. He is represented before the Court by Mr L. Binder, a lawyer practising in Vienna.

The respondent Government are represented by Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant lived together with J.W. between 1987 and 1995 in Vienna.

On 9 April 1993 J.W. gave birth to a daughter M. to whom the applicant was the father.

In March 1995 the couple split up, J.W. went to live with her daughter in Linz. The applicant stayed in Linz during summer and autumn 1995, and then returned to Vienna.

On 25 December 1996 the applicant, when visiting his daughter, threatened and injured J.W.

J.W. subsequently refused the applicant access to M.

On 3 July 1997 the applicant filed a request for a right of visit his daughter with the Linz-Land District Court (Bezirksgericht).

On 19 August 1997 the District Court heard the applicant and J.W.

On 24 October 1997 a further visit took place.

On 26 February 1998 the applicant and J.W. concluded a visit agreement, according to which visits should take place at the premises of a youth centre in the presence of J.W.

On 26 June 1998, upon J.W.’s request and with the approval of the Youth Welfare Office (Jugendwohlfahrtsträger) at the Linz–Land District Administrative Authority (Bezirkshauptmannschaft), the Linz-Land District Court withdrew the applicant’s right to visit. It noted that, at the first arranged visit on 9 March 1998, the applicant had insulted J.W. and told M. that her mother was a bad witch and a whore. M. had subsequently suffered from anxiety, sleep and gastro-intestinal disturbances and pneumonia. The court further noted that even before the visit arrangement had been concluded, the arrangement and exercise of the applicant’s right to visit were complicated by the fact that the applicant could not avoid conflicts with J.W. The constant threat against her mother constituted a serious danger for M.’s psychological development. Therefore, the applicant’s right of visit was not in the best interest of the child, but, on the contrary, harmful to its psychological integrity and health.

On 14 January 1999 the Linz Regional Court (Landesgericht) confirmed this decision.

In June 1999 J.W. started cohabiting with her new partner A.F.

They married in September 1999.

Another visit contact between the applicant and his daughter took place at Christmas 2000.

On 26 June 2001 and on 4 July 2001 the applicant again filed requests to visit M. with the Linz-Land District Court. He further stated that he objected to a possible adoption of M. by A.F.

On 16 July 2001 the Linz District Court dismissed the applicant’s requests. It noted that the applicant’s right of visit had been withdrawn and the applicant had not submitted any arguments as to why the facts upon which this decision had been based should have changed.

This decision became final.

On 27 July 2001 A.F. instituted proceedings with the Linz-Land District Court, seeking adoption of M. He further requested the replacement of the necessary consent of the applicant to the adoption with a court’s decision.

The District Court summoned the applicant to a personal hearing scheduled on 2 October 2001. In written submissions of 13 September 2001 the applicant informed the court that he had not changed his attitude towards the adoption request and still objected to adoption. A personal hearing was, therefore, not necessary. This letter could be regarded as his personal submissions. In further submissions with the Linz Court of Appeal, the applicant filed a motion for bias against the competent judge V. with the Linz-Land District Court and reiterated his request for a right of visit.

The District Court subsequently informed the applicant that a personal hearing in the adoption proceedings was necessary and that unexcused absence was punishable by pecuniary penalty (Ordnungsstrafe). On 23 September 2001 the applicant informed the court that he was not able to attend the hearing scheduled on 2 October 2001 as he had to study at the Vienna University. He further referred to his motion of bias against V. and submitted that there would be no objective consideration of his case under this judge’s competence. He would, however, approve another date under other circumstances.

On 12 October 2001 the president (Vorsteher) of the Linz Land District Court dismissed the applicant’s motion of bias against V. On 7 January 2002 the Linz Regional Court confirmed this decision. It noted that the applicant referred to a statement the judge V. had made during a hearing in August 1997 in the proceedings concerning the withdrawal of his right to access to M. The applicant had not complained about an alleged bias of the judge V. at that time. The motion for bias had, therefore, been submitted out of time. On 14 May 2002 the president of the Linz-Land District Court rejected the applicant’s further motion of bias against the judge V. for the same reasons.

Meanwhile, on 12 March 2002 the applicant was heard by way of letters rogatory before the Josefstadt District Court in Vienna. At this hearing he argued that he had developed a close relationship with his daughter in her first two years. He had not lost interest in his daughter and still wished to obtain a right of visit. However, J.W. had hindered any contacts. In further written submissions with the court he argued that he did not know A.F who had no family liens with his daughter. Alleged psychological disturbances of his daughter were caused by her mother who suffered herself from such disturbances.

On 17 September 2002 the Linz-Land District Court heard A.F., M. and J.W.

On 16 October 2002 the Linz-Land District Court, with the approval of the Youth Welfare Office at the Linz-Land District Administrative Authority, replaced the applicant’s consent and granted A.F. permission to adopt M. It noted that A.F had developed a close relationship with M. who had declared to be in favour of the adoption as she considered A.F. as her father. The adoption would secure M.’s position within the family and also be a material safeguard as A.F. was able to support her financially. As regards the applicant, the court found that the alleged close relationship with M. did not correspond to the reality. The last visit contact, at Christmas 2000, had been disappointing for the child as the applicant had taken no initiatives, had not complied with the child’s wishes for a special Christmas present and, during dinner, had not spoken for three quarters of an hour with the child. In the past the applicant had repeatedly tried to interfere with the relationship between M. and her mother and had thereby provoked psychical and physical disturbances to M. He had not made any efforts to prove his feelings for M. in reality. Furthermore, he had not been making maintenance payments for the last five years. The court, therefore, considered that the applicant’s objection to the adoption was abusive.

The applicant appealed against this decision. He complained that the lack of a public oral hearing in the presence of his daughter, A.F and J.W was contrary to Article 6 of the Convention. Therefore, he had not been able to put questions to A. F. and J. W. and challenge the reproaches made to him in several reports of social workers. In particular, he had not been heard concerning the reproach that he had told M. that her mother was a bad witch and a whore. He further complained that the court had not instructed him to request an expert opinion on child psychology. He was of Turkish origin and an adoption came equal to a denial of half of the child’s genetic background. Furthermore, without a psychological expert opinion there was no proof of the courts’ findings that he had caused psychological and psychical disturbances of M. The court should further have instructed him to request a hearing of the social workers who had submitted negative reports about him. Instead, it had based its findings on their written submissions. The applicant finally contended that there was no sufficient reason for the adoption of M. A.F could instead request joint custody with the child’s mother and engage himself to maintenance payments on a contractual basis. His right of visit had only been withdrawn temporarily and he had not failed to make efforts to keep contact with M. He had been paying maintenance for M. for the last two years.

On 25 February 2003 the Linz Regional Court dismissed the applicant’s appeal. It found that even in the absence of an oral hearing in the presence of all parties, which in the proceedings at issue was not obligatory, the applicant had been properly heard within the meaning of Article 6 of the Convention. In this regard it noted in particular that the Linz-Land District Court had made several attempts to hear the applicant, which finally had only been possible by way of letters rogatory before another court. The applicant had declared at the beginning of the adoption proceedings that he did not wish to participate further in the proceedings and, furthermore, that his personal hearing before the District Court was not necessary and that the letter at issue could be regarded as his personal statement. Moreover, the applicant had had sufficient opportunity to comment in written submissions, namely in the appeal proceedings, the reproaches made against him. The court further considered that it was not necessary to seek a psychological expert opinion or to hear the concerned social workers. In this regard it noted that the Regional Court had already confirmed the applicant’s aggressive behaviour and its consequences in its decision of 14 January 1999 and had dismissed the applicant’s contrary statements. Nor could the applicant, in his present appeal, satisfactorily show that his conduct had not been the reason for the child’s disturbances. The District Court had given sufficient and extensive reasons why the adoption should be granted, namely by referring to the applicant’s anti-family conduct. It finally noted that the fact that A. F. was in a financially better position than the applicant had not been a reason for granting the adoption. Therefore, it did not go into the applicant’s arguments as regards the maintenance payments.

This decision was served on the applicant’s counsel on 18 April 2003.

B.  Relevant domestic law

Section 179a of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides that an adoption needs a written contract between the person seeking the adoption and the person who is going to be adopted as well as a permission by court.

Pursuant to Section 181 § 1 the court may not permit an adoption when the parents of a minor child do not give their consent to the adoption.

Section 181 § 3 provides that, upon request of one of the contracting parties, the court has to replace the consent of a parent of a minor child when this person has not given justifiable reasons for his/her refusal.

COMPLAINTS

In his initial application with the Court the applicant complained in a general manner about all decisions of the Austrian courts, namely the Austrian courts’ refusal to grant him access to his daughter and the decision to grant, without his consent, permission to adopt his daughter. The applicant submitted in particular that the judge V. of the Linz-Land District Court had been biased. The applicant did not invoke any Articles of the Convention.

In his observations in reply to the Government’s submissions, the applicant further complained that the adoption proceedings had been in breach with Article 6 of the Convention in that the District Court failed to take an expert opinion on child psychology, did not give him a fair chance to prove his arguments and did not find it necessary to hear him personally.

THE LAW

1. The applicant, without relying on any specific Article, complained about the Austrian courts’ decisions refusing to grant him access to his daughter and the decision to grant, without his consent, A.F. permission to adopt his daughter.

The Court considers that the applicant’s complaints raise issues under Article 8 of the Convention, which, as far as relevant, reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

a.) As regards the Austrian courts’ refusal to grant the applicant access to his daughter, the Court notes that the Regional Court withdrew the applicant’s right of visit with final decision of 14 January 1999.

On 16 July 2001 the District Court dismissed the applicant’s subsequent request for a right of visit. The applicant did not appeal against this decision.

However, the applicant filed his application with the Court only on 12 July 2003. Therefore, this part of the application, even assuming exhaustion of domestic remedies, has been submitted out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

b.) The applicant further complained about the Austrian courts’ decision to grant A.F. adoption of his daughter without his consent.

The Government argued that while the adoption of M. constituted an interference with the applicant’s right to respect for family under Article 8 of the Convention, this interference was justified under § 2 of Article 8. It had a legal basis, namely Section 181 § 3 of the Civil Code, and pursued the legitimate aim of protecting the rights of the applicant’s minor daughter, namely by protecting her health, including her psychological well-being, and, furthermore, her legal interest in consolidating and formalising de facto family ties with her adoptive father. While the well-being of the concerned child was, in itself, not sufficient to justify the replacement of a parent’s consent under Section 181 § 3, a parent’s tenacious conduct absolutely contrary to family values could justify such decision. In the present case, the applicant had shown such conduct in that he repeatedly threatened and grossly insulted the child’s mother in the presence of the child, at that time very young, during previous contacts. As result, the child had suffered from anxiety and severe somatic disorders. The applicant had acted as the child’s father only in the first months of her life. After the breakdown of his relationship, the applicant, by his conduct towards the child’s mother entitled to care for the child, made the exercise of his rights and duties as a father impossible. His refusal to consent to the adoption prevented the husband of the child’s mother to take over a role which he himself could no longer fulfil. Furthermore, he had discontinued maintenance payments for the child already five years prior to the adoption authorisation and, thereby, left it to others to care for his daughter. He had not given any decisive reason when refusing his consent to the adoption. Finally, he had been sufficiently involved in the decision-making process. As it turned out after several unsuccessful attempts that the applicant, for personal reasons, was not able to attend a hearing by the court competent to deal with the case, he was heard by letters rogatory by another court. Moreover, he had expressly noted at the beginning of the proceedings that he did not wish to be further involved in the proceedings and that his written submissions could be regarded as his statements.

The applicant maintained that the Austrian courts’ decision to grant the adoption of his child violated his rights under Article 8 of the Convention. He submitted in this regard that the change of fatherhood also affected his child’s right to her biological father. He further contended that the reasons given by the domestic courts did not justify the interference with his rights to a family. A good relationship between the child and the husband of her mother was not in contradiction to the relationship between the child and her father. There were ways to circumvent the problems between the parents during the exercise of visit rights which did not break the relationship between the child and her father.

The Court considers, in the light of the parties’ submissions, that the complaint raises complex issues of law and fact, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant further complained that the above proceedings had been unfair in that judge V. of the District Court had been biased. In his submissions in reply to the Government’s observations he further complained under Article 6 of the Convention that the District Court failed to take an expert opinion on child psychology. It further did not give him a fair chance to prove his arguments and did not find it necessary to hear him personally.

Article 6, as far as relevant, reads as follows:

“1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

a.) As to the applicant’s complaint that the adoption proceedings had been unfair in that judge V. had been biased, the Court observes that the applicant raised this complaint before the domestic authorities which however rejected the complaint for being submitted out of time.

The Court reiterates that domestic remedies have not been exhausted when a complaint is not admitted by the domestic authorities because of a procedural mistake by the applicant (see mutatis mutandis Huber v. Switzerland, no. 12794/87, Commission decision of 9 July 1988, Decisions and Reports 57, p.251 (265); Voggenreiter v. Germany (dec.), no. 47169/99, 28 November 2002, unpublished).

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

b.) The applicant further complained that the proceedings had been unfair in that the District Court failed to take an expert opinion on child psychology, did not give him a fair chance to prove his arguments and did not find it necessary to hear him in person.

The Court notes, however, that these aspects were not specified in the application form and its supplements on the basis of which the case was communicated to the respondent Government. Instead, these complaints were raised for the first time in the applicant’s observations in reply of 23 February 2005, outside the six month time-limit imposed by Article 35 § 1 of the Convention. It follows that this part of the complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see A. v. Finland (dec.), no. 44998/98, 8 January 2004).

For these reasons, the Court unanimously

Declares admissible without prejudging the merits of the applicant’s complaint about the adoption of his daughter without his consent.

Declares inadmissible the remainder of the application.

Santiago Quesada Christos Rozakis 
Deputy Registrar President

ESKI v. AUSTRIA DECISION


ESKI v. AUSTRIA DECISION