Corte Europea dei Diritti dell’Uomo. Sentenza 23 giugno 1993.
Hoffman c. Austria
As to the law
1. Alleged violation of article 8, taken alone and in conjunction with article 14
28. The applicant complained that the Austrian Supreme-Court had awarded parental rights over the children Martin and Sandra to their father in preference to herself, because she was a member of the religious community of Jehovah’s Witnesses; she claimed a violation of her rights under Article 8 of the Convention, both taken alone and read in conjunction with Article 14.
The Government denied that there had been a violation at all, whereas the Commission agreed that there had been a violation of Article 8 taken in conjunction with Article 14.
29. According to Article 8 § 1 of the Convention, “Everyone has the right to respect for his private and family life, his home and his correspondence”.
The Court notes at the outset that the children had lived with the applicant for two years after she had left with them before the judgment of the Supreme Court of 3 September 1986 compelled the applicant to give them up to their father. The Supreme Court’s decision therefore constitutes an interference with the applicant’s right to respect for her family life and the case thus falls within the ambit of Article 8. The fact relied on by the Government in support of the opposite view, namely that the Supreme Court’s decision was taken in the context of a dispute between private individuals, makes no difference in this respect.
A. Alleged violation of Article 8 taken in conjunction with Article 14
30. In view of the nature of the allegations made, the Court, like the Commission, considers it appropriate to examine the present case under Article 8 taken, in conjunction with Article 14, which reads as follows:
The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
31. In the enjoyment of the rights and freedoms guaranteed by the Ccnvention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see, amongst other authorities, the Sunday Times (No. 2) judgment of 26 November 1991, Series A no. 217, p. 32, § 58).
It must first be determined whether the applicant can claim to have undergone different treatment.
32. In awarding parental rights – claimed by both parties – to the mother in preference to the father, the Innsbruck District Court and Regional Court had to deal with the question whether the applicant was fit to bear responsibility for the children’s care and upbringing. In so doing they took account of the practical consequences of the religious convictions of the Jehovah’s Witnesses, including their rejection of holidays such as Christmas and Easter which are customarily celebrated by the majority of the Austrian population, their opposition to the administration of blood transfusions, and in general their position as a social minority living by its own distinctive rules. The District and Regional Courts took note of the applicant’s statement to the effect; that she was prepared to allow the children to celebrate holidays with their father, who had remained Roman Catholic, and to allow the administration of blood transfusions to the children if and when required by law; they also considered the psychological relationship existing between the children (who were very young at the time) and the applicant and her general suitability as a carer.
In assessing the interests of the children, the Supreme Court considered the possible effects on their social life of being associated with a particular religious minority and the hazards attaching to the applicant’s total rejection of blood transfusions not only for herself but – in the absence of a court order – for her children as well; that is, possible negative effects of her membership of the religious community of Jehovah’s Witnesses. It weighed them against the possibility that transferring the children to the care of their father might cause them psychological stress, which in its opinion had to be accepted in their own best interests.
33. This Court does not deny that, depending on the circumstances of the case, the factors relied on by the Austrian Supreme Court in support of its decision may in themselves be capable of tipping the scales in favour of one parent rather than the other. However, the Supreme Court also introduced a new element, namely the Federal Act on the Religious Education of Children (…). This factor was clearly decisive for the Supreme Court.
The European Court therefore accepts that there has been a difference in treatment and that that difference was on the ground of religion; this conclusion is supported by the tone and phrasing of the Supreme Court’s considerations regarding the practical consequences of the applicant’s religion.
Such a difference in treatment is discriminatory in the absence of an “objective and reasonable justification”, that is, if it is not justified by a “legitimate aim” and if there is not “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, amongst other authorities, the Darby v. Sweden judgment of 23 October 1990, Series A no. 187, p. 12, § 31).
34. The aim pursued by the judgment of the Supreme Court was a legitimate one, namely the protection of the health and rights of the children; it must now be examined whether the second requirement was also satisfied.
35. In the present context, reference may be made to Article 5 of Protocol No. 7, which entered into force for Austria on 1 November 1988; although it was not prayed in aid in the present proceedings, it provides for the fundamental equality of spouses inter alia as regards parental rights and makes it clear that in cases of this nature the interests of the children are paramount.
36. Where the Austrian Supreme Court did not rely solely on the Federal Act on the Religious Education of Children, it weighed the facts differently from the courts below, whose reasoning was moreover supported by psychological expert opinion. Notwithstanding any possible arguments to the contrary, a distinction based essentially on a difference in religion alone is not acceptable.
The Court therefore cannot find that a reasonable relationship of proportionality existed between the means employed and the aim pursued; there has accordingly been a violation of Article 8 taken in conjunction with Article 14.
For these reasons, the court
1. Holds by five votes to four that there has been a violation of Article 8 in conjunction with Article 14;