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
Full & Egal Universal Law Academy