17771/91

 AS TO THE ADMISSIBILITY OF Application No. 17771/91 by E.R. against Switzerland The European Commission of Human Rights sitting in private on 12 October 1992, the following members being present: MM. C.A. NØRGAARD, President J.A. FROWEIN S. TRECHSEL E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS H. DANELIUS Sir Basil HALL MM. F. MARTINEZ C.L. ROZAKIS Mrs. J. LIDDY MM. L. LOUCAIDES J.-C. GEUS M.P. PELLONPÄÄ B. MARXER Mr. K. ROGGE, Deputy to the Secretary to the Commission, Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 31 October 1990 or 27 January 1991 by E.R. against Switzerland and registered on 7 February 1991 under file No. 17771/91; Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, a Swiss citizen born in 1944, is a business employee residing in Zurich. Before the Commission he is represented by Mr. L.A. Minelli, a lawyer residing at Forch in Switzerland. Particular circumstances of the case I. On 24 March 1987 Ms. K. gave birth to a girl R. The applicant from the beginning accepted paternity. On 26 March 1987 he declared in writing that he supported the decision of Ms. K. to entrust the child to foster parents who eventually might adopt the child. R. has lived with foster parents since 30 March 1987. On 8 May 1987 Ms. K. signed a declaration according to which she accepted a subsequent adoption of R. At the end of May 1987 the applicant wrote to the Youth Secretariat of the Zurich-Land District, explaining that only with difficulty could he accept that R. would no longer grow up with her mother. However, after long conversations with Ms. K. he accepted her decision. The applicant further wrote that the prospect never to be allowed to see R. was incomprehensible and painful. By letter of 26 June 1987 the Youth Secretary G. replied that the applicant's declaration to respect Ms. K.'s decision also implied that he would not do anything that could endanger the future adoption; contacts between the applicant and the child would only create unnecessary problems and not lie in the child's interests. II. On 27 July 1987 the Oberengstringen Guardianship Office (Vormundschaftsbehörde) declared that R.'s father was unknown and had not taken care of the child. With reference inter alia to Article 265c of the Swiss Civil Code (Zivilgesetzbuch; see below, Relevant domestic law and practice) the Office ruled therefore that the father's consent to R.'s adoption was not necessary. The Office also withdrew Ms. K.'s parental custody over R. and appointed the Youth Secretary G. as the child's guardian. The decision was not served on the applicant. After September 1988 the applicant was represented by a lawyer. In a letter of 5 September 1988 to the Oberengstringen Guardianship Office, the applicant stated that he wished to rear R. together with Ms. K., and that he had not consented to R.'s adoption and did not intend to do so. A copy of this letter was sent to the Youth Secretary G. who then transmitted a copy of the decision of the Guardianship Office of 27 July 1987 to the applicant. III. The applicant unsuccessfully appealed against the decision of 27 July 1987 to the Zurich District Council (Bezirksrat). During these proceedings he was heard by a member of the District Council. The applicant's subsequent appeal to the Zurich Directorate of Justice (Justizdirektion) was dismissed on 4 January 1990. In its decision the Directorate found in particular that it could not be said that the child's father was unknown. However, it considered the conditions of Article 265c para. 2 of the Civil Code to be satisfied. IV. The applicant then filed an appeal (Berufung) with the Federal Court (Bundesgericht). In the appeal statement, which was prepared by a lawyer, the applicant explained in detail how he had shown a serious interest in his child. He complained that the authorities' conduct disclosed that they were determined to proceed to an adoption. Finally he submitted that he intended to marry R.'s mother. On 9 February 1990 the Zurich Directorate of Justice filed its observations on the appeal, requesting the Federal Court to dismiss it. The applicant only became aware of these observations on 6 September 1990, i.e. after the Federal Court had given its judgment. In its observations the Directorate of Justice found inter alia that the applicant, in his descriptions of the events, had left out relevant parts, for instance his statement of May 1987. While he had expressed an interest in visiting the child, he no longer pursued his efforts once the guardian told him that this was not possible. The Directorate found that in fact the applicant was not as helpless as he was making himself out to be. No indications transpired from the applicant's appeal concerning the recognition of paternity. The applicant mostly raised claims which had been made in the proceedings at issue and had no basis whatsoever. In fact the applicant no longer even knew where he had unsuccessfully attempted to obtain a birth certificate of the child. On 20 April 1990, the Federal Court dismissed the appeal. Notification of the operative part of the decision, stating that the appeal was dismissed, was served on the applicant on 23 April 1990 and received by him, at the earliest, on 25 April 1990. The reasons for the decision were dispatched to the applicant's lawyer on 27 July 1990. The judgment stated that the Federal Court followed the procedure provided for in Section 60 paras. 1 and 2 of the Federal Judiciary Act (Organisationsgesetz; see below, Relevant domestic law and practice). In its decision the Federal Court found that the conditions of Section 265c para. 2 of the Civil Code were met. The Court noted in particular that upon R.'s birth the applicant had accepted that he was not in a position to take care of her. In his letter at the end of May 1987 the applicant had not stated that he wanted an intensive contact with R. but only that he was sad that she could not grow up with her mother. Moreover, the applicant had not originally reacted to Youth Secretary G.'s reply of 26 June 1987. The Court noted that only a year later, on 5 September 1988, the applicant had again contacted the Guardianship Office. However, he had not explained in which way he would personally take care of the child. The Court further found that the applicant had not himself applied for legal recognition of his paternity; he had only done so in April 1989 when the Zurich District Council had set him a time-limit to prove his paternity. V. On 21 December 1990 the Zurich District Court (Bezirksgericht) ordered the applicant to pay a monthly subsistence allowance to R. From this decision it also transpires that R.'s adoption has entered into legal force. Relevant domestic law and practice I. According to Article 265c of the Swiss Civil Code, consent of a parent to a child's adoption need not be obtained "1. if he is unknown, of unknown residence and absent for a longer period of time, or permanently of unsound mind; 2. if he has not seriously taken care of the child" ("1. wenn er unbekannt, mit unbekanntem Aufenthalt länger abwesend oder dauernd urteilsunfähig ist, 2. wenn er sich um das Kind nicht ernstlich gekümmert hat"). II. According to Article 62 of the Federal Judiciary Act, upon appeal an oral hearing takes place in principle before the Federal Court in non-pecuniary civil cases. Article 60 deals with cases in which the Federal Court may decide on the appeal without public deliberations. Article 60 para. 2 states: [Translation] "1. The Federal Court may immediately or after obtaining a reply, without public deliberations and unanimously, a. decide that it will not deal with the appeal ... ... 2. The Federal Court may also, after the time-limit for an accessory appeal has expired, at once or after obtaining a reply, decide, provided it is unanimous, to dismiss the appeal if it regards the appeal without any doubt as being unfounded." [German] "1. Das Bundesgericht kann sofort oder nach Einholung der Antwort ohne öffentliche Beratung bei Einstimmigkeit a. beschliessen, dass auf die Berufung nicht eingetreten wird .. ... 2. Ebenso kann das Bundesgericht nach Ablauf der Frist für die Anschlussberufung sofort oder nach Einholung der Antwort ohne öffentliche Beratung bei Einstimmigkeit die Berufung abweisen, wenn er sie ohne irgendwelchen Zweifel als unbegründet erachtet." As regards the taking of evidence, Section 55 para. 1 c) states that the appeal may not contain "statements which are directed against the establishment of the facts, allegations of new facts, new objections, contestations and means of evidence" ("das Vorbringen neuer Tatsachen, neue Einreden, Bestreitungen und Beweismittel"). Section 63 para. 2 states, in so far as relevant: [Translation] "The Federal Court must in its decision rely on the determination of the last Cantonal instance in respect of the factual circumstances, except if they were reached in violation of rules of evidence of Federal law." [German] "Das Bundesgericht hat seiner Entscheidung die Feststellungen der letzten kantonalen Instanz über tatsächliche Verhältnisse zugrunde zu legen, es wäre denn, dass sie unter Verletzung bundesrechtlicher Beweisvorschriften zustande gekommen sind." COMPLAINTS 1. Under Article 8 of the Convention the applicant complains of the conduct of the Swiss authorities who did not obtain his consent for R.'s adoption. 2. The applicant complains under Article 6 para. 1 of the Convention that in these proceedings he was never heard by a court, the Zurich authorities having been administrative bodies. He should have been enabled to comment before the Federal Court on the statement made by a previous instance, namely the Zurich Directorate of Justice of 9 February 1990, and to submit further requests for the taking of evidence. PROCEEDINGS BEFORE THE COMMISSION By letter dated "October 1990" and postmarked 31 October 1990 the applicant wrote to the Commission contesting "the release of my daughter for adoption, without my consent, by the Federal Court in May 1990" ("Freigabe meiner Tochter zur Adoption ohne meine Zustimmung vom Bundesgericht im Mai 1990"). No documents were included. In reply the Secretariat informed the applicant of the conditions for filing an application. On 27 January 1991 the applicant's lawyer filed complaints under Article 8 and on 28 January 1991 under Article 6 of the Convention. In his application he stated that the Federal Court's decision of 20 April 1990 had been dispatched on Friday 27 July 1990 and could have been received by the applicant on 28 July 1990 at the earliest. The application was registered on 7 February 1991. On 6 January 1992 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits in respect of the complaint under Article 6 para. 1 of the Convention. The Government's observations were received by letter dated 12 March 1992. The applicant submitted his observations on 17 April 1992. THE LAW 1. The applicant complains under Article 8 (Art. 8) of the Convention that his child was adopted without his consent. Under Article 6 (Art. 6) of the Convention the applicant complains that he could not comment on certain statements before the Federal Court, that he was never heard by a court, and that he could not file further requests for the taking of evidence. 2. The Commission observes that the applicant, in a letter to the Commission dated "October 1990" and postmarked 31 October 1990, contested "the release of (his) daughter for adoption, without (his) consent, of the Federal Court in May 1990". The Commission considers therefore that the complaint under Article 8 (Art. 8) of the Convention was introduced on 31 October 1990. On the other hand, the complaints under Article 6 para. 1 (Art. 6-1) of the Convention were first introduced before the Commission by letter dated 28 January 1991. 3. The Government contend with regard to the applicant's complaints under Articles 6 and 8 (Art. 6, 8) of the Convention that he has not complied with the requirement as to the exhaustion of domestic remedies under Article 26 (Art. 26) of the Convention as he failed to raise the complaints he is now raising before the Commission in a public law appeal to the Federal Court. While the Court could not have conducted an oral hearing, it could have quashed the previous Cantonal decisions; the Cantonal authorities would then have been obliged to take into consideration the Federal Court's decision. The applicant submits that in his appeal to the Federal Court he clearly explained the facts and complained that he could not consent to the adoption of his child. Moreover, in the appeal proceedings the Court, the only judicial instance in the proceedings, was bound to apply both Swiss law and the Convention. Even if he had filed a public law appeal which would have been upheld by the Court, this would not have altered the situation any more, as it concerned a period of time three years before. Under Article 26 (Art. 26) of the Convention the Commission may only deal with a matter "after all domestic remedies have been exhausted, according to the generally recognised rules of international law". The Commission considers that in his appeal to the Federal Court the applicant complained in substance that his daughter was adopted without his consent. In respect of this complaint he has therefore complied with the requirement under Article 26 (Art. 26) of the Convention. Insofar as the applicant complains about the fairness of the proceedings before the Federal Court, the Commission notes that the latter decided as the only court in the applicant's case. There were no further remedies available to the applicant under Swiss law to complain about the proceedings before the Federal Court. Also in this respect the applicant has therefore complied with the requirement under Article 26 (Art. 26) of the Convention. 3. The applicant complains under Article 8 (Art. 8) of the Convention that his child was adopted without his consent. Article 8 (Art. 8) of the Convention states:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The Commission considers that the adoption of the applicant's child without the applicant's consent amounts to an interference with the applicant's right to respect for his family life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention. The Commission must therefore examine whether this interference was justified under Article 8 para. 2 (Art. 8-2) of the Convention. The Commission observes that in the present case the domestic authorities, when deciding on the adoption of the applicant's child, invoked Article 265c of the Swiss Civil Code. According to this provision, consent of a parent to the child's adoption need not be obtained inter alia if the parent has not seriously taken care of the child. The measure was therefore "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. Moreover, when deciding on the necessity of the applicant's consent to the adoption, the authorities considered that the applicant had not shown a serious interest in his child who had grown up with her foster parents. Thus, the Federal Court observed in its decision of 20 April 1990 that upon the child's birth the applicant had accepted that he was not in a position to take care of her. In a letter in May 1987 the applicant had not stated that he wanted an intensive contact with his daughter. He had not at first reacted to the Youth Secretary's letter of 26 June 1987; when a year later he had again contacted the Guardianship Office, he had not explained how he would personally take care of the child. Finally, the Court considered that the applicant had not applied for legal recognition of his paternity; he had only done so in April 1989 when he was set a time-limit to prove his paternity. The Commission thus considers that the interference with the applicant's right to respect for his family life was "necessary in a democratic society ... for the protection of health (and) morals (and) the rights and freedoms of others", namely the child concerned. The interference was therefore justified under Article 8 para. 2 (Art. 8-2) of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 4. Under Article 6 (Art. 6) of the Convention the applicant complains that he was never heard by a court, that he could not comment on certain statements before the Federal Court, and that he could not submit further requests for the taking of evidence. Article 6 para. 1 (Art. 6-1) of the Convention states, insofar as relevant: "In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law." a) As regards the complaints concerning the lack of an oral hearing and the taking of evidence the Government submit that the applicant did not comply with the requirement under Article 26 (Art. 26) in that he did not file these complaints within six months after 25 April 1990 when he received the notification of the Federal Court's decision. The subsequent written reasons of the judgment would not have assisted the applicant in filing his application with the Commission. In the applicant's view, it is the purpose of Article 26 (Art. 26) of the Convention that an application should only be filed with the Commission when the domestic proceedings have definitely been concluded. Under Article 26 (Art. 26) of the Convention the Commission may only deal with an application if it has been filed "within a period of six months from the date on which the final decision was taken". The Commission considers that the Federal Court dealt in its judgment inter alia with the applicant's relations with his child. The written reasons of the judgment would have enabled the applicant to assess the prospects of his application to the Commission both with regard to the complaint that no evidence was taken, and with regard to the complaint that he did not have an oral hearing. The Commission further recalls the decision of the European Court of Human Rights in the Oberschlick case according to which "the six-month period mentioned in Article 26 (Art. 26) of the Convention runs only as from the same date as that which is relevant with regard to the final decision on the merits" (see Eur. Court H.R., judgment of 23 May 1991, Series A no. 204, p. 22, para. 42). In the present case the final decision on the merits was served on the applicant on 28 July 1990. As he filed his complaints under article 6 para. 1 (Art. 6-1) of the Convention on 28 January 1991, he has in this respect complied with the requirement under Article 26 (Art. 26) of the Convention. b) As regards the well-foundedness of the complaints the Government submit that the applicant did not ask for an oral hearing before the Federal Court; the Federal Judiciary Act itself did not envisage such a right. As regards the taking of evidence, the Government submit that the Federal Court is bound by Sections 55 para. 1 c) and 63 para. 2 of the Federal Judiciary Act. Finally, the Government contend that the applicant could have asked to comment on the statement of the Directorate of Justice of the Canton of Zurich, although Section 60 of the Federal Judiciary Act envisages the possibility that the court decides on the appeal immediately, or after having obtained the reply of the opposing party. On the whole the Government acknowledge that the procedure before the Federal Court does not entirely respect the guarantees of Article 6 (Art. 6) of the Convention. However, these issues cannot be dissociated from the fact that the applicant did not invoke all the remedies at his disposal within the meaning of Article 26 (Art. 26) of the Convention, and the Government therefore conclude that the applicant's complaints are unfounded. The applicant submits that he was not entitled to ask for an oral hearing. Moreover, he had no legal right to comment, in the proceedings before the Federal Court, on the reply of the Directorate of Justice of the Canton of Zurich. In fact, the statements of the opposing party are as a rule served on a party after judgment has been given; this also happened in the present case. The Commission, having regard to the parties' submissions under Article 6 para. 1 (Art. 6-1) of the Convention concerning the proceedings before the Federal Court, considers that these complaints raise complex issues of fact and law which can only be resolved by an examination of the merits. This part of the application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established. For these reasons, the Commission, unanimously, DECLARES INADMISSIBLE the applicant's complaints under Article 8 (Art. 8) of the Convention that his child was adopted without his consent; DECLARES ADMISSIBLE, without prejudging the merits of the case, the remainder of the application. Deputy to the President Secretary to the Commission of the Commission (K. Rogge) (C.A. Nørgaard)