1. G.R. and 2. D.R. v. Austria



AS TO THE ADMISSIBILITY OF

Application No. 10895/84

by 1. G.R.

and 2. D.R.

against Austria

The European Commission of Human Rights sitting in private

on 5 October 1987 the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 2 April 1984

by 1. G.R. and 2. D.R. against Austria and registered

on 5 April 1984 under file N° 10895/84;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

&_THE FACTS&S

The first applicant, G.R., is an Austrian citizen, born in

1939 and living in Vienna. The second applicant is his daughter,

D., who was born in 1969 and is living with her father in Vienna.

I

1 In a previous application (no. 8893/80) the first applicant

complained that, subsequent to his divorce, Austrian courts placed

their two children in the custody of his ex-wife. He also complained

that, in the child-custody proceedings, his children were heard by the

court without his knowledge so that he was unable to put questions or

to comment on the result of this hearing. The previous application

was rejected on 5 March 1983 as being, with regard to both complaints,

manifestly ill-founded.

According to the facts established in the previous application

the Vienna District Court decided on 24 April 1979, for the second

time, a previous decision having been quashed, to entrust the mother

with the children's custody. This decision was based on three medical

reports, on which the applicant had been given the opportunity to submit

his comments. He objected, inter alia, that the children had been

accompanied by their mother when they saw one of the experts. He

thought that the expert should have examined whether this had

influenced the children's answers to questions.

Having regard to the experts' proven professional experience

and skill and referring to the fact that all expert opinions and also

a report of the Youth Office agreed to give preference to the mother,

the Court considered the applicant's objections to be unfounded. In

agreement with the expert opinions, it concluded that granting the

mother custody was in the interest of the children (two girls), in

view of their reliable preference for their mother, their biological

development and sex, and the continuity of their social sphere.

The applicant's appeal was dismissed by the Vienna Regional

Court on 18 June 1979. Shortly before, on 1 June 1979, the District

Court heard the two children, as the applicant had complained that the

children had not been heard by the Court itself.

The applicant then appealed to the Supreme Court, complaining

that the reasons stated in the decisions of the lower courts were

insufficient and that he had not been informed of the children's

hearing on 1 June 1979. This appeal was rejected by the Supreme

Court on 29 October 1979 as being inadmissible. The Court stated

that the alleged violations were not of such severity as to constitute

ground for nullity.

2 With regard to the complaint relating to the hearing of the

children, the Commission stated in its decision of 5 March 1983

rejecting the previous application that the first applicant had had

the possibility to submit his comments on this hearing in his appeal

to the Vienna Regional Court. It considered that the applicant

apparently failed to specify what kind of further questions should

have been put to the children and concluded that, in these

circumstances, there was no appearance of a violation of Article 6 of

the Convention.

As regards the complaint under Article 8 in conjunction with

Article 14 of the Convention, the Commission took into account the

fact that, in the light of the medical expert opinions, it was in the

best interest of the children that they stay with their mother since

they had expressed a reliable preference for this solution, which was

also justified for certain objective reasons, including the sex of the

children, their biological development and the continuity of their

social sphere. In these circumstances, the measure complained of was

considered to be justified under Article 8 (2) of the Convention.

In this respect the Commission added that the applicant's

legitimate interests were sufficiently taken into account by giving

him a right to visit the children.

II

The applicants furthermore submit the following:

In February 1983 D. was placed in the custody of the first

applicant with his ex-wife's consent.

On 27 January 1984 the Vienna District Court appointed the

Youth Office to act as trustee (Sachwalter) with regard to maintenance

claims of the first applicant's two children.

Following the first applicant's appeal, the Vienna Regional

Court quashed the order of 27 January 1984 insofar as it related to

the second applicant, i.e. the first applicant's daughter, D..

The Supreme Court restored this part of the order of

27 January 1984, on further appeal by the mother, stating that the

appointment of a trustee was justified in view of the fact that the

first applicant had fallen into important arrears with the

maintenance payments.

Meanwhile, in a decision of 6 December 1982, the Vienna

District Court had ordered the first applicant to pay maintenance of

monthly AS 2,500.- for the period of 1 January 1978 - 30 September 1978

and AS 3,000.- for the period 1 October 1978 - 30 November 1982 for

each of his two children.

The first applicant lodged an appeal against the order of

6 December 1982 stating that since 6 September 1982 he had been

granted the custody of his daughter D. and that between

1 January 1978 and 31 September 1981 both daughters lived in his

household. Consequently, they had, in his opinion, no claim for the

period in question and, in any case, the amounts awarded were out of

proportion to his income.

On 31 March 1983 the Vienna Regional Court rejected the appeal

except for the maintenance claim awarded to the daughter, D., for

the period 1 October 1982 - 30 November 1982. To this extent the

order complained of was quashed.

A further appeal was rejected by the Supreme Court on

5 July 1983 as being inadmissible. This decision was served on the

first applicant on 4 October 1983.

&_COMPLAINTS&S

1 The first applicant criticises the Commission's decision

to reject his previous application. He points out that - contrary to

the Commission's finding - he could not complain to the Vienna

Regional Court that the Vienna District Court had not given him the

possibility to comment on the result of the hearing of his children,

because he only learnt of the hearing through the Regional Court's

decision.

Furthermore, he points out that the decision conferring

custody to his ex-wife did not contain any regulation regarding his

right to visit his children.

2 Both applicants complain that the Supreme Court wrongly

confirmed the appointment of a trustee for the second applicant.

They consider that there is danger that the trustee will use

the maintenance payments for other purposes than intended, i.e. that

he will not hand over the money to the children but to their mother.

3 Both applicants further complain that the Austrian Courts

wrongly fixed the amounts of maintenance to be paid by the first

applicant for the period June 1978 - November 1979 and that the

Supreme Court wrongly dismissed the appeal in this matter on the

ground that there was no possibility for an appeal under Austrian

law. The second applicant alleges that the decisions complained of

affect her in a negative way as they diminish her father's possibility

to support her financially.

They invoke Article 6 of the Convention.

&_THE LAW&S

1 The first applicant repeats his complaints which were the

subject of his previous application no. 8893/80. By virtue of

Article 27 para. 1 (b) (Art. 27-1-b-) of the Convention the Commission cannot,

however, deal with the present application unless it contains

"relevant new information".

In the present case the applicants submits that, contrary to

the findings of the Commission, he could not submit any comments on

the hearing of his children to the Vienna Regional Court as it was

only through the decision of this Court that he learnt of the hearing

having taken place shortly before. He further points out that whilst

the District Court decided which of the parents should be granted the

custody, it did not, at the same time, regulate the right of visit.

This information was already submitted in connection with the

previous application as the applicant produced copies of all domestic

decisions and of the grounds of his appeals. Under exceptional

circumstances information submitted in support of a previous

application which was declared inadmissible may, in the context of a

new application, be considered to be "new" and "relevant" if, for

reasons outside the applicant's responsibility, it has not been made

known to the Commission before deciding on the admissibility of the

previous application and if such knowledge could have altered the

basis upon which the Commission's previous decision was taken (cf.

Dec. 8206/78, 10.7.81, D.R. 25, 147). However, no such reasons

are given in the present case.

Even considering that the applicant did not have an occasion

to comment on the statements made by his children before the District

Court judge, it follows from the decision given on the applicant's

appeal by the Vienna Regional Court on 18 June 1979 that the

children's statements only confirmed "what they had previously said

during a psychiatric examination, namely that they preferred the mother"

(see p. 5 of the Commission's decision of 5 March 1983). With regard

to these statements the applicant did, however, have the opportunity

to submit his comments and he made use of it by objecting that the

expert should have taken into account possible pressure exercised by

the mother who was present when the children were interviewed by the

expert. These objections were considered by the competent domestic

court and rejected as being unfounded.

As regards the finding at the end of the Commission's decision

of 5 March 1983 that the applicant's legitimate interests were

sufficiently taken into account, by giving him a right to visit the

children, it has first to be noted that this was a subsidiary argument

and, in any event, the applicant had a right under Sections 148, 178

of the Austrian Civil Code (ABGB) to visit his children and in his

previous application he did not allege that he could not make use of

this right.

It follows from the foregoing considerations that the

applicant has not submitted any "relevant new information" and this

part of the application is accordingly inadmissible under Article 27

para. 1 (b) (Art. 27-1-b-) of the Convention.

2 With regard to the judicial decisions of which both applicants

complain, relating to the appointment of a trustee and to arrears of

maintenance payments, the Commission recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention. In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set

out in the Convention. The Commission refers, on this point, to its

constant case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3

pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;

No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

It is true that in this case the applicants allege a

violation of Article 6 (Art. 6) of the Convention.

However, apart from alleging errors of law and fact, the

applicants have not substantiated their complaint and there is nothing

to show that the decisions complained of were reached in proceedings

that were conducted in an unfair manner. 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

&_DECLARES THE APPLICATION INADMISSIBLE.&S

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)