CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 décembre 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)