Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 24759/94

Gertrude Fidler

against

Austria

REPORT OF THE COMMISSION

(adopted on 3 December 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-30) . . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 31-69) . . . . . . . . . . . . . . . . . . . . .5

A. Complaints declared admissible

(para. 31). . . . . . . . . . . . . . . . . . . . .5

B. Points at issue

(para. 32). . . . . . . . . . . . . . . . . . . . .5

C. As regards Article 6 para. 1 of the Convention

(paras. 33-41). . . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 42). . . . . . . . . . . . . . . . . . . . .7

D. As regards Article 8 of the Convention

(paras. 43-47). . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 48). . . . . . . . . . . . . . . . . . . . .7

E. Recapitulation

(paras. 49-50). . . . . . . . . . . . . . . . . . .8

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . .9

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is an Austrian citizen, born in 1936 and resident

in Vienna. She was represented before the Commission by Mr. G. Koller,

a lawyer practising in Vienna.

3. The application is directed against Austria. The respondent

Government were represented by Mr. F. Cede, Head of the International

Law Department at the Federal Ministry of Foreign Affairs.

4. The case concerns the applicant's complaint that the courts

denied her a decision as regards her request for access to her

grandchildren at Christmas 1992, thereby also violating her right to

respect for her family life. The applicant invokes Articles 6 and 8 of

the Convention.

B. The proceedings

5. The application was introduced on 1 May 1994 and registered on

2 August 1994.

6. On 6 September 1995 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 18 December 1995

after an extension of the time-limit fixed for this purpose. The

applicant replied on 1 March 1996.

8. On 4 September 1996 the Commission declared the application

admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 17 September 1996 and they were invited to submit

such further information or observations on the merits as they wished.

No such observations were received.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 3 December 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

16. The applicant has two grandchildren, namely the children of her

son, who were born out of wedlock in 1986 and 1988, respectively. They

are living with their mother, who exercises custody over them. It

appears that she and the applicant's son separated in 1991.

17. On 12 July 1991 the applicant's son requested to be granted

access to his children on a regular weekly basis. On 27 May 1992 the

Favoriten District Court (Bezirksgericht) dismissed this request. The

applicant's son appealed against this decision, whereupon the Favoriten

District Court submitted the file to the Vienna Regional Civil Court

(Landesgericht für Zivilrechtssachen).

18. On 15 November 1992 the applicant requested the Favoriten

District Court to grant her access to her grandchildren from 5 to

6 p.m. on 24 December 1992. She submitted that she had coordinated her

request with the request of the great-grandmother and offered that she

would meet the children at their home, bring them to the

great-grandmother and accompany them home again at 6 p.m. The District

Court received the applicant's request on 26 November 1992.

19. According to the applicant, judge F., on 27 November 1992, told

her that he was competent to deal with the case and that he would take

a decision in time.

20. On 30 November 1992 the file was returned to the Favoriten

District Court by the Vienna Public Prosecutor's Office

(Staatsanwaltschaft). The court ordered the same day that it be again

submitted to the Vienna Regional Civil Court, before which the appeal

of the applicant's son in the above-mentioned proceedings was pending.

21. Also on 30 November 1992 the applicant, referring to her earlier

request, stated that she and her grandchildren had in all the preceding

years celebrated Christmas together. Further, should it not be possible

to arrange the visit for the late afternoon of 24 December 1992, she

requested access to her grandchildren in the afternoon of

23 December 1992. Similar requests were made by the great-grandmother

of the children and by their father, i.e. the applicant's son.

22. On 2 December 1992 the President of the Vienna Regional Civil

Court returned the file to the District Court and ordered it to take

the decisions relating to the requests for visiting rights during the

Christmas holidays in time, to return the file subsequently and to

report on the state of proceedings by 21 December 1992 at the latest.

23. On 7 December 1992 judge T. at the District Court telephoned the

applicant's son and notified him of a meeting on 17 December 1992, in

which the children's mother was also going to take part. It appears

that the applicant was not summoned to this meeting.

24. On 17 December 1992 judge T. at the District Court, after having

noted that the applicant's son had failed to appear in time, heard the

mother of the children as regards their father's request for permission

to spend 24 December 1992 with them. She submitted that the children

would refuse to go with their father. The applicant's son appeared when

the children's mother had already left. According to Judge T.'s note

for the file, he explained to the applicant's son that he had intended

to give the children's mother and him a possibility to reach an

agreement. However, he could not take a decision, given the short

period of time, and the fact that he had no personal impression of the

situation.

25. On 20 December 1992, the applicant, referring to her requests of

15 and 30 November 1992, urged the District Court to give her notice

of whether these requests had been granted.

26. On 7 January 1993 the Favoriten District Court dismissed the

applicant's request. It noted that, at the time when the request had

been submitted, the file had been before the Vienna Regional Civil

Court, which had returned it on 3 December 1992. At the hearing of

17 December 1992 no agreement was reached by the parents of the

children. Subsequently, the file was again sent to the Regional Court,

from where it was returned on 30 December 1992. Given the lapse of

time, it had become impossible to grant access to the children as

requested by the applicant. This decision was given by judge F.

27. On 31 January 1993 the applicant filed an appeal (Rekurs) with

the Vienna Regional Civil Court. She complained that the District Court

had denied her a fair trial. In particular, the contested decision

tried to establish a link between her request for permission to spend

the afternoon of 23 or 24 December 1992 with her grandchildren and the

hearing of 17 December 1992. However, this hearing had not concerned

her request and she had not been summoned to it. Moreover, she alleged

that the decision was incorrect as regards the dates when the District

Court received the file and sent it away again. Even assuming that the

dates were correct, there would have been enough time between 3 and

17 December 1992 to decide upon her request. Thus, the applicant

requested the Vienna Regional Civil Court to quash the District Court's

decision and to decide on the merits of her original request. She also

requested to be granted access to her grandchildren in the late

afternoon of one of the following weekends.

28. On 2 March 1993 the Vienna Regional Civil Court rejected the

applicant's appeal. It found that, as the date for the requested visit

had already passed, there was no legitimate interest in pursuing the

case. Further, the Regional Court rejected the applicant's request to

be granted permission to spend two hours with her great-grandchildren

in the late afternoon of one of the following weekends. It found that

this was a new request, and that it was not competent to decide on it.

29. On 15 July 1993 the applicant filed an appeal on points of law

(außerordentlicher Revisionsrekurs) with the Supreme Court (Oberster

Gerichtshof). She repeated the complaints she had already submitted to

the Regional Civil Court. She added that, should the Supreme Court

uphold the lower instances' decisions, the courts would be at liberty

to ignore any future requests for access to her grandchildren until the

date for the requested visit had passed and then to dismiss them, due

to the lapse of time.

30. On 21 December 1993 the Supreme Court rejected the applicant's

appeal on points of law. It referred to S. 14 of the Non-Contentious

Proceedings Act (Außerstreitgesetz), which provides that an appeal on

points of law is only admissible, if the decision depends on the

solution of a legal question of importance for the uniformity,

certainty or development of the law.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

31. The Commission declared admissible the applicant's complaints

that the courts denied her a decision and violated her right to respect

for her family life as regards her request for access to her

grandchildren at Christmas 1992.

B. Points at issue

32. The following points are at issue:

- whether the applicant, as regards her request for access to

her grandchildren at Christmas 1992, had access to court as

required by Article 6 para. 1 (Art. 6-1) of the Convention;

- whether the conduct of the courts dealing with the

applicant's request displayed a lack of respect for her family

life in breach of Article 8 (Art. 8) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

33. Article 6 para. 1 (Art. 6-1), so far as relevant, reads as

follows:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

34. The applicant submits that she filed her request for access to

her grandchildren at Christmas 1992 in time and that the judge at the

Favoriten District Court promised her a timely decision. However, the

District Court failed to hear her or to take any other procedural steps

relating to her request. In particular her request was not at issue at

the meeting of 17 December 1992 to which the court had only invited the

parents of the children concerned. Further, the applicant submits that

the case was not complex and that her request had nothing to do with

the request for weekly access by her son, the father of the children.

She alleges that the judge at the District Court waited deliberately

until Christmas had passed, before dismissing her request as being

out-dated, i.e. without deciding on its merits.

35. The Government contend that the main question is whether the

applicant's case was heard within a reasonable time. They submit that

the case was complex as the applicant's request has to be seen in the

context of the proceedings relating to the request for weekly access

by the children's father, i.e. the applicant's son, which was still

pending at the appeal stage at the relevant time. Further, the

Government submit that the Favoriten District Court summoned the

parents of the children for 17 December 1992. As they could not reach

an agreement, the court, on the basis of the file and given the limited

amount of time available, could only have dismissed the applicant's

request. That it failed to do so before Christmas cannot be held

against it, given that the appeal proceedings concerning the request

for weekly access by the applicant's son were still pending. There was

not enough time for more exhaustive steps, in particular to summon all

the persons concerned including the applicant and the children's

great-grandmother, and to order an expert opinion of a child

psychologist, which would have been necessary in the circumstances of

the case. Finally, the Government point out that the applicant only

filed her request a month before Christmas.

36. The Commission recalls that Article 6 para. 1 (Art. 6-1) secures

to everyone the right to have any claim relating to his civil rights

and obligations brought before a court or tribunal. In this way the

Article embodies the "right to a court", of which the right of access,

that is the right to institute proceedings before courts in civil

matters, constitutes one aspect (Eur. Court HR, Golder v. the United

Kingdom judgment of 21 February 1975, Series A no. 18, p. 18,

para. 36). Furthermore, the Commission recalls that Article 6 (art. 6)

guarantees to litigants an effective right of access to the courts for

the determination of their "civil rights and obligations"

(Eur. Court HR, Airey v. Ireland judgment of 9 October 1979, Series A

no. 32, pp. 14-15, para. 26).

37. The right of access to court is not absolute but may be subject

to limitations. Nonetheless, the limitations applied must not restrict

or reduce the access left to the individual in such a way or to such

an extent that the very essence of the right is impaired (Golder v. the

United Kingdom judgment, loc. cit., pp. 18-19, para. 38; Ashingdane v.

the United Kingdom judgment of 28 May 1985, Series A no. 93, p. 24,

para. 57).

38. The Commission notes that there were no legal impediments

preventing the applicant from introducing her request with the civil

courts. However, hindrance in fact can contravene the Convention just

like a legal impediment (Golder v. the United Kingdom judgment, loc.

cit., p. 13, para. 26; Airey v. Ireland judgment, loc. cit., p. 14,

para. 25).

39. The Commission notes that the applicant's request demanding

access to her grandchildren at Christmas 1992 was received by the

District Court on 26 November 1992, i.e. one month before the date of

the requested visit. Despite the limited amount of time available to

reach a decision, the District Court, on 30 November 1992, sent away

the file relating to the main proceedings concerning the request of the

applicant's son for weekly access to his children. After the superior

court had returned the file to it on 2 December 1992 with an explicit

order to decide in time on the requests for access to the children at

Christmas brought by various family members including the applicant,

the District Court only invited the parents of the children to a

meeting on 17 December 1992, i.e. one week before Christmas. It did not

invite the applicant to participate in that meeting nor did it take any

other procedural steps as regards her request. Despite the fact that

the applicant urged the District Court to take a decision, it failed

to do so before Christmas. It only took its decision on 7 January 1993,

noting that no agreement could be reached between the parents of the

children concerned and finding that, due to the lapse of time, it had

become impossible to grant the applicant's request. The Vienna Regional

Civil Court rejected her appeal on the ground that she had no longer

a legitimate interest in pursuing the case. The Supreme Court rejected

her appeal on points of law.

40. The Commission finds that the District Court failed to deal with

the applicant's request to be granted access to her grandchildren at

Christmas 1992. The applicant had access to the District Court only to

be told two weeks after Christmas that, due to the lapse of time, it

had become impossible to grant her request.

41. In the circumstances of the case, the Commission finds, that the

applicant did not enjoy an effective right of access to the courts as

guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

42. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

D. As regards Article 8 (Art. 8) of the Convention

43. Article 8 (Art. 8) of the Convention reads as follows:

"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."

44. The applicant submits that the Favoriten District Court, by

taking its decision belatedly, displayed a lack of respect for her

family life. She claims that she had regular weekly contacts with her

grandchildren and that a close relationship existed.

45. The Government submit that "family life" within the meaning of

Article 8 (Art. 8) requires that there must be close ties between near

relatives such as grandparents and grandchildren, which may consist for

instance in a common household or in regular contacts. They submit that

the applicant had no contact with her grandchildren since July 1991 and

that her previous contacts with them had been irregular. Thus, the

links between the applicant and her grandchildren were not sufficiently

strong to constitute "family life".

46. The Commission recalls that the Court in the Marckx case, found

that "family life" within the meaning of Article 8 (Art. 8) includes

at least the ties between near relatives, for instance those between

grandparents and grandchildren, since such relatives may play a

considerable part in family life (Eur. Court HR, Marckx v. Belgium

judgment of 13 June 1979, Series A no. 31, p. 21, para. 45). Further,

the Commission recalls that there may be family life between

grandparents and grandchildren even without cohabitation, when there

exist close family ties in particular by way of regular contacts

(cf. No. 12402/86, Dec. 9.3.88, D.R. 55, p. 224; No. 12763/87,

Dec. 14.7.88, D.R. 57, p. 216).

47. The Commission considers that in the present case it does not

have to ascertain whether such close ties as to establish family life

existed between the applicant and her grandchildren for the following

reasons. Assuming that Article 8 (Art. 8) is applicable, the question

which arises is whether the conduct of the Austrian courts dealing with

the applicant's request displayed a lack of respect for her family

life. However, having regard to its above conclusion under Article 6

(Art. 6), the Commission does not find it necessary to examine the

applicant's complaint under Article 8 (Art. 8) of the Convention.

CONCLUSION

48. The Commission concludes, unanimously, that no separate issue

arises under Article 8 (Art. 8) of the Convention.

E. Recapitulation

49. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

50. The Commission concludes, unanimously, that there is no separate

issue under Article 8 (Art. 8) of the Convention.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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FIDLER v. AUSTRIA

FIDLER v. AUSTRIA

LEXI