Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31179/96

by P. E.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, 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

Mrs M.F. BUQUICCHIO, 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 10 January 1996

by P. E. against Austria and registered on 25 April 1996 under file

No. 31179/96;

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 applicant is an Austrian national, born in 1951 and residing

in Vienna. Before the Commission he is represented by Mr. G. Tews, a

lawyer practising in Linz.

The applicant has previously introduced an application

(No. 21714/93) which related to access and custody matters concerning

two of his children born out of wedlock. On 31 August 1994 the

Commission declared this application inadmissible as being manifestly

ill-founded.

A. Particular circumstances of the case

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 28 April 1988 the Fünfhaus District Court (Bezirksgericht)

granted the applicant's divorce on the basis of an agreement of divorce

(Scheidungsvergleich). According to this agreement custody of the

children M. (born in 1983) and R. (born in 1985), was granted to the

applicant's then wife, while the conditions under which the applicant

could exercise his right to visit his children was reserved to an

arrangement out of court.

On 9 December 1993 the applicant filed a motion with the Fünfhaus

District Court that he be granted the right to phone his children twice

a week at hours to be determined in advance and to order the mother to

facilitate these telephone contacts. He submitted that J.H., the

companion in life of his divorced wife had prevented telephone contacts

between the applicant and his children who lived with their mother in

J.H.'s house. For this reason J.H. had changed his telephone number

and kept the new number secret. The applicant submitted that also in

the past he had had regular telephone conversations with his children

in order to maintain a close contact with them. Since his divorced

wife had failed to further his telephone contacts with his children and

had not prevented J.H. from interfering with the applicant's parental

rights, the applicant requested the court to take measures within the

meaning of Section 176 of the Austrian Civil Code (Allgemeines

Bürgerliches Gesetzbuch).

On 14 December 1993 the District Court dismissed the applicant's

motion as it found that the law did not provide for telephone contacts.

On 19 January 1994 Vienna Regional Court (Landesgericht) quashed

the District Court's decision. It found that Section 148 of the Civil

Code included in principle also the right to maintain telephone

contacts, provided that such contacts were practical and feasible. It

therefore ordered the District Court to examine whether, taking into

account the well-being of the children, there existed a need for

telephone contacts and whether the granting of telephone contacts would

interfere with the rights of third persons.

On 27 June 1994 the District Court regulated in detail the

applicant's right to visit his children on certain weekends and during

the holidays and again dismissed his request for telephone contacts.

The District Court noted that when the applicant had exercised

in the past the right to visit his children disputes between the

applicant, the mother of M. and R. and J.H. frequently occurred in the

presence of the children. The main reason for these disputes was that

the applicant consistently refused to inform her on how he intended to

exercise his right to visit. It was in the interest of the children

to reduce as far as possible the sources for possible tensions between

their parents. For this reason the District Court ordered the

applicant to inform in writing the mother of M. and R. where he

intended to pass the holidays with the children. As regards the

applicant's request for telephone contacts the District Court noted

that in the past the applicant had had the possibility to phone his

children but had made, according to their mother, excessive use of this

possibility. The District Court noted further that not only J.H., but

also the applicant's divorced wife were opposed to revealing their

secret telephone number. Consequently it would constitute an

interference with the rights of others if the applicant was granted the

right to phone the children twice a week at J.H.'s house. Furthermore

it was not necessary to take any measures within the meaning of

Section 176 of the Austrian Civil Code as the mother was not opposed

to telephone contacts in general. On the contrary, she agreed that M.

would call her father from a public telephone using telephone cards and

that R. would be present.

On 4 January 1995 the Vienna Regional Court dismissed the

applicant's appeal. The Regional Court observed that the parents of

M. and R. had not yet got over the breaking up of their marriage. For

this reason conflicts occurred between them for apparently trifling

reasons and these conflicts, unfortunately, took place in front of the

children. There was no other explanation for the applicant's refusal

to inform the mother on how and where he intended to exercise his right

to visit his children, although he had no objections to giving these

explanations and the mother asking these questions although she had

previously always been informed on these issues. As regards the

telephone contacts it found that although the granting of telephone

contacts between the parent not having custody and his children was in

general in accordance with Section 148 of the Austrian Civil Code, such

a measure should not interfere with the rights of others. Since J.H.

was opposed to revealing his secret telephone number, the District

Court had correctly dismissed the applicant's request to have telephone

contacts with his children.

On 11 May 1995 the Supreme Court (Oberster Gerichtshof) dismissed

the applicant's extraordinary appeal on a point of law

(außerordentlicher Revisionsrekurs). The decision was served on the

applicant on 31 July 1995.

B. Relevant domestic law

According to Section 148 of the Civil Code the parent not having

custody of the child has the right to access. The courts shall arrange

these access rights or - if necessary - prohibit access in accordance

with the well-being of the child.

According to Section 176 of the Civil Code the court is required

to make the orders necessary for the protection of the well-being of

the child where the conduct of the parents threatens the well-being of

the minor.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that

the courts' refusal to grant him the right to maintain telephone

contacts with his children constituted an interference with his right

to respect for family life. The applicant invokes Article 8 of the

Convention.

2. The applicant further complains about a violation of Article 5

of Protocol No. 7 in that Austrian law in the case of divorce or

separation of spouses provides that custody must be assigned to one of

the parents granting to the other parent only minimum rights, namely

the non-enforceable right to be informed and the non-enforceable right

to be heard on important measures. As a result of this legislation the

parent who does not have custody can only visit the child, but cannot

exercise any further influence on his upbringing. This parent has, for

instance, no enforceable right to be informed where the child goes to

school or how the child performs at school, no enforceable right to be

informed of any medical treatment. The applicant submits that the

measures taken in Austria after the divorce or separation of the

parents are not necessary in the interests of the child.

3. The applicant also complains under Article 6 of the Convention

that the Fünfhaus District Court did not make any further

investigations after the Court of Appeal had quashed the first

decision.

4. Lastly, the applicant complains under Article 13 of the

Convention that he has no right to file directly a complaint with the

Constitutional Court.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention that the Austrian courts' refusal to grant him the right to

maintain telephone contacts with his children constitutes an

interference with his right to respect for family life.

Article 8 (Art. 8) of the Convention, in so far as relevant,

provides 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."

The Commission recalls that the family life of the parents with

their children does not cease to exist following the divorce of a

married couple (cf. Eur. Court HR, Keegan v. Ireland judgment of

25 May 1994, Series A no. 290, pp. 17-18, para. 44).

The Commission finds that the Austrian courts' refusal to grant

the applicant the right to maintain telephone contacts with his

children constituted an interference with the applicant's right to

respect for family life under Article 8 para. 1 (Art. 8-1) of the

Convention. Consequently the Commission is required to examine,

whether the interference was justified under the terms of Article 8

para. 2 (Art. 8-2) of the Convention. In order to be justified under

this provision an interference must satisfy three conditions: it must

be "in accordance with the law", it must pursue one of the aims

enumerated in Article 8 para. 2 (Art. 8-2) and it must be "necessary

in a democratic society" for that aim (Eur. Court HR, Olson (No. 2) v.

Sweden judgment of 27 November 1992, Series A no. 250, p. 32, para.

77).

The Commission finds that the Austrian courts' decisions were

taken in accordance with the law, i.e. Section 148 of the Civil Code,

which provides, inter alia, that the courts have to determine the way

in which the parent who is deprived of custody may exercise his right

of access to the child.

The impugned decisions also served a legitimate aim, namely the

protection of the rights and freedoms of others, i.e. of J.H. and of

the applicant's children M. and R. who, according to the Austrian

courts, should not suffer from the tensions existing between their

parents.

As regards the question whether the measure was necessary in a

democratic society for the above mentioned aim the Commission observes

that the issue before the Austrian courts was whether, having regard

to the well-being of the applicant's children, there existed a need for

telephone contacts between the applicant and his children and whether

the granting of telephone contacts would interfere with the rights of

third persons. The Austrian courts refused the granting of telephone

contacts on the ground that they would interfere with the rights of

J.H. The District Court has also taken into account that there existed

strong tensions between the applicant and the mother of M. and R. and

that, in the interest of the well-being of the children, it was

necessary to keep possible sources of conflict between the parents to

a minimum. The District Court noted further that in the past the

applicant had had the possibility to phone his children but that his

frequent phone calls had also become a source of tension. The District

Court also observed that telephone contacts between the applicant and

his children could be maintained without interfering with the rights

of others, since the mother had agreed that M. would call her father

from a public telephone using telephone cards and that R. would be

present.

In these circumstances the Commission finds that the Austrian

courts' decisions not to grant the applicant telephone contacts to his

children in the manner requested by him was justified under Article 8

para. 2 (Art. 8-2) in that it can reasonably be considered "necessary

in a democratic society ... for the protection of the rights and

freedoms of others".

It follows that this part of the complaint is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains in general about a violation of Article 5

of Protocol No. 7 (P7-5) in that Austrian law in the case of divorce

or separation of spouses provides that custody must be assigned to one

of the parents granting to the other parent only minimum rights.

Article 5 of Protocol No. 7 (P7-5) provides as follows:

"Spouses shall enjoy equality of rights and responsibilities of

a private law character between them, and in their relations with

their children, as to marriage, during marriage and in the event

of its dissolution. This Article shall not prevent States from

taking such measures as are necessary in the interests of the

children."

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of Article 5 of Protocol No. 7 (P7-5), as under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the general rules

of international law and within a period of six months form the date

on which the final decision was taken.

The Commission observes that the applicant lost his parental

authority over his children by virtue of the District Court's decision

of 28 April 1988. He introduced the present application only on

introduced on 10 January 1996.

It follows that the applicant has failed to comply with the

six months' time-limit stipulated in Article 26 (Art. 26) of the

Convention.

Accordingly this part of the application must be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

3. The applicant complains under Article 6 (Art. 6) of the

Convention that the Fünfhaus District Court did not make any further

investigations after the Court of Appeal had quashed the first

decision.

Even assuming that this complaint could raise an issue under

Article 6 (Art. 6) of the Convention, the Commission observes that the

applicant has not made this complaint before the national courts and

has therefore failed to comply with the requirement of exhausting

domestic remedies as provided for in Article 26 (Art. 26) of the

Convention (No. 11425/85, Dec. 5.10.87, D.R. 53 p. 76).

It follows that this part of the complaint has to be rejected in

accordance with Article 27 para. 3 (Art. 27-3) of the Convention.

4. The applicant complains under Article 13 (Art. 13) of the

Convention that he has no right to file directly a complaint with the

Constitutional Court for a constitutional review of the legislation.

Assuming that Article 13 (Art. 13) of the Convention is

applicable the Commission recalls that the Convention organs have

consistently held that it cannot be deduced from Article 13 (Art. 13)

that there must be a remedy against legislation as such which is

considered not to be in conformity with the Convention. (No. 24581/94,

Dec. 6.4.95, D.R. 81, p. 129).

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.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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P.E. v. AUSTRIA

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