CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 mai 1998

.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. 23759/94                       by W. J.                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 20 May 1998, the following members being present:              MM     N. BRATZA, Acting President                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              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 11 December 1993 by W. J. against Austria and registered on 25 March 1994 under file No. 23759/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on 3 June      1996 and the observations in reply submitted by the applicant on      30 September and 11 November 1996 and 11 March 1998 ;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a refugee of Iranian origin born in 1956.   Since 1989 he has lived in the United Kingdom where he was granted political asylum in 1993.        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    Particular circumstances of the case        In 1982 the applicant married an Austrian national in Spain.   The couple settled in Austria.   Their marital life comprised several periods when the spouses lived separately.        In 1983 the applicant tried to force the door of his wife's flat and was conditionally sentenced to six weeks' imprisonment.   For this reason he was expelled from Austria on 21 January 1984.   Upon his wife's request the applicant was allowed to come back on 21 April 1984. On 19 June 1984 a son, Marco, was born of the marriage.        In March 1985 the applicant's spouse left her husband and petitioned for divorce.   In June and October 1985 the Fünfhaus District Court (Bezirksgericht) granted the applicant access to his son.   In November 1985 the Vienna Regional Court (Landesgericht) quashed these decisions.        Following criminal complaints brought by a judge and two legal assistants of the Fünfhaus District Court, the Vienna Regional Criminal Court (Landesgericht für Strafsachen) convicted the applicant, on 28 January 1986, of uttering dangerous threats.   It was established that the applicant had verbally threatened the aforesaid persons and had stated that he would return to Austria as a terrorist and kill all persons who had dealt with his case.   The applicant was conditionally sentenced to three months' imprisonment.        On 20 January 1987 the applicant and his wife were divorced   on the ground that the applicant had committed a serious matrimonial offence.   In particular, reference was made to the applicant's failure to provide maintenance to his family, to unsubstantiated accusations of various offences which he had brought against his wife and to his attempt to have his wife deprived of Austrian nationality.        On 11 April 1988 the Fünfhaus District Court awarded custody of Marco to his mother and dismissed the applicant's request for visiting rights.   The District Court established that the applicant had brought various unsubstantiated accusations against his wife and had been aggressive to her, that he had stated that he would not hesitate to use force in order to get hold of his son and that he hated Austria.   The court established that the mother took appropriate care of Marco and that he had very good relations with her.        The District Court further noted that the applicant had not been able to integrate into society in Austria and that he had a tendency to reacting inadequately and in an unforeseeable manner.   It noted that the applicant had, without any reason, offended judges and other officials, uttered threats in their respect and concluded that the mother's fear that he could abduct Marco abroad was justified to a certain extent.   The court based its findings on two expert opinions, on a report delivered by a youth welfare office and also on the impression both the applicant and his former wife had made on it in the course of the proceedings.        On 9 May 1988 the Federal Police Directorate (Bundespolizeidirektion) in Vienna banned the applicant from Austria for an unlimited period.   The decision was based mainly on the facts that in 1983 and in 1986 the applicant had been convicted of criminal offences and conditionally sentenced to imprisonment, that he had not shown that he was able to earn his living in Austria, and that he had a tendency to behave aggressively.   On 11 June 1988 the applicant was expelled.   The applicant submits that he was sentenced to death in Iran but managed to escape.        On 27 October 1988 the Vienna Regional Court dismissed the applicant's appeal against the Fünfhaus District Court's decision of 11 April 1988.   On 6 June 1989 the Supreme Court (Oberster Gerichtshof) rejected the appeal on a point of law lodged by the applicant.        Between 1990 and 1992 the applicant filed two further requests to the Fünfhaus District Court for custody and access to his son.   Both were dismissed and the final decisions on them were delivered by the Supreme Court on 24 October 1990 and on 17 June 1993 respectively.   The courts found that the applicant could not meet his son in Austria because of the ban.   He could not meet his son abroad either as the latter was under age and could not travel abroad alone.   The mother could not be required to accompany the child because of tensions between her and the applicant.   In the courts' view, the contact of the applicant with his son would have in such circumstances an adverse effect on the child's well-being.        On 4 March 1992 the Vienna Regional Court decided that the Fünfhaus District Court was competent to deal with the case notwithstanding that the applicant's former wife often changed her residence.        On 16 February 1994 the applicant lodged a new request for custody and access with the Fünfhaus District Court.   He challenged, without success, all judges of the Fünfhaus District Court for bias on the ground that he had been earlier convicted of threatening judges of that court.        On 5 December 1994 the Fünfhaus District Court dismissed the applicant's request of 16 February 1994.   In accordance with Section 178b of the Civil Code (see "The relevant domestic law and practice" below), the court heard Marco.   The applicant's former wife was allowed to attend the examination but she did not interfere with it.   Neither the applicant nor his lawyer were present.   The applicant's lawyer was subsequently provided with the record of the examination of Marco.        According to the record, Marco did not want to meet his father and feared that he might abduct him abroad.   The son alleged that "his former father" had told lies about his mother, that he could not communicate with his father and that he did not want to travel abroad.        After the examination of Marco was concluded, the court heard the applicant's former wife.   She stated that she did not agree to granting visiting rights to the applicant as she feared, because of the accusations which the applicant had brought against her, that he could try to influence the child against her.   However, she would not be opposed to granting visiting rights to the applicant in the future should he change his behaviour.        The court found that the mother looked after the child competently.   It did not contest the applicant's view that it was necessary for the child to meet his father.   For this reason it did not order an expert's opinion on this point as requested by the applicant.        The District Court dismissed the request for access as the applicant could not travel to Austria.   The child could not be sent abroad alone, and it could not be required of the mother to accompany Marco both for financial reasons and because of tensions between the parents.   These tensions resulted from various unsubstantiated accusations the applicant had kept bringing against his former wife and, in the court's view, they would prevent the child from establishing positive relations to his father.   Because of the ban it was not possible to establish relations between the child and the applicant gradually.        The request for custody was also dismissed on the ground that the applicant had not put forward any new arguments.        In its decision the District Court considered that the presence of the applicant or his lawyer while Marco was heard was not necessary as hearing of a child under Section 178b of the Civil Code was not considered as examination of a party or a witness under Austrian law. It recalled that parties to proceedings were not allowed to ask any questions on such occasions.   It further held that, in any event, the decision on the applicant's claims could be taken without hearing the child as no new circumstances had arisen in the case.        The applicant appealed.   He complained that neither he nor his lawyer had been present when the District Court had heard his son in the presence of the mother, and that the court had not heard him in person.   On 29 March 1995 the Vienna Regional Court dismissed the appeal.        The Regional Court found that unsubstantiated accusations which the applicant had kept bringing against his former wife caused tensions between the parents which, as the mother feared, could destroy the son's confidence in her if the father had contact.   The court referred also to the child's statement and concluded that granting visiting rights to the applicant would be against the child's interest.        In addition, the court noted that the applicant could not meet his son in Austria and that it was out of question that the contacts take place abroad.   The court underlined that the applicant's request for access to his son had not been dismissed because of the binding effect of the ban on his stay in Austria, but because the contacts would not promote the child's well-being.   In the Regional Court's view, the facts of the case had been established with sufficient certainty, and there was nothing to show that any relevant new information could be obtained by hearing the applicant.          On 24 May 1995 the Supreme Court rejected the applicant's extraordinary appeal on points of law.   B.    The relevant domestic law and practice        Under Austrian law proceedings concerning children's care are non-contentious.   They are conducted in accordance with the relevant provisions of the Civil Code in a flexible way and the judge has a wide discretion as to the circumstances in which he or she collects the evidence which he or she considers necessary in order to take a decision.        Under Section 178b of the Civil Code, before it delivers a decision concerning a child's care or education the court shall, so far as possible, hear the child concerned.   Such hearing of a child is not considered as examination of a party or of a witness.   Its purpose is to give the child an opportunity to express his or her own wishes to the court and thus to enable the judge to perceive and clarify the circumstances essential to taking the decision also from the child's point of view.   Parties to the proceedings are not allowed to ask questions during such hearings.   COMPLAINTS        The applicant complains that his rights under Articles 1, 2, 3, 5, 6, 10 and 12 of the Convention were violated while he lived in Austria.        He further complains under Article 3 of the Convention of the refusal to grant him access to his son in the proceedings concerning his last two requests to this effect.        The applicant also complains that his rights under Article 6 para. 1 of the Convention were violated in the different sets of proceedings before the Austrian courts to which he was a party after his expulsion.   In particular, as regards the last set of proceedings leading to the Supreme Court's decision of 24 May 1995, the applicant complains that (i) his former wife attended the examination of his son whereas his lawyer was absent, and that it could not be established from the minutes whether the court had a correct view of the child's personality, (ii) the courts did not order an expert's opinion on the necessity for the child to meet his father and (iii) the courts refused to hear him in person.        In the applicant's view, the aforesaid proceedings were not fair as the courts based their decisions on his former wife's fear, for which there existed no objective reasons.   He alleges a violation of the principle of equality of arms in that the courts relied on the mother's submissions without hearing himself and failed to give relevant and sufficient reasons for their decision that granting visiting rights to the applicant would not be in the child's interest.        The applicant further alleges a violation of Article 6 para. 1 of the Convention in the last set of proceedings in that the Fünfhaus District Court's judges lacked impartiality because in the past he had threatened judges of that court and because a judge who had earlier dealt with his case became president of the aforesaid court.   He also complains that the Fünfhaus District Court was not competent under Austrian law to deal with the case as at the relevant time his former wife lived with his son outside its district.        The applicant alleges a violation of Article 8 of the Convention in that he did not obtain access to his son.        Finally, the applicant alleges a violation of Articles 13 and 14 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 11 December 1993 and registered on 25 March 1994.        On 28 February 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 3 June 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 30 September 1996 also after an extension of the time-limit.   He supplemented his observations on 11 November 1996 and 11 March 1998.        On 2 July 1996 the Commission granted the applicant legal aid.   THE LAW   1.    The applicant alleges a violation of Articles 1, 2, 3, 5, 6, 10, 12 and 14 (Art. 1, 2, 3, 5, 6, 10, 12, 14) of the Convention which occurred during the period when he lived in Austria.   He also alleges a violation of Article 6 (Art. 6), both taken alone and in conjunction with Article 14 (Art. 6+14) of the Convention, in the proceedings leading to the Supreme Court's decisions of 6 June 1989 and 24 October 1990 respectively.    The applicant also complains that the Fünfhaus District Court was not competent under Austrian law to deal with his case.        The Commission notes that the applicant was expelled from Austria on 11 June 1988, that the final decisions in the aforesaid two sets of proceedings were delivered by the Supreme Court on 6 June 1989 and 24 October 1990 respectively, and that the final decision as regards the jurisdiction of the Fünfhaus District Court to deal with the applicant's case was delivered by the Vienna Regional Court on 4 March 1992.   Since the application was introduced on 11 December 1993, in respect of the aforesaid complaints the applicant failed to comply with the six months' time-limit laid down in Article 26 (Art. 26) of the Convention.        It follows that this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant further complains about the proceedings concerning his requests for access and custody which ended by the decisions of the Supreme Court of 17 June 1993 and 24 May 1995 respectively.   He alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention which provides, so far as relevant, as follows:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair and public hearing ... by an ...      impartial tribunal established by law."        The Commission first notes that the proceedings in question concerned the applicant's requests for custody and access to his son. They were decisive for the applicant's relations with his son and the scope of his "civil rights and obligations" in this respect.        Accordingly,   Article 6 para. 1 (Art. 6-1) of the Convention is applicable to these proceedings (see, mutatis mutandis, Eur. Court HR, O. v. the United Kingdom judgment of 8 July 1987, Series A no. 120, pp. 25-26, paras. 58-60; No. 9580/81, Dec. 13.3.84, D.R. 36, p. 100). It must therefore be determined whether the guarantees of Article 6 para. 1 (Art. 6-1) were respected in the present case.   a)    The applicant alleges that the Fünfhaus District Court's judges lacked impartiality because in 1986 he had been convicted for threatening the judges of that court and because a judge who had earlier dealt with his case later became president of that court.        The Commission notes that it does not appear from the documents submitted that in the proceedings in question the applicant's case was dealt with by the judge of the Fünfhaus District Court who had lodged the criminal complaint against the applicant leading to the latter's conviction of 8 January 1986, and the fact that a judge who had earlier dealt with the applicant's case became later president of the Fünfhaus District Court does not, as such, cast any doubt on the impartiality of the judges who examined the applicant's requests under consideration.   b)    The applicant further complains that the proceedings leading to the Supreme Court's decision of 24 May 1995 were not fair.        The Government submit that the applicant's right to a fair trial was respected in the proceedings in question.   They maintain that the right of a party to civil proceedings to have evidence examined by a court is not an absolute one and that the judges are entitled to admit only such evidence which they consider relevant in the particular circumstances of a case.        In particular, the Government recall that under Austrian law the hearing of a child under Section 178b of the Civil Code is not considered as examination of a witness or hearing of a party.   They further point out that the applicant's former wife exercised no influence on the son while he was heard by the court and conclude that her presence while the District Court heard the child did in no way interfere with the applicant's right to a fair trial.        The Government further submit, with reference to the arguments set out in the relevant judicial decisions, that the evidence the courts had before them permitted them to establish the relevant facts with sufficient certainty without hearing the applicant.   They therefore consider that the courts' failure to hear the applicant did not interfere with his rights under Article 6 para. 1 (Art. 6-1).        Finally, the Government recall that it was not contested by the courts that, in principle, it was necessary for the son to meet his father.   The Government are therefore of the opinion that obtaining of an expert opinion to this effect was not necessary.        The applicant contends that the proceedings were not fair as the courts dealing with his case heard his former wife but failed to hear him, that the District Court heard his son in the presence of his former wife whereas neither he nor his lawyer could be present, and that the courts did not accept his proposals that the child be examined by an expert with a view to establishing in an objective way whether granting access to the applicant was in the child's interest.        The Commission recalls that Article 6 para. 1 (Art. 6-1) does not lay down rules on admissibility of evidence which is primarily a matter for regulation under national law.   The task of the Convention organs is to ascertain whether the proceedings in their entirety, including the way in which evidence was permitted, were "fair" within the meaning of Article 6 para. 1 (Art. 6-1).        As regards the requirements inherent in the concept of "fair hearing", the Contracting States have greater latitude when dealing with cases concerning civil rights and obligations than they have when dealing with criminal cases.   Nevertheless, the requirement of "equality of arms", in the sense of a "fair balance" between the parties, applies in principle to such cases as well as to criminal cases.   It implies that each party must be afforded a reasonable opportunity to present his or her case - including his evidence - under conditions that do not place him or her at a substantial disadvantage vis-à-vis his opponent.   It is left to the national authorities to ensure in each individual case that the requirements of a "fair hearing" are met (see Eur. Court HR, Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, paras. 32 and 33).        The Commission notes that the purpose of the proceedings in question was to establish whether, in the particular circumstances of the case, it was possible to grant the applicant's requests for custody and access.   The proceedings were non-contentious in their character. In accordance with the nature of such proceedings, the judges had a wide discretion as to the circumstances in which the evidence which they considered necessary was to be collected.        To the extent that the applicant complains that neither he nor his lawyer was present when his son was heard, the Commission recalls that under Section 178b of the Civil Code the Fünfhaus District Court was under an obligation to hear also the applicant's son.   The Commission notes that such hearing of a child is not considered as examination of a party or of a witness under Austrian law.   Its purpose is to give the child an opportunity to express his or her own wishes to the court and thus to enable the judge to perceive and clarify the circumstances essential to taking the decision also from the child's point of view.   Parties to the proceedings are not allowed to ask questions during such hearings.        The Commission admits that it may have been more appropriate to hear the child in absence of both the applicant and his former wife in order to exclude any influence of the interested parties.   However, given the aforesaid specific features of the proceedings in question and considering that the applicant's former wife interfered in no way with the hearing of the child, that the applicant's lawyer was provided with the record of the hearing and apparently had an effective opportunity to submit the applicant's point of view regarding the child's statements, and in regard of the Fünfhaus District Court's finding that the decision on the applicant's claims could have been taken without hearing the child as no new circumstances had arisen in the case, the Commission considers that the hearing of Marco in the presence of his mother while neither the applicant nor his lawyer was present was not contrary to the requirements of a fair trial within the meaning of Article 6 para. 1 (Art. 6-1).        To the extent that the applicant complains that the courts refused to hear him in person, the Commission notes that the courts examining the applicant's requests found nothing to show that any relevant new information could be obtained by hearing the applicant, and the Commission has before it no information that would permit to reach a different conclusion.   Furthermore, the Commission notes that it has not been contested by the applicant that he had an opportunity to have knowledge of and comment on the evidence before the court, and that he was free to present his case through the intermediary of his lawyer and to submit any evidence which he considered relevant.   In these circumstances, the Commission considers that the courts' failure to hear the applicant in person did not contravene his rights under Article 6 para. 1 (Art. 6-1).        As regards the applicant's complaint that the courts refused to order an expert's opinion with a view to establishing whether or not there was a need for the child to meet his father, the Commission notes that the courts did not contest the applicant's view that it was necessary for the child to have contacts with his father.   However, they found, for reasons set out in their decisions, that in the particular circumstances of the case it was not possible to establish contacts between the applicant and his son in a way that would respect the interests of the child.   The Commission therefore considers that the refusal to order an expert opinion as requested by the applicant did not infringe the applicant's right to a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1).   c)     The applicant further complains that the courts erroneously relied on the submissions of his former wife and failed to give relevant and sufficient reasons for their decisions.        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 eg. No. 19890/92, Dec. 3.5.93, D.R. 74 p. 234).        The Commission notes that in the present case the courts found, for reasons expressly set out in their decisions, that in the particular circumstances of the case establishment of contacts between the applicant and his son would have an adverse effect on the child's well-being.   In the Commission's view, this decision is not arbitrary.        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 complains that he did not obtain access to his son. He alleges a violation of Article 8 (Art. 8) of the Convention which provides, so far as relevant, 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 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."        The Government submit, with reference to the reasons set out in the relevant judicial decisions, that the interference with the applicant's right to respect for his family life pursued the aim of protecting the child's well-being.   They maintain that the interference was necessary in a democratic society within the meaning of Article 8 para. 2 (Art. 8-2).   In particular, they point out that the applicant has not been allowed, because of the offences which he committed in the past, to enter Austria, and that the tensions between him and his former wife, which resulted from unsubstantiated accusations which he kept bringing against the latter, rendered contacts abroad impossible.        The applicant admits that the interference in question pursued the   legitimate aim of protecting the health of his son.   However, he contends that this interference cannot be regarded as necessary in a democratic society.   In particular, he considers it irrelevant that he was banned from Austria.   The applicant further submits that the mere fact that his wife feared a further escalation of tensions between her and the applicant and that he could influence the child against her cannot justify the decision to prevent him from any contact with his son.        The Commission notes that it has not been contested between the parties that the dismissal of the applicant's requests for access to his son constituted an interference with the applicant's right to respect for his family life.   The question whether or not this interference can be justified, on the basis that it was "in accordance with the law", pursued one or several of the legitimate aims referred to in Article 8 para. 2 (Art. 8-2) and was "necessary in a democratic society", must therefore be addressed.        It has not been disputed before the Commission that the interference in question was "in accordance with the law", namely the relevant provisions of the Civil Code, and that it pursued the legitimate aim of protecting the health of the applicant's son.   The Commission has before it no information to the contrary.        The only point which is in dispute in the present case is whether or not this interference can be regarded as "necessary in a democratic society".   In this respect, the Commission recalls that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued; in determining whether an interference is "necessary in a democratic society", the Convention organs will take into account that a margin of appreciation is left to the Contracting States.   Furthermore, in exercising their supervisory jurisdiction, the Convention organs must look at the impugned decisions in the light of the case as a whole and must determine whether the reasons adduced to justify the interferences at issue are "relevant and sufficient" (see Eur. Court HR, Olsson v. Sweden judgment of 24 March 1998, Series A no. 130, pp. 31-32, paras. 67, 68).              The Commission notes that the proceedings under consideration concerned respectively the third and fourth request of the applicant for visiting rights.   Each of these requests was examined at three levels of jurisdiction and the domestic courts found no relevant new circumstances that would allow them to depart from their earlier decisions on the issue.        In particular, in the last set of proceedings the Fünfhaus District Court found that the applicant had kept bringing unsubstantiated accusations against his former wife.   This resulted in tensions between the parents which, in the court's view, would prevent the child from establishing positive relations to the applicant.   The District Court further noted that because of the ban imposed on him following his conviction of criminal offences the applicant could not come to Austria with a view to visiting his son.   Given his age, Marco could not be sent abroad alone, and it could not be required of the mother to accompany him both for financial reasons and because of the aforesaid tensions existing between the parents.   The District Court concluded that in such circumstances it was not possible to establish contacts between the applicant and his son in a way that would not be against the child's interest.        When it examined the applicant's appeal against the aforesaid decision, the Vienna Regional Court similarly found that unsubstantiated accusations which the applicant had kept bringing against his former wife caused tensions between the parents which could destroy the son's confidence in his mother.   In its decision of 29 March 1995 the Vienna Regional Court also noted that the applicant's son had expressed his wish not to meet his father and underlined that the applicant's request for access to his son had not been dismissed because of the binding effect of the ban on his entry to Austria, but because the contacts would not promote the child's well-being.        Thus, the domestic courts established, for reasons set out above, that in the particular circumstances of the case contacts between the applicant and his son could not be established in a way which would not be harmful to the child's well-being.        The Commission is satisfied that the reasons on which the courts based the decisions in question are relevant and sufficient and considers, having regard to the margin of appreciation reserved to the Austrian authorities, that the interference complained of was not disproportionate to the legitimate aim pursued.   Accordingly, it can be regarded as "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2).        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.   4.    The applicant further alleges a violation of Article 3 (Art. 3) of the Convention in that his aforesaid requests for access were not granted.        The Commission considers that the essential issues in this respect arise under Article 8 (Art. 8) of the Convention.   Having regard to its above finding on the applicant's complaint under Article 8 (Art. 8), the Commission considers that the dismissal of the applicant's above requests cannot be regarded as constituting inhuman or degrading treatment within the meaning of Article 3 (Art. 3) of the Convention (see, mutatis mutandis, Hendriks v. the Netherlands, Comm. Report 8.3.82, D.R. 29, p. 20, para. 130).        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.   5.    The applicant further complains that he was discriminated against in the last two sets of proceedings concerning his requests for access.   He alleges a violation of Article 14 (Art. 14) of the Convention which provides as follows:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."        The Commission has examined this complaint but finds, on the basis of the information before it, that there is nothing to substantiate the allegation that the applicant was discriminated against in the enjoyment of his Convention rights contrary to Article 14 (Art. 14) 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.   6.    Finally, the applicant alleges a violation of Article 13 (Art. 13) of the Convention.   However, the guarantees of Article 13 (Art. 13) apply only to a grievance which can be regarded as "arguable" (see Eur. Court HR, Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 14, para. 31, with further references).   In the present case the Commission has rejected the substantive claims either as being inadmissible for the applicant's failure to respect the six months' time-limit set out in Article 26 (Art. 26) of the Convention or as disclosing no appearance of a violation of the Convention.   Accordingly, they cannot be regarded as "arguable".        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,          DECLARES THE APPLICATION INADMISSIBLE.          M.F. BUQUICCHIO                               N. BRATZA         Secretary                               Acting President    to the First Chamber                       of the First Chamber