Application No. 28221/95
by M. F.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 16 April 1996, the following members being present:
MM. C.L. ROZAKIS, President
E. BUSUTTIL
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 1 November 1994
by M. F. against Austria and registered on 16 August 1995 under file
No. 28221/95;
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, born in 1907, is an Austrian national, residing
in Vienna. In the proceedings before the Commission she is represented
by Mr. G. Pawlikowsky.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 20 February 1994 the applicant requested the Favoriten
District Court (Bezirksgericht) to grant her access to her great-
grandchildren on every third Saturday afternoon.
On 12 April 1994 the District Court found that the applicant had
withdrawn her request.
On 3 May 1994 the District Court rejected an appeal against this
decision on the ground that Mr. Pawlikowsky, who had lodged that
appeal, did not have a power of attorney from the applicant.
On 17 June 1994 the Vienna Regional Civil Court (Landesgericht
für Zivilrechtssachen) rejected a further appeal, which was signed by
Mr. Pawlikowsky and the applicant. It noted in particular that, on
22 April 1994, the applicant had appeared personally before the
Favoriten District Court. She had submitted a document, stating that
she withdrew the power of attorney for Mr. Pawlikowsky, and any appeals
he had lodged in her name. Thus, the District Court rightly found that,
at the time of its decision, Mr. Pawlikowsky had no power of attorney.
On 23 September 1994 the Supreme Court (Oberster Gerichtshof)
rejected the applicant's appeal on points of law (außerordentlicher
Revisionsrekurs).
On 30 September 1994 the applicant died.
COMPLAINTS
The applicant complained under Article 6 para. 1 of the
Convention that the courts wrongly found that she had withdrawn her
request for access to her great-grandchildren.
REASONS FOR THE DECISION
The Commission notes that the applicant died.
The Commission considers that the applicant's death does not in
itself dispose of her complaint. In this context the Commission recalls
that close relatives of the deceased applicant are in principle
entitled to take her place (see Eur. Court H.R., X. v. France judgment
of 31 March 1992, Series A no. 234-C, p. 89, para. 26).
In the present case, no successor has been presented. The
complaint relates to proceedings concerning the applicant's request for
access to her great-grandchildren. Thus, it concerns an issue which is
closely linked to the person of the deceased applicant.
The Commission concludes, therefore, that it is no longer
justified to continue the examination of this application, within the
meaning of Article 30 para. 1 (c) of the Convention. It further
considers that respect for Human Rights as defined in the Convention
does not require the continuation of the examination.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy