LANG-LÜSSI v. SWITZERLAND

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

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

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

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

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

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.