Lexploria

Application No. 23539/94

by Maria FIDLER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1996, the following members being present:

MM. C.L. ROZAKIS, President

E. BUSUTTIL

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 20 December 1993

by Maria FIDLER against Austria and registered on 28 February 1994

under file No. 23539/94;

Having regard to the report 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 their further observations of

25 March 1996 and the observations in reply submitted by the applicant

on 29 February 1996 and her further observations of 20 March 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1907, is an Austrian national, residing

in Vienna. In the proceedings before the Commission she is represented

by Mr. G. Pawlikowsky.

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

summarised as follows.

The applicant has two great-grandchildren, i.e. her grandson's

children, which were born out of wedlock in 1986 and 1988,

respectively. Custody over the children is exercised by their mother.

It appears from the file that she and the applicant's grandson

separated in 1991.

In November 1992 the applicant requested the Favoriten District

Court (Bezirksgericht) to grant her access to her great-grandchildren

on 24 December 1992.

On 7 January 1993 the Favoriten District Court dismissed the

applicant's requests.

On 2 March 1993 the Vienna Regional Civil Court (Landesgericht)

rejected the applicant's appeal.

On 11 May 1993 the Supreme Court (Oberster Gerichtshof) rejected

the applicant's appeal on points of law (außerordentlicher Revisions-

rekurs). 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

21 June 1993.

On 30 September 1994 the applicant died.

COMPLAINTS

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

the Favoriten District Court, without hearing her and without taking

any procedural steps, waited until the relevant date had passed, before

dismissing her request to have access to her great-grandchildren on

Christmas 1992.

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

that the courts' decisions, denying her access to her great-

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

family life.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 December 1993 and registered

on 28 February 1994.

On 6 September 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

18 December 1995. In particular the Government informed the Commission

that the applicant had died on 30 September 1994. The observations of

the applicant's representative were submitted on 29 February 1996.

By letter of 11 March 1996, the attention of the applicant's

representative was drawn to the Commission's case-law, relating to the

death of the applicant, and he was invited to make any comments he may

wish to make in this context. The applicant's representative replied

on 20 March 1996. The Government, by letter of 25 March 1996, requested

that the application be struck off the list of cases.

REASONS FOR THE DECISION

The applicant complained under Article 6 and Article 8 of the

Convention that the decisions of the Austrian courts denied her access

to her great-grandchildren.

The Commission notes that the applicant died on

30 September 1994.

The applicant's representative submits that the application

mainly concerned the unfairness of the proceedings before the Favoriten

District Court, which arbitrarily denied the applicant a timely

decision. Further, he argues that the issues raised under Article 6 of

the Convention are of considerable public interest. Finally, he claims

that the applicant has requested him to maintain the application, but

has expressly excluded that any of her heirs take her place in the

proceedings.

The Government submit that the exercise of the applicant's right

of access to her great-grandchildren is a personal right, which is not

transferable.

The Commission considers that the applicant's death does not in

itself dispose of her complaint. In this context the Commission recalls

that close relatives of the deceased applicant are in principle

entitled to take her place (see Eur. Court H.R., X. v. France judgment

of 31 March 1992, Series A no. 234-C, p. 89, para. 26).

The Commission notes that none of the applicant's relatives, if

there are any, has expressed the intention to pursue the application.

On the contrary, according to the submissions of the applicant's

representative, this would be against the applicant's will. As regards

the applicant's representative, the Commission finds that he does not

have an independent right to continue the proceedings (see Eur. Court

H.R., Scherer judgment of 25 March 1994, Series A no. 287, pp. 14-15,

para. 31). Finally, the Commission notes that the present application

relates to the applicant's request for access to her great-

grandchildren. Thus, it concerns an issue which is closely linked to

the person of the deceased applicant.

In these circumstances, the Commission considers that it is no

longer justified to continue the examination of the application, within

the meaning of Article 30 para. 1 (c) of the Convention.

Moreover, as regards the issues raised in the present case, the

Commission finds no reasons of a general character affecting respect

for Human Rights, as defined in the Convention, which require the

further examination of the application by virtue of Article 30 para. 1

in fine of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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FIDLER v. AUSTRIA

FIDLER v. AUSTRIA

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