Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16143/90

by Manfred LEHNER

against Austria

The European Commission of Human Rights sitting in private

on 10 December 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 August 1987

by Manfred Lehner against Austria and registered on 7 February 1990

under file No. 16143/90;

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 is an Austrian citizen, born in 1951 and living

in Neumarkt.

The applicant was divorced in March 1984. The right of care

and custody concerning his daughter Nicole, born on 18 February 1976,

was granted to the mother under an agreement concluded before the

Regional Court (Kreisgericht) of Ried on 14 March 1984.

Subsequently the applicant tried, in vain, to be granted

access to his daughter. A first request was refused by the District

Court (Bezirksgericht) of Schärding on 2 August 1985 and, on appeal

(Rekurs), by the Regional Court of Ried on 1 October 1985; the

applicant's further appeal on points of law (Revisionsrekurs)

was dismissed by the Supreme Court (Oberster Gerichtshof) on

19 December 1985.

In October 1986 the applicant made another request and at the

same time challenged the judge of the District Court and a court

officer alleging they entertained friendly relations with his ex-wife

and had frequent contacts with her in the lounge of their office

building, which was also used by the authority where his ex-wife was

working. The judge in question contested these allegations in his

observations and stated that he was outraged about the insinuations

made by the applicant. He therefore considered himself to be biased.

On 11 November 1986 the Regional Court of Ried rejected the

applicant's motion of challenge as being unfounded. It also

considered the judge's own request to be dispensed with dealing with

the applicant's case unfounded as the applicant's motion of challenge

did not have an insulting character and did not contain allegations

likely to raise doubts as to the judge's integrity. Therefore, the

judge had no reason to feel offended.

The applicant's appeal against this decision was rejected by

the Court of Appeal (Oberlandesgericht) of Linz on 3 February 1987.

This Court pointed out that the judge in question had accepted the

Regional Court's decision in that he did not make use of his right

to appeal. He had thereby shown that his own doubts as to his

impartiality had not been of a serious character and no longer

existed. This decision was served on the applicant's counsel on

2 March 1987.

A further appeal on points of law was rejected by the Supreme

Court on 17 April 1987 as being inadmissible.

On 21 October 1987 the District Court of Schärding rejected

the applicant's request to be granted access to his daughter.

Referring to its previous decision in the matter, the Court considered

that the situation had not changed and a right of access had still to

be denied in the interest of the well-being of the child, who

continued to be strongly opposed to any contacts with her father.

This decision was quashed on 5 January 1988 by the Regional

Court of Ried which considered it necessary to examine the case

further, in particular to obtain another expert opinion on the

question whether an obligation to see her father would create serious

psychological problems for the child. The case was referred back to

the District Court.

The judge of this Court again requested to be dispensed with

the duty to deal with the case. This request was granted by the

Regional Court of Ried on 17 April 1988 on the ground that, meanwhile,

a newspaper had published a report about the applicant's allegations

that the judge in question was a friend of the applicant's

ex-wife. Thus there were objective reasons to fear that readers of

the press reports, who did not have detailed information about

the true facts, might consider the judge in question to be biased.

The matter was therefore transferred to the District Court

of Ried which rejected the applicant's request on 7 March 1989. The

Court stated that the well-being of the child was the main guideline

for a decision on the right of access of a parent. A complete denial

of this right could only be justified under exceptional circumstances.

Such circumstances were given as the child had, according to the

expert opinion of a children's psychologist, developed a consistently

negative attitude vis-à-vis her father in the five years of seperation

from him and an obligation to see him would risk provoking a neurotic

development.

This decision was confirmed by the Regional Court of Ried on

11 April 1989. The Court stated that while it was true that the

applicant had not been heard by the District Court and had not been

asked to comment on the expert opinion he did have this opportunity in

the appeal proceedings. However, he failed to submit any arguments

likely to raise doubts as to the correctness of the findings and

conclusions of the expert. His complaints were therefore considered

to be unfounded.

An appeal on points of law was rejected by the Supreme Court

on 15 June 1989. The Court stated that, in view of the fact that the

decision complained of had been confirmed in second instance, its

power of control was limited under Section 16 of the Non-contentious

Proceedings Act to an examination as to whether there was a ground of

nullity, whether the findings of the lower courts were incompatible

with the contents of the files or clearly violated the law. While a

violation of the right to be heard would constitute a nullity ground,

such a violation could be remedied if the party concerned had the

possibility of submitting his case fully in the appeal proceedings.

The Court noted that the first instance decision was not based on any

grounds relating to the applicant personally in a manner which could

make it appear necessary that he should have been heard on the underlying

accusations. However, the expert opinion referred only to the child

and to the possible effects on her of enforced contacts with the

father. There was nothing in the expert opinion or the court

decisions allowing a conclusion that the applicant had in any way

contributed to this attitude of his child by his present behaviour. In

these circumstances there had been no need for the lower courts to

hear the applicant personally, as his personal circumstances were of

no relevance to the denial of the right of access.

COMPLAINTS

The applicant points out that during 21/2 years the case was

dealt with by a judge who had considered himself biased. In these

circumstances it had to be expected that his request would be

rejected. This situation was not remedied by the fact that the matter

was eventually referred to another court because, meanwhile, his

daughter had become even more estranged from him.

The applicant also complains that he was not heard personally

in 1988/89 and that he was not given the opportunity, in first

instance, to comment on the expert opinion.

The applicant invokes Articles 6 para. 1 and 8 para. 1 of the

Convention.

THE LAW

1. The applicant first complains that, at the first stage of the

proceedings relating to his renewed request for access to his daughter,

a judge was dealing with the matter who had considered himself to be

biased against him and had requested to be excused from dealing with

the case.

The Commission first observes that the applicant had been

denied access to his daughter by final decision of the Supreme Court

given on 19 December 1985 of which, in view of the six months' rule

(Article 26 (Art. 26) of the Convention), he cannot and does not complain.

The Commission then observes that the new proceedings

instituted in 1986 concerned a new request to be granted access

to his child. The decision in these proceedings rejecting the

applicant's challenge and the judge's request to be excused was

confirmed by a decision of the Court of Appeal of 3 February 1987

which was served on counsel for the applicant on 2 March 1987. It is

true that the applicant first wrote to the Commission on 12 August

1987, but he did not reply to the Secretariat's letter of 27 August

1987 until 31 January 1990 when he submitted the application form. In

these circumstances the question arises whether the applicant has in

this respect complied with the six months' rule laid down in Article

26 (Art. 26) of the Convention.

In any event, the Commission notes that the case was

eventually transferred to another District Court and decided by

another first instance judge. In these circumstances the applicant

cannot be considered to be a victim of violation of his right to an

impartial tribunal in the subsequent proceedings. It follows that the

application is in this respect manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. Insofar as the applicant complains that he was not heard

personally in 1988/89 and was not given the opportunity, in first

instance, to comment on the expert opinion, the Commission notes that

the applicant was represented by counsel and had the possibility of

submitting his arguments in all instances. The matter was heard in

non-contentious proceedings and, as the Supreme Court pointed out, a

hearing of the applicant personally was not necessary because the

question of access was determined exclusively on the basis of the

possible effects on his daughter and her attitude towards him while

his present personal circumstances were considered to be irrelevant.

This finding does not disclose any arbitrariness and the Commission

concludes in these circumstances that the right to a fair hearing as

guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention was

complied with in that the applicant was free to submit his arguments

through his counsel. Furthermore, he had the opportunity of

submitting his observations on the expert opinion in his appeal to the

Regional Court. Consequently, there is no appearance of a violation

of Article 6 (Art. 6) and this part of the application therefore has

to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of

the Convention as being manifestly ill-founded.

3. Insofar as the applicant invokes Article 8 (Art. 8) of the

Convention which secures everyone's right to respect for his family

life, the Commission notes that according to the findings of the

Austrian Courts, based on the expert opinion of a specialist in

children's psychology, the denial of access to his daughter was

based on the ground that her well-being would seriously be

jeopardised if she was forced to see him as she then risked a neurotic

development. The applicant has not shown that this reasoning is

arbitrary or untenable from a scientific point of view. The

Commission concludes, in these circumstances, that the decisions

complained of are justified under Article 8 para. 2 (Art. 8-2) for the

protection of the rights of others.

This complaint is therefore likewise manifestly ill-founded

and has to be rejected under Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission inanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Menu

LEHNER v. AUSTRIA

LEHNER v. AUSTRIA

LEXI