Communicated on 17 April 2014
FIRST SECTION
Application no. 55740/10
Hermann LEITNER
against Austria
lodged on 21 September 2010
STATEMENT OF FACTS
The applicant, Mr Hermann Leitner, is an Austrian national, who was born in 1961 and lives in Blumau.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and his former partner, S.O., have two children, born out of wedlock in 2002 and 2004 respectively. S.O. always had sole custody over the children as the parents never agreed to have joint custody. The parents never cohabited. The children stayed with the mother during the week and with the applicant at weekends. In 2008 S.O. and the applicant separated and the children stayed with the mother.
On 27 June 2008 the applicant lodged an application with the Innere Stadt Vienna District Court to transfer sole custody to him. Furthermore he applied for an interim measure concerning his visiting rights. He alleged that S.O. prevented him from seeing his children. He further submitted that S.O. was in a mentally unstable state and hot-tempered towards the children, whereas he was in a much better position to take care of his children.
On 8 October 2008 the parents agreed that the applicant was able to see his children every second Monday from 2.30 pm or 3.00 pm until 6.00 pm and every second Saturday from 10.00 am until 6.00 pm.
On the same day the applicant applied for an extension of his visiting rights seeking visiting rights for the whole weekend.
After five visits of the applicant in October and November 2008, S.O. stopped further visits claiming that these had a negative influence on the children.
The Vienna Juvenile Court Assistance Office (Jugendgerichtshilfe) submitted its statement on 10 March 2009 and held that it recommended to maintain sole custody with the mother and visiting rights of the applicant according to the agreement the parents had found on 8 October 2008. The court further heard two kindergarten teachers, a school teacher and the parents.
On 6 April 2009 the Innere Stadt Vienna District Court decided to grant the applicant visiting rights on every second Saturday from 8.00 am until 7.00 pm. The court further decided to dismiss the applicant’s application for sole custody.
In its reasoning the court held that the children were well cared for by their mother. According to Section 176 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) a transfer of the custody was only possible if the children’s best interest was at risk. In the present case the court found no such risk and the applicant actually had not claimed such a risk. As S.O.’s alleged peculiar behaviour was directed to the applicant, this also did not display any risk for the children. The court further held that the visiting rights were decided in accordance with the parent’s mutual agreement.
The applicant appealed on 14 April 2009 and argued in essence that he was discriminated against the mother. He further complained about wrong assessment of the facts by the District Court. Furthermore he complained that the court had not decided on the question whether the parents were awarded joint custody.
On 28 July 2009 the Vienna Regional Court dismissed the applicant’s appeal as unfounded. It confirmed the reasoning of the District Court and held that there was no indication for a risk of the childrens’ best interest if the mother maintains sole custody. It further held that there was no provision of law ordering a preference for granting one of the parents’ sole custody. The court further found that the parents had not mutually agreed on joint custody, therefore no further issues arose in this connection.
The applicant lodged an extraordinary appeal with the Supreme Court on 10 November 2009, again claiming that he was discriminated against the mother and the decision of the lower instances violated his rights under Article 8 of the Convention.
On 1 September 2010 the Supreme Court rejected the applicant’s extraordinary appeal for lack of an important issue of law.
In a new application for visiting rights on 19 May 2009 the applicant claimed that he had not seen his children for more than a year due to the court’s conduct. He contended that in case the judge was a single mother it must be assumed that she was biased. He reiterated this assertion in his submissions to the court on 8 June 2009 and 27 October 2009. On 21 December 2009 the President of the Innere Stadt Vienna District Court dismissed the applicant’s challenge of the judge as there was no indication for bias. On 29 January 2010 the Vienna Regional Court dismissed the applicant’s appeal against this decision. It held that the repeated complaint of the applicant regarding alleged delay of the proceedings had to be dealt with in a request under Section 91 (Fristsetzungsantrag) of the Courts Act (Gerichtsorganisationsgesetz) in order to ask the Court of Appeal to set a time-limit for the court of first instance to decide. The court further pointed out that the applicant did not argue why the judge was acting arbitrarily. It noted that the civil status and other personal circumstances in general were no source for bias.
On 18 October 2011 the Wiener Neustadt Regional Court allowed S.O.’s civil action against the applicant in great part and held him liable to pay her EUR 26,008.20. It held that S.O. had invested this amount of money in the conversion of the applicant’s house, expecting to be moving in with him. Since the intended purpose for the investment never occurred, S.O. had a right to reimbursement of the investment.
On 30 March 2012 the Vienna Court of Appeal dismissed the applicant’s appeal as unfounded. It held that there was no indication for wrong assessment of the facts by the court of first instance.
On 27 April 2012 the applicant request legal aid in order to be able to lodge an extraordinary appeal with the Supreme Court. This request was dismissed by the Wiener Neustadt Regional Court on 21 May 2012 as the applicant’s earnings and assets were sufficient. The Vienna Regional Court dismissed the applicant’s appeal against this decision on 20 September 2012.
B. Relevant domestic law
The relevant provisions of the Civil Code in the version in force at the material time are set out in the Court’s judgments in the case of Sporer v. Austria, no. 35637/03, §§ 37, 38, 3 February 2011).
COMPLAINT
The applicant complained under Article 8 in conjunction with Article 14 that he was discriminated against the mother regarding the granting of sole custody for his children.
QUESTIONS TO THE PARTIES
1. Has the applicant suffered discrimination on the ground of his gender contrary to Article 14 of the Convention read in conjunction with Article 8?
2. Has there been an interference with the applicant’s right to respect for his family life within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
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