Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24759/94

by Gertrude FIDLER

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 1 May 1994 by

Gertrude FIDLER against Austria and registered on 2 August 1994 under

file No. 24759/94;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 18 December 1995 and the observations in reply submitted

by the applicant on 1 March 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1936, is an Austrian national, residing

in Vienna. In the proceedings before the Commission, she 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 grandchildren, 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.

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).

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.

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.

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.

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

eventually 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.

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.

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.

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. Judge T. explained to him

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.

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.

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 to Vienna Regional Civil

Court, which 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.

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.

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.

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

(außerordentlicher Revisionsrekurs) with the Supreme Court (Oberster

Gerichtshof). In particular, 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.

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, which is important for the uniformity,

the certainty or the development of the law.

COMPLAINTS

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

the judge at the Favoriten District Court deliberately waited until the

relevant time had passed, before deciding on her request of 15 November

1992 and that, thus, the court's decision was arbitrary.

2. The applicant also complains under Article 8 of the Convention

that the courts' decisions, denying her access to her grandchildren on

Christmas 1992, violated her right to respect for her family life.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 May 1994 and registered on

2 August 1994.

On 6 September 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

18 December 1995. The applicant replied on 1 March 1996.

THE LAW

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

Convention that the judge at the Favoriten District Court deliberately

waited until the relevant time had passed, before deciding on her

request of 15 November 1992 and that, thus, the court's decision was

arbitrary.

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

..."

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 the relevant date, 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 parties concerned, including the applicant and the

children's great-grandmother, and to order an expert opinion by a child

psychologist, which would have been necessary in the circumstances of

the case. Finally, the Government submit that the applicant only filed

her request a month before Christmas 1992.

The applicant submits in particular that her request for access

to her grandchildren on Christmas 1992 had nothing to do with the

request for weekly access by the father of the children. She points out

that the Favoriten 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 summoned the parents of the children concerned.

Further, the applicant submits that the case was not complex and

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

expert opinion. Finally, she maintains that she filed her request in

time and that the judge at the District Court had promised her a

decision in time.

The Commission considers that the issue to be decided is whether

the applicant, as regards her request of 15 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 this complaint 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.

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

Convention that the courts' decisions, denying her access to her

grandchildren on Christmas 1992, violated her right to respect for her

family life.

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. They may consist for

instance in the maintenance of a common household or in regular

contacts. The Government submit that there is nothing in the file to

show that the relationship between the applicant and her grandchildren

constituted family life.

The applicant contests the Government's view. She claims that it

follows from the court's files that she had regular weekly contacts

with her grandchildren and that a close relationship existed. She

submits that the Favoriten District Court by taking its decision

belatedly, displayed a lack of respect for her family life.

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 this complaint 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 THE APPLICATION ADMISSIBLE,

without prejudging the merits.

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

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