KAISER v. AUSTRIA
Inadmissible
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
1. The applicant, Mr Richard Kaiser, is a German national who was born in 1964 and lives in Passau. He is represented before the Court by Mr Thomas Krankl, a lawyer practising in Vienna. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is the father of E., A., and K., all of whom were born in wedlock in 2002, 2003 and 2005 respectively. 5. In 2006 the applicant was living with his wife and his children in Vienna. 6. At the request of the applicant’s minor children, represented by the Vienna Youth Welfare Service (Amt für Jugend und Familie), the Favoriten District Court (Bezirksgericht Favoriten) issued on 3 March 2006 an interim injunction for the duration of three months ordering the applicant to leave the joint household and the immediate surroundings of the family’s apartment, prohibiting him from returning to the apartment and contacting his wife and children, ordering him to avoid any meetings with them, and banning him from the children’s kindergarten. 7. Having heard the children’s mother, the applicant and a social worker, the Favoriten District Court noted that the children’s mother had alleged repeated sexual abuse by the applicant in respect of his eldest daughter (then four years old) and had testified that she had found skin abrasions on her daughter and that on one occasion her genital area had been smeared with blood. The applicant had denied any misconduct. The District Court also took into account the findings of an initial examination of the applicant’s eldest daughter by a clinical psychologist at a children’s hospital in Vienna. The girl had told the psychologist that she had suffered severe abuse at the hands of her father and had illustrated graphically what she had meant using anatomically correct puppets. The District Court found the girl’s mother’s testimony in respect of the events clear, credible and trustworthy. Overall, the seemingly substantiated allegations of extensive sexual abuse by the applicant indicated a real risk for the children’s wellbeing. The child had been taken into psychological care. Since the children and their mother had a need to be provided with housing, the court ordered the applicant to leave the joint apartment. The applicant did not lodge an appeal against this decision. Therefore, it became final. 8. On 30 March 2006 the applicant’s wife brought an action for divorce. 9. In May 2006 the children, at the time represented by their mother, lodged a request for the extension of the interim injunction; the Favoriten District Court, referring to the case file and to the pending criminal investigation in respect of the applicant (see paragraph 10 below), on 16 June 2006 granted that request and extended the interim injunction until the conclusion of the divorce proceedings. The applicant did not lodge an appeal against this decision. 10. In addition to the request for an interim injunction against the applicant, the Vienna Youth Welfare Service filed criminal information with the Vienna Public Prosecutors’ Office that was based on information supplied by the children’s mother and the report of the psychologist (see paragraph 7 above). The applicant was indicted on charges of sexual abuse of minors and abuse of a relationship of authority by the Vienna Public Prosecutor’s Office. The child, represented by a lawyer, took part in the criminal proceedings as a private party (Privatbeteiligter). On 18 October 2006 the Vienna Regional Criminal Court (Landesgericht für Strafsachen Wien) acquitted the applicant of the charges of sexual abuse of minors and abuse of a relationship of authority. It found that the witnesses heard in the course of the oral hearing had not been able to verify the suspicions. Furthermore, a psychological expert, ordered by the court to examine the applicant’s daughter, had stated that the child’s ability to recount past events or experiences was not sufficiently developed. Therefore, the criminal court declined to hear the child, even with the assistance of an expert. Because of the lack of evidence, the criminal court could not determine the relevant facts in regard to the accusations. The applicant was acquitted, having been given the benefit of doubt. This decision became final. 11. On 13 November 2006 the applicant, referring to his acquittal, lodged a request with the Favoriten District Court for the lifting of the interim injunction. However, on 18 April 2007, the Favoriten District Court refused that request. It found that a request under section 399 of the Enforcement Act to lift an interim injunction (see paragraph 33 below) could only be successful if the need to protect the legitimate interests of the person concerned had ended. This would be the case if the circumstances which had made the granting of the decision necessary had changed. However, the Regional Court had acquitted the applicant, pursuant to Article 259 § 3 of the Code of Criminal Procedure (Strafprozeßordnung, hereinafter, the CCP – see paragraph 22 below), only because the applicant’s guilt could not be established by a criminal court. However, the applicant had supported his request solely by referring to his acquittal and had not tried to demonstrate to the District Court why and how any risk to the children had ceased to exist. Therefore, there was no reason to lift the interim injunction. 12. The applicant lodged an appeal with the Vienna Regional Court for Civil Matters (Landesgericht für Zivilrechtssachen Wien - the “Regional Court”) on 7 May 2007. On 6 June 2007 the Regional Court dismissed the appeal, finding that – contrary to the applicant’s belief – his acquittal in the criminal proceedings was not in and of itself sufficient to substantiate the absence of the perceived risk that had served as the basis for the interim injunction. The Regional Court noted that an acquittal rendered by the criminal courts had no binding effect on the civil courts. In and of itself, the applicant’s reference to his acquittal was not sufficient to prove that the basis for believing that the applicant’s children were at risk had ceased to exist. The Regional Court upheld the District Court’s finding that the objective of the interim injunction – namely to secure the well-being of the children – had not become redundant, referring again to the fact that the acquittal had only resulted from the application of the in dubio pro reo principle, and that there still existed a suspicion of sexual abuse; this sufficed to justify the assumption that there continued to be a risk to the wellbeing of the child. Furthermore, the applicant had based his appeal only on the alleged binding force of the acquittal and had not submitted any facts why the risk would have ceased to exist by a change in the situation. 13. The applicant lodged an extraordinary appeal on points of law. On 23 October 2007 the Supreme Court (Oberster Gerichtshof) dismissed that appeal. Referring to its own jurisprudence it upheld the reasoning of the lower courts that whether an interim injunction could be lifted depended on whether the need to afford protection had ceased to exist in the light of a change in circumstances; a change concerning only the evidence provided could not be automatically understood as constituting such a reason. The question of whether the applicant’s acquittal had changed the level of risk in respect of the right of the child to physical safety had to be answered in the negative. The assessment of evidence in the criminal proceedings had to be considered as fresh evidence in the civil proceedings but did not as such constitute a reason for lifting the interim injunction. If, after assessing the fresh evidence, the suspicion of abuse persisted, the level of risk could not be deemed to have changed. 14. The Supreme Court also confirmed that an acquittal on criminal charges had no binding effect on the civil courts. As regards those of the applicant’s arguments that were based on Article 6 § 2 of the Convention, it referred to the European Court of Human Rights’ case-law, in particular the judgment in Rushiti v. Austria (no. 28389/95, 21 March 2000), but distinguished that case from the present one: in Rushiti, the Court had assumed a link between the criminal responsibility of the accused and the right to compensation for detention to such a degree that the decisions on the latter issue could be regarded as a consequence and, to some extent, the concomitant of the decision on the former (ibid., § 27). However, in the present case such a link was missing with regard to the civil jurisdiction because (i) the criminal proceedings concerned a public law claim, and (ii) the accused’s opponent was the State. The victim of the criminal act in question was not a party to the proceedings and in general, the criminal courts did not rule on victims’ claims for damages. A binding effect of an acquittal on civil courts would constitute a violation of the principle of equality of arms under Article 6 of the Convention in respect of the victim if he or she tried to lodge subsequently a claim for damages before the civil courts. The distinction between civil and criminal matters resulted from the different subjects dealt with. The binding effect of a conviction was justified by the fact that in such a case a criminal court had established the accused’s responsibility and guilt. However, in the case of an acquittal, the establishment of the facts remained open. To then prevent the victim from pursuing a possible civil claim would represent a violation of the victim’s fundamental rights. In the instant case, the acquittal could therefore only serve as an indication of a diminution of the risk for the children, but no more. 15. On 2 March 2009 the divorce proceedings were concluded with final effect. On 19 May 2009 the Favoriten District Court refused a request for the extension of the interim measure and lifted it. 16. In addition to his request for the interim injunction to be lifted, the applicant on 13 November 2006 lodged a request with the District Court of Vienna for regular contacts to be arranged between himself and his three children at the Youth Visiting Café; alternatively, he requested the provisional arrangement of a weekly visiting right, to be exercised at the parent-child-meeting point (Eltern-Kind-Treff) of the Vienna Family Association (Wiener Familienbund). 17. For the purpose of being able to assess the situation, the Favoriten District Court ordered a report from the Youth and Family Office on 4 January 2007. On 3 May 2007 – the Youth and Family Office having failed to deliver such a report – the court urged it to do so. 18. On 31 May 2007 the Vienna Youth Welfare Service submitted the report, stating in its conclusion that contact between the children and their father was very important, but that, in view of the problematic overall situation, the visits should take place in the protected environment of the Youth Visiting Café. The mother had initially opposed the idea of the applicant having contact with the children, but had then stated that she could agree to accompanied visits in a protected environment and in her presence. The applicant had referred to his acquittal and stated his desire to reestablish a relationship with his children. The social worker confirmed that the children were living in a safe and healthy environment with their mother, but also referred to the importance of a relationship between the children and their father. Regular contact every fortnight would offer the children a good opportunity to become re-acquainted with their father and was thus considered positively by the social worker. On 5 June 2007 the report of the Youth and Family Office arrived at the court and was subsequently served on the applicant. 19. In a hearing before the Favoriten District Court on 4 July 2007, the applicant and the children’s mother agreed on a preliminary settlement with the following provisions: preliminary sole custody for the three minor children was granted to the children’s mother. The applicant was granted the right to regular accompanied contact – normally every two weeks for two hours on the premises of the Vienna Family Association. The visits were also attended by the children’s mother and a social worker from the Association. Because of this agreement, the proceedings in respect of contact rights were suspended pending a final decision in the divorce proceedings. 20. On 9 February 2010 the applicant and his former wife agreed before the Favoriten District Court on the staying of the proceedings in respect of custody, contact rights and alimony (Ruhen des Verfahrens). The applicant informed the Court that since February 2010 he and his former wife had agreed amicably on arrangements for the applicant’s contact with his three children. The applicant, in the meantime, had moved to Germany and travelled to Vienna during the school holidays in order to see his children. 21. Under Article 47 § 1 of the CCP, a victim of a criminal offence could join criminal proceedings as a private party (Privatbeteiligter) only with regard to his or her civil claims. Such a private party was, inter alia, entitled to have access to the various case files from the pre-trial stage onwards, had to be summoned to the hearings, and could submit evidence to the Public Prosecutor. 22. Article 259 § 3 of the CCP provided as follows: “The accused shall be acquitted by judgment of the court: ... 3. where the court finds that the act that gave rise to the prosecution is not an offence under the law or that the alleged offence has not been made out or that it has not been established that the accused committed the act of which he is accused or that circumstances exist which deprive the act in question of its criminal character or that the continuation of the prosecution is ruled out on grounds other than those set out in paragraphs 1 and 2.” 23. In the event of an acquittal, a private party was not entitled to a remedy in criminal proceedings. Under Article 366 § 1 of the CCP the criminal court had to refer such a private party to the civil courts in respect of his or her claim for damages if the accused had been acquitted (Verweis auf den Zivilrechtsweg). 24. Article 268 of the Code of Civil Procedure (Zivilprozessordnung) provided that civil courts, when deciding a case which had previously been submitted to a criminal court, were bound by the facts established by a criminal court in the event that that court had found the accused guilty. This provision was found to be contrary to Article 6 of the European Convention on Human Rights by the Constitutional Court (decision of 12 October 1990, no. G73/89). The Constitutional Court stated that a criminal conviction to be binding on a civil court was arbitrary and therefore contrary to Article 6 of the Convention. Therefore, the Constitutional Court set aside the provision. 25. In its decision of 17 October 1995, no. 1 Ob 612/95, the Supreme Court found, after conducting a comprehensive analysis of the legal arguments raised in national and international academic debate, that, even in the absence of an explicit provision stipulating the binding effect of criminal convictions, a convicted person must accept his conviction by a criminal court as an established fact and shall not be entitled to argue before a civil court that he did not commit the offence of which he was convicted. Therefore, a conviction by a criminal court should have a binding effect with regard to the convicted person, so that nobody might argue that the facts differed from the ones already established and which had been the basis for that criminal conviction. 26. In its decision of 20 November 1996, no. 7 Ob 2309/96a, the Supreme Court confirmed the principles outlined in its decision of 17 October 1995 and elaborated on the question of whether civil courts should be bound by the findings of a criminal court when proceedings heard by that criminal court had ended with an acquittal. It found that because of the weak position the CCP granted to a private party in criminal proceedings, it would violate the victim’s rights under Article 6 of the Convention if the outcome of criminal proceedings were to have a binding effect on civil law proceedings (that is to say if civil courts were to be bound by the findings of a criminal court). For example, a private party had no remedy against the acquittal of an accused. Moreover, under Article 366 of the CCP (see paragraph 23 above), the criminal court had to refer a private party to the civil courts in respect of his or her claim for damages if the accused was not convicted. This provision would be meaningless if the victim of an offence were to be referred to the civil courts in respect of his claim for damages but had to accept the finality of the acquittal in the subsequent civil proceedings. Therefore, an acquittal in criminal proceedings could have no binding effect in civil law proceedings dealing with the same circumstances. 27. In the following decisions, the Supreme Court further developed its case-law on this question and found that neither the ending of criminal proceedings by preliminary settlement (Diversion, decision of 23 September 2004, no. 2 Ob 186/04y) nor by final closure of the case by the Public Prosecutor (Verfahrenseinstellung, 9 September 1999, no. 8 ObA 218/99p) had a binding effect regarding the facts of the case on civil law proceedings and that the civil courts had to establish anew all the facts of the case. 28. Interim injunctions for the purpose of the prevention of violence within the family were a civil law matter under Austrian law, as laid down in the Enforcement Act (Exekutionsordnung). 29. Since provisional legal protection had to be provided without delay, the prerequisites for ordering an injunction needed only to be certified (bescheinigen), which meant to show predominant probability but they did not need to be proved beyond reasonable doubt (beweisen). The degree of plausibility of the circumstances supporting a request for an injunction was thus less strict than in the criminal proceedings. It was sufficient for the party requesting the injunction to submit details of the circumstances from which the existence of the alleged risk could reasonably be assumed (section 389 of the Enforcement Act, in connection with Article 274 of the Code of Civil Procedure). Under section 78 of the Enforcement Act certain parts of the provisions of the Code of Civil Procedure (such as the provisions dealing with the parties, the oral hearing or the finding of facts) were applicable if the Enforcement Act did not provide otherwise. Persons affected by an interim injunction had the right to lodge an appeal (Rekurs, see Article 514 of the Code of Civil Procedure). 30. Section 382b § 1 of the Enforcement Act, as in force at the relevant time, provided as follows: “The court is required to act upon a request [lodged] by a near relative (naher Angehöriger) of a person who launches or threatens to launch a physical attack or displays conduct severely affecting the psychological health of the near relative, thus making further cohabitation unbearable for the relative. In such a case, the court must 1. order that person to leave the common flat and its immediate surroundings, and 2. prevent that person from returning to the flat and its immediate surroundings, if the flat serves the near relative’s urgent need of accommodation.” 31. Under paragraph 2 of this provision, a court could also prohibit such a person from staying in clearly defined areas and order him or her to avoid meeting and coming into contact with the near relative unless this would have run counter to the serious interests of the person. 32. Under paragraph 4 of this provision, such an interim injunction was not limited to proceedings for divorce or the annulment of a marriage; however, in respect of proceedings that did not concern divorce or annulment such an interim injunction could not exceed a total duration of three months. The institution of such divorce proceedings or proceedings for the annulment of a marriage was a prerequisite for an extension beyond the above-mentioned three-month limit. 33. Section 399 of the Enforcement Act listed the following conditions for the amendment or lifting of an interim injunction: “1. if the order exceeds the scope that is necessary to secure the interests of the person in whose favour the order was granted; 34. Given that there were remedies (Widerspruch, Rekurs) by which to contest a decision within the proceedings for granting an interim injunction, the amendment or lifting of an interim or “final” injunction under section 399 of the Enforcement Act could not be requested on the basis of a claim that the interim injunction had been issued unlawfully (decisions of the Supreme Court of 1 June 2010, no. 1 Ob 61/10t, and of 20 October 2011, no. 2 Ob 81/11t). Moreover, because the aim of an interim injunction was not to examine a past but to pre-empt a future risk, a review ex post facto of the proceedings in respect of the granting of an interim injunction was not possible (Supreme Court’s decisions of 10 May 1995, no. 9 Ob 1577/94, and of 29 October 2009, no. 7 Ob 50/09t).