CASE OF ESKI v. AUSTRIA
No violation of Art. 8
Christos Rozakis
6. The applicant was born in 1963 and lives in Vienna. Between 1987 and 1995 he lived together with J.W. On 9 April 1993 J.W. gave birth to a daughter, M., of whom the applicant is the father. 7. In March 1995 the couple split up and J.W. went to live with her daughter in Linz. The applicant stayed in Linz during the summer and autumn of 1995 and then returned to Vienna. 8. On 25 December 1996 the applicant, while visiting his daughter, threatened and injured J.W., who subsequently refused him access to M. 9. On 3 July 1997 the applicant applied to the Linz-Land District Court (Bezirksgericht) seeking visiting rights in respect of his daughter. On 19 August 1997 the district court heard evidence from the applicant and J.W. On 24 October 1997 a visit took place. On 26 February 1998 the applicant and J.W. concluded a visiting agreement, under the terms of which visits were to take place on the premises of a youth centre in the presence of J.W. 10. On 26 June 1998, at J.W.'s request and with the approval of the Youth Welfare Office (Jugendwohlfahrtsträger) attached to the Linz–Land District Administrative Authority (Bezirkshauptmannschaft), the Linz-Land District Court withdrew the applicant's visiting rights. 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 an evil witch and a whore. M. had subsequently suffered from anxiety, sleep disturbances, gastro-intestinal problems and pneumonia. The court further noted that even before the visiting agreement had been concluded, the arrangements for and exercise of the applicant's visiting rights had been complicated by the applicant's constant aggression towards J.W. The court found that the repeated threats against her mother were seriously jeopardising M.'s mental development. Accordingly, the applicant's visiting rights were not in the best interest of the child; on the contrary, they were harmful to her mental and physical well-being. 11. On 14 January 1999 the Linz Regional Court (Landesgericht) upheld this decision. 12. In June 1999 J.W. started cohabiting with her new partner, A.F. They married in September 1999. 13. Another contact visit between the applicant and his daughter took place during Christmas 2000. 14. On 26 June and 4 July 2001 the applicant again lodged applications for visiting rights with the Linz-Land District Court. He further stated that he objected to the possible adoption of M. by A.F. 15. On 16 July 2001 the Linz-Land District Court rejected the applications. It noted that the applicant's visiting rights had been withdrawn and that the applicant had not submitted any arguments to suggest that the circumstances upon which that decision had been based had changed. The decision became final. 16. On 27 July 2001 A.F. instituted proceedings with the Linz-Land District Court seeking to adopt M. He requested that the court overrule the applicant's refusal to give the required consent. 17. The district court summoned the applicant to a hearing scheduled for 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 hearing was therefore not necessary. He added that the letter should be regarded as his submissions in the case. In further submissions to the Linz Court of Appeal, the applicant filed a motion accusing judge V., the competent judge of the Linz-Land District Court, of bias, and reiterated his request for visiting rights. 18. The district court subsequently informed the applicant that a hearing in the adoption proceedings was necessary and that any unexcused absence was punishable by a pecuniary penalty (Ordnungsstrafe). On 23 September 2001 the applicant informed the court that he was unable to attend the hearing scheduled for 2 October 2001, as he was attending lectures at Vienna University. He further referred to his motion accusing judge V. of bias, and submitted that his case would not be given objective consideration. He could, however, agree to another date under different circumstances. 19. On 12 October 2001 the President (Vorsteher) of the Linz-Land District Court dismissed the applicant's motion accusing judge V. of bias. On 7 January 2002 the Linz Regional Court upheld this decision. It noted that the applicant had referred to a statement made by judge V. during a hearing in August 1997 in the proceedings concerning the withdrawal of his access rights in respect of M. However, the applicant had not complained at the time of any alleged bias on the part of the judge. The motion had therefore been submitted out of time. On 14 May 2002 the President of the Linz-Land District Court rejected a further motion by the applicant accusing judge V. of bias, for the same reasons. 20. Meanwhile, on 12 March 2002, the applicant gave evidence to the Josefstadt District Court in Vienna under letters rogatory. At the 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 visiting rights. However, J.W. had sought to prevent any contact. In further written submissions to the court he argued that he did not know A.F., who had no family ties with his daughter. His daughter's alleged psychological problems had been caused by her mother, who herself had similar problems. 21. On 17 September 2002 the Linz-Land District Court heard evidence from A.F., M. and J.W. On 16 October 2002 the court, with the approval of the Youth Welfare Office attached to the Linz-Land District Administrative Authority, overruled the applicant's refusal to give consent and granted A.F. permission to adopt M. It noted that A.F. had developed a close relationship with M., who had said she was in favour of the adoption as she regarded A.F. as her father. The adoption would secure M.'s position within the family and also act as a material safeguard, as A.F. was able to support her financially. With regard to the applicant, the court found that his allegedly close relationship with M. did not correspond to reality. The last contact visit, during 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 with the child for three quarters of an hour. In the past the applicant had repeatedly tried to interfere in the relationship between M. and her mother, causing M. to develop physical and psychological problems. He had not made any effort to prove his feelings for M. in practice. Furthermore, he had not made maintenance payments for the past five years. The court therefore considered that the applicant's objection to the adoption was unjustified. 22. 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. He had not been able to put questions to A.F. and J.W. or challenge the criticism made of him in several reports by the social-welfare authorities. In particular, no evidence had been heard from him concerning the accusation that he had told M. that her mother was an evil witch and a whore. He further complained that the court had not instructed him to request an opinion from an expert in child psychology. He was of Turkish origin, and adoption in these circumstances was tantamount to a denial of half of the child's genetic background. Furthermore, without an expert opinion there was nothing to substantiate the courts' findings that he had caused M.'s physical and psychological problems. The court should also have instructed him to request that evidence be heard from the social workers who had submitted negative reports about him. Instead, it had based its findings on their written submissions. Finally, the applicant contended that there were not sufficient reasons for M.'s adoption. A.F. could instead request joint custody with the child's mother and undertake to make maintenance payments on a contractual basis. The applicant's visiting rights had been withdrawn only temporarily and he had not failed to make efforts to keep in contact with M. He had been paying maintenance for M. for the past two years. 23. 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 the parties, which in the proceedings at issue was not obligatory, the applicant had been given a proper hearing for the purposes of Article 6 of the Convention. In that regard it noted in particular that the Linz-Land District Court had made several attempts to hear evidence from the applicant; this had eventually been possible only by issuing letters rogatory to another court. The applicant had declared at the beginning of the adoption proceedings that he did not wish to participate further in the proceedings, that his personal appearance before the district court was not necessary and that the letter to that effect should be regarded as his personal statement. Moreover, the applicant had had sufficient opportunity to comment in written submissions, namely in the appeal proceedings, on the accusations made against him. The court further considered that it had not been necessary to seek an expert opinion or to hear evidence from the social workers concerned. 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 rejected the applicant's arguments to the contrary. Nor had the applicant, in his present appeal, been able satisfactorily to show that his conduct had not been the reason for the child's problems. The district court had given sufficient and extensive reasons why the adoption should be authorised, namely by referring to the applicant's conduct. Finally, the regional court noted that the fact that A.F. was in a better financial position than the applicant had not been a reason for granting the adoption. Accordingly, it did not go into the applicant's arguments regarding the maintenance payments. It refused the applicant leave to lodge an ordinary appeal with the Supreme Court (Oberster Gerichtshof). This decision was served on the applicant's counsel on 18 April 2003. 24. Article 179a of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides that adoption requires a written contract between the person seeking the adoption and the person to be adopted in addition to authorisation by a court. 25. Pursuant to Article 181 § 1, the court may not authorise an adoption if the parents of a minor child have not given their consent to the adoption. 26. Article 181 § 3 provides that, at the request of one of the parties, the court may overrule the refusal of consent by the parent of a minor child, where the person concerned has not given justifiable reasons for his or her refusal. 27. Article 5 of the European Convention on Adoption of 1967, which is binding on several of the Council of Europe's Member States, including Austria, provides as follows: “1. Subject to paragraphs 2 to 4 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: (a) the consent of the mother and, where the child is legitimate, the father; or if there is neither father nor mother to consent, the consent of any person or body who may be entitled in their place to exercise their parental rights in that respect; (b) the consent of the spouse of the adopter. 2. The competent authority shall not: a) dispense with the consent of any person mentioned in paragraph 1 of this article, or b) overrule the refusal to consent of any person or body mentioned in the said paragraph 1, save on exceptional grounds determined by law. 3. If the father or mother is deprived of his or her parental rights in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent.” 28. In its White Paper on principles concerning the establishment and legal consequences of parentage of 15 January 2002, the Council of Europe's Committee of Experts on Family Law states as follows: Principle 15: “1. An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn: ­ the consent of the mother ­ the consent of the father. States may also require the consent of the child considered by the internal law as having sufficient understanding. 2. The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent cannot be obtained, in particular if the whereabouts of the mother or of the father or of both is unknown and they cannot be found or are dead. 3. The competent authority may overrule the refusal to consent of any person mentioned in paragraph 1 only on exceptional grounds determined by law.”