AS TO THE ADMISSIBILITY OF
Application No. 16143/90
by Manfred LEHNER
against Austria
The European Commission of Human Rights sitting in private
on 10 December 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 12 August 1987
by Manfred Lehner against Austria and registered on 7 February 1990
under file No. 16143/90;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen, born in 1951 and living
in Neumarkt.
The applicant was divorced in March 1984. The right of care
and custody concerning his daughter Nicole, born on 18 February 1976,
was granted to the mother under an agreement concluded before the
Regional Court (Kreisgericht) of Ried on 14 March 1984.
Subsequently the applicant tried, in vain, to be granted
access to his daughter. A first request was refused by the District
Court (Bezirksgericht) of Schärding on 2 August 1985 and, on appeal
(Rekurs), by the Regional Court of Ried on 1 October 1985; the
applicant's further appeal on points of law (Revisionsrekurs)
was dismissed by the Supreme Court (Oberster Gerichtshof) on
19 December 1985.
In October 1986 the applicant made another request and at the
same time challenged the judge of the District Court and a court
officer alleging they entertained friendly relations with his ex-wife
and had frequent contacts with her in the lounge of their office
building, which was also used by the authority where his ex-wife was
working. The judge in question contested these allegations in his
observations and stated that he was outraged about the insinuations
made by the applicant. He therefore considered himself to be biased.
On 11 November 1986 the Regional Court of Ried rejected the
applicant's motion of challenge as being unfounded. It also
considered the judge's own request to be dispensed with dealing with
the applicant's case unfounded as the applicant's motion of challenge
did not have an insulting character and did not contain allegations
likely to raise doubts as to the judge's integrity. Therefore, the
judge had no reason to feel offended.
The applicant's appeal against this decision was rejected by
the Court of Appeal (Oberlandesgericht) of Linz on 3 February 1987.
This Court pointed out that the judge in question had accepted the
Regional Court's decision in that he did not make use of his right
to appeal. He had thereby shown that his own doubts as to his
impartiality had not been of a serious character and no longer
existed. This decision was served on the applicant's counsel on
2 March 1987.
A further appeal on points of law was rejected by the Supreme
Court on 17 April 1987 as being inadmissible.
On 21 October 1987 the District Court of Schärding rejected
the applicant's request to be granted access to his daughter.
Referring to its previous decision in the matter, the Court considered
that the situation had not changed and a right of access had still to
be denied in the interest of the well-being of the child, who
continued to be strongly opposed to any contacts with her father.
This decision was quashed on 5 January 1988 by the Regional
Court of Ried which considered it necessary to examine the case
further, in particular to obtain another expert opinion on the
question whether an obligation to see her father would create serious
psychological problems for the child. The case was referred back to
the District Court.
The judge of this Court again requested to be dispensed with
the duty to deal with the case. This request was granted by the
Regional Court of Ried on 17 April 1988 on the ground that, meanwhile,
a newspaper had published a report about the applicant's allegations
that the judge in question was a friend of the applicant's
ex-wife. Thus there were objective reasons to fear that readers of
the press reports, who did not have detailed information about
the true facts, might consider the judge in question to be biased.
The matter was therefore transferred to the District Court
of Ried which rejected the applicant's request on 7 March 1989. The
Court stated that the well-being of the child was the main guideline
for a decision on the right of access of a parent. A complete denial
of this right could only be justified under exceptional circumstances.
Such circumstances were given as the child had, according to the
expert opinion of a children's psychologist, developed a consistently
negative attitude vis-à-vis her father in the five years of seperation
from him and an obligation to see him would risk provoking a neurotic
development.
This decision was confirmed by the Regional Court of Ried on
11 April 1989. The Court stated that while it was true that the
applicant had not been heard by the District Court and had not been
asked to comment on the expert opinion he did have this opportunity in
the appeal proceedings. However, he failed to submit any arguments
likely to raise doubts as to the correctness of the findings and
conclusions of the expert. His complaints were therefore considered
to be unfounded.
An appeal on points of law was rejected by the Supreme Court
on 15 June 1989. The Court stated that, in view of the fact that the
decision complained of had been confirmed in second instance, its
power of control was limited under Section 16 of the Non-contentious
Proceedings Act to an examination as to whether there was a ground of
nullity, whether the findings of the lower courts were incompatible
with the contents of the files or clearly violated the law. While a
violation of the right to be heard would constitute a nullity ground,
such a violation could be remedied if the party concerned had the
possibility of submitting his case fully in the appeal proceedings.
The Court noted that the first instance decision was not based on any
grounds relating to the applicant personally in a manner which could
make it appear necessary that he should have been heard on the underlying
accusations. However, the expert opinion referred only to the child
and to the possible effects on her of enforced contacts with the
father. There was nothing in the expert opinion or the court
decisions allowing a conclusion that the applicant had in any way
contributed to this attitude of his child by his present behaviour. In
these circumstances there had been no need for the lower courts to
hear the applicant personally, as his personal circumstances were of
no relevance to the denial of the right of access.
COMPLAINTS
The applicant points out that during 21/2 years the case was
dealt with by a judge who had considered himself biased. In these
circumstances it had to be expected that his request would be
rejected. This situation was not remedied by the fact that the matter
was eventually referred to another court because, meanwhile, his
daughter had become even more estranged from him.
The applicant also complains that he was not heard personally
in 1988/89 and that he was not given the opportunity, in first
instance, to comment on the expert opinion.
The applicant invokes Articles 6 para. 1 and 8 para. 1 of the
Convention.
THE LAW
1. The applicant first complains that, at the first stage of the
proceedings relating to his renewed request for access to his daughter,
a judge was dealing with the matter who had considered himself to be
biased against him and had requested to be excused from dealing with
the case.
The Commission first observes that the applicant had been
denied access to his daughter by final decision of the Supreme Court
given on 19 December 1985 of which, in view of the six months' rule
(Article 26 (Art. 26) of the Convention), he cannot and does not complain.
The Commission then observes that the new proceedings
instituted in 1986 concerned a new request to be granted access
to his child. The decision in these proceedings rejecting the
applicant's challenge and the judge's request to be excused was
confirmed by a decision of the Court of Appeal of 3 February 1987
which was served on counsel for the applicant on 2 March 1987. It is
true that the applicant first wrote to the Commission on 12 August
1987, but he did not reply to the Secretariat's letter of 27 August
1987 until 31 January 1990 when he submitted the application form. In
these circumstances the question arises whether the applicant has in
this respect complied with the six months' rule laid down in Article
26 (Art. 26) of the Convention.
In any event, the Commission notes that the case was
eventually transferred to another District Court and decided by
another first instance judge. In these circumstances the applicant
cannot be considered to be a victim of violation of his right to an
impartial tribunal in the subsequent proceedings. It follows that the
application is in this respect manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. Insofar as the applicant complains that he was not heard
personally in 1988/89 and was not given the opportunity, in first
instance, to comment on the expert opinion, the Commission notes that
the applicant was represented by counsel and had the possibility of
submitting his arguments in all instances. The matter was heard in
non-contentious proceedings and, as the Supreme Court pointed out, a
hearing of the applicant personally was not necessary because the
question of access was determined exclusively on the basis of the
possible effects on his daughter and her attitude towards him while
his present personal circumstances were considered to be irrelevant.
This finding does not disclose any arbitrariness and the Commission
concludes in these circumstances that the right to a fair hearing as
guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention was
complied with in that the applicant was free to submit his arguments
through his counsel. Furthermore, he had the opportunity of
submitting his observations on the expert opinion in his appeal to the
Regional Court. Consequently, there is no appearance of a violation
of Article 6 (Art. 6) and this part of the application therefore has
to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of
the Convention as being manifestly ill-founded.
3. Insofar as the applicant invokes Article 8 (Art. 8) of the
Convention which secures everyone's right to respect for his family
life, the Commission notes that according to the findings of the
Austrian Courts, based on the expert opinion of a specialist in
children's psychology, the denial of access to his daughter was
based on the ground that her well-being would seriously be
jeopardised if she was forced to see him as she then risked a neurotic
development. The applicant has not shown that this reasoning is
arbitrary or untenable from a scientific point of view. The
Commission concludes, in these circumstances, that the decisions
complained of are justified under Article 8 para. 2 (Art. 8-2) for the
protection of the rights of others.
This complaint is therefore likewise manifestly ill-founded
and has to be rejected under Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission inanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy