SAHIN v. AUSTRIA
Inadmissible
Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
1. The applicant, Ms Zybeyde Sahin, is an Austrian national who was born in 1974 and lives in Innsbruck. She is represented before the Court by Mr L. Szabo, a lawyer practising in Innsbruck. The Austrian Government (“the Government”) are represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant and her husband had two children: a daughter D, born in 1997, and a son S, born in 1999. Following allegations against the applicant’s husband of violence against the children and sexual abuse of D, the Innsbruck Youth Welfare Office (Jugendwohlfahrtsträger) removed both children from their home and placed them in a children’s home as a provisional measure on 20 December 2005, having found the children to be in imminent danger as required by Article 215 § 1 of the Civil Code. 4. In compliance with the time-limit set out in Article 215 § 1 of the Civil Code, the Youth Welfare Office thereafter, on 27 December 2005, applied to the Innsbruck District Court (Bezirksgericht Innsbruck) seeking to be awarded custody of the children for the purposes of their care and education and to have their placement in a children’s home approved. 5. The applicant and her husband denied the allegations of domestic violence or sexual abuse and requested the court to dismiss the authority’s application for custody. 6. The District Court promptly heard the applicant and her husband, the children’s teachers, other witnesses and commissioned an expert opinion. Following its investigation, on 24 February 2006 the Innsbruck District Court dismissed the Youth Welfare Office’s custody application, but ordered the parents to attend weekly psychotherapy sessions offered by a specialised association and to allow the children to receive psychological counselling if recommended by the association. 7. The children were returned to their parents on 3 March 2006. 8. The Youth Welfare Office appealed against the District Court’s decision, but on 5 May 2006 the Innsbruck Regional Court (Landesgericht Innsbruck) dismissed the appeal. 9. In addition to the above civil proceedings, the applicant applied on 29 January 2006 to the Tyrol Independent Administrative Panel (Unabhängiger Verwaltungssenat Tirol) and contested the measures taken by the Youth Welfare Office. She requested it to rule that the Youth Welfare Office had violated her rights by removing the children on 20 December 2005, complaining that the children had been taken away without the applicant having first given evidence, and arguing that until the court had issued a decision their placement in a children’s home had been without any legal basis. She also argued that the provisional removal of the children from their home on the basis of suspicions of domestic violence had been disproportionate. 10. On 29 March 2006 the Independent Administrative Panel rejected the application. It found that the measures were based on the provisions of the Civil Code and not on the administrative law. Thus, only the civil courts were competent to decide on the lawfulness of the measure. 11. The applicant lodged a complaint with the Constitutional Court against that decision under Article 144 of the Federal Constitution. 12. On 20 June 2007 the Constitutional Court dismissed the complaint confirming its case-law whereby a provisional measure implemented by the Youth Welfare Office pursuant to Article 215 § 1 of the Civil Code was a measure under civil law. Accordingly, the administrative authorities had no jurisdiction to decide on the applicant’s application. 13. The Constitutional Court’s judgment was served on the applicant’s counsel on 12 July 2007. 14. Under Article 215 § 1 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), the competent Youth Welfare Office must apply for court orders regarding custody measures which are necessary in order to ensure a child’s well-being. Where a child is in imminent danger, the Youth Welfare Office must also make the necessary provisional arrangements concerning care and custody until the competent court has given a decision. Such provisional arrangements have to be notified to the competent District Court immediately, at the latest within eight days. 15. Article 138 of the Federal Constitution (Bundesverfassungsgesetz) provides that the Constitutional Court decides on conflicts of jurisdiction between the courts and the administrative authorities. Under Article 144 of the Federal Constitution, an application can be lodged with the Constitutional Court alleging a violation of a constitutional right as the result of a decision of the administrative authorities, including the Independent Administrative Panels. 16. Pursuant to section 1 of the Official Liability Act (Amtshaftungsgesetz), the Federation, the Länder, districts, municipalities, other bodies of public law and the institutions of social insurance (hereinafter named “legal entities”; Rechtsträger) are liable pursuant to the relevant civil law for any damages caused deliberately or negligently by unlawful acts carried out by their officials in the execution and enforcement of the law. Sections 8 and 9 of the Official Liability Act provide that, as a first step, an injured party shall demand a written statement of the legal entity, against which a claim of damages is to be raised, indicating whether the legal entity at issue accepts or rejects the claim for damages. Such a statement shall be rendered within three months. After expiration of the delay of three months and in the event the legal entity does not accept the claim (in full), the injured party can lodge an action for damages with the competent Regional Civil Court.