In the case of Hoffmann v

In the case of Hoffmann v. Austria*,

The European Court of Human Rights, sitting, in

accordance with Article 43 (art. 43) of the Convention for the

Protection of Human Rights and Fundamental Freedoms ("the

Convention")** and the relevant provisions of the Rules of Court,

as a Chamber composed of the following judges:

Mr R. Bernhardt, President,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr B. Walsh,

Mr C. Russo,

Mr N. Valticos,

Mr I. Foighel,

Mr M.A. Lopes Rocha,

Mr G. Mifsud Bonnici,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 29 January and

26 May 1993,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 15/1992/360/434. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 13 April 1992,

within the three-month period laid down in Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated

in an application (no. 12875/87) against the Republic of Austria

lodged with the Commission under Article 25 (art. 25) by an

Austrian, Mrs Ingrid Hoffmann, on 20 February 1987.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Austria

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision

as to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Articles 8, 9 and 14

(art. 8, art. 9, art. 14) of the Convention and Article 2 of

Protocol No. 1 (P1-2).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated

that she wished to take part in the proceedings and designated

the lawyer who would represent her (Rule 30). The President gave

him leave to use the German language during the proceedings

(Rule 27 para. 3).

3. The Chamber to be constituted included ex officio

Mr F. Matscher, the elected judge of Austrian nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 25 April 1992

the President drew by lot, in the presence of the Registrar, the

names of the other seven members, namely Mr L.-E Pettiti,

Mr B. Walsh, Mr R. Macdonald, Mr C. Russo, Mr N. Valticos,

Mr I. Foighel and Mr G. Mifsud Bonnici (Article 43 in fine of the

Convention and Rule 21 para. 4) (art. 43). Mr Macdonald was

later replaced by Mr M.A. Lopes Rocha, substitute judge, as he

was unable to attend (Rules 22 para. 1 and 24 para. 1).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent

of the Austrian Government ("the Government"), the Delegate of

the Commission and the applicant's representative on the

organisation of the proceedings (Rules 37 para. 1 and 38).

Pursuant to the resulting orders and instructions, the Registrar

received the memorial of the applicant and the memorial of the

Government on 17 September 1992 and 21 September 1992

respectively. The Secretary to the Commission indicated that the

Delegate would submit her observations at the hearing.

5. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg,

on 25 January 1993. The Court had held a preparatory meeting

beforehand. Mr R. Bernhardt, the Vice-President of the Court,

replaced Mr Ryssdal, who was unable to attend (Rule 21

para. 5, second sub-paragraph).

There appeared before the Court:

(a) for the Government

Mr W. Okresek, Federal Chancellery, Agent,

Mr F. Haug, Federal Ministry for Foreign Affairs,Adviser;

(b) for the Commission

Mrs J. Liddy, Delegate;

Mr R. Kohlhofer, Rechtsanwalt, Counsel,

Mr A. Garay, Avocat, Counsel,

Mr H. Renoldner, Adviser.

The Court heard their addresses as well as replies to the

questions of some of its members.

AS TO THE FACTS

I. The particular circumstances of the case

A. Introduction

6. Mrs Ingrid Hoffmann is an Austrian citizen residing in

Gaissau. She is a housewife.

7. In 1980 Mrs Hoffmann - then Miss Berger - married Mr S.,

a telephone technician. At that time, they were both Roman

Catholics.

Two children were born to them, a son, Martin, in 1980

and a daughter, Sandra, in 1982. They were baptised as Roman

Catholics.

8. The applicant left the Roman Catholic Church to become a

Jehovah's Witness.

9. On 17 October 1983 the applicant instituted divorce

proceedings against Mr S. She left him in August or

September 1984 while the proceedings were still pending, taking

the children with her.

The divorce was pronounced on 12 June 1986.

B. Proceedings before the Innsbruck District Court

10. Following their separation, both the applicant and Mr S.

applied to the Innsbruck District Court (Bezirksgericht) to be

granted parental rights (Elternrechte) over the children.

Mr S. submitted that if the children were left in the

applicant's care, there was a risk that they would be brought up

in a way that would do them harm. He claimed that the

educational principles of the religious denomination to which the

applicant belonged were hostile to society, in that they

discouraged all intercourse with non-members, all expressions of

patriotism (such as singing the national anthem) and religious

tolerance. All this would lead to the children's social

isolation. In addition, the Jehovah's Witnesses' ban on blood

transfusions might give rise to situations in which their life

or their health was endangered.

With regard to the son, Martin, Mr S. noted that he would

eventually have to refuse to perform military service or even the

civilian service exacted in its stead.

The applicant claimed that she was better placed to take

care of the children, being in a position to devote herself to

them completely, and as a mother better able to provide them with

the necessary family environment. She alleged that Mr S. did not

even provide for their maintenance, as he was both legally and

morally bound to do. She acknowledged, however, that she

intended to bring the children up in her own faith.

The youth office of the Innsbruck District Authority

(Bezirkshauptmannschaft, Abteilung Jugendfürsorge) expressed a

preference for granting parental rights to the applicant; it

referred to, inter alia, the expert opinion of a child

psychologist.

11. By decision of 8 January 1986, the District Court granted

parental rights to the applicant and denied them to Mr S.

According to its reasoning, only the children's

well-being fell to be considered. The material living conditions

of both parents were such that either of them would be able to

take proper care of the children; however, the father would need

his mother's help. The children had stronger emotional ties with

the applicant, having lived with her for a year and a half

already, and separating them from her might cause them

psychological harm. It followed that it was preferable to leave

the children with the mother.

The District Court further observed:

"As against this, it has been stated by the children's

father, essentially as his only argument, that Ingrid

S.'s membership of the religious community of the

Jehovah's Witnesses has serious detrimental effects on

the children. As to this, it ought to be made clear

right away that in no case are parents' religious

convictions as such a relevant criterion in deciding on

parental rights and duties pursuant to Article 177

para. 2 of the Civil Code. These rights cannot be

refused to a parent or withheld from him for the sole

reason that he or she belongs to a religious minority.

However, in the concrete case it needs to be examined

whether the mother's religious convictions have a

negative influence on her upbringing of the children

which should be taken into account and whether their

well-being is impaired as a result. It appears in

particular that Ingrid S. would not allow blood

transfusions to be given to her children; that for

herself she rejects communal celebration of such

customary holidays as Christmas or Easter; that the

children experience a certain tension in relation to an

environment which does not correspond to their faith; and

that their integration in societal institutions such as

kindergarten and school is made more difficult. However,

the father's apprehension of complete social isolation as

a result of the mother's religion does not appear

well-founded in the light of the established facts. In

addition, no possible dangers to either child's

development have appeared in the course of the

establishment of the facts.

It is true that the facts adduced (blood transfusions,

holidays, impaired social integration) are in principle

capable of having detrimental effects on the children.

This point must now be examined in the context of the

particular case. It appears first of all that the

father's argument that Martin and Sandra would be exposed

in an emergency to serious danger to their life and

health by the refusal of a blood transfusion is not of

decisive importance. In the absence of parental

permission for a medically necessary blood transfusion to

either child, such permission can be replaced by a

judicial decision in accordance with Article 176 of the

Civil Code (compare the decision of the Innsbruck

Regional Court (Landesgericht) of 3 July 1979,

4R 128/79). In any case, according to this legal

provision, anyone can apply to the court for an order

that is necessary to ensure the welfare of the child when

the parent endangers it by his conduct. In view of this

possibility of applying to the court, which is available

at all times, no danger to the children need be inferred

from the mother's attitude to blood transfusions.

As for Ingrid S.'s rejection of holidays, notice must be

taken of her express agreement to allow the father to

take the children on such occasions and celebrate them

with the children as he sees fit. The mother's religious

convictions thus do not deprive Martin and Sandra of the

possibility of celebrating these holidays in the usual

way, so that no detriment to the children can be found in

this regard either.

Of the reservations with regard to the mother's

upbringing of the children resulting from her religion

the only remaining one of any significance is the

circumstance that Martin and Sandra will in later life

experience somewhat more difficulty in finding their way

in social groups as a result of the religious precepts of

the Jehovah's Witnesses and will find themselves to some

extent in a special position. However, the court cannot

consider this so detrimental to the children's welfare

that they should for that reason not be entrusted to

their mother, with whom they have such a close

psychological relationship and to whose care they are

accustomed. Careful consideration must lead to the

conclusion that in spite of more difficult social

integration, as discussed above, it appears to be more in

the interest of the children's welfare to grant parental

rights to the mother than to transfer them to the

father."

C. Proceedings before the Innsbruck Regional Court

12. Mr S. appealed against the above decision to the

Innsbruck Regional Court (Landesgericht).

13. The Regional Court rejected the appeal by decision of

14 March 1986. Its grounds for so doing were the following:

"The main thrust of the appeal is to argue that the

decision of the first-instance court is incompatible with

the children's welfare in view of the mother's membership

of the religious community of the Jehovah's Witnesses.

In this connection, the appellant discusses the criteria

and objectives peculiar to that religious community and

the resulting social attitudes, which are in his opinion

wrong; it follows, in his view, that both children are

bound to suffer harm if the parental rights and duties

are assigned to the mother, and in particular that they

may be forced into social isolation removed from reality.

The appellant's line of argument in this regard is

unsound. The Jehovah's Witnesses, formerly known as

Serious Bible Students, a community based upon their own

interpretation of the Bible, are not outlawed in Austria;

it may therefore be assumed that their objectives neither

infringe the law nor offend morality (see Article 16 of

the Basic Law in conjunction with Article 9 (art. 9) of

the European Convention on Human Rights). Therefore, the

mother's membership of that religious community cannot of

itself constitute a danger to the children's welfare ...

Admittedly, the mother's religion will in all probability

affect the children's care and upbringing, and they may

come to experience a certain tension in relation to an

environment which does not correspond to their faith.

The first-instance court has already dealt at length with

part of the appellant's arguments that relate thereto and

has given detailed and conclusive reasons why the

father's objections against assigning the parental rights

and duties to the mother cannot in the final instance be

decisive. The new points raised on appeal - relating to

a lack of understanding of democracy and a lack of

subordination to the State - cannot cast doubt on the

first-instance decision as regards the children's

welfare; it suffices in this respect to recall the legal

recognition of the religious community of the Jehovah's

Witnesses, which meant, contrary to the appellant's

allegation, that the first-instance court did not in fact

need to seek ex officio an expert opinion on the

objectives or the 'nature' of the Jehovah's Witnesses.

Nor were the first-instance proceedings incomplete

because no expert medical opinion was sought regarding

the question, which was raised anew on appeal, of blood

transfusions, which are rejected by the Jehovah's

Witnesses; in the event that a judicial remedy (a

decision pursuant to Article 176 of the Civil Code)

arrives too late, it will in the final instance be up to

the physician treating the patient, when confronted with

the problem, to reach a decision, with a view in the

first place to life-saving medical action and only in the

second place taking into account the rejection of blood

transfusions which is peculiar to the Jehovah's

Witnesses.

The appellant's further line of argument - to the effect

that a properly arranged transfer of the children to

himself and properly arranged visiting rights for the

mother could not cause the same shock as had the mother's

forcible removal of the children, and that the decision

under appeal had legalised her unilateral action - also

fails to convince. The appellant overlooks the fact

that, in view of the paramount importance of the

children's welfare, the way in which they reached the

place where they are currently being taken care of is not

necessarily decisive. Even illegal conduct would be of

relevance only to the extent that it might, in an

individual case, be possible to infer therefrom a lack of

suitability for care or upbringing; it is not otherwise

decisive for determining the attribution of parental

rights and duties whether or not the parent concerned has

taken charge of the children without authorisation. It

remains true, however, that both children have for a long

time developed harmoniously in the mother's care, that

there is a closer relationship with her than with the

father, and that, whatever the religious or philosophical

views of the mother, neither child has suffered any harm

in his or her physical or - particularly - psychological

development; in fact the appellant could not seriously

claim that they had actually suffered in the latter

respect."

D. Proceedings before the Supreme Court

14. Mr S. lodged an appeal on points of law

(außerordentlicher Revisionsrekurs) with the Supreme Court

(Oberster Gerichtshof).

15. By decision of 3 September 1986, the Supreme Court

overturned the judgment of the Innsbruck Regional Court, granting

parental rights to Mr S. instead of the applicant. It gave the

following reasons:

"The appellant has not hitherto claimed that the children

belonged to the Roman Catholic faith; however, he has

stated, and it has in fact been established, that the

mother is bringing them up according to the principles of

the Jehovah's Witnesses' teaching. It is also

uncontested that the children do not belong to this

confession. The lower courts had therefore to examine

whether or not the mother's bringing up the children in

this way contravened the provisions of the Federal Law of

1985 on the Religious Education of Children (Bundesgesetz

über die religiöse Kindererziehung), BGBl

(Bundesgesetzblatt, Federal official Gazette) 1985/155

(re-enactment of the Law of 15 July 1921 on the Religious

Education of Children, dRGB (deutsches Reichsgesetzblatt,

German Reich Gazette) I. 939). According to Article 1 of

the 1921 Act the religious education of a child shall be

decided upon by an agreement freely entered into by the

parents, in so far as the responsibility for his or her

care and upbringing is vested in them. Such an agreement

may be revoked at any time and is terminated by the death

of either spouse. Article 2, paragraph 1, of the 1921

Act lays down that if such an agreement does not or

ceases to exist, the provisions of the Civil Code on the

care and upbringing of children shall extend to their

religious education. However, according to Article 2,

paragraph 2 of the 1921 Act, during the existence of the

marriage neither parent may decide without the consent of

the other that the child is to be brought up in a faith

different from that shared by both parents at the time of

the marriage or from that in which he or she has hitherto

been brought up.

Since in any case the children do not belong to the faith

of the Jehovah's Witnesses, their education according to

the principles of this sect (which is not, as the

appellant rightly points out, a recognised religious

community: see Adamovich-Funk, Österreichisches

Verfassungsrecht, [Austrian Constitutional Law], Vol. 3,

p. 415) contravenes Article 2, paragraph 2, of the

1921 Act. The Regional Court's failure to apply this

provision is obviously in breach of the law.

Moreover, the lower courts also failed in their decisions

to give due consideration to the children's

welfare ... . That the mother, as has been established,

would refuse to consent to the children's receiving a

necessary blood transfusion constitutes a danger to their

well-being, since requesting a court to substitute its

consent for that of the mother ... may in urgent cases

involve a life-threatening delay and medical intervention

without seeking the approval of the person entitled to

take care of the child is considered contrary to the

law ... . It has also been established that if the

children are educated according to the religious teaching

of the Jehovah's Witnesses, they will become social

outcasts. In the initial decision as to which of the

spouses is to have the right to provide care and

upbringing, these circumstances cannot be ignored.

Although it is preferable for young children to be taken

care of by their mother ..., this applies only provided

that all other things are equal ... . There is no

maternal privilege as regards the attribution of parental

right ... . The stress caused to the children by being

transferred to the care of the other parent, which in any

case is usually transitory, has to be accepted in their

own best interests ... . The file contains no

documentary basis for the assumption that a change to

another carer 'would with a high degree of probability

cause the children serious psychological harm' ... .

Even according to the opinion of the lower courts, the

father is able to see to the children's upbringing, since

they have a good relationship with him and with their

grandmother, who would take charge of their care and

upbringing during the father's absence at work; the

availability of accommodation for the children in the

house of the father's parents is assured. Therefore,

only transfer of parental rights and duties to the father

is in the children's interest."

II. Jehovah's witnesses

16. Numbering about four million worldwide not counting

uninitiated sympathisers, the Jehovah's Witnesses form a

particular religious movement. It originated in America in the

1870s. Formerly known by names such as International Bible

Students, the Jehovah's Witnesses took their present name in

1931.

17. A central feature of Jehovah's Witness doctrine is the

belief that the Holy Scriptures in the original Hebrew and Greek

are the revealed word of Jehovah God and must therefore be taken

as literal truth.

The refusal to accept blood transfusions is based on

several scriptural references, most notably Acts 15: 28-29, which

reads (New World translation):

"For the holy spirit and we ourselves have favored adding

no further burden to you, except these necessary things,

to keep abstaining from things sacrificed to idols and

from blood and from things strangled and from

fornication. If you carefully keep yourselves from these

things, you will prosper ..."

III. Relevant domestic law

A. The Civil Code

18. Article 177 of the Austrian Civil Code (Allgemeines

Bürgerliches Gesetzbuch) deals with the custody of children in

an event such as the dissolution of their parents' marriage by

divorce. It reads:

"(1) Where the marriage between the parents of a

legitimate minor has been dissolved, annulled or declared

void, or where the parents are separated other than

merely for a temporary period, they may submit to the

court an agreement concerning which of them shall in the

future have custody of the child. The court shall

approve the agreement if it is in the interests of the

child's welfare.

(2) Where no agreement is reached within a reasonable

time, or if the agreement reached is not in the interest

of the child's welfare, the court shall decide which

parent is to have sole custody of the child in the

future; in the case of a separation of the parents which

is not merely temporary, such a decision shall be taken

only on application by one of them."

19. Both during and after the parents' marriage, the court

may be called upon to substitute its approval or consent for that

of the parents (or parent). The relevant provision is

Article 176, which reads:

"Where the conduct of the parents threatens the welfare

of a minor, the court shall be required, irrespective of

who has applied to it, to make the orders necessary for

the protection of the child's welfare. Such an order may

also be made on application by one of the parents when

the parents have failed to reach an agreement concerning

a matter of importance to the child. In particular the

court may withdraw custody of a child, either wholly or

in part, including rights of approval and consent

provided by law. In individual cases the court is also

required to substitute its approval or consent for

parental approval or consent required by law, when there

is no justified reason for refusal."

20. In taking decisions under Articles 176 and 177, the

courts follow the criteria set out in Article 178a, which reads:

"In assessing the interests of the minor, his or her

personality and needs must be duly taken into

consideration, particularly his or her talents,

abilities, inclinations and developmental opportunities,

as well as the material circumstances of the parents."

B. Regulation of religious life

21. Religious freedom is guaranteed by Article 14 of the

Basic Law (Staatsgrundgesetz), which reads:

"(1) Complete freedom of beliefs and conscience is

guaranteed to everyone.

(2) Enjoyment of civil and political rights shall be

independent of religious confessions; however, a

religious confession may not stand in the way of civic

duties.

(3) No one shall be compelled to take any church-related

action or to participate in any church-related

celebration, except in pursuance of a power conferred by

law on another person to whose authority he is subject."

22. Austria has a system of recognition of religious

communities. It is governed by the Act of 20 May 1874 concerning

the Legal Recognition of Religious Communities (Gesetz betreffend

die gesetzliche Anerkennung von Religionsgesellschaften), RGBl

(Reichsgesetzblatt, Official Gazette of the Austrian Empire)

1874/68. Only five religious communities are so recognised,

among them the Roman Catholic Church but not the Jehovah's

Witnesses. Religious groupings without legal recognition have

legal personality as "societies" (Vereine) under the general law.

23. The religious education of children is governed by the

Federal Act on the Religious Education of Children, which

re-enacted a German law dating from 1921 that was incorporated

into Austrian law in 1939 (see paragraph 15 above).

Article 1 reads:

"The religious education of a child shall be decided upon

by an agreement freely entered into by the parents, in so

far as the responsibility for the child's care and

upbringing is vested in them. Such an agreement may be

revoked at any time and is terminated by the death of

either spouse."

Article 2 reads:

"(1) If such an agreement does not or ceases to exist,the

provisions of the Civil Code on the care and upbringing

of children shall extend to their religious education.

(2) During the existence of their marriage neither parent

may decide without the consent of the other that the

child is to be brought up in a faith different from that

shared by both parents at the time of their marriage or

from that in which he or she has hitherto been brought

up, or that a child is to cease to attend religious

education classes.

(3) In the absence of such consent, application may be

made for the mediation of, or a decision by, the

guardianship court. In any such decision the interests

of education shall be paramount even in cases not covered

by Article 176 of the Civil Code. Before the decision is

taken the child's parents, and if necessary relatives,

relatives by marriage and teachers, must be heard if this

is possible without significant delays or

disproportionate costs. The child itself must be heard

if it has reached the age of ten."

C. Medical action

24. The need for parental permission for administering blood

transfusions to minors follows from the law governing medical

action in general.

Thus, the Hospitals Act (Krankenanstaltengesetz),

BGBl 1/1957, lays down in Article 8:

"(1)...

(2) Hospital patients may be medically treated only in

accordance with the principles and recognised methods of

medical science.

(3) Special curative treatments including surgical

operations may be carried out on a patient only with his

consent, but if the patient has not yet reached the age

of eighteen or if because he lacks mental maturity or

health he cannot assess the necessity or usefulness of

the treatment, only with the consent of his legal

representative. Consent is not required if the treatment

is so urgently necessary that the delay involved in

obtaining the consent of the patient or his legal

representative or in appointing a legal representative

would endanger his life or would entail the danger of

serious harm to his health. The medical director of the

hospital or the doctor responsible for the management of

the hospital department concerned shall decide on the

necessity and urgency of treatment."

25. It is a criminal offence to administer medical treatment

without the requisite consent; this follows from Article 110 of

the Criminal Code (Strafgesetzbuch), which reads:

"(1) Whoever treats another person, even according to the

rules of medical science, without having obtained that

person's consent, shall be liable to imprisonment for up

to six months or to a fine of up to 360 daily rates.

(2) If the offender has failed to obtain the consent of

the patient because he assumed that a delay in the

treatment would entail a serious risk for the life or

health of the patient, he shall be punished according to

paragraph 1 only if the assumed risk did not exist and if

by taking due care ... he could have been aware of this.

(3) The offender shall be punished only at the request of

the person who underwent unauthorised treatment."

PROCEEDINGS BEFORE THE COMMISSION

26. Mrs Hoffmann applied to the Commission on

20 February 1987. She complained that she had been denied

custody of the children on the ground of her religious

convictions. She invoked her right to respect for her family

life (Article 8 of the Convention) (art. 8), her right to freedom

of religion (Article 9) (art. 9) and her right to ensure the

education of her children in conformity with her own religious

convictions (Article 2 of Protocol No. 1) (P1-2); she further

claimed that she had been discriminated against on the ground of

religion (Article 14) (art. 14).

27. The application (no. 12875/87) was declared admissible on

10 July 1990. In its report of 16 January 1992 (Article 31)

(art. 31), the Commission expressed the opinion:

(a) by eight votes to six, that there had been a

violation of Article 8 read in conjunction with Article 14

(art. 14+8);

(b) by twelve votes to two, that no separate issue arose

in regard to Article 9 (art. 9) taken separately or in

conjunction with Article 14 (art. 14+9);

Article 2 of Protocol No. 1 (P1-2).

The full text of the Commission's opinion and of the

separate opinions contained in the report is reproduced as an

annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment

(volume 255-C of Series A of the Publications of the Court), but

a copy of the Commission's report is available from the registry.

_______________

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8), TAKEN ALONE AND

IN CONJUNCTION WITH ARTICLE 14 (art. 14+8)

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 (art. 8) of the

Convention, both taken alone and read in conjunction with

Article 14 (art. 14+8).

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

(art. 14+8).

29. According to Article 8 para. 1 (art. 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 (art. 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 (art. 14+8)

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 (art. 14+8), 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 Convention, Article 14 (art. 14) affords protection against

different treatment, without an objective and reasonable

justification, of persons in similar situations (see, amongst

other authorities, the Sunday Times v. the United Kingdom

(no. 2) judgment of 26 November 1991, Series A no. 217, p. 32,

para. 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 (see paragraphs 15 and 23 above). 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 no

"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, para. 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 (P7-5), 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. In so far as 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

(art. 14+8).

B. Alleged violation of Article 8 (art. 8) taken alone

37. In view of the conclusion reached in paragraph 36 above,

the Court does not consider it necessary to rule on the

allegation of a violation of Article 8 (art. 8) taken alone; the

arguments advanced in this respect are in any case the same as

those examined in respect of Article 8 taken in conjunction with

Article 14 (art. 14+8).

II. ALLEGED VIOLATION OF ARTICLE 9 (art. 9)

38. The Court considers, as did the Commission, that no

separate issue arises under Article 9 (art. 9) either taken alone

or read in conjunction with Article 14 (art. 14+9), since the

factual circumstances relied on as the basis of this complaint

are the same as those which are at the root of the complaint

under Article 8 taken in conjunction with Article 14 (art. 14+8),

of which a violation has been found.

III. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 (P1-2)

39. The applicant's complaint under Article 2 of

Protocol No. 1 (P1-2) was not pursued before the Court, which

finds no reason to examine it of its own motion.

IV. APPLICATION OF ARTICLE 50 (art. 50)

40. According to Article 50 (art. 50),

"If the Court finds that a decision or a measure taken by

a legal authority or any other authority of a High

Contracting party is completely or partially in conflict

with the obligations arising from the ... Convention, and

if the internal law of the said Party allows only partial

reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if

necessary, afford just satisfaction to the injured

party."

The applicant made no claim in respect of non-pecuniary

damages but she claimed ATS 75,000 in respect of costs and

expenses actually incurred before the Convention organs and not

covered by legal aid.

The Commission expressed no opinion as to this claim.

The Government found it acceptable; the Court agrees.

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

(art. 14+8);

2. Holds unanimously that it is unnecessary to rule on the

allegation of a violation of Article 8 (art. 8) taken

alone;

3. Holds unanimously that no separate issue arises under

Article 9 (art. 9), either taken alone or in conjunction

with Article 14 (art. 14+9);

4. Holds unanimously that it is not necessary to rule on the

allegation of a violation of Article 2 of Protocol No. 1

(P2-1);

5. Holds by eight votes to one that the respondent State is

to pay to the applicant, within three months, for costs

and expenses, 75,000 (seventy-five thousand) Austrian

Schillings.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

23 June 1993.

Signed: Rudolf BERNHARDT

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the

following separate opinions are annexed to this judgment:

- dissenting opinion of Mr Matscher;

- partly dissenting opinion of Mr Walsh;

- dissenting opinion of Mr Valticos;

- dissenting opinion of Mr Mifsud Bonnici.

Initialled: R.B.

Initialled: M.A.E.

DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

I feel unable to subscribe to the reasoning and the

conclusion of the majority as regards the alleged violation of

Article 8 taken in conjunction with Article 14 (art. 14+8).

1. First of all it is necessary to examine whether there

really was an interference by a public authority with the

applicant's family life within the meaning of Article 8 (art. 8).

When they separated, the parents did not reach agreement on

custody of the children, both parties claiming it for themselves

in the competent courts. At first instance and on appeal the

courts found for the mother, while the Supreme Court decided in

favour of the father. The case therefore concerned a private

dispute between two individuals - each of whom was equally

entitled from the beginning - which the courts, to which the

parties turned as they had failed to reach an agreement, had to

decide on the basis of the applicable law, since the fact that

the mother had - without authorisation - taken the children away

with her did not give her any additional rights. Accordingly,

the fact that the children were taken back to their father's home

following the final decision of the Supreme Court was not in

itself an interference with the mother's rights within the

meaning of Article 8 (art. 8).

2. Even assuming that there was an interference, the

following should be noted.

The only criterion on which the courts should base their

decision in a case such as this is the welfare of the children.

The Supreme Court determined the welfare of the children

differently from the courts below. It is not for the Strasbourg

Court to substitute its assessment for that of the competent

State authorities, which enjoy a wide margin of appreciation in

the matter. But it is nevertheless the Court's duty to review

whether the choice made by these authorities was within the

margin of appreciation that the Convention grants them and did

not infringe the rights secured in it.

In this instance it did not. The Supreme Court attached

more importance to the adverse effects on the children's welfare

which might result from the mother's membership of the religious

community of the Jehovah's Witnesses. It did not therefore

discriminate against the mother's religion as such but merely

took into consideration certain consequences which belonging to

that religion might entail for the well-being of the children,

and this would seem to me to be wholly legitimate.

Furthermore, the Supreme Court criticised the courts

below for neglecting the fact that, in deciding on the children's

future religious education unilaterally, the mother had infringed

the provisions of the 1921 Act.

3. Even though I do not find in the present case any

violation of Article 8 taken together with Article 14

(art. 14+8), I have to deprecate the phrasing of some of the

reasons given in the Supreme Court's judgment. But as the Court

has noted many times, inept and unfortunate phrasing in a

judicial decision does not on its own constitute a violation of

the Convention.

PARTLY DISSENTING OPINION OF JUDGE WALSH

1. I do not agree that in this case there was a violation of

Articles 8 and 14 (art. 14+8) taken together, or alone, by reason

of the Supreme Court's decision which overturned the decision of

the lower court by withdrawing from the applicant the custody of

her children. The refusal was grounded on the fear that the

children's welfare could be put at risk by reason of the

applicant's intention not to permit a blood transfusion, if

medically necessary, to either of her children should the

occasion arise unless ordered to do so by a court.

2. The mother's attitude was dictated by the tenets of the

religious society or sect she had joined subsequent to the birth

of her children. She had become a member of Jehovah's Witnesses

after quitting the Catholic Church and she had accepted the view

that to permit blood transfusion for her children, who were in

her custody, would be morally wrong. Her children had remained

members of the Catholic Church, as had her husband. Her children

had no known objection to a necessary blood transfusion. In

effect the applicant was imposing her religious beliefs upon the

life and health of her children and in disregard of the rights

of the father and of the provisions of the Religious Education

of Children Act 1921.

3. The father's notice of appeal to the Supreme Court

specifically mentioned the withholding of possible blood

transfusion as the reason for seeking a reversal of the order of

the lower court. That was an objective ground which a court

might or might not, in any given case, regard as a sufficient

ground for the transfer of custody. That is not a matter upon

which this Court could usurp the discretion of the national

court. The matter before the Supreme Court was a question of the

hazard of the health of the children. In gauging the seriousness

of the hazard the Supreme Court recognised that the cause of the

hazard was, admittedly, the applicant's new religious views. The

reason or motives for the creation of the hazard are but

secondary to the objective effect of the existence of the hazard.

If the applicant's attitude was not traceable to a religious

belief the question before the national court would remain

essentially the same. The fact that the hazard was brought into

existence by a religious belief not shared by those upon whom it

was sought to impose it does not create a situation where the

removal of the hazard must necessarily, if at all, be regarded

as a discrimination on the grounds of religious belief. The

national court's duty was to evaluate or weigh the effects as

distinct from the cause.

4. The appeal to the Supreme Court was heard before the

divorce of the parents became final. After that a different

legal situation arose which could give rise to a further recourse

to the national courts in consequence of the effect of the

divorce on the provisions of the Religious Education of Children

Act 1921. That is a situation which is not before this Court.

5. I agree with the decision of the Court in relation to

Article 8 (art. 8) taken alone, Article 9 (art. 9) and

Article 2 of Protocol No. 1 (P1-2).

DISSENTING OPINION OF JUDGE VALTICOS

(Translation)

I am unable to share the opinion of the majority of the

Chamber that there was in the present case a violation of

Articles 8 and 14 (art. 8, art. 14) of the Convention, in that

the Supreme Court's decision refusing to grant Mrs Hoffmann

custody of her children constituted discrimination on the grounds

of religion.

It is in fact clear, in my opinion, that the said

decision by the Supreme Court was not based on the sole fact that

Mrs Hoffmann was a Jehovah's Witness, but essentially on the

consequences that this would have had for the children's future.

The question would surely not have arisen in the case of a

different religion not having the special characteristics of

Jehovah's Witnesses. Thus the refusal to have blood transfusions

could, whatever has been said, have endangered the children's

health and even their lives. The peculiarities of this

religion's tenets of faith would have led to the children being

set apart from normal social life and would have contributed to

marginalising them and restricting their future and their

development. The children had admittedly not yet been accepted

into the faith of Jehovah's Witnesses, but the mother took them

with her to the Sunday meetings. Since she made weekly visits

for spreading her faith (admittedly without being accompanied by

her children), it was to be expected that her children would also

become objects of her proselytising zeal, it being natural for

her to wish to ensure what she regarded as their salvation.

It should thus have been held that the Supreme Court's

decision resulted not from "a distinction based essentially on

a difference in religion alone", as the majority of the Court

declared, but from the legitimate concern to protect the future

of the Hoffmann children.

DISSENTING OPINION OF JUDGE MIFSUD BONNICI

I am unable to agree with the five members of the Court

who make up the majority. My reasons are the following:

1. Article 8 (art. 8) of the Convention prohibits

interference by a public authority with the exercise of the right

of one's private and family life, home and correspondence.

2. In my opinion, a fundamental distinction must be made

between interference and intervention. Interference implies that

action whereby one interposes or meddles in something, without

having the right to do so. Intervention, on the other hand, is

that action whereby one steps in-between, to prevent or hinder

a harm which otherwise will occur.

3. Usually, whenever a marriage breaks down, one or both of

the parties requests the court to intervene; as did the applicant

and her husband, in the instant case. The first necessary

intervention therefore came from the Innsbruck District Court.

This first decision of the court was appealed from by the

husband, to the Regional Court, and a second (extraordinary)

appeal was eventually made to the Supreme Court of Austria.

4. Each one of these courts had to reach a decision with

regard to the care and custody of the children of the marriage.

Each one of them was by law obliged to intervene and I cannot see

how one can consider these decisions to be interferences by a

public authority in the private and family life of the applicant.

Rather, these were all necessary interventions, the like of which

occur in their hundreds in the daily court life of all the States

of the Council of Europe.

5. The Supreme Court's decision reversed the previous two

judgments in that it held that those decisions did not conform

with the provisions of the Federal Law of 15 July 1921, which

regulated the problem of the religious education of children.

6. This law provides that the question of the religious

education of children is to be regulated as follows:

(a) on marriage the question shall be settled by the free

agreement of the partners;

(b) the original agreement may be changed by mutual agreement

of the parents at any time;

agreement;

(d) when one of them dies, the agreement lapses.

7. The Supreme Court of Austria decided that the religious

education of the Hoffmann children had to be regulated according

to the original agreement freely entered into between the

parents. The breakup of the marriage did not authorise either

one of the parents, or the court, to change the original

agreement.

8. The appeal to the Supreme Court was lodged on points of

law, mainly on the omission of the lower courts to take account

of the 1921 law. This could not in fact be disputed, and one

cannot see how the Supreme Court could, in its turn, ignore that

law as well. It follows that its decision had to be based on

both the elements already in the file and the law of 1921. I

cannot see how because of this addition the decision violates the

Convention. The lawyer of the applicant, in the oral pleadings,

submitted that "the decision of the Supreme Court contradicts

Austrian law". I do not believe that I am entitled to hear and

decide appeals from the Supreme Court of Austria on the

provisions of Austrian law and as to whether Austrian court

decisions contradict Austrian law.

9. In view of all this, I consider all the submissions on

the merits or demerits of the applicant's religion as being

irrelevant to the issue. The only relevant issue is whether the

applicant is entitled or not to vary the original agreement on

religious instruction which she had reached with her husband,

irrespective of the religion to which that agreement referred.

And this issue as regulated by Austrian law does not violate the

Convention.

10. For these reasons I cannot find that either the decision

of the Supreme Court of Austria or the Austrian Federal Law on

Religious Instruction are in violation of the Convention. Since

I find the application completely unfounded, I am not prepared

to grant anything under Article 50 (art. 50).