AS TO THE ADMISSIBILITY OF
Application No. 10895/84
by 1. G.R.
and 2. D.R.
against Austria
The European Commission of Human Rights sitting in private
on 5 October 1987 the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 April 1984
by 1. G.R. and 2. D.R. against Austria and registered
on 5 April 1984 under file N° 10895/84;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
&_THE FACTS&S
The first applicant, G.R., is an Austrian citizen, born in
1939 and living in Vienna. The second applicant is his daughter,
D., who was born in 1969 and is living with her father in Vienna.
I
1. In a previous application (no. 8893/80) the first applicant
complained that, subsequent to his divorce, Austrian courts placed
their two children in the custody of his ex-wife. He also complained
that, in the child-custody proceedings, his children were heard by the
court without his knowledge so that he was unable to put questions or
to comment on the result of this hearing. The previous application
was rejected on 5 March 1983 as being, with regard to both complaints,
manifestly ill-founded.
According to the facts established in the previous application
the Vienna District Court decided on 24 April 1979, for the second
time, a previous decision having been quashed, to entrust the mother
with the children's custody. This decision was based on three medical
reports, on which the applicant had been given the opportunity to submit
his comments. He objected, inter alia, that the children had been
accompanied by their mother when they saw one of the experts. He
thought that the expert should have examined whether this had
influenced the children's answers to questions.
Having regard to the experts' proven professional experience
and skill and referring to the fact that all expert opinions and also
a report of the Youth Office agreed to give preference to the mother,
the Court considered the applicant's objections to be unfounded. In
agreement with the expert opinions, it concluded that granting the
mother custody was in the interest of the children (two girls), in
view of their reliable preference for their mother, their biological
development and sex, and the continuity of their social sphere.
The applicant's appeal was dismissed by the Vienna Regional
Court on 18 June 1979. Shortly before, on 1 June 1979, the District
Court heard the two children, as the applicant had complained that the
children had not been heard by the Court itself.
The applicant then appealed to the Supreme Court, complaining
that the reasons stated in the decisions of the lower courts were
insufficient and that he had not been informed of the children's
hearing on 1 June 1979. This appeal was rejected by the Supreme
Court on 29 October 1979 as being inadmissible. The Court stated
that the alleged violations were not of such severity as to constitute
ground for nullity.
2. With regard to the complaint relating to the hearing of the
children, the Commission stated in its decision of 5 March 1983
rejecting the previous application that the first applicant had had
the possibility to submit his comments on this hearing in his appeal
to the Vienna Regional Court. It considered that the applicant
apparently failed to specify what kind of further questions should
have been put to the children and concluded that, in these
circumstances, there was no appearance of a violation of Article 6 of
the Convention.
As regards the complaint under Article 8 in conjunction with
Article 14 of the Convention, the Commission took into account the
fact that, in the light of the medical expert opinions, it was in the
best interest of the children that they stay with their mother since
they had expressed a reliable preference for this solution, which was
also justified for certain objective reasons, including the sex of the
children, their biological development and the continuity of their
social sphere. In these circumstances, the measure complained of was
considered to be justified under Article 8 (2) of the Convention.
In this respect the Commission added that the applicant's
legitimate interests were sufficiently taken into account by giving
him a right to visit the children.
II
The applicants furthermore submit the following:
In February 1983 D. was placed in the custody of the first
applicant with his ex-wife's consent.
On 27 January 1984 the Vienna District Court appointed the
Youth Office to act as trustee (Sachwalter) with regard to maintenance
claims of the first applicant's two children.
Following the first applicant's appeal, the Vienna Regional
Court quashed the order of 27 January 1984 insofar as it related to
the second applicant, i.e. the first applicant's daughter, D..
The Supreme Court restored this part of the order of
27 January 1984, on further appeal by the mother, stating that the
appointment of a trustee was justified in view of the fact that the
first applicant had fallen into important arrears with the
maintenance payments.
Meanwhile, in a decision of 6 December 1982, the Vienna
District Court had ordered the first applicant to pay maintenance of
monthly AS 2,500.- for the period of 1 January 1978 - 30 September 1978
and AS 3,000.- for the period 1 October 1978 - 30 November 1982 for
each of his two children.
The first applicant lodged an appeal against the order of
6 December 1982 stating that since 6 September 1982 he had been
granted the custody of his daughter D. and that between
1 January 1978 and 31 September 1981 both daughters lived in his
household. Consequently, they had, in his opinion, no claim for the
period in question and, in any case, the amounts awarded were out of
proportion to his income.
On 31 March 1983 the Vienna Regional Court rejected the appeal
except for the maintenance claim awarded to the daughter, D., for
the period 1 October 1982 - 30 November 1982. To this extent the
order complained of was quashed.
A further appeal was rejected by the Supreme Court on
5 July 1983 as being inadmissible. This decision was served on the
first applicant on 4 October 1983.
&_COMPLAINTS&S
1. The first applicant criticises the Commission's decision
to reject his previous application. He points out that - contrary to
the Commission's finding - he could not complain to the Vienna
Regional Court that the Vienna District Court had not given him the
possibility to comment on the result of the hearing of his children,
because he only learnt of the hearing through the Regional Court's
decision.
Furthermore, he points out that the decision conferring
custody to his ex-wife did not contain any regulation regarding his
right to visit his children.
2. Both applicants complain that the Supreme Court wrongly
confirmed the appointment of a trustee for the second applicant.
They consider that there is danger that the trustee will use
the maintenance payments for other purposes than intended, i.e. that
he will not hand over the money to the children but to their mother.
3. Both applicants further complain that the Austrian Courts
wrongly fixed the amounts of maintenance to be paid by the first
applicant for the period June 1978 - November 1979 and that the
Supreme Court wrongly dismissed the appeal in this matter on the
ground that there was no possibility for an appeal under Austrian
law. The second applicant alleges that the decisions complained of
affect her in a negative way as they diminish her father's possibility
to support her financially.
They invoke Article 6 of the Convention.
&_THE LAW&S
1. The first applicant repeats his complaints which were the
subject of his previous application no. 8893/80. By virtue of
Article 27 para. 1 (b) (Art. 27-1-b-) of the Convention the Commission cannot,
however, deal with the present application unless it contains
"relevant new information".
In the present case the applicants submits that, contrary to
the findings of the Commission, he could not submit any comments on
the hearing of his children to the Vienna Regional Court as it was
only through the decision of this Court that he learnt of the hearing
having taken place shortly before. He further points out that whilst
the District Court decided which of the parents should be granted the
custody, it did not, at the same time, regulate the right of visit.
This information was already submitted in connection with the
previous application as the applicant produced copies of all domestic
decisions and of the grounds of his appeals. Under exceptional
circumstances information submitted in support of a previous
application which was declared inadmissible may, in the context of a
new application, be considered to be "new" and "relevant" if, for
reasons outside the applicant's responsibility, it has not been made
known to the Commission before deciding on the admissibility of the
previous application and if such knowledge could have altered the
basis upon which the Commission's previous decision was taken (cf.
Dec. 8206/78, 10.7.81, D.R. 25, 147). However, no such reasons
are given in the present case.
Even considering that the applicant did not have an occasion
to comment on the statements made by his children before the District
Court judge, it follows from the decision given on the applicant's
appeal by the Vienna Regional Court on 18 June 1979 that the
children's statements only confirmed "what they had previously said
during a psychiatric examination, namely that they preferred the mother"
(see p. 5 of the Commission's decision of 5 March 1983). With regard
to these statements the applicant did, however, have the opportunity
to submit his comments and he made use of it by objecting that the
expert should have taken into account possible pressure exercised by
the mother who was present when the children were interviewed by the
expert. These objections were considered by the competent domestic
court and rejected as being unfounded.
As regards the finding at the end of the Commission's decision
of 5 March 1983 that the applicant's legitimate interests were
sufficiently taken into account, by giving him a right to visit the
children, it has first to be noted that this was a subsidiary argument
and, in any event, the applicant had a right under Sections 148, 178
of the Austrian Civil Code (ABGB) to visit his children and in his
previous application he did not allege that he could not make use of
this right.
It follows from the foregoing considerations that the
applicant has not submitted any "relevant new information" and this
part of the application is accordingly inadmissible under Article 27
para. 1 (b) (Art. 27-1-b-) of the Convention.
2. With regard to the judicial decisions of which both applicants
complain, relating to the appointment of a trustee and to arrears of
maintenance payments, the Commission recalls that, in accordance with
Article 19 (Art. 19) of the Convention, its only task is to ensure the
observance of the obligations undertaken by the Parties in the
Convention. In particular, it is not competent to deal with an
application alleging that errors of law or fact have been committed by
domestic courts, except where it considers that such errors might have
involved a possible violation of any of the rights and freedoms set
out in the Convention. The Commission refers, on this point, to its
constant case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3
pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;
No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).
It is true that in this case the applicants allege a
violation of Article 6 (Art. 6) of the Convention.
However, apart from alleging errors of law and fact, the
applicants have not substantiated their complaint and there is nothing
to show that the decisions complained of were reached in proceedings
that were conducted in an unfair manner. It follows that this part of
the application is manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
&_DECLARES THE APPLICATION INADMISSIBLE.&S
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)