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
Full & Egal Universal Law Academy