G.F. v. Austria



AS TO THE ADMISSIBILITY OF

Application No. 23671/94

by G. F.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

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 13 December 1993

by G. F. against Austria and registered on 14 March 1994 under file No.

23671/94;

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 facts of the case as submitted by the applicant, may be

summarised as follows.

The applicant, born in 1956, is an Austrian national, residing

in Vienna.

The applicant has two children, which were born out of wedlock

in 1986 and 1988 respectively. They are living with their mother, who

is exercising custody over them. It appears that she and the applicant,

who had lived together since 1985, separated in January 1991.

a. Proceedings concerning the applicant's request for access to his

children on 24 December 1992

On 16 November 1992 the applicant requested the Favoriten

District Court (Bezirksgericht) to grant him access to his children on

24 December 1992, from the morning until 4 p.m. Similar requests were

made by the great-grandmother and the grandmother of the children.

According to the applicant, judge F., on 27 November 1992, told

him that he was competent to deal with the case and that he would take

a decision in time. However, on 30 November 1992, the judge sent the

file to the Vienna Regional Civil Court (Landesgericht für

Zivilrechtssachen) without having decided on his request.

On 2 December 1992 the President of the Vienna Regional Civil

Court returned the file to the Favoriten District Court and ordered it

to take the decision 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.

According to a file note of 17 December 1992 judge T. at the

District Court heard the mother of the children on that day as regards

the applicant's request. She submitted that the children would refuse

to go with the applicant. The applicant appeared, when the mother had

already left. Judge T. explained to him that he had intended to give

him and the children's mother 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.

By letter of 28 December 1992 the applicant complained to the

District Court that judge F. had promised him in November to take a

decision in time. However, he had now learned that he had, at that

time, not even been competent to deal with the case.

On 7 January 1993 the Favoriten District Court dismissed the

applicant's request. It noted that, at the time when the request was

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 had been reached by the parents of the

children. Subsequently, the file had again been sent to the Regional

Court, from where it had been 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. The decision was given by judge F.

On 5 February 1993 the applicant filed an appeal (Rekurs) with

the Vienna Regional Civil Court. He complained that the District

Court's decision was incorrect as regards the dates when it had

received the file and had sent it away again. Also the file note of

17 December 1992 showed that the court did not have the intention to

take a decision before Christmas. The decision was misleading as it

created the impression that the court did not have the possibility to

decide in time. Even assuming that the dates given by the court were

correct, there would have been enough time between 3 and

17 December 1992 to decide upon his request. However, the judge had

delayed the decision until the time for the proposed visit of his

children had passed. Thus, the applicant requested the Vienna Regional

Civil Court to quash the District Court's decision and to decide on the

merits of his original request. The applicant also requested to be

granted access to his children on 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 dismissed the applicant's request to

grant him access to his children on one of the following weekends. It

found that this was a new request, and that it was not competent to

decide on it.

On 6 April 1993 the applicant filed an appeal on points of law

(außerordentlicher Revisionsrekurs) with the Supreme Court (Oberster

Gerichtshof). In particular, he repeated the complaints, which he had

already submitted to the Regional Court. He 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 his children

until the date for the requested visit had passed and then to dismiss

them, due to the lapse of time.

On 11 May 1993 the Supreme Court rejected the applicant's appeal

on points of law. 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

13 July 1993.

b. Other proceedings concerning the applicant's access to his

children and maintenance proceedings

After registration of his original application the applicant, by

letters of 30 March, 15 and 23 May 1994, made further submissions

relating to other sets of proceedings concerning access to his

children. The following facts can be determined from these submissions.

On 21 December 1993 the Supreme Court rejected the applicant's

appeal on points of law as regards the refusal of a lower court to

grant his request of 12 July 1991 for access to his two children.

Also on 21 December 1993 the Supreme Court rejected another

appeal by the applicant. As far as can be determined this appeal

related to the following: In proceedings, which apparently also

concerned his children, the applicant challenged a judge at the

Favoriten District Court for bias. Allegedly, this court did not decide

upon his motion. Thereupon, the applicant requested the Vienna Regional

Civil Court to set a time-limit for the decision. According to the

applicant this court did not decide either. However, the Supreme Court,

upon the applicant's further request to set a time-limit for the

decision, found that it was not competent to decide, as according to

the file, the Vienna Regional Civil Court was not in default.

On 23 February 1994 the Favoriten District Court dismissed the

applicant's request for access to his daughter on her birthday, i.e.

29 March 1994.

On 22 March 1994 the Vienna Regional Civil Court dismissed his

appeal. It noted that, after his separation from the mother of his

children, the applicant had been granted a provisional right of access,

which had been revoked on account of his behaviour. Several further

requests for access to his children had been dismissed on the ground

that the tension between him and the mother of the children subsisted,

and that he appeared to be more interested in pursuing the conflict

with the latter, than in upholding his contact with the children. The

Regional Court found that this situation had not changed and that,

therefore, a visit of the applicant without the presence of a neutral

person, was not in the interest of the child. It appears that the

applicant did not appeal to the Supreme Court in this case.

By letter of 1 August 1994 the applicant complained that, in

maintenance proceedings, the courts did not decide on his request for

reduction of maintenance payments.

COMPLAINTS

1 The applicant complains under Article 6 of the Convention that

the judge at the District Court denied him a fair hearing within a

reasonable time in that he waited deliberately until Christmas 1992 had

passed, before dismissing his request of 16 November 1992. Moreover,

he submits that judge F. was not competent to decide.

2 Further, the applicant complains under Article 8 that the court

decisions denying him access to his children on Christmas 1992 violated

his right to respect for his family life.

3 In the context of these proceedings, he also complains under

Article 14 in combination with Article 8 about the relevant legislation

which provides that the mother has custody over children born out of

wedlock.

4 As regards various other proceedings concerning his requests for

access to his children as well as maintenance proceedings, the

applicant complains that the competent courts arbitrarily denied him

a fair hearing. He also complains that their decisions, denying him

access to his children, in particular the decision of the Vienna

Regional Civil Court of 22 March 1994, violated his right to respect

for his family life. He invokes Article 6 and Article 8 of the

Convention.

THE LAW

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

Convention that the judge at the Favoriten District Court denied him

a fair hearing within a reasonable time in that he waited deliberately

until Christmas 1992 had passed, before dismissing his request of 16

November 1992. He further submits that judge F. was not competent to

decide.

The Commission notes that the Favoriten District Court, on

7 January 1993, dismissed the applicant's request for access to his

children on Christmas 1992 inter alia on the ground that due to the

lapse of time, it had become impossible to grant it. His appeal against

this decision was rejected by the Vienna Regional Civil Court as well

as by the Supreme Court on the ground that he no longer had a

legitimate interest to pursue the case, as the date for the requested

visit had already passed.

The Commission considers it cannot, on the basis of the file

determine the admissibility of this complaint and that it is therefore

necessary, in accordance with Rule 48 para. 2 (b) of the Rules of

Procedure, to give notice of this complaint to the Government.

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

Convention that the court decisions denying him access to his children

on Christmas 1992 violated his right to respect for his family life.

The Commission considers it cannot, on the basis of the file

determine the admissibility of this complaint and that it is therefore

necessary, in accordance with Rule 48 para. 2 (b) of the Rules of

Procedure, to give notice of this complaint to the Government.

3 Further the applicant complains under Article 14 in combination

with Article 8 (Art. 14+8) about the relevant legislation which

provides that the mother has custody over children born out of wedlock.

Article 26 (Art. 26) of the Convention provides that the

Commission may only deal with the matter after all domestic remedies

have been exhausted. This rule requires the exhaustion of those

remedies that relate to the breaches alleged and that are available and

sufficient (No. 11681/85, Dec. 11.12.87, D.R. 54 p. 101).

The Commission notes that the contested proceedings only related

to the question of the applicant's access to his children. There is

nothing in the file to indicate that the applicant has introduced

proceedings in order to challenge the contested law on custody, as

available under Article 140 para. 1 of the Austrian Federal

Constitutional Law (Bundes-Verfassungsgesetz). This Article states that

the Constitutional Court decides on the unconstitutionality of a law,

inter alia upon the request of a person who claims that his or her

rights have been directly affected by this unconstitutionality, if the

law at issue applies to this person without the decision of a court or

an administrative authority. The Commission, therefore, finds that the

applicant has failed to show that he has exhausted domestic remedies

in this respect.

It follows that this part of the application has to be rejected

in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.

4 As regards various other proceedings concerning his requests for

access to his children as well as maintenance proceedings, the

applicant complains that the competent courts arbitrarily denied him

a fair hearing. He also complains that their decisions, denying him

access to his children, in particular the decision by the Vienna

Regional Civil Court of 22 March 1994, violated his right to respect

for his family life. He invokes Article 6 and Article 8 (Art. 6, 8))

of the Convention.

The Commission has examined these complaints as submitted by the

applicant. However, the Commission finds that, insofar as these matters

have been substantiated and are within its competence, they do not

disclose any appearance of a violation of the rights and freedoms set

out in the Convention and its Protocols.

It follows that this part of the application is manifestly ill-

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

Convention.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN the examination of the applicant's complaint

that the judge at the Favoriten District Court denied him a fair

hearing within reasonable time in that he waited deliberately

until Christmas 1992 had passed, before dismissing his request

of 16 November 1992; and the examination of his complaint that

the court decisions denying him access to his children on

Christmas 1992 violated his right to respect for his family life.

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

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