Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 23671/94

G. F.

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. 16-29) . . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 30-48) . . . . . . . . . . . . . . . . . . . . .5

A. Complaints declared admissible

(para. 30). . . . . . . . . . . . . . . . . . . . .5

B. Points at issue

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

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

(paras. 32-40). . . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 41). . . . . . . . . . . . . . . . . . . . .7

D. As regards Article 8 of the Convention

(paras. 42-45). . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 46). . . . . . . . . . . . . . . . . . . . .7

E. Recapitulation

(paras. 47-48). . . . . . . . . . . . . . . . . . .7

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION . . . . .8

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION . . . . 14

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 1956 and resident

in Vienna. He 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 him a decision as regards his request for access to his children

at Christmas 1992, thereby also violating his right to respect for his

family life. The applicant invokes Articles 6 and 8 of the Convention.

B. The proceedings

5. The application was introduced on 13 December 1993 and registered

on 14 March 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 the admissibility and

merits of the applicant's complaints under Articles 6 and 8 that the

courts denied him a decision as regards his request for access to his

children at Christmas 1992, thereby also violating his right to respect

for his family life. It declared the remainder of the application

inadmissible.

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 4 March 1996.

8. On 4 September 1996 the Commission declared admissible the

applicant's complaints that the courts denied him a decision and

violated his right to respect for his family life as regards his

request for access to his children at Christmas 1992.

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 decisions on the admissibility of the

application are annexed hereto as Appendices I and II.

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 children, who were born out of wedlock in

1986 and 1988 respectively. They are living with their mother, who is

exercising custody over them. It appears that she and the applicant,

who had lived together since 1985, separated in January 1991.

17. On 12 July 1991 the applicant requested to be granted access to

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

District Court (Bezirksgericht) dismissed his request. The applicant

appealed against this decision, whereupon the Favoriten District Court

submitted the file to the Vienna Regional Civil Court (Landesgericht

für Zivilrechtssachen).

18. On 16 November 1992 the applicant requested the Favoriten

District Court to grant him access to his children on 24 December 1992,

from the morning until 4 p.m. Similar requests were made by the

great-grandmother and the grandmother of the children. The Favoriten

District Court received the applicant's request on 20 November 1992.

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

him 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 on the same day that it be

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

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

21. 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 decision 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.

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

applicant and notified him of a meeting that was to take place on

17 December 1992, and in which the children's mother was also going to

take part.

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

noted that the applicant had failed to appear in time, heard the mother

of the children as regards the applicant's request. She submitted that

the children would refuse to go with the applicant. The applicant

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

for the file, he explained to the applicant that he had intended to

give him and the children's mother 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.

24. By letter of 28 December 1992 the applicant complained to the

District Court that judge F. had promised him in November that he would

take a decision in time. However, he had now learned that he had, at

that time, not even been competent to deal with the case.

25. On 7 January 1993 the Favoriten District Court rejected the

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

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

which had returned it on 3 December 1992. At the hearing (Tagsatzung)

of 17 December 1992 no agreement had been reached by the parents of the

children. Subsequently, the file had again been sent to the Regional

Court, from where it had been 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. The decision was given by judge F.

26. On 5 February 1993 the applicant filed an appeal (Rekurs) with

the Vienna Regional Civil Court. He complained that the District

Court's decision was incorrect as regards the dates when it had

received the file and had sent it away again. Also the file note of

17 December 1992 showed that the court did not have the intention of

taking a decision before Christmas. The decision was misleading as it

created the impression that the court did not have the possibility of

deciding in time. Even assuming that the dates given by the court were

correct, there would have been enough time between 3 and 17 December

1992 to decide upon his request. However, the judge had delayed the

decision until the time for the proposed visit of his children had

passed. Thus, the applicant requested the Vienna Regional Civil Court

to quash the District Court's decision and to decide on the merits of

his original request. The applicant also requested to be granted access

to his children on one of the following weekends.

27. 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

grant him access to his children on one of the following weekends. It

found that this was a new request, and that it was not competent to

decide on it.

28. On 6 April 1993 the applicant filed an appeal on points of law

(außerordentlicher Revisionsrekurs) with the Supreme Court (Oberster

Gerichtshof). In particular, he repeated the complaints, which he had

already submitted to the Regional Court. He 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 his children

until the date for the requested visit had passed and then to dismiss

them, due to the lapse of time.

29. On 11 May 1993 the Supreme Court rejected the applicant's appeal

on points of law. It found in particular that one of the conditions for

lodging such an appeal was a legitimate interest in pursuing the case.

Appeal courts were not called upon to decide on questions of a merely

theoretical nature, like the question of access to children, when the

date which had been proposed for the visit had already passed. Thus,

the Supreme Court concluded that it was barred from deciding on the

merits of the case. This decision was served on the applicant on

13 July 1993.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

30. The Commission declared admissible the applicant's complaints

that the courts denied him a decision and violated his right to respect

for his family life as regards his request for access to his children

at Christmas 1992.

B. Points at issue

31. The following points are at issue:

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

his children 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 his 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

32. 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."

33. The applicant submits that the judge at the District Court denied

him a fair hearing within a reasonable time. He maintains that he filed

his request for access to his children at Christmas 1992 in time and

that the judge at the District Court promised him a timely decision.

The applicant further submits that the above request had nothing to do

with the proceedings relating to his request for weekly access to his

children and that the case was not complex. The applicant alleges that

the judge at the District Court waited deliberately until Christmas had

passed, before he dismissed his request as being out-dated, i.e.

without deciding on its merits.

34. 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 to be granted access

to his children at Christmas 1992 has to be seen in the context of

proceedings relating to his request for weekly access to them. The

Favoriten District Court had rejected this request; however, the appeal

proceedings were still pending at the relevant time. Further, the

Government submit that the Favoriten District Court summoned the

applicant and the mother 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 rejected

the applicant's request. That it failed to do so cannot be held against

it, given that the appeal proceedings concerning the applicant's

request for weekly access to his children were still pending. There was

not enough time to take more exhaustive steps, in particular to order

an opinion by a child psychologist, which would have been indicated in

the circumstances of the case. As regards the conduct of the applicant,

the Government submit in particular that he appeared belatedly on

17 December 1992 and, thus, prevented the judge from jointly hearing

both parents of the children concerned.

35. 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).

36. 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).

37. The Commission notes that there were no legal impediments

preventing the applicant from introducing his 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).

38. The Commission further notes that the applicant lodged his

request on 16 November 1992. At that time, the District Court was not

in possession of the file relating to the main proceedings concerning

the applicant's request for weekly access to his children. However, it

appears that the District Court did not take any measures to obtain the

file, which was returned to it on 30 November 1992. Despite the limited

amount of time left, the District Court sent the file to the superior

court which returned it on 2 December 1992 with an explicit order to

decide on the applicant's request. However, the District Court only

invited the applicant and the mother of the children to a meeting on

17 December 1992, i.e. one week before Christmas. At that meeting,

which was aimed at bringing about an agreement, the mother of the

children opposed the applicant's request. The applicant appeared

belatedly. Subsequently, the District Court failed to give a decision

before Christmas. It only took its decision on 7 January 1993 noting

that no agreement could be achieved 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 applicant's appeals

were rejected by the Vienna Regional Civil Court and the Supreme Court

on the ground that he had no longer a legitimate interest in pursuing

the case.

39. The Commission finds that the Favoriten District Court failed to

deal with the applicant's request to be granted access to his children

at Christmas 1992 expeditiously and to establish the facts which would

have enabled it to take a decision on the merits. In sum, 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 his request.

40. 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

41. 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

42. 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."

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

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

family life. He argues that the Austrian courts, instead of taking the

necessary measures to help him maintain contact with his children,

arbitrarily denied him access to them.

44. The Government contest this view. The Government, referring to

the case-law of the Convention organs relating to the procedural

requirements inherent in Article 8 (Art. 8), argue that these

requirements do not go beyond the requirements of Article 6 (Art. 6).

As there is no violation of Article 6 (Art. 6), there is no violation

of Article 8 (Art. 8) either.

45. The question which arises under Article 8 (Art. 8) is whether the

conduct of the Austrian courts dealing with the applicant's request

displayed a lack of respect for his 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

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

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

E. Recapitulation

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

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

48. 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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G. F. v. AUSTRIA

G. F. v. AUSTRIA

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