CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 septembre 1996

.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. 21546/93                       by Kurt and Klaus EBERT                       against Italy        The European Commission of Human Rights (First Chamber) sitting in private on 4 September 1996, the following members being present:                    Mrs   J. LIDDY, President                  MM.   M.P. PELLONPÄÄ                       E. BUSUTTIL                       A. WEITZEL                       C.L. ROZAKIS                       G.B. REFFI                       B. CONFORTI                       N. BRATZA                       I. BÉKÉS                       G. RESS                       A. PERENIC                       C. BÎRSAN                       K. HERNDL                    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 2 February 1993 by Kurt and Klaus EBERT against Italy and registered on 19 March 1993 under file No. 21546/93;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Decides as follows:   THE FACTS        The applicant, born in 1942, is an Austrian national, residing in Patsch (Austria). He is a professor of law at the University of Innsbruck. The applicant is also filing this application in the name of his son, born in 1981, an Austrian and Italian national, residing in Bolzano/Bozen (Italy).        The applicant has lodged two previous applications with the Commission.        In his first application, No. 15361/89 v. Austria, he complained under Article 6 para. 1 of the Convention of the length of the proceedings concerning the conditions for the exercise of parental authority over his minor child and of the lack of impartiality of the Innsbruck District Court. He complained also that the length of the proceedings and the Austrian authorities' refusal to take measures in the child's interests infringed his right to respect for his family life under Article 8 of the Convention. Invoking Article 2 of Protocol No. 1, he further complained that he was denied the right of bringing up his child in conformity with his own religious and philosophical convictions. He finally complained under Article 5 of Protocol No. 7 of a violation of the equality of rights and responsibilities between spouses.        In his second application, No. 16260/90 v. Italy, the applicant complained of having been a victim of degrading treatment contrary to Article 3 of the Convention, of a violation of Article 6 para. 1 of the Convention in respect of the length and the fairness of the proceedings, including a decision of the Trento Court of Appeal of 24 October 1991 relating to his right of access to his son and the question of guardianship, of a violation of his right to respect for family life as guaranteed by Article 8 of the Convention and of a violation of Articles 13 and 14 of the Convention, Article 2 of Protocol No. 2 and Article 5 of Protocol No. 7.        On   9 July 1992, after communication to the respective respondent Governments, the Commission declared these applications inadmissible as being manifestly ill-founded.        The facts of the present case, as submitted by the applicant, may be summarised as follows.        In April 1979 the applicant married. A son was born on 25 July 1981.        Since 1981 the parents have been living apart, the applicant in Patsch near Innsbruck, and the mother with the child in Bolzano/Bozen. The marriage was dissolved by divorce on 4 May 1987.        On 2 September 1985 the Innsbruck District Court (Bezirksgericht) consented to the child being placed temporarily with his parental grandparents in Bolzano/Bozen and granted the applicant a right of access. The court found against placing the child temporarily with his father in view of the underdeveloped relationship between father and child.        Upon appeal by the applicant, the Innsbruck Regional Court (Landesgericht), in a decision given on 20 November 1985, extended the applicant's right of access and awarded parental authority on an interim basis to the mother, pending a final decision on the issue.        In 1986 difficulties arose in the applicant's right of access to his son owing to obstruction by the child's mother.        By an order dated 20 December 1990 the Trento Court of Appeal deprived the mother of parental authority on the grounds of her obstruction of any contact by the child with his father, entrusted the child to his grandparents and ordered contact between the applicant and the grandparents to be established and co-ordinated by the Bolzano/Bozen and Innsbruck social services.        By a letter dated 28 January 1991 the child's grandparents informed the juvenile court that they were not willing to accept this task.        Thereafter several court decisions were given by the Italian courts in this matter.        On 24 October 1991 the Trento Court of Appeal transferred parental authority back to the applicant, gave actual care of the child to the mother on an interim basis and granted the father a right of access.        By a final judgment of 26 June 1992 the Innsbruck Regional Court granted the applicant parental authority (alleiniges Sorgerecht).        On 3 August 1992 the applicant commenced proceedings before the Trento Court of Appeal in order to have this decision recognised in Italy.        On 5 July 1992, the applicant requested the Trento Court of Appeal to award him parental authority over his son and to order the mother to present the son on 13 September 1992 at the Franciscan School in Hall, Austria. Invoking Article 2 of Protocol No. 2, he reiterated this request on 18 August 1992.        By a decision of 26 November 1992, filed with the Registry on 2 December 1992, the Trento Court of Appeal decided that the parental authority over the child should remain with his mother. The applicant was granted a right of access. The Court further decided that the child should not leave Italy without the written authorisation of the mother.        This decision, which was notified to the applicant on 13 January 1993,   may be summarised as follows:        Although living apart for a long time, the child's parents      nevertheless continue to express hostile feeling towards      each other. Each of them, even if unconsciously, uses the      son as an instrument against the other. The initially more      reasonable party, i.e. the father, exasperated   by the      failure of the adverse party to comply with the judicial      decisions, has also adopted a totally uncompromising      attitude. As had been confirmed by numerous psychologists      and psychiatrists, the minor obviously suffers strongly      from this conflictual situation of his parents and is      profoundly traumatised. The juvenile judicial authorities      have tried to resolve the problem with the intervention of      third persons. Unfortunately the grandparents of the child      have refused to assume the custody over the child. By a      letter of 17 December 1991, the Bolzano/Bozen social      services, instructed by this court to examine the      possibility of placing the child in adequate institutions      or with suitable families, had expressed the view that the      child should not be removed from his mother. Social      institutions accepted mainly children who had no financial      means or had been abandoned by their parents. The      applicant's son, however, was successfully attending a      private school, had proper accommodation and maintenance      and the affection of his mother. The social authorities      have expressed their bewilderment as to the possibility of      taking the child to Austria where he would attend a school      as an internal student. Such a measure would be perceived      by the child as essentially punitive and would increase his      resentment which he had shown on previous occasions towards      his father. The transfer of the child from a mainly Italian      speaking school to another exclusively German speaking      school could further raise problems with regard to his      studies and the relations with other students. Having      regard to the fact that it is the task of this court to      protect the interests of the child and not those of his      parents - whereas it is with the ordinary Court of Appeal      to decide on the question of the execution of foreign      sentences - the custody over the child should remain for      the time being with the mother. Once having completed      twelve years, the child could be heard in person and      express his own wishes.        On 1 February 1993 the applicant instituted criminal proceedings against six of the judges at the Trento Court of Appeal for abuse of power. On 5 April 1993 the applicant requested the Court of Trento that a psychiatric examination of his son be carried out by a neutral expert outside Italy. On 2 September 1993 the applicant requested the Public Prosecutor in Trento to take measures in the interest of his son. On 18 October 1994 the applicant complained to the Italian Minister of Justice of the inactivity of the Italian authorities.   COMPLAINTS   1.    The applicant complains on his and also on his son's behalf of a number of violations of the Convention.   2.    The applicant complains in particular under Article 6 of the Convention of the length of the proceedings pending before the Italian courts since 1985. He submits that he has met his son under normal conditions the last time on 14 March 1986.   3.    The applicant further complains that the length of the proceedings and the de facto refusal of granting a medical examination of his son amount to a violation of Article 8 of the Convention. He also complains of the decision to awarding the right of custody over the child to his former wife despite her negative and for the child's welfare extremely harmful influence. He finally complains that he cannot exercise his right of access owing to the obstruction of his former wife and the continued traumatisation of the child by police interventions. He submits that the Italian authorities have failed to take all necessary steps to enforce his access right as can reasonably be demanded in the circumstances of the present case.   4.    Complaining that he has no influence on his son's education, the applicant also alleges a violation of Article 2 of Protocol No. 2.   5.    The applicant next complains that he is discriminated against on grounds of his nationality and language. He alleges a violation of Article 14 of the Convention in combination with Article 8 of the Convention, Article 2 of Protocol No. 2 and of Article 5 of Protocol No. 7. The applicant finally complains that his child cannot leave Italy without the written authorisation of the mother. He alleges on behalf of his son a violation of Articles 2 and 3 of Protocol No. 4. The applicant also alleges a violation of 5 of Protocol No. 7 because he has been denied equality of rights by comparison with his ex-wife in his relations with the child.   THE LAW   1.    The applicant has filed the application in his own as well as in his son's name.        Under Article 25 para. 1 (Art. 25-1) of the Convention, the Commission "may receive petitions...from any person...claiming to be the victim of a violation of the rights set forth in the Convention".        In principle a parent who has the custody over his child is able to introduce an application under Article 25 (Art. 25) of the Convention on behalf of the child (cf. No. 12246/86, Dec. 13.7.87, D.R. 53 pp. 225, 228). This opportunity may be qualified by the status of the parent's legal relationship with the child under domestic law, which in the present case is Italian law.        The Commission notes that the Italian courts have awarded the custody over the child to the applicant's former wife and that the applicant's complaints are directed against the proceedings before the Italian courts leading in particular to the decision of the Trento Court of Appeal of 26 November 1992.        The Commission recalls that, in principle, a person who does not have the right to represent a person under domestic law may nevertheless, in certain circumstances, represent this person before the Commission (cf., e.g., Eur. Court H.R., Nielsen v. Denmark judgment of 28 November 1988, Series A no. 144). However, the representative should normally submit evidence showing that he is empowered to appear before the Convention organs on an applicant's behalf. If this condition is not met, the Commission can only consider the application in so far as the representative himself claims to be a victim, either in his direct or indirect capacity (cf. No. 8612/79, Dec. 10.5.79, D.R. 15 p. 259).        The Commission finds no evidence, however, showing that the applicant has been authorised to act on his son's behalf in the Convention proceedings. The Commission can therefore only consider the application in so far as the applicant himself claims to be a victim of the situation complained of.   2.    The Commission has first examined the applicant's complaints in respect of the length of the proceedings which have been pending before the Italian courts since 1985.        Article 6 para. 1 (Art. 6-1) of the Convention, so far as relevant, provides that "in the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a]...tribunal...".        The reasonableness of the length of proceedings is to be considered in the light of the criteria laid down in the case-law of the European Court of Human Rights, in particular the complexity of the case, the conduct of the applicant and that of the relevant authorities. On the latter point, the importance of what is at stake for the applicant in the litigation has to be taken into account (cf., e.g., Vallée v. France judgment of 26 April 1994, Series A no. 289-A, p. 17, para. 34).        In its decision declaring the applicant's previous application (No. 16260/90) inadmissible, the Commission had regard to the special features inherent in the very nature of the case. The relevant part of this decision reads as follows:        "The proceedings involved many decisions given at the      request of the parties, in particular the applicant,      insofar as difficulties in the exercise of their respective      rights with regard to the child required a specific      solution.        The Commission finds that there have been no particular      periods of inactivity in the successive stages of the      proceedings. It emphasises that, contrary to civil      proceedings in which the courts are required to give      rulings upon facts, the decisions in question concerned a      situation developing since the couple's separation, to      which the courts had to find appropriate solutions likely      to protect not only the rights and interests of the      parents, but above all those of the child whose welfare had      to take priority.        In the light of the criteria identified by case-law and      taking into account of all the circumstances of the present      case, the Commission considers that the proceedings in      question did not exceed the 'reasonable time' laid down by      Article 6 para. 1 (Art. 6-1) of the Convention despite the      fact that no solution has yet been found to the dispute."        The Commission notes that the applicant's previous application covers facts including the decision of the Trento Court of Appeal of 24 October 1991.        The subsequent proceedings started with the applicant's request of 5 July 1992 to be awarded parental authority over his son. The Trento Court of Appeal gave its decision on 26 November 1992, filed with the Registry on 2 December 1992 and notified to the applicant on 13 January 1993.        Other proceedings brought by the applicant concerned criminal proceedings against six of the judges of the Trento Court of Appeal, the request of 3 August 1992 to have the judgment of the Innsbruck Regional Court of 26 June 1992 recognised in Italy, the request of a psychiatric examination of his son and the complaint to the Italian Minister of Justice about the inactivity of the Italian authorities.        The Commission points out that the period whose reasonableness falls to be reviewed extends to the decision which disposes of the dispute (see Poiss v. Austria judgment of 23 April 1987, Series A no. 117, p. 103, para. 50). This is the decision of the Trento Court of Appeal of 26 November 1992. The other proceedings brought by the applicant, however, were not decisive for the applicant's civil rights and obligations and cannot to be taken into account in determining the length of the proceedings.            The period to be considered started therefore on 5 July 1992, when the applicant submitted his request to be awarded parental authority over his son and ended with the notification of the decision of the Trento Court of Appeal of 26 November 1992 to the applicant on 13 January 1993. Thus, the proceedings lasted six months and eight days.        However, the Commission cannot find that the length of the proceedings exceeded a "reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        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.   3.    The applicant also complains that he is denied the custody over his son by the Italian authorities despite the negative and for the child's welfare extremely harmful influence of the mother. He further complains that he cannot exercise his right of access owing to the obstruction of his former wife and the failure of the Italian authorities to take all necessary steps to enforce his access right as can reasonably be demanded in the circumstances of the present case. He alleges a violation of Article 8 para. 1 (Art. 8-1) of the Convention.        Article 8 (Art. 8), as far as relevant, reads as follows:        "1.    Everyone has the right to respect for his ... family life,      ...        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 ... for the      protection of the rights and freedoms of others."   a)    However, Article 27 para. 1 (b) (Art. 27-1-b) of the Convention provides that the Commission shall not deal with any application submitted under Article 25 (Art. 25) which is substantially the same as a matter which it has already examined and if it contains no new information. In the present case, the Commission recalls that on 9 July 1992 it declared inadmissible the applicant's Application No. 16260/90. After examining the present complaint, the Commission finds that, insofar as the facts include the   decision of the Trento Court of Appeal of 24 October 1991, it is essentially the same as the above application and that it contains no relevant new information.        It follows that this part of the application must be rejected pursuant to Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.   b)    As regards the applicant's complaints in relation to the decision of the Trento Court of Appeal of 26 November 1992 awarding the custody over the son to the applicant's former wife and granting the applicant a right of access, the Commission finds that it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of the Article invoked as, under Article 26 (Art. 26) of the Convention, it "may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...".        The Commission notes that the applicant has not lodged an appeal on points of law against the decision of the Trento Court of Appeal of 26 November 1992 to the Court of Cassation in accordance with Article 111 of the Italian Constitution. Moreover, the Commission observes that, in accordance with Article 742 of the Italian Code of Civil Procedure, a decision given in matters concerning the custody over a child and the right of access may be quashed or modified at any time. However, the applicant has failed to request a judicial review of the decision of the Trento Court of Appeal of 26 November 1992 in which it was stated that the child's own wishes would be taken into consideration once he had reached the age of 12. The Commission notes that the child has reached this age in 1993.        It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies in this respect, and this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   4.    The Commission has finally examined the applicant's complaints as submitted by him under Article 14 of the Convention in combination with Article 8 (Art. 14+8) of the Convention, Article 2 of Protocol No. 2 (Art. 14+P2-2),   Articles 2 and 3 of Protocol No. 4 (Art. 14+P4-2+P4- 3) and Article 5 of Protocol No. 7 (Art. 14+P7-5). However, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For theses reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber