Sammendrag av dommen:
Moser v. Austria (application no. 12643/02) Three violations of Article 6 § 1 (fairness)
The applicants, Zlatica Moser and her son, Luca Moser, are Serbian nationals. Ms Moser was born in 1973 and has been living in Austria since 1991. In December 1999 she married an Austrian citizen. On 8 June 2000 she gave birth to Luca in a hospital in Vienna. Her husband contested the paternity of the child.
The day after the birth, the Vienna Youth Welfare Office ordered that Ms Moser should not be able to take the baby with her from the hospital because she could not provide suitable accommodation for her son and given her inadequate financial means and unclear residence status. (In August 1999 the Vienna Federal Police Authority had issued a five-year residence prohibition against her since she had been working illegally.) On 16 June 2000 Luca was placed with foster parents.
On 3 December 2000 the Juvenile Court granted custody of the child to the Youth Welfare Office. In its decision the court referred to information given by Ms Moser on 2 August 2000. The court also relied on reports carried out by the Youth Welfare Office and the Juvenile Court Assistance Office.
Ms Moser appealed complaining that neither the Juvenile Court itself nor the other authorities involved in her case had made any effort to help her regulate her residence status or to help her maintain contact with her child. Her appeal was dismissed.
She appealed again on points of law. She complained that, among other things, she had not been sufficiently involved in the proceedings and that she had had no access to the court files. She asserted that the authorities involved had not suggested alternative measures, such as placing her in a mother-child centre. Furthermore, she complained that there were no public and oral hearings in the custody proceedings and that the decisions were not pronounced publicly. Her appeal was rejected in August 2001.
Ms Moser currently has access rights to see Luca for two hours a month, on their birthdays and at Christmas. The residence prohibition on her was lifted in November 2004 and she has been granted a residence permit for a limited duration.
The applicants complained about the transfer of custody of Luca to the Youth Welfare Office, relying on Article 8 (right to respect for private and family life) of the European Convention on Human Rights. Relying on Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 8, the applicants complained of discrimination on account of their nationality. The Ms Moser further alleged violations of Article 6 § 1 (right to a fair hearing).
The European Court of Human Rights noted that the courts failed to explore possibilities which would have allowed the applicants to remain together or stay in close contact while the proceedings were pending. The Court considered that the fact that Ms Moser had only twice been able to see her son in the six months between his birth and the decision transferring custody to the Youth Welfare Office, was particularly serious, given that they had not had a chance to bond, since Luca had been removed immediately after his birth.
The Court also considered that Ms Moser was not sufficiently involved in the decision-making process in that she was only heard once by the Juvenile Court and that the court relied on reports which had not been served on the applicant and on which she had had no possibility to comment. The Court also observed that the appeal proceedings were conducted without holding any hearing. It therefore concluded that the reasons relied on by the domestic courts were not sufficient to justify such a serious interference with the applicants’ family life and were not proportionate to the legitimate aims pursued. It held unanimously that there had been a violation of Article 8 as regards the transfer of custody of Luca to the Youth Welfare Office.
The Court noted that the 1990 Vienna Youth Welfare Act did not make any distinction on the basis of nationality and that there was no indication in the file that the failure to examine the possibility of a placement in a mother-child centre was based on the applicants’ status as foreigners. Consequently, the Court found that there had been no violation of Article 14.
The Court also held unanimously that there had been three violations of Article 6 § 1. These were due to the failure to give Ms Moser an opportunity to comment on the reports of the Youth Welfare Office and the Juvenile Court Assistance Office, the failure to hold a public hearing and the failure to pronounce publicly the judgments in the proceedings.
The Court awarded Ms Moser 8,000 euros (EUR) in respect of non-pecuniary damage and EUR 6,694.74 for costs and expenses. It held that the finding of a violation of Article 8 constituted in itself sufficient just satisfaction for any non-pecuniary damage Luca might have suffered. (The judgment is available only in English.)
Lenke: Sammendrag