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FIRST
SECTION
CASE OF
KAPLAN v. AUSTRIA
(Application
no. 45983/99)
JUDGMENT
STRASBOURG
18
January 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of
Kaplan v. Austria,
The
European Court of Human Rights (First Section), sitting 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. Nielsen, Section Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45983/99) against the Republic
of Austria lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Turkish nationals, Mrs Fadime Kaplan (“the
applicant”) and Mr Mehmet Kaplan (“the M.”), on 29
October 1998.
- The
applicants were represented by Mr H. Pochieser, a lawyer practising
in Vienna. The Austrian Government (“the Government”)
were represented by their Agent, Mr F. Trauttmansdorff, Head of the
International Law Department at the Federal Ministry for Foreign
Affairs.
- The
applicant complained, in particular, that due to the District Court's
inactivity her former husband could bring her child F. to Turkey
before a substantive decision on custody was taken.
- The
application was transmitted to the Court on 1 November 1998,
when Protocol No. 11 to the Convention came into force (Article 5 §
2 of Protocol No. 11).
- By
a decision of 14 February 2006, the Court declared the application
partly admissible. It declared the M.'s complaints inadmissible.
-
The Chamber having decided, after consulting the parties, that no
hearing on the merits was required (Rule 59 § 3 in fine),
the parties replied in writing to each other's observations.
- The
Turkish Government did not make use of their right to intervene under
Article 36 of the
Convention.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, born in 1968, lived at the time of the events with her
family in Absdorf.
- Following
difficulties in the relationship with her husband, the applicant left
the common household in March 1991. On 29 March 1991 the applicant's
husband instituted divorce proceedings with the Kirchberg/Wagram
District Court (Bezirksgericht). The court subsequently, on 15
May 1991, suspended the divorce proceedings as the applicant had
meanwhile returned to the common household and had reconciled herself
with her husband.
- On
28 May 1991 the applicant, following a violent assault by her husband
and his family, left the common household again.
- On
11 July 1991 she filed an action with the Kirchberg/Wagram District
Court (Bezirksgericht) for sole custody of the two children
from the marriage, F., born in November 1988, and the M., born in
1990, who stayed at their father's. On 26 July 1991 the District
Court granted her provisional custody of the M., at that time a
nursling. Subsequently, on 2 August 1991, the M. was taken away from
the applicant's husband by compulsory means. On 5 August 1991 the
applicant requested the provisional custody of F. and further that
the District Court withdraw, as an interim measure, F.'s name from
her husband's passport. She submitted that she feared that her
husband would bring F. to Turkey.
- On
20 August 1991 the applicant's husband requested that the divorce
proceedings be resumed. However, in a further hearing before the
District Court on 7 November 1991, the parties agreed to suspend the
divorce proceedings until the outcome of criminal proceedings
instituted against the applicant's husband concerning his violent
assaults against her.
- In
February 1992 the District Court informed the applicant and her
husband that at the moment it would not take any further official
measures concerning the custody of their children. It referred in
this regard to a report by the Tulln Administrative Authority
(Bezirkshauptmannschaft) stating that despite the efforts of
its social workers and the parties' repeated questioning by the Youth
Office no solution could be reached. Both parents claimed custody,
objected to visit arrangements in neutral surroundings and were
uncertain whether they wished divorce or not. The District Court in
particular referred to the Administrative Authority's statement that
there were no reasons to change the present situation of separation
of the two children.
- On
23 April 1992 the applicant reiterated, in the context of submissions
made in another matter with the court, her request of July 1991
for sole custody of F.
- In
June 1994, after the criminal proceedings against him had been
terminated, the applicant's husband requested that divorce
proceedings be resumed. On 25 November 1994 the District Court
pronounced the divorce. With final decision of 28 September 1995 the
Supreme Court (Oberster Gerichtshof) confirmed the District
Court's findings. No decision was taken on the custody of the
children.
- On
12 June 1996 the applicant again requested that sole custody of F. be
granted to her and that the court issue an injunction prohibiting the
father from bringing F. to Turkey. She submitted that her former
husband did not sufficiently care for F. and planned to place F. with
his relatives in Turkey at the end of the school year. This would
adversely affect the child's well-being.
- On
14 June 1996 the District Court, without holding a formal hearing,
dismissed the latter request. It noted that a possible transfer would
not adversely affect the well-being of F., who and whose family,
including the applicant, were still more closely related to Turkey
than to Austria.
- The
applicant appealed and complained inter alia that the District
Court had not taken sufficient evidence and had not taken account of
the fact that F.'s transfer to Turkey would in perpetuity frustrate
her right to visit which would adversely affect F.'s well-being.
- In
his submissions of 24 July 1996 the applicant's former husband
contested to have any intention to bring F. to Turkey and requested
that custody of F. be granted to him.
- On
26 July 1996, the Krems Regional Court (Landesgericht) quashed
the District Court's decision and remitted the case back to the
District Court to take further evidence as to the concrete danger of
F.'s transfer to Turkey and, eventually, his well-being there.
- The
District Court subsequently, on 6 August 1996, requested the Tulln
District Administrative Authority for further investigations. On
8 November 1996 the Administrative Authority submitted its
report in which it expressed itself in favour of F.'s stay at his
father's. The District Court, on the same day, requested the Vienna
Youth Welfare Office (Amt für Jugend und Familie) for
further information.
- In
March 1997 the applicant informed the District Court that F. had
moved to Turkey and that she had now no contact with the child.
- On
9 June 1997 the District Court rejected all pending requests and
declared the custody proceedings null and void. It noted that The
Hague Convention concerning the powers of authorities and the law
applicable in respect of the protection of infants of 6 October 1961
was applicable to the proceedings at issue. Article 1 of this
convention provides that the judicial or administrative authorities
of the State of the habitual residence of an "infant" have
power to take measures directed to the protection of his or her
person or property. In so doing they apply their own law. The
District Court found that, having regard to the fact that F. was
staying since nearly six months, namely Christmas 1996, with his
grandparents in Turkey, had signed off residence and school in
Austria and was attending school in Turkey, this country had to be
regarded as his habitual residence. Therefore, the case had ceased to
be within the scope of Austrian jurisdiction.
- The
applicant appealed and, at the same time, lodged a motion of bias
against the competent judge H. at the District Court. In the latter
regard she submitted inter alia that H.'s inactivity had
brought about the facts on the ground of which the Austrian
jurisdiction had ceased.
- On 15 July 1997 the Krems Regional Court rejected the
motion of bias. On 9 October 1997 it dismissed the applicant's appeal
without holding a hearing. It noted that neither the European
Convention on Recognition and Enforcement of decisions concerning the
custody of children and on restoration of custody of children, nor
The 1980 Hague Convention
on the Civil Aspects of International Child Abduction were applicable
to the present case as until now no decision on the custody of F. had
been taken and the applicant's former husband had exercised factual
custody over F. since May 1991. The applicant had not actually
exercised her custody right at the time of F.'s removal from Austria
to Turkey, which, therefore had not been “wrongful”
within the meaning of the latter convention.
- On
6 November 1997 the applicant lodged an extraordinary appeal on
points of law (außerordentlicher Revisionsrekurs) with
the Supreme Court. She submitted inter alia that she had not
voluntarily renounced to the exercise of F.'s custody. Her former
husband and his family had hindered her access to F. so that she had
only been able to see him in secret when he was attending school.
F.'s transfer to Turkey entirely cut off her contact to him. She
invoked Articles 8, 13, 14 and Article 5 of Protocol no. 7 of the
Convention. She further complained that throughout the proceedings no
public hearing had been held and that the decisions had not been
pronounced publicly.
- On
16 April 1998 the Supreme Court rejected the extraordinary appeal on
points of law. It noted with reference to Austria's reservation to
Article 6 of the Convention that custody proceedings would not
necessarily require a public hearing, and that the parties' right to
present their case was duly complied with by submitting written
statements, which the applicant had been able to do. The decision of
the District Court to annul the proceedings, resulting in a shift of
jurisdiction from Austria to Turkey, was lawful. The 1980 Hague
Convention expressly referred to the actual exercise of custody as a
condition for its application. The applicant's submissions that she
had been hindered in the actual exercise of her custody were not
relevant as the 1980 Hague Convention served the child's and not the
parents' interest and the same applied as regards the 1961 The Hague
Convention. Under this aspect, an interference with the applicant's
rights under Article 8 of the Convention was justified. The decision
was served on 29 April 1998.
THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
28. The
applicant complained under Article 6, 8, 13 and Article 5 of
Protocol No. 7 of the Convention that the District
Court's inactivity enabled her former husband to bring F. to Turkey
before a substantive decision on custody was taken. Thus jurisdiction
moved to Turkey, which brought about a de facto determination
of the custody issue.
The
Court considers that this complaint should be examined under Article
8 of the Convention.
Article
8 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.”
- The
Government accepted that the custody proceedings at issue constituted
an interference with the applicant's rights under Article 8 of the
Convention. They argued, however, that the obligation of national
authorities to take measures to facilitate contact by a non-custodial
parent with children pending, or after divorce, was not absolute. In
the present case, the Austrian courts were not to be blamed for their
inactivity as initially, under the Turkish legislation applicable to
the proceedings at issue, no decision on the custody could be taken
since such decision had to be taken in the framework of divorce
proceedings which were at the time still pending. After the
applicant's new request for custody of F. in June 1996, the
courts acted without delay. The Government further pointed out that a
transfer of F.'s custody from his father to the applicant could at no
time be considered as granted. The procedural steps taken in the
proceedings at issue exclusively served the best interest of the
children.
- The
applicant did not submit any further observations on that point.
- The
Court finds it undisputed that the relationship between the applicant
and her son F. amounted to “family life” within the
meaning of Article 8 of the Convention. That being so, it must
be determined whether there has been a failure to respect the
applicant's family life. The Court notes that the applicant lost
factual custody of F. when leaving the common household with her
husband at the end of May 1991. Shortly afterwards, in July and
August 1991 respectively, she requested that custody or provisional
custody of F. be granted to her. No decision was made upon these
requests until June 1997 when the District Court declined its
jurisdiction as F. had meanwhile moved to Turkey.
- The
Court notes that it is not for it to say how the domestic courts
should have decided on the applicant's requests. The case hinges,
however, on the question whether the Austrian courts were under a
duty to decide on the custody of F. before he moved to Turkey. For
this reason the Court will view the case as one involving an
allegation of failure on the part of the respondent State to comply
with a positive obligation under Article 8 of the Convention. In this
connection, the Court recalls that the essential object of Article 8
is to protect the individual against arbitrary action by the public
authorities. However, there may in addition be positive obligations
inherent in effective “respect” for family life which may
involve the adoption of measures designed to secure respect for
family life even in the sphere of relations between individuals (see,
amongst other authorities, Kosmopoulou v. Greece, no.
60457/00, § 43-46, 5 February 2004, with further references).
Furthermore, the Court has repeatedly found that in cases concerning
a person's relationship with his or her child, there is a duty to
exercise exceptional diligence in view of the risk that the passage
of time may result in a de
facto determination of the matter. This duty is decisive in
assessing whether a case concerning access to children had been heard
within a reasonable time as
required by Article 6 § 1 of the Convention and also
forms part of the procedural requirements implicit in Article 8,
Hoppe v. Germany, no. 28422/95, § 54, 5 December
2002 (see, inter alia, Nuutinen v. Finland,
no. 32842/96, § 110, ECHR 2000-VIII).
- The
Court notes that in the present case custody proceedings in Austria
were cancelled due to the fact that F. moved to Turkey and
jurisdiction changed to this country. This event, in itself, does not
reveal anything about the outcome of the custody dispute between the
applicant and her former husband and, in any event, cannot be imputed
to the Austrian authorities. The Court observes, however, that before
jurisdiction moved to Turkey the proceedings at issue were pending
for more than five years and five months before the first instance
court in Austria, namely the Kirchberg/Wagram District Court. The
Court notes that the applicant had a considerable interest in the
outcome of these proceedings. Furthermore, the passage of time
certainly did not play at her advantage as F. had been left at a very
young age in the factual custody of his father. However, the
proceedings before the District Court were, above all, characterised
by its inactivity. The Court notes in this regard that the applicant
filed her request for custody of F. in July 1991. Seven months later,
in February 1992, the District Court informed her that for the time
being it would not take any measures in this regard. It did not react
upon the applicant's further requests for custody of F., made in
April 1992 and June 1996 respectively, until June 1997 when it
found that it had no longer jurisdiction to deal with the case.
- The
Government argued the District Court could not be blamed for
inactivity as no decision upon custody could be made if not in the
framework of divorce proceedings. The Court notes, however, that
these proceedings were resumed in June 1994 and were terminated with
the District Court's decision of 25 November 1994 which was confirmed
by the Supreme Court's decision of 28 September 1995.
- The
Court finally notes that the applicant feared, since the very
beginning of the proceedings, further alienation between F. and her
in that she suspected her husband having plans to bring F. to Turkey.
She, therefore, requested to withdraw F.'s name from his passport in
August 1991. However, this request remained unconsidered by the
District Court until June 1996 when the applicant reiterated her
request to hinder her former husband to bring F. to Turkey. After a
first negative decision was quashed in July 1996, this request was
pending for another five months before the District Court until F. in
fact moved to Turkey.
- In
these circumstances, the Court cannot find that the domestic courts
complied with their duty under Article 8 to deal diligently with
the applicant's request to grant her custody of her son. The Court,
therefore, finds that the procedural requirements implicit in this
Article were not complied with.
- Accordingly,
there has been a violation of Article 8 of the Convention. In the
light of this finding the Court does not find it necessary to examine
the applicant's complaint separately under Articles 6, 13
and Article 5 of Protocol No. 7 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
-
The applicant claimed 82,000 euros (EUR) in respect of non-pecuniary
damage for the pain suffered by her and the M. as a result of her
being alienated from F.
- The
Government considered the claim excessive.
- The
Court considers that the applicant must have suffered feelings of
frustration, uncertainty and anxiety which cannot be compensated
solely by the finding of a violation. Making an assessment on an
equitable basis, as required by Article 41, the Court, therefore,
awards the applicant 8,000 EUR in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant requested the reimbursement of EUR 2,763.48, inclusive
of VAT, for costs incurred in the domestic proceedings and of
EUR 2,974.33, inclusive of VAT, for costs incurred in the
Convention proceedings.
- The
Government commented that the costs claimed for the domestic
proceedings comprised all procedural costs incurred from 1991 until
1997 in custody proceedings while the subject matter before the Court
was only the alleged inactivity of the District Court. As regards the
costs before the Court, they pointed out that account has to be taken
to the fact that the application was only declared partially
admissible.
- The
Court reiterates that costs incurred in the domestic proceedings may
only be reimbursed as far as they were necessary in order to prevent
or redress the violation found (see, for instance, Buchberger
v. Austria, no. 32899/96, § 58, 20 December
2001). In the present case only the costs for the applicant's
repeated custody requests and requests for an interim measure of 23
April 1992 and 12 June 1996 respectively, the costs of the
information note to the District Court as to F's move to Turkey and
the applicant's costs in the appeal proceedings against the District
Court's decision of 9 June 1997 to discontinue the proceedings,
fulfil this condition. These costs amount to 1,626.8 EUR including
VAT.
- As
to the Convention proceedings, the Court notes that the applicant did
not have the benefit of legal aid. The costs of the Convention
proceedings were also necessarily incurred. Having regard to the sums
awarded in comparable cases, the Court finds the amount claimed
reasonable and therefore awards it in total, namely 2,974.33,
inclusive of VAT.
- Consequently
a total amount of 4,601.13 EUR, inclusive of VAT, is awarded under
the head of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 8 of the Convention;
- Holds that it is unnecessary to examine the
applicant's complaint under Articles 6, 13 and Article 5 of Protocol
no. 7 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
8,000 (eight thousand euros) in respect of non-pecuniary damage;
(ii) EUR
4,601.13 EUR (four thousand six hundred one euros and thirteen cents)
in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 18 January 2007 pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
