THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50064/99 by Elisabeth GIRARDI against Austria

The European Court of Human Rights (Third Section) , sitting on 4 July 2002 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan ,

Mrs H.S. Greve ,

Mrs E. Steiner , judges ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 9 July 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Elisabeth Girardi, is an Austrian national, who was born in 1951 and lives in Vienna. The applicant’s previous application no. 21985/93, concerning the length of maintenance payment proceedings following her divorce, was declared admissible by the Commission on 17 May 1995. On 5 December 1995 the Commission adopted a report under former Article 28 of the Convention as the parties had concluded a friendly settlement.

The facts of the case, as submitted by the applicant , may be summarised as follows.

The applicant is the mother of M, L and R, born in wedlock in 1973, 1974 and 1976, respectively. The spouses separated in 1982. Custody of L and M was assigned to the applicant, the custody of R to the father.

1. Custody proceedings

On 7 December 1989, the applicant’s daughter M, born in 1973, asked for reception in a public girls’ home, as she refused to stay with her mother any longer. She was accepted to stay.

On 13 December 1989 the Vienna Youth Welfare Office (Amt für Jugend und Familie ) requested the Vienna Juvenile Court ( Jugendgerichtshof ) that custody of M was transferred to it.

On 30 April 1990 the Vienna Juvenile Court granted the Youth Welfare Office’s request.

The applicant appealed against this decision.

On 11 December 1990 the Vienna Juvenile Court, sitting as an appeal court ( Jugendgerichtshof als Rekursgericht ) (“the Appeal Chamber”) quashed the decision and remitted the case back to the Juvenile Court, instructing the latter to take a new decision after having supplemented its proceedings ( Verfahrensergänzung )

On 13 January 1992 the applicant’s daughter M, upon her own request, was declared major of age.

On 15 May 1995 the Vienna Juvenile Court refused a general transfer of custody to the Youth Welfare Office, but, retrospectively, approved the temporary transfer of custody which had been effected from 7 December 1989 to 13 January 1992, namely the period M had been living in the girls’ home.

The applicant appealed against this decision.

On 10 October 1995 the Appeal Chamber rejected her appeal.

The applicant appealed against this decision.

On 23 November 1995 the Supreme Court quashed the decision of 10 October 1995 and referred the case to the Appeal Chamber.

Subsequently, on 29 May 1996 the Appeal Chamber granted the applicant’s appeal, quashed the decision of 15 May 1995 and remitted the case back to the first instance court.

On 14 January 1997 the Juvenile Court, after having supplemented its proceedings, again approved the temporary transfer of M’s custody to the Vienna Youth Welfare Office for the time M had spent at the girls’ home.

On 18 July 1997 the Appeal Chamber granted the applicant’s appeal against this decision and found that the placement in the girl’s home had been unjustified. In particular, it found that the Youth Welfare Office had failed to consider less intrusive measures, namely to place M with a relative or other qualified persons close to the child.

On 25 September 1997 (served on 23 November 1997) the Supreme Court ( Oberster Gerichtshof ) dismissed the Youth Welfare Office’s appeal on points of law.

2. Maintenance payment proceedings

a) The Youth Welfare Office’s request

On 3 January 1990 the Vienna Youth Welfare Office, on behalf of M, filed a request with the Vienna Juvenile Court that the applicant should pay a monthly contribution to the expenses incurring for M’s stay in the girls’ home.

On 10 February 1992 the Juvenile Court ordered that the applicant had to pay ATS 2,500 in monthly maintenance for M.

The applicant appealed, claiming that she was fit to work to an extent of 75 % only.

On 13 May 1995 the Appeal Chamber quashed the decision and remitted the case back to the Juvenile Court, instructing the latter to take a new decision after having supplemented its proceedings. In particular, it stated that the first instance court ought to appoint a forensic medical expert in order to establish the applicant’s fitness to work.

On 20 May 1998 the Juvenile Court ordered the applicant to pay ATS 1,550 in monthly maintenance for M. At that stage of the proceedings, no expert had been heard yet.

Referring to the Appeal Chamber’s decision of 13 May 1995, the applicant appealed, again relying on her reduced fitness to work.

On 13 August 1998 the Juvenile Court appointed an expert in forensic medicine to file a report on the question to which extent the applicant’s capacities to earn her living were reduced.

The applicant appealed against this decision, claiming that it did no longer make sense to appoint a medical expert, now that the court had already dismissed her request by decision of 20 May 1998. Further, she claimed that there was no need for a further report as, in this respect, she had already submitted two reports of different medical officers ( Amtsarzt ) .

On 17 August 1998 the applicant filed a motion for bias against the court clerk ( Rechtspfleger ) I.S., who was dealing with her case, claiming that the appointment of a further medical expert was not justified, that I.S. was handling the case file in a negligent manner, namely that several documents were missing from the file, and that I.S. had been rude to her on the telephone.

On 25 August 1998 the President of the Vienna Juvenile Court ( Präsident des Jugendgerichtshofs ) dismissed her motion for bias, finding that the mere fact that she had appointed a medical expert was not sufficient to cast doubt upon I.S.’s impartiality. He also noted that there were no documents missing from the file.

On 17 September 1998 the Appeal Chamber dismissed the applicant’s appeal against the appointment of a medical expert but granted the applicant’s appeal against the decision of 20 May 1998. In this respect, it referred the case to the Juvenile Court for supplementing the taking of evidence, namely to comply with its decision of 13 May 1995.

On 21 and 23 March 1999 the applicant requested that, pursuant to Section 91 of the Courts Act ( Gerichtsorganisationsgesetz ), a time-limit be fixed for the decision on the Youth Welfare Office’s application of 3 January 1990.

On 23 March 1999 the applicant filed motion for bias against I.S., claiming that the latter had not been available to her during the office hours and that she had refused to give her information requested over the telephone.

On 29 March 1999 the President of the Vienna Juvenile Court dismissed her motion as being unfounded.

On 30 March 1999 the President rejected her appeal against this decision as the relevant provisions of the Court Clerks Act ( Rechtspflegergesetz ) did not provide for such remedy.

On 8 April 1999 the applicant was summoned by the appointed medical expert to undergo a medical examination at the Institute for Forensic Medicine ( Institut für Gerichtsmedizin ) on 22 April 1999.

It appears that the applicant filed numerous complaints with the President of the Juvenile Court, again claiming that documents were missing from the file and that I.S. as well as various judges of the Juvenile Court were biased.

On 4 May 1999 the President of the Juvenile Court decided to exclude I.S. from the proceedings. He noted that the latter had expressed that she considered herself biased following a telephone conversation in the course of which the applicant had said she would kill her daughter if I.S. continued to hassle her. In these circumstances, the President found it advisable that the matter be re-assigned in accordance with the Juvenile Court’s rules on the distribution of cases ( Geschäftsverteilung ).

On the same day, the Juvenile Court dismissed the applicant’s requests for a time limit to be set. Referring to the applicant’s numerous requests, complaints and motions for bias filed with the court, it found that there was no indication of a lack of due diligence on behalf of the Juvenile Court, it being rather the applicant who prevented that a decision on the merits had been taken so far.

On 22 May 1999 the Vienna Youth Welfare Office withdrew its request dated of 3 January 1990.

Thereupon, the applicant, on 27 May 1999, withdrew all requests and complaints still pending before the Juvenile Court at this stage.

b) The applicant’s request

From 30 July 1990 to 3 September 1990 M stayed with her mother. Thus, the latter, on 4 September 1990 filed a request with the Juvenile Court, claiming reimbursement of her expenses incurred during this period.

On 10 August 1993 the Juvenile Court dismissed the applicant’s request.

On 5 January 1995 the Appeal Chamber quashed the decision and remitted the case back to the first instance court.

On 19 April 1998 the applicant requested that, pursuant to Section 91 of the Courts Act , a time-limit be fixed for the decision on her application of 4 September 1990.

On 8 June 1998 the President of the Vienna Juvenile Court ordered the Juvenile Court to decide on the applicant’s request until 31 July 1998 the latest.

On 5 August 1998 the Juvenile Court dismissed the applicant’s request for maintenance payments of 4 September 1990.

The applicant appealed against this decision.

It appears from the documents submitted that the applicant filed several complaints with the Vienna Court of Appeal ( Oberlandesgericht ) , claiming that I.S. had not complied with the time limit set by the President of the Juvenile Court because she had gone on holidays, that I.S. was to be found at her office only twice a week and that she had been extraordinarily impolite to her.

Thereupon, the President of the Juvenile Court, on 31 August 1998, informed the applicant that both I.S.’s office hours as well as her right to vacation were in accordance with her assignment. He also expressed his regret that, if, in the course of one of the applicant’s numerous telephone calls, I.S. might have acted in a slightly indignant way. However, he emphasised that the applicant’s allegations had remained unproved.

On 17 September 1998 the Appeal Chamber dismissed her appeal against the Juvenile Court’s decision of 5 August 1998 as being unfounded. Further, it stated that there was no further appeal on points of law in the applicant’s case as it did not raise questions of law of fundamental importance ( Ausspruch über die Unzulässigkeit der ordentlichen Revision) .

Nevertheless, the applicant filed an extraordinary appeal on points of law ( ausserordentliche Revision) with the Supreme Court.

Referring to an amendment of Section 14 a of the Non-Contentious Proceedings Act ( Ausserstreitgesetz ) , the Supreme Court, on 18 December 1998, remitted the case back to the Vienna Juvenile Appeal Court. According to that provision, instead of filing an extraordinary appeal on points of law with the Supreme Court, a party to non-contentious proceedings must now request the Court of Appeal to re-consider its opinion on the admissibility of an ordinary appeal on points of law. The Supreme Court found that, even if in her appeal the applicant had not explicitly requested the Juvenile Appeal Court to declare that a further appeal on points of law be allowed, her appeal should have been understood in such way.

Thereupon, on 11 January 1999 the Juvenile Appeal Court requested the applicant to remedy procedural defects of her appeal, namely to request that an ordinary appeal in her case be allowed.

As the applicant did not comply with this request, the Juvenile Appeal Court, on 25 February 1999, rejected her appeal.

COMPLAINTS

The applicant complains under Article 6 of the Convention that both sets of maintenance proceedings were not terminated within a reasonable time. She also complains that the placement of her daughter M in a girls’ home violated her rights guaranteed under Article 8 of the Convention.

THE LAW

1. The applicant complains that the two sets of maintenance payment proceedings before the Vienna Juvenile Court, namely the one instituted on 3 January 1990 and the one instituted on 4 September 1990, were not concluded within a reasonable time as required by Article 6 § 1 of the Convention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

2. The applicant complains that her daughter’s placement in a girls’ home amounted to a breach of Article 8 of the Convention, the relevant parts of which provide:

“1. Everyone has the right to respect for his family life, his home ....

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.”

However, the Court recalls that according to Article 35 § 1 of the Convention, "it may only deal with the matter ... within a period of six months from the date on which the final decision was taken".

In the present case, as regards the custody proceedings, the final decision within the meaning of that provision was taken by the Supreme Court on 25 September 1997, served on the applicant on 27 November 1997, while the present application was only t follows that the applicant has failed to comply with the requirements of Article 35 § 1 of the Convention and that, thus, this part of the application has to be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint about the length of the proceedings;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President