AS TO THE ADMISSIBILITY OF
Application No. 22206/93
by Tamas and Heidi LANG-LÜSSI
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 6 September 1995, the following members being present:
MM. H. DANELIUS, President
S. TRECHSEL
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 June 1993 by
Tamas and Heidi Lang-Lüssi against Switzerland and registered on
12 July 1993 under file No. 22206/93;
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 applicants, may be
summarised as follows.
The applicants are a married couple residing at Guttannen in
Switzerland. They have Swiss and apparently also Hungarian
citizenship. The first applicant, born in 1939, is a parson. The
second applicant, born in 1944, is a housewife. Before the Commission
they are represented by Mr P. Nobel, a lawyer practising in Zürich.
The applicants married in 1973. Their only son, born in 1975,
died in 1989 as a result of an accident.
In 1989 the applicants expressed interest in adopting a child.
Two expert opinions prepared in 1990 stated that the applicants were
suitable in this respect. At that time, the applicants refused an
offer by the Colombian authorities to adopt a nine year old boy.
The applicants then contacted a Brazilian adoption agency. When
the second applicant heard that X., a girl born in 1988, was free for
adoption in Sao Paulo, the second applicant travelled to Brazil in
February 1991.
On 5 March 1991 the first applicant requested the Cantonal Youth
Office (Jugendamt) of the Canton of Bern to authorise the placing of
X. in their care for purposes of adoption (zur Aufnahme zwecks
Adoption). The Youth Office informed the applicants that further
inquiries would be necessary in view of the age difference between
parents and child.
On 27 March 1991 the Brazilian authorities authorised the
applicants' adoption of X. It appears that the Hungarian authorities
also granted such an authorisation.
On 4 April 1991 the applicants travelled with X. from Brazil to
Switzerland.
On 12 April 1991 the Youth Office ordered the applicants to place
X. elsewhere.
The applicants filed a complaint before the Administrative Court
(Verwaltungsgericht) of the Canton of Bern. As the result of a
friendly settlement, X. was provisionally placed in the V. family.
The Youth Office then requested the Adoption Counselling Service
of the Caritative Women's Association (Beratungsstelle für Adoption des
Schweizerischen gemeinnützigen Frauenvereins) to examine the situation.
In its report of 24 July 1991 the Counselling Service concluded that
X. should not be placed with the applicants. The Counselling Service
referred in particular to the difference of age between X. and the
applicants; the motives given by the applicants for adoption; the
difficulties which could be expected during puberty; and the health
problems of the second applicant who suffered from adiposity.
As a result, the Youth Office on 6 September 1991 refused to
authorise the placing of X. in the applicants' care for the purpose of
adoption. The Youth Office relied in particular on the Federal
Ordinance on the placing of foster children (Eidgenössische Verordnung
über die Aufnahme von Pflegekindern). According to Section 5 of this
Ordinance, a child may only be placed in a foster family if the
personality, health and educational abilities of the foster parents
ensure good care and education of the child; placing a child in a
foster family for the purpose of adoption may only be authorised if it
is to be expected that adoption will later be authorised.
The applicants' appeal against this decision was dismissed by the
Directorate of Justice (Justizdirektion) of the Canton of Bern on
18 November 1991.
Their further appeal was dismissed by the Administrative Court
on 19 February 1992. The Court found that there was a difference in
age of 50 and 44 years between X. and the first and the second
applicant, respectively. While the applicants were currently in a
situation where they could raise X., it was open to doubt in the
Court's opinion whether they would offer the necessary adaptability
once X. entered puberty. There was further a risk that X., who would
have been a single child, would grow up overly protected and spoiled.
The manner in which the applicants had dealt with the authorities
although they should have known that they could not necessarily bring
X. to Switzerland, did not demonstrate parental love; rather, the
applicants had put their own interests before those of the child.
The applicants then filed an administrative law appeal
(Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht)
dismissed on 20 January 1993.
In its decision the Court first dealt with the applicants'
complaints under Swiss law and the Convention that the facts had been
incorrectly and insufficiently determined and that the Administrative
Court had abused its margin of appreciation. The Court considered that
the proceedings at issue had a direct influence on the constitution and
continuation of a family (Begründung und Bestand von familienrecht-
lichen Verhältnissen) and therefore concerned the determination of the
applicants' civil rights and obligations within the meaning of Article
6 para. 1 of the Convention for which reason this provision was
applicable. The judgment continues:
<Translation>
"In the present case the question of an authorisation to
place the child in care for purposes of a subsequent
adoption was decided in first instance by the Cantonal
Youth Office and upon appeal by the Cantonal Directorate of
Justice. These authorities are administrative bodies and
do not meet the requirements of Article 6 para. 1 of the
Convention; the cantonal Administrative Court could itself
only examine the contested decision from a legal, not from
a factual point of view, and there was not even a control
of appreciation. The administrative law appeal to the
Federal Court also does not permit a full control of the
determination of the facts and therefore of the
appreciation of evidence, if the appeal is directed against
the decision of a cantonal court.
According to Section 108 para. 2 of the Organisation
of Justice Act the administrative law appeal must contain
inter alia the request and the grounds therefor. According
to the Federal Court's case-law, no strict requirements
should be made in this respect ... Nevertheless, it must
transpire from the grounds given which aspects of the
contested decision are being criticised ... In the present
case the facts are contested; however, the applicants have
not criticised with one word the proceedings in which the
decisions were taken, and in particular they have nowhere
requested proceedings complying with Article 6 para. 1 of
the Convention. As there is absolutely no such ground
mentioned in the appeal, the cantonal proceedings shall not
be examined as to their compliance with Article 6 para. 1
of the Convention."
<Original>
"Im vorliegenden Fall wurde die Frage der Aufnahmebewilli-
gung des Kindes zur Pflege zwecks späterer Adoption erstin-
stanzlich vom kantonalen Jugendamt, auf Beschwerde hin von
der kantonalen Justizdirektion entschieden. Diese Behörden
genügen als Verwaltungsbehörden den Anforderungen von Art.
6 Abs. 1 EMRK nicht; das kantonale Verwaltungsgericht
konnte seinerseits den angefochtenen Entscheid nur in
rechtlicher, nicht aber in tatsächlicher Hinsicht überprü-
fen, wobei sogar die Ermessenskontrolle entfiel. Auch die
Verwaltungsgerichtsbeschwerde an das Bundesgericht erlaubt
keine volle Kontrolle der Sachverhaltsfeststellungen und
damit auch der Beweiswürdigung, wenn sie gegen den Ent-
scheid eines kantonalen Gerichts eingereicht wurde.
Gemäss Art. 108 Abs. 2 OG hat eine Verwaltungs-
gerichtsbeschwerde u.a. die Begehren und deren Begründung
zu enthalten. An diese sind nach bundesgerichtlicher
Rechtsprechung keine strenge Anforderungen zu stellen ...
Immerhin muss die Begründung erkennen lassen, weshalb und
in welchen Punkten der angefochtene Entscheid beanstandet
wird ... Im vorliegenden Fall ist der Sachverhalt
umstritten; die Beschwerdeführer haben aber das Verfahren,
in dem die Entscheide getroffen wurden, mit keinem Wort
beanstandet und haben insbesondere ein Art. 6 Abs. 1 EMRK
entsprechendes Verfahren nirgends gefordert. Mangels
jeglicher diesbezüglicher Begründung in der Beschwerde ist
das kantonale Verfahren nicht auf seine Verträglichkeit mit
Art. 6 Ziff. 1 EMRK zu überprüfen."
Insofar as the applicants had submitted new factual information
after filing their administrative law appeal, the Court found that it
was not competent to admit this information which "in any event, as
shall still be shown, was not relevant for the decision" (es wäre im
übrigen, wie noch zu zeigen ist, auch nicht entscheiderheblich).
Insofar as the applicants complained that they had not been able
to consult one particular report prepared by Mrs V., the Court noted
that the Administrative Court had also not been aware of the file; the
Court also ordered the report to be taken out of its own file.
The Court then dealt with the applicants' complaint that the
Administrative Court had not sufficiently considered the opinion of a
Guardianship Office; that the first applicant was a Hungarian citizen
and had been born in Hungary; and that the Hungarian authorities had
also dealt with the applicants' request for adoption. The Court noted
in particular that neither the applicants nor X. lived in Hungary, and
that the applicants were Swiss citizens residing in Switzerland.
Insofar as the applicants maintained that according to Brazilian law
X. was their adoptive child, the Federal Court found that Swiss law did
not attach weight to whether the home country of the adopted child had
already authorised the child's adoption. The applicants were moreover
themselves responsible for the fact that the legal situation of X. was
unsatisfactory, as they had brought X. into Switzerland despite a
warning by the Youth Office, and without possessing any official
authorisation by the Swiss authorities. They had then instituted
adoption proceedings both in Brazil and in Hungary, though these
decisions were not accepted in Switzerland.
The Federal Court further dealt with the applicants' complaint
of a breach of Article 8 of the Convention, inter alia in that the
Administrative Court had abused its discretion and that one particular
report was useless and could not serve as a basis for a decision. The
Court found that the report at issue was not the only element on which
the Administrative Court had relied when concluding that a relationship
between X. and the applicants would not serve the child's interests.
The Court considered that the notion of the child's interests had to
be interpreted according to Swiss conditions, and it did not suffice
to conclude that the child was better off merely because it had Swiss
adoptive parents. The Federal Court found that the Administrative
Court had carefully examined the applicants' personalities, their age
and health situation, their views, their relationship to X., and also
the situation in the future.
COMPLAINTS
1. Under Article 6 para. 1 of the Convention the applicants complain
that the various authorities dealing with their case could only examine
it from a legal, not a factual point of view.
2. Under Article 8 of the Convention the applicants complain that
they have been separated from X., and that the Swiss authorities have
not recognised the adoptions granted under Hungarian and Brazilian law.
THE LAW
1. Under Article 6 para. 1 (Art. 6-1) of the Convention the
applicants complain that the various authorities dealing with their
case could only examine it from a legal, not a factual point of view.
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 ... hearing ... by (a) tribunal ..."
The Commission recalls the case-law of the Convention organs
according to which the Convention calls at least for one of the
following systems: either the jurisdictional organs themselves comply
with the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention, or they do not so comply, but are subject to subsequent
control by a judicial body that has full jurisdiction and does provide
the guarantees of Article 6 para. 1 (Art. 6-1) (see Eur. Court H.R.,
Albert and Le Compte judgment of 10 February 1983, Series A no. 58, p.
16, para. 29: Zumtobel judgment of 21 September 1993, Series A no. 268,
p. 13, para. 29).
a) The Commission considers that the proceedings at issue,
concerning the adoption of X., had a direct influence on the
constitution and continuation of a family and therefore concerned the
determination of the applicants' civil rights and obligations within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
b) The Commission observes that the Federal Court in its decision
of 20 January 1993 identified in the present case the issue of a lack
of access to court. However, it decided not to resolve the issue as
the applicants had failed to raise any such complaint in their
administrative law appeal before the Federal Court. The applicants
have not therefore complied with the requirement as to the exhaustion
of domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention.
This part of the application must therefore be rejected in
accordance with Article 27 para. 3 (Art. 27-3) of the Convention.
2. Under Article 8 (Art. 8) of the Convention the applicants
complain that they have been separated from X., and that the Swiss
authorities have not recognised the adoptions granted under Hungarian
and Brazilian law.
Article 8 (Art. 8) of the Convention states, insofar as relevant:
"1. Everyone has the right to respect for his private and
family life ...
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."
An issue arises whether the authorities' refusal to place X. in
the applicants' care for the purpose of adoption amounted to an
interference with their right to respect for their private and family
life within the meaning of Article 8 (Art. 8) of the Convention. The
Commission need not resolve this issue since such an interference would
in any event have been justified within the meaning of Article 8 para.
2 (Art. 8-2) of the Convention.
Thus, when refusing to place X. in the applicants' care for the
purpose of adoption, the Swiss authorities relied on the Federal
Ordinance on the placing of foster children which mentions the
conditions for the placing of a child in a foster family in particular
for the purpose of adoption. The interference was therefore "in
accordance with the law" within the meaning of Article 8 para. 2
(Art. 8-2) of the Convention.
The Commission further accepts that the authorities' refusal to
place X. in the applicants' care served "the protection of health (and)
of the rights and freedoms of others", in particular of the child,
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
Moreover, when considering whether or not to place X. in the
applicants' care, the Swiss authorities considered the different
interests at stake. Thus, they examined, with reference to an expert
opinion, the applicants' personalities, their age and health situation,
their views, their relationship with X. and the situation in the
future. As a result, they found that the adoption would not be in the
interests of the child.
The Commission further notes that the Swiss authorities were
aware that the applicants' adoption had been accepted by both the
Brazilian and the Hungarian authorities. However, the Federal Court
found in its decision of 20 January 1993 that as the applicants were
Swiss citizens and lived in Switzerland the child's interests had to
be interpreted according to Swiss conditions, and that it did not
suffice to conclude that the child was better off merely because it had
Swiss adoptive parents.
In the Commission's opinion, it cannot be said that the decision
of the Swiss authorities went beyond the margin of appreciation left
to national authorities. The interference with the applicants' right
to respect for private and family life could therefore reasonably be
considered "necessary in a democratic society" within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention.
It follows that the remainder of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
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