Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21546/93

by Kurt and Klaus EBERT

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 4 September 1996, the following members being present:

Mrs J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 2 February 1993

by Kurt and Klaus EBERT against Italy and registered on 19 March 1993

under file No. 21546/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Decides as follows:

THE FACTS

The applicant, born in 1942, is an Austrian national, residing

in Patsch (Austria). He is a professor of law at the University of

Innsbruck. The applicant is also filing this application in the name

of his son, born in 1981, an Austrian and Italian national, residing

in Bolzano/Bozen (Italy).

The applicant has lodged two previous applications with the

Commission.

In his first application, No. 15361/89 v. Austria, he complained

under Article 6 para. 1 of the Convention of the length of the

proceedings concerning the conditions for the exercise of parental

authority over his minor child and of the lack of impartiality of the

Innsbruck District Court. He complained also that the length of the

proceedings and the Austrian authorities' refusal to take measures in

the child's interests infringed his right to respect for his family

life under Article 8 of the Convention. Invoking Article 2 of Protocol

No. 1, he further complained that he was denied the right of bringing

up his child in conformity with his own religious and philosophical

convictions. He finally complained under Article 5 of Protocol No. 7

of a violation of the equality of rights and responsibilities between

spouses.

In his second application, No. 16260/90 v. Italy, the applicant

complained of having been a victim of degrading treatment contrary to

Article 3 of the Convention, of a violation of Article 6 para. 1 of the

Convention in respect of the length and the fairness of the

proceedings, including a decision of the Trento Court of Appeal of 24

October 1991 relating to his right of access to his son and the

question of guardianship, of a violation of his right to respect for

family life as guaranteed by Article 8 of the Convention and of a

violation of Articles 13 and 14 of the Convention, Article 2 of

Protocol No. 2 and Article 5 of Protocol No. 7.

On 9 July 1992, after communication to the respective respondent

Governments, the Commission declared these applications inadmissible

as being manifestly ill-founded.

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

be summarised as follows.

In April 1979 the applicant married. A son was born on 25 July

1981. Since 1981 the parents have been living apart, the applicant in

Patsch near Innsbruck, and the mother with the child in Bolzano/Bozen.

The marriage was dissolved by divorce on 4 May 1987.

On 2 September 1985 the Innsbruck District Court (Bezirksgericht)

consented to the child being placed temporarily with his parental

grandparents in Bolzano/Bozen and granted the applicant a right of

access. The court found against placing the child temporarily with his

father in view of the underdeveloped relationship between father and

child.

Upon appeal by the applicant, the Innsbruck Regional Court

(Landesgericht), in a decision given on 20 November 1985, extended the

applicant's right of access and awarded parental authority on an

interim basis to the mother, pending a final decision on the issue.

In 1986 difficulties arose in the applicant's right of access to

his son owing to obstruction by the child's mother.

By an order dated 20 December 1990 the Trento Court of Appeal

deprived the mother of parental authority on the grounds of her

obstruction of any contact by the child with his father, entrusted the

child to his grandparents and ordered contact between the applicant and

the grandparents to be established and co-ordinated by the

Bolzano/Bozen and Innsbruck social services.

By a letter dated 28 January 1991 the child's grandparents

informed the juvenile court that they were not willing to accept this

task.

Thereafter several court decisions were given by the Italian

courts in this matter.

On 24 October 1991 the Trento Court of Appeal transferred

parental authority back to the applicant, gave actual care of the child

to the mother on an interim basis and granted the father a right of

access.

By a final judgment of 26 June 1992 the Innsbruck Regional Court

granted the applicant parental authority (alleiniges Sorgerecht).

On 3 August 1992 the applicant commenced proceedings before the

Trento Court of Appeal in order to have this decision recognised in

Italy.

On 5 July 1992, the applicant requested the Trento Court of

Appeal to award him parental authority over his son and to order the

mother to present the son on 13 September 1992 at the Franciscan School

in Hall, Austria. Invoking Article 2 of Protocol No. 2, he reiterated

this request on 18 August 1992.

By a decision of 26 November 1992, filed with the Registry on

2 December 1992, the Trento Court of Appeal decided that the parental

authority over the child should remain with his mother. The applicant

was granted a right of access. The Court further decided that the child

should not leave Italy without the written authorisation of the mother.

This decision, which was notified to the applicant on 13 January

1993, may be summarised as follows:

Although living apart for a long time, the child's parents

nevertheless continue to express hostile feeling towards

each other. Each of them, even if unconsciously, uses the

son as an instrument against the other. The initially more

reasonable party, i.e. the father, exasperated by the

failure of the adverse party to comply with the judicial

decisions, has also adopted a totally uncompromising

attitude. As had been confirmed by numerous psychologists

and psychiatrists, the minor obviously suffers strongly

from this conflictual situation of his parents and is

profoundly traumatised. The juvenile judicial authorities

have tried to resolve the problem with the intervention of

third persons. Unfortunately the grandparents of the child

have refused to assume the custody over the child. By a

letter of 17 December 1991, the Bolzano/Bozen social

services, instructed by this court to examine the

possibility of placing the child in adequate institutions

or with suitable families, had expressed the view that the

child should not be removed from his mother. Social

institutions accepted mainly children who had no financial

means or had been abandoned by their parents. The

applicant's son, however, was successfully attending a

private school, had proper accommodation and maintenance

and the affection of his mother. The social authorities

have expressed their bewilderment as to the possibility of

taking the child to Austria where he would attend a school

as an internal student. Such a measure would be perceived

by the child as essentially punitive and would increase his

resentment which he had shown on previous occasions towards

his father. The transfer of the child from a mainly Italian

speaking school to another exclusively German speaking

school could further raise problems with regard to his

studies and the relations with other students. Having

regard to the fact that it is the task of this court to

protect the interests of the child and not those of his

parents - whereas it is with the ordinary Court of Appeal

to decide on the question of the execution of foreign

sentences - the custody over the child should remain for

the time being with the mother. Once having completed

twelve years, the child could be heard in person and

express his own wishes.

On 1 February 1993 the applicant instituted criminal proceedings

against six of the judges at the Trento Court of Appeal for abuse of

power. On 5 April 1993 the applicant requested the Court of Trento that

a psychiatric examination of his son be carried out by a neutral expert

outside Italy. On 2 September 1993 the applicant requested the Public

Prosecutor in Trento to take measures in the interest of his son. On

18 October 1994 the applicant complained to the Italian Minister of

Justice of the inactivity of the Italian authorities.

COMPLAINTS

1. The applicant complains on his and also on his son's behalf of

a number of violations of the Convention.

2. The applicant complains in particular under Article 6 of the

Convention of the length of the proceedings pending before the Italian

courts since 1985. He submits that he has met his son under normal

conditions the last time on 14 March 1986.

3. The applicant further complains that the length of the

proceedings and the de facto refusal of granting a medical examination

of his son amount to a violation of Article 8 of the Convention. He

also complains of the decision to awarding the right of custody over

the child to his former wife despite her negative and for the child's

welfare extremely harmful influence. He finally complains that he

cannot exercise his right of access owing to the obstruction of his

former wife and the continued traumatisation of the child by police

interventions. He submits that the Italian authorities have failed to

take all necessary steps to enforce his access right as can reasonably

be demanded in the circumstances of the present case.

4. Complaining that he has no influence on his son's education, the

applicant also alleges a violation of Article 2 of Protocol No. 2.

5. The applicant next complains that he is discriminated against on

grounds of his nationality and language. He alleges a violation of

Article 14 of the Convention in combination with Article 8 of the

Convention, Article 2 of Protocol No. 2 and of Article 5 of Protocol

No. 7. The applicant finally complains that his child cannot leave

Italy without the written authorisation of the mother. He alleges on

behalf of his son a violation of Articles 2 and 3 of Protocol No. 4.

The applicant also alleges a violation of 5 of Protocol No. 7 because

he has been denied equality of rights by comparison with his ex-wife

in his relations with the child.

THE LAW

1. The applicant has filed the application in his own as well as in

his son's name.

Under Article 25 para. 1 (Art. 25-1) of the Convention, the

Commission "may receive petitions...from any person...claiming to be

the victim of a violation of the rights set forth in the Convention".

In principle a parent who has the custody over his child is able

to introduce an application under Article 25 (Art. 25) of the

Convention on behalf of the child (cf. No. 12246/86, Dec. 13.7.87, D.R.

53 pp. 225, 228). This opportunity may be qualified by the status of

the parent's legal relationship with the child under domestic law,

which in the present case is Italian law.

The Commission notes that the Italian courts have awarded the

custody over the child to the applicant's former wife and that the

applicant's complaints are directed against the proceedings before the

Italian courts leading in particular to the decision of the Trento

Court of Appeal of 26 November 1992.

The Commission recalls that, in principle, a person who does not

have the right to represent a person under domestic law may

nevertheless, in certain circumstances, represent this person before

the Commission (cf., e.g., Eur. Court H.R., Nielsen v. Denmark judgment

of 28 November 1988, Series A no. 144). However, the representative

should normally submit evidence showing that he is empowered to appear

before the Convention organs on an applicant's behalf. If this

condition is not met, the Commission can only consider the application

in so far as the representative himself claims to be a victim, either

in his direct or indirect capacity (cf. No. 8612/79, Dec. 10.5.79, D.R.

15 p. 259).

The Commission finds no evidence, however, showing that the

applicant has been authorised to act on his son's behalf in the

Convention proceedings. The Commission can therefore only consider the

application in so far as the applicant himself claims to be a victim

of the situation complained of.

2. The Commission has first examined the applicant's complaints in

respect of the length of the proceedings which have been pending before

the Italian courts since 1985.

Article 6 para. 1 (Art. 6-1) of the Convention, so far as

relevant, provides that "in the determination of his civil rights and

obligations ..., everyone is entitled to a ... hearing within a

reasonable time by [a]...tribunal...".

The reasonableness of the length of proceedings is to be

considered in the light of the criteria laid down in the case-law of

the European Court of Human Rights, in particular the complexity of the

case, the conduct of the applicant and that of the relevant

authorities. On the latter point, the importance of what is at stake

for the applicant in the litigation has to be taken into account (cf.,

e.g., Vallée v. France judgment of 26 April 1994, Series A no. 289-A,

p. 17, para. 34).

In its decision declaring the applicant's previous application

(No. 16260/90) inadmissible, the Commission had regard to the special

features inherent in the very nature of the case. The relevant part of

this decision reads as follows:

"The proceedings involved many decisions given at the

request of the parties, in particular the applicant,

insofar as difficulties in the exercise of their respective

rights with regard to the child required a specific

solution.

The Commission finds that there have been no particular

periods of inactivity in the successive stages of the

proceedings. It emphasises that, contrary to civil

proceedings in which the courts are required to give

rulings upon facts, the decisions in question concerned a

situation developing since the couple's separation, to

which the courts had to find appropriate solutions likely

to protect not only the rights and interests of the

parents, but above all those of the child whose welfare had

to take priority.

In the light of the criteria identified by case-law and

taking into account of all the circumstances of the present

case, the Commission considers that the proceedings in

question did not exceed the 'reasonable time' laid down by

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

fact that no solution has yet been found to the dispute."

The Commission notes that the applicant's previous application

covers facts including the decision of the Trento Court of Appeal of

24 October 1991.

The subsequent proceedings started with the applicant's request

of 5 July 1992 to be awarded parental authority over his son. The

Trento Court of Appeal gave its decision on 26 November 1992, filed

with the Registry on 2 December 1992 and notified to the applicant on

13 January 1993.

Other proceedings brought by the applicant concerned criminal

proceedings against six of the judges of the Trento Court of Appeal,

the request of 3 August 1992 to have the judgment of the Innsbruck

Regional Court of 26 June 1992 recognised in Italy, the request of a

psychiatric examination of his son and the complaint to the Italian

Minister of Justice about the inactivity of the Italian authorities.

The Commission points out that the period whose reasonableness

falls to be reviewed extends to the decision which disposes of the

dispute (see Poiss v. Austria judgment of 23 April 1987, Series A no.

117, p. 103, para. 50). This is the decision of the Trento Court of

Appeal of 26 November 1992. The other proceedings brought by the

applicant, however, were not decisive for the applicant's civil rights

and obligations and cannot to be taken into account in determining the

length of the proceedings.

The period to be considered started therefore on 5 July 1992,

when the applicant submitted his request to be awarded parental

authority over his son and ended with the notification of the decision

of the Trento Court of Appeal of 26 November 1992 to the applicant on

13 January 1993. Thus, the proceedings lasted six months and eight

days.

However, the Commission cannot find that the length of the

proceedings exceeded a "reasonable time" within the meaning of Article

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

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.

3. The applicant also complains that he is denied the custody over

his son by the Italian authorities despite the negative and for the

child's welfare extremely harmful influence of the mother. He further

complains that he cannot exercise his right of access owing to the

obstruction of his former wife and the failure of the Italian

authorities to take all necessary steps to enforce his access right as

can reasonably be demanded in the circumstances of the present case.

He alleges a violation of Article 8 para. 1 (Art. 8-1) of the

Convention.

Article 8 (Art. 8), as far as relevant, reads as follows:

"1. Everyone has the right to respect for his ... 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 ... for the

protection of the rights and freedoms of others."

a) However, Article 27 para. 1 (b) (Art. 27-1-b) of the Convention

provides that the Commission shall not deal with any application

submitted under Article 25 (Art. 25) which is substantially the same

as a matter which it has already examined and if it contains no new

information. In the present case, the Commission recalls that on 9 July

1992 it declared inadmissible the applicant's Application No. 16260/90.

After examining the present complaint, the Commission finds that,

insofar as the facts include the decision of the Trento Court of

Appeal of 24 October 1991, it is essentially the same as the above

application and that it contains no relevant new information.

It follows that this part of the application must be rejected

pursuant to Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.

b) As regards the applicant's complaints in relation to the decision

of the Trento Court of Appeal of 26 November 1992 awarding the custody

over the son to the applicant's former wife and granting the applicant

a right of access, the Commission finds that it is not required to

decide whether or not the facts alleged by the applicant disclose any

appearance of a violation of the Article invoked as, under Article 26

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

all domestic remedies have been exhausted, according to the generally

recognised rules of international law ...".

The Commission notes that the applicant has not lodged an appeal

on points of law against the decision of the Trento Court of Appeal of

26 November 1992 to the Court of Cassation in accordance with Article

111 of the Italian Constitution. Moreover, the Commission observes

that, in accordance with Article 742 of the Italian Code of Civil

Procedure, a decision given in matters concerning the custody over a

child and the right of access may be quashed or modified at any time.

However, the applicant has failed to request a judicial review of the

decision of the Trento Court of Appeal of 26 November 1992 in which it

was stated that the child's own wishes would be taken into

consideration once he had reached the age of 12. The Commission notes

that the child has reached this age in 1993.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies in this respect, and this

part of the application must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

4. The Commission has finally examined the applicant's complaints

as submitted by him under Article 14 of the Convention in combination

with Article 8 (Art. 14+8) of the Convention, Article 2 of Protocol No.

2 (Art. 14+P2-2), Articles 2 and 3 of Protocol No. 4 (Art. 14+P4-2+P4-

3) and Article 5 of Protocol No. 7 (Art. 14+P7-5). However, it finds

that they do not disclose any appearance of a violation of the rights

and freedoms set out in the Convention.

It follows that this part of the application is also manifestly

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

Convention.

For theses reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Menu

EBERT v. ITALY

EBERT v. ITALY

LEXI