Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23671/94

by G. F.

against Austria

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 13 December 1993

by G. F. against Austria and registered on 14 March 1994 under file

No. 23671/94;

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

of Procedure of the Commission;

Having regard to the Commission's decision of 6 September 1995

to communicate the applicant's complaint that the judge at the

Favoriten District Court denied him a fair hearing in that he waited

until Christmas 1992 had passed, before dismissing his request of

16 November 1992, and his complaint that the court decisions denying

him access to is children at Christmas 1992 violated his right to

respect for his family life and to declare inadmissible the remainder

of the application;

Having regard to the observations submitted by the respondent

Government on 18 December 1995 and the observations in reply submitted

by the applicant on 4 March 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1956, is an Austrian national, residing

in Vienna. In the proceedings before the Commission, he is represented

by Mr. G. Koller, a lawyer practising in Vienna.

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

summarised as follows.

The applicant has two children, which 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.

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).

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.

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.

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.

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.

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.

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. Judge T. explained to him

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.

By letter of 28 December 1992 the applicant complained to the

District Court that judge F. had promised him in November to 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.

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 to Vienna Regional Civil Court,

which 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.

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 to

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

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

decide 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.

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.

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.

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 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.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that

the judge at the District Court denied him a fair hearing within a

reasonable time in that he waited deliberately until Christmas 1992 had

passed, before dismissing his request of 16 November 1992. Moreover,

he submits that judge F. was not competent to decide.

2. Further, the applicant complains under Article 8 that the court

decisions denying him access to his children at Christmas 1992 violated

his right to respect for his family life.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 December 1993 and registered

on 14 March 1994.

On 6 September 1995 the Commission decided to communicate the

applicant's complaint that the judge at the Favoriten District Court

denied him a fair hearing in that he waited until Christmas 1992 had

passed, before dismissing his request of 16 November 1992, and his

complaint that the court decisions denying him access to is children

at Christmas 1992 violated his right to respect for his family life and

to declare inadmissible the remainder of the application.

The Government's written observations were submitted on

18 December 1995. The applicant replied on 4 March 1996.

THE LAW

The applicant complains that the judge at the District Court

denied him a fair hearing in that he waited deliberately until

Christmas 1992 had passed, before dismissing his request of 16 November

1992. He also complains that the court decisions denying him access to

his children at Christmas 1992 violated his right to respect for his

family life. He invokes Articles 6 and 8 (Art. 6, 8) of the Convention.

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 ... hearing ... by [a] ... tribunal ..."

Article 8 (Art. 8), so 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 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."

As to Article 6 (Art. 6), 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 his children. 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 expert 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 at issue.

As to Article 8 (Art. 8), the Government referring to case-law

of the Convention organs relating to the procedural requirements

inherent in this Article, argue that these requirements do not go

beyond the requirements of Article 6 (Art. 6). In the present case, as

there was no appearance of a violation of this Article, there is no

appearance of a violation of Article 8 (Art. 8) either. They point out

in particular that the Favoriten District Court decided without

unreasonable delay and that the applicant failed to appear in time at

the meeting of 17 December 1992.

The applicant submits in particular that his request of

16 November 1992 had nothing to do with the proceedings relating to his

request for weekly access to his children. He, therefore, finds that

the Government's arguments are irrelevant as far as they refer to these

proceedings. Further, he argues that the case was not complex and

contests the Government's view that it would have necessitated an

expert opinion. He also contests that following the meeting on

17 December 1992 only a refusal of his request would have been

possible. Moreover, he maintains that he filed his request timely and

that the judge at the district court had promised him a timely

decision.

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 his contact with his children,

arbitrarily denied him access to them.

The Commission considers that the issue to be decided is whether

the applicant, as regards his request of 16 November 1992, had

effective access to court as required by Article 6 para. 1

(Art. 6-1) of the Convention.

After an examination of this issue in the light of the parties'

observations, the Commission considers that it raises questions of fact

and law which can only be determined by an examination of the merits.

It follows that the remainder of the application cannot, therefore, be

declared inadmissible as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

grounds for inadmissibility have been established.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE the remainder of the application,

without prejudging the merits of the case.

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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