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M. F. v. AUSTRIA

Doc ref: 28221/95 • ECHR ID: 001-2874

Document date: April 16, 1996

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M. F. v. AUSTRIA

Doc ref: 28221/95 • ECHR ID: 001-2874

Document date: April 16, 1996

Cited paragraphs only

Application No. 28221/95

by M. F.

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 1 November 1994

by M. F. against Austria and registered on 16 August 1995 under file

No. 28221/95;

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, 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 applicant, may be

summarised as follows.

On 20 February 1994 the applicant requested the Favoriten

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

grandchildren on every third Saturday afternoon.

On 12 April 1994 the District Court found that the applicant had

withdrawn her request.

On 3 May 1994 the District Court rejected an appeal against this

decision on the ground that Mr. Pawlikowsky, who had lodged that

appeal, did not have a power of attorney from the applicant.

On 17 June 1994 the Vienna Regional Civil Court (Landesgericht

für Zivilrechtssachen) rejected a further appeal, which was signed by

Mr. Pawlikowsky and the applicant. It noted in particular that, on

22 April 1994, the applicant had appeared personally before the

Favoriten District Court. She had submitted a document, stating that

she withdrew the power of attorney for Mr. Pawlikowsky, and any appeals

he had lodged in her name. Thus, the District Court rightly found that,

at the time of its decision, Mr. Pawlikowsky had no power of attorney.

On 23 September 1994 the Supreme Court (Oberster Gerichtshof)

rejected the applicant's appeal on points of law (außerordentlicher

Revisionsrekurs).

On 30 September 1994 the applicant died.

COMPLAINTS

The applicant complained under Article 6 para. 1 of the

Convention that the courts wrongly found that she had withdrawn her

request for access to her great-grandchildren.

REASONS FOR THE DECISION

The Commission notes that the applicant died.

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).

In the present case, no successor has been presented. The

complaint relates to proceedings concerning 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.

The Commission concludes, therefore, that it is no longer

justified to continue the examination of this application, within the

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

considers that respect for Human Rights as defined in the Convention

does not require the continuation of the examination.

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)

LEXI

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