CERNECKI v. AUSTRIA
Inadmissible
Nicolas Bratza
The applicant is an Austrian national, born in 1951 and living in Linz (Austria). He is represented before the Court by Mr Günter Tews, a lawyer practising in Linz. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the father of two daughters born in wedlock in 1984 and 1985, respectively. On 4 October 1995 the Linz District Court (Bezirksgericht) granted the petition of the applicant and his wife for divorce by consent. In the settlement regulating the legal consequences of the divorce, the applicant and his wife agreed, outside the framework of section 177 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) which was at that time under review by the Constitutional Court, to exercise joint custody over their daughters. The settlement provided that the applicant and his wife would share responsibility for their children. Further, it stated that the children would mainly live with their mother, the applicant being granted extensive access rights. It also contained provisions for the children’s maintenance. The settlement was subject to approval in separate custody proceedings. On 6 February 1996 the Linz District Court refused to approve the settlement. Referring to section 177 § 2 of the Civil Code, the court found that joint custody could not be granted. The Court granted sole custody to the applicant’s divorced wife, noting that according to both parents’ submissions she was better suited to exercise custody. Thus, the transfer of custody was also in the interests of the children. Further, the court endorsed the settlement insofar as it concerned the applicant’s rights of access and his maintenance obligations. The applicant did not appeal against this decision. B. Relevant domestic law and practice Award of custody over children upon divorce or separation Section 177 of the Civil Code provides as follows: “(1) In case the marriage of the parents of a minor born in wedlock ends in divorce, or is dissolved or declared null and void, or in case the parents live separately for more than a limited period, they may submit an agreement to the court stating which one of them will exercise sole custody over the child in the future. The court will approve the agreement if it corresponds to the interests of the child’s well-being. (2) If no agreement is reached within a reasonable time or if the agreement does not correspond to the interests of the child’s well-being, the court has to decide which parent should have the right to sole custody in the future. In case the parents live separately for more than a limited period, the court only decides upon the request of one of them. (3) Section 167 applies accordingly.” Section 167 of the Civil Code provides, for children born out of wedlock, that the court may award joint custody to the parents upon their common request if they permanently live in a common household with the child and if such a ruling is not disadvantageous to the child’s well-being. In a judgment of 10 October 1995, the Constitutional Court ruled on the constitutionality of section 177 of the Civil Code. It noted the Supreme Court’s constant case-law according to which section 177 excluded an award of joint custody to both parents in case of divorce, except in the rare case when they continued to live together with the child in a common household. As to Article 8 of the Convention, it found that the award of sole custody after divorce to one parent was an interference with the other parent’s right to respect for his or her family life, which was justified under the second paragraph of this Article. Given the legislator’s margin of appreciation, it was to be considered necessary for the protection of the rights of others. In particular, it was proportionate, as the parent not having custody retained a number of rights, such as the right of access and the right to be informed and heard on certain important matters. Moreover, the law did not prevent parents who wished to share their parental rights after divorce from doing so in practice by mutual agreement, but provided a clear solution in case such agreement ceased to exist. As to Article 5 of Protocol No. 7, the Constitutional Court found that this provision did not prevent the legislator from creating different legal positions for spouses after divorce as long as such differences were not based on gender alone. It did not generally demand that joint custody be awarded to parents after divorce. Rights of the parent not having custody According to section 148 of the Civil Code, the parent not having custody has a right of access. Moreover, according to section 178 of the Civil Code, the parent not having custody has the right to be informed by the other parent about certain measures listed in section 154 §§ 2 and 3 (which in cases of joint custody require the agreement of both parents), and has the right to be heard within a reasonable time. The submissions of the non-custodial parent are to be taken into account if the wishes expressed therein better serve the interests of the child’s well-being. The measures at issue include the change of the child’s first or family name, the entry into or secession from a church or other religious group, the child’s placement in care, the acquisition or renunciation of a particular nationality, the early termination of an apprenticeship or employment contract, the recognition of paternity of a child born out of wedlock, as well as certain important provisions concerning the child’s property.