CEDH · CASELAW;REPORTS;ENG — 3 décembre 1997

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 23671/94                                G. F.                               against                               Austria                      REPORT OF THE COMMISSION                    (adopted on 3 December 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-29) . . . . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 30-48) . . . . . . . . . . . . . . . . . . . . .5        A.    Complaints declared admissible           (para. 30). . . . . . . . . . . . . . . . . . . . .5        B.    Points at issue           (para. 31). . . . . . . . . . . . . . . . . . . . .5        C.    As regards Article 6 para. 1 of the Convention           (paras. 32-40). . . . . . . . . . . . . . . . . . .5             CONCLUSION           (para. 41). . . . . . . . . . . . . . . . . . . . .7        D.    As regards Article 8 of the Convention           (paras. 42-45). . . . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 46). . . . . . . . . . . . . . . . . . . . .7        E.    Recapitulation           (paras. 47-48). . . . . . . . . . . . . . . . . . .7   APPENDIX I:     PARTIAL DECISION OF THE COMMISSION AS TO                THE ADMISSIBILITY OF THE APPLICATION . . . . .8   APPENDIX II:    FINAL DECISION OF THE COMMISSION AS TO                THE ADMISSIBILITY OF THE APPLICATION . . . . 14   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is an Austrian citizen, born in 1956 and resident in Vienna.   He was represented before the Commission by Mr. G. Koller, a lawyer practising in Vienna.   3.    The application is directed against Austria.   The respondent Government were represented by Mr. F. Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   4.    The case concerns the applicant's complaint that the courts denied him a decision as regards his request for access to his children at Christmas 1992, thereby also violating his right to respect for his family life. The applicant invokes Articles 6 and 8 of the Convention.   B.    The proceedings   5.    The application was introduced on 13 December 1993 and registered on 14 March 1994.   6.    On 6 September 1995 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Articles 6 and 8 that the courts denied him a decision as regards his request for access to his children at Christmas 1992, thereby also violating his right to respect for his family life. It declared the remainder of the application inadmissible.   7.    The Government's observations were submitted on 18 December 1995 after an extension of the time-limit fixed for this purpose. The applicant replied on 4 March 1996.   8.    On 4 September 1996 the Commission declared admissible the applicant's complaints that the courts denied him a decision and violated his right to respect for his family life as regards his request for access to his children at Christmas 1992.   9.    The text of the Commission's decision on admissibility was sent to the parties on 17 September 1996 and they were invited to submit such further information or observations on the merits as they wished. No such observations were received.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs   J. LIDDY, President           MM    M.P. PELLONPÄÄ                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS                L. LOUCAIDES                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                M. VILA AMIGÓ           Mrs   M. HION           Mr    R. NICOLINI   12.   The text of this Report was adopted on 3 December 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's decisions on the admissibility of the application are annexed hereto as Appendices I and II.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   16.   The applicant has two children, who 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.   17.   On 12 July 1991 the applicant requested to be granted access to his children on a regular weekly basis. On 27 May 1992 the Favoriten District Court (Bezirksgericht) dismissed his request. The applicant appealed against this decision, whereupon the Favoriten District Court submitted the file to the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen).   18.   On 16 November 1992 the applicant requested the Favoriten District Court 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. The Favoriten District Court received the applicant's request on 20 November 1992.   19.   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.   20.   On 30 November 1992, the file was returned to the Favoriten District Court by the Vienna Public Prosecutor's Office (Staatsanwaltschaft). The court ordered on the same day that it be again submitted to the Vienna Regional Civil Court, before which the applicant's appeal in the above-mentioned proceedings was pending.   21.   On 2 December 1992 the President of the Vienna Regional Civil Court returned the file to the 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.   22.   On 7 December 1992 judge T. at the District Court telephoned the applicant and notified him of a meeting that was to take place on 17 December 1992, and in which the children's mother was also going to take part.   23.   On 17 December 1992 judge T. at the District Court, after having noted that the applicant had failed to appear in time, heard the mother of the children 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. According to Judge T.'s note for the file, he explained to the applicant 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.   24.   By letter of 28 December 1992 the applicant complained to the District Court that judge F. had promised him in November that he would 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.   25.   On 7 January 1993 the Favoriten District Court rejected the applicant's request. It noted that, at the time when the request was submitted, the file had been before the Vienna Regional Civil Court, which had returned it on 3 December 1992. At the hearing (Tagsatzung) 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.   26.   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 of taking a decision before Christmas. The decision was misleading as it created the impression that the court did not have the possibility of deciding 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.   27.   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 rejected 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.   28.   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.   29.   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 a 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.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   30.   The Commission declared admissible the applicant's complaints that the courts denied him a decision and violated his right to respect for his family life as regards his request for access to his children at Christmas 1992.   B.    Points at issue   31.   The following points are at issue:        -     whether the applicant, as regards his request for access to      his children at Christmas 1992, had access to court as required      by Article 6 para. 1 (Art. 6-1) of the Convention;        -     whether the conduct of the courts dealing with the      applicant's request displayed a lack of respect for his family      life in breach of Article 8 (Art. 8) of the Convention.   C.    As regards Article 6 para. 1 (Art. 6-1) of the Convention   32.   Article 6 para. 1 (Art. 6-1), so far as relevant, reads as follows:        "In the determination of his civil rights and obligations ...,      everyone is entitled to a fair and public hearing within a      reasonable time by an independent and impartial tribunal      established by law."   33.   The applicant submits that the judge at the District Court denied him a fair hearing within a reasonable time. He maintains that he filed his request for access to his children at Christmas 1992 in time and that the judge at the District Court promised him a timely decision. The applicant further submits that the above request had nothing to do with the proceedings relating to his request for weekly access to his children and that the case was not complex. The applicant alleges that the judge at the District Court waited deliberately until Christmas had passed, before he dismissed his request as being out-dated, i.e. without deciding on its merits.   34.   The Government contend that the main question is whether the applicant's case was heard within a reasonable time. They submit that the case was complex as the applicant's request to be granted access to his children at Christmas 1992 has to be seen in the context of proceedings relating to his request for weekly access to them. The Favoriten District Court had rejected this request; however, the appeal proceedings were still pending at the relevant time. Further, the Government submit that the Favoriten District Court summoned the applicant and the mother of the children for 17 December 1992. As they could not reach an agreement, the court, on the basis of the file and given the limited amount of time available, could only have rejected the applicant's request. That it failed to do so cannot be held against it, given that the appeal proceedings concerning the applicant's request for weekly access to his children were still pending. There was not enough time to take more exhaustive steps, in particular to order an opinion by a child psychologist, which would have been indicated in the circumstances of the case. As regards the conduct of the applicant, the Government submit in particular that he appeared belatedly on 17 December 1992 and, thus, prevented the judge from jointly hearing both parents of the children concerned.   35.   The Commission recalls that Article 6 para. 1 (Art. 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the "right to a court", of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (Eur. Court HR, Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, para. 36). Furthermore, the Commission recalls that Article 6 (Art. 6) guarantees to litigants an effective right of access to the courts for the determination of their "civil rights and obligations" (Eur. Court HR, Airey v. Ireland judgment of 9 October 1979, Series A no. 32, pp. 14-15, para. 26).   36.   The right of access to court is not absolute but may be subject to limitations. Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (Golder v. the United Kingdom judgment loc. cit., pp. 18-19, para. 38; Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, p. 24, para. 57).   37.   The Commission notes that there were no legal impediments preventing the applicant from introducing his request with the civil courts. However, hindrance in fact can contravene the Convention just like a legal impediment (Golder v. the United Kingdom judgment, loc. cit., p. 13, para. 26; Airey v. Ireland judgment, loc. cit., p. 14, para. 25).   38.   The Commission further notes that the applicant lodged his request on 16 November 1992. At that time, the District Court was not in possession of the file relating to the main proceedings concerning the applicant's request for weekly access to his children. However, it appears that the District Court did not take any measures to obtain the file, which was returned to it on 30 November 1992. Despite the limited amount of time left, the District Court sent the file to the superior court which returned it on 2 December 1992 with an explicit order to decide on the applicant's request. However, the District Court only invited the applicant and the mother of the children to a meeting on 17 December 1992, i.e. one week before Christmas. At that meeting, which was aimed at bringing about an agreement, the mother of the children opposed the applicant's request. The applicant appeared belatedly. Subsequently, the District Court failed to give a decision before Christmas. It only took its decision on 7 January 1993 noting that no agreement could be achieved between the parents of the children concerned and finding that, due to the lapse of time, it had become impossible to grant the applicant's request. The applicant's appeals were rejected by the Vienna Regional Civil Court and the Supreme Court on the ground that he had no longer a legitimate interest in pursuing the case.   39.   The Commission finds that the Favoriten District Court failed to deal with the applicant's request to be granted access to his children at Christmas 1992 expeditiously and to establish the facts which would have enabled it to take a decision on the merits. In sum, the applicant had access to the District Court only to be told two weeks after Christmas that, due to the lapse of time, it had become impossible to grant his request.   40.   In the circumstances of the case, the Commission finds that the applicant did not enjoy an effective right of access to the courts as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention.        CONCLUSION   41.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   D.    As regards Article 8 (Art. 8) of the Convention   42.   Article 8 (Art. 8) of the Convention reads as follows:        "1.   Everyone has the right to respect for his private and      family life, his home and his correspondence.        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."   43.   The applicant submits that the Favoriten District Court, by taking its decision belatedly, displayed a lack of respect for his family life. He argues that the Austrian courts, instead of taking the necessary measures to help him maintain contact with his children, arbitrarily denied him access to them.   44.   The Government contest this view. The Government, referring to the case-law of the Convention organs relating to the procedural requirements inherent in Article 8 (Art. 8), argue that these requirements do not go beyond the requirements of Article 6 (Art. 6). As there is no violation of Article 6 (Art. 6), there is no violation of Article 8 (Art. 8) either.   45.   The question which arises under Article 8 (Art. 8) is whether the conduct of the Austrian courts dealing with the applicant's request displayed a lack of respect for his family life. However, having regard to its above conclusion under Article 6 (Art. 6), the Commission does not find it necessary to examine the applicant's complaint under Article 8 (Art. 8) of the Convention.        CONCLUSION   46.   The Commission concludes, unanimously, that no separate issue arises under Article 8 (Art. 8) of the Convention.   E.    Recapitulation   47.   The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   48.   The Commission concludes, unanimously, that there is no separate issue under Article 8 (Art. 8) of the Convention.        M.F. BUQUICCHIO                          J. LIDDY         Secretary                             President    to the First Chamber                  of the First Chamber