AS TO THE ADMISSIBILITY OF
Application No. 31179/96
by P. E.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 3 December 1997, 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
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 10 January 1996
by P. E. against Austria and registered on 25 April 1996 under file
No. 31179/96;
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 national, born in 1951 and residing
in Vienna. Before the Commission he is represented by Mr. G. Tews, a
lawyer practising in Linz.
The applicant has previously introduced an application
(No. 21714/93) which related to access and custody matters concerning
two of his children born out of wedlock. On 31 August 1994 the
Commission declared this application inadmissible as being manifestly
ill-founded.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 28 April 1988 the Fünfhaus District Court (Bezirksgericht)
granted the applicant's divorce on the basis of an agreement of divorce
(Scheidungsvergleich). According to this agreement custody of the
children M. (born in 1983) and R. (born in 1985), was granted to the
applicant's then wife, while the conditions under which the applicant
could exercise his right to visit his children was reserved to an
arrangement out of court.
On 9 December 1993 the applicant filed a motion with the Fünfhaus
District Court that he be granted the right to phone his children twice
a week at hours to be determined in advance and to order the mother to
facilitate these telephone contacts. He submitted that J.H., the
companion in life of his divorced wife had prevented telephone contacts
between the applicant and his children who lived with their mother in
J.H.'s house. For this reason J.H. had changed his telephone number
and kept the new number secret. The applicant submitted that also in
the past he had had regular telephone conversations with his children
in order to maintain a close contact with them. Since his divorced
wife had failed to further his telephone contacts with his children and
had not prevented J.H. from interfering with the applicant's parental
rights, the applicant requested the court to take measures within the
meaning of Section 176 of the Austrian Civil Code (Allgemeines
Bürgerliches Gesetzbuch).
On 14 December 1993 the District Court dismissed the applicant's
motion as it found that the law did not provide for telephone contacts.
On 19 January 1994 Vienna Regional Court (Landesgericht) quashed
the District Court's decision. It found that Section 148 of the Civil
Code included in principle also the right to maintain telephone
contacts, provided that such contacts were practical and feasible. It
therefore ordered the District Court to examine whether, taking into
account the well-being of the children, there existed a need for
telephone contacts and whether the granting of telephone contacts would
interfere with the rights of third persons.
On 27 June 1994 the District Court regulated in detail the
applicant's right to visit his children on certain weekends and during
the holidays and again dismissed his request for telephone contacts.
The District Court noted that when the applicant had exercised
in the past the right to visit his children disputes between the
applicant, the mother of M. and R. and J.H. frequently occurred in the
presence of the children. The main reason for these disputes was that
the applicant consistently refused to inform her on how he intended to
exercise his right to visit. It was in the interest of the children
to reduce as far as possible the sources for possible tensions between
their parents. For this reason the District Court ordered the
applicant to inform in writing the mother of M. and R. where he
intended to pass the holidays with the children. As regards the
applicant's request for telephone contacts the District Court noted
that in the past the applicant had had the possibility to phone his
children but had made, according to their mother, excessive use of this
possibility. The District Court noted further that not only J.H., but
also the applicant's divorced wife were opposed to revealing their
secret telephone number. Consequently it would constitute an
interference with the rights of others if the applicant was granted the
right to phone the children twice a week at J.H.'s house. Furthermore
it was not necessary to take any measures within the meaning of
Section 176 of the Austrian Civil Code as the mother was not opposed
to telephone contacts in general. On the contrary, she agreed that M.
would call her father from a public telephone using telephone cards and
that R. would be present.
On 4 January 1995 the Vienna Regional Court dismissed the
applicant's appeal. The Regional Court observed that the parents of
M. and R. had not yet got over the breaking up of their marriage. For
this reason conflicts occurred between them for apparently trifling
reasons and these conflicts, unfortunately, took place in front of the
children. There was no other explanation for the applicant's refusal
to inform the mother on how and where he intended to exercise his right
to visit his children, although he had no objections to giving these
explanations and the mother asking these questions although she had
previously always been informed on these issues. As regards the
telephone contacts it found that although the granting of telephone
contacts between the parent not having custody and his children was in
general in accordance with Section 148 of the Austrian Civil Code, such
a measure should not interfere with the rights of others. Since J.H.
was opposed to revealing his secret telephone number, the District
Court had correctly dismissed the applicant's request to have telephone
contacts with his children.
On 11 May 1995 the Supreme Court (Oberster Gerichtshof) dismissed
the applicant's extraordinary appeal on a point of law
(außerordentlicher Revisionsrekurs). The decision was served on the
applicant on 31 July 1995.
B. Relevant domestic law
According to Section 148 of the Civil Code the parent not having
custody of the child has the right to access. The courts shall arrange
these access rights or - if necessary - prohibit access in accordance
with the well-being of the child.
According to Section 176 of the Civil Code the court is required
to make the orders necessary for the protection of the well-being of
the child where the conduct of the parents threatens the well-being of
the minor.
COMPLAINTS
1. The applicant complains under Article 8 of the Convention that
the courts' refusal to grant him the right to maintain telephone
contacts with his children constituted an interference with his right
to respect for family life. The applicant invokes Article 8 of the
Convention.
2. The applicant further complains about a violation of Article 5
of Protocol No. 7 in that Austrian law in the case of divorce or
separation of spouses provides that custody must be assigned to one of
the parents granting to the other parent only minimum rights, namely
the non-enforceable right to be informed and the non-enforceable right
to be heard on important measures. As a result of this legislation the
parent who does not have custody can only visit the child, but cannot
exercise any further influence on his upbringing. This parent has, for
instance, no enforceable right to be informed where the child goes to
school or how the child performs at school, no enforceable right to be
informed of any medical treatment. The applicant submits that the
measures taken in Austria after the divorce or separation of the
parents are not necessary in the interests of the child.
3. The applicant also complains under Article 6 of the Convention
that the Fünfhaus District Court did not make any further
investigations after the Court of Appeal had quashed the first
decision.
4. Lastly, the applicant complains under Article 13 of the
Convention that he has no right to file directly a complaint with the
Constitutional Court.
THE LAW
1. The applicant complains under Article 8 (Art. 8) of the
Convention that the Austrian courts' refusal to grant him the right to
maintain telephone contacts with his children constitutes an
interference with his right to respect for family life.
Article 8 (Art. 8) of the Convention, in so far as relevant,
provides 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."
The Commission recalls that the family life of the parents with
their children does not cease to exist following the divorce of a
married couple (cf. Eur. Court HR, Keegan v. Ireland judgment of
25 May 1994, Series A no. 290, pp. 17-18, para. 44).
The Commission finds that the Austrian courts' refusal to grant
the applicant the right to maintain telephone contacts with his
children constituted an interference with the applicant's right to
respect for family life under Article 8 para. 1 (Art. 8-1) of the
Convention. Consequently the Commission is required to examine,
whether the interference was justified under the terms of Article 8
para. 2 (Art. 8-2) of the Convention. In order to be justified under
this provision an interference must satisfy three conditions: it must
be "in accordance with the law", it must pursue one of the aims
enumerated in Article 8 para. 2 (Art. 8-2) and it must be "necessary
in a democratic society" for that aim (Eur. Court HR, Olson (No. 2) v.
Sweden judgment of 27 November 1992, Series A no. 250, p. 32, para.
77).
The Commission finds that the Austrian courts' decisions were
taken in accordance with the law, i.e. Section 148 of the Civil Code,
which provides, inter alia, that the courts have to determine the way
in which the parent who is deprived of custody may exercise his right
of access to the child.
The impugned decisions also served a legitimate aim, namely the
protection of the rights and freedoms of others, i.e. of J.H. and of
the applicant's children M. and R. who, according to the Austrian
courts, should not suffer from the tensions existing between their
parents.
As regards the question whether the measure was necessary in a
democratic society for the above mentioned aim the Commission observes
that the issue before the Austrian courts was whether, having regard
to the well-being of the applicant's children, there existed a need for
telephone contacts between the applicant and his children and whether
the granting of telephone contacts would interfere with the rights of
third persons. The Austrian courts refused the granting of telephone
contacts on the ground that they would interfere with the rights of
J.H. The District Court has also taken into account that there existed
strong tensions between the applicant and the mother of M. and R. and
that, in the interest of the well-being of the children, it was
necessary to keep possible sources of conflict between the parents to
a minimum. The District Court noted further that in the past the
applicant had had the possibility to phone his children but that his
frequent phone calls had also become a source of tension. The District
Court also observed that telephone contacts between the applicant and
his children could be maintained without interfering with the rights
of others, since the mother had agreed that M. would call her father
from a public telephone using telephone cards and that R. would be
present.
In these circumstances the Commission finds that the Austrian
courts' decisions not to grant the applicant telephone contacts to his
children in the manner requested by him was justified under Article 8
para. 2 (Art. 8-2) in that it can reasonably be considered "necessary
in a democratic society ... for the protection of the rights and
freedoms of others".
It follows that this part of the complaint is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains in general about a violation of Article 5
of Protocol No. 7 (P7-5) in that Austrian law in the case of divorce
or separation of spouses provides that custody must be assigned to one
of the parents granting to the other parent only minimum rights.
Article 5 of Protocol No. 7 (P7-5) provides as follows:
"Spouses shall enjoy equality of rights and responsibilities of
a private law character between them, and in their relations with
their children, as to marriage, during marriage and in the event
of its dissolution. This Article shall not prevent States from
taking such measures as are necessary in the interests of the
children."
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of Article 5 of Protocol No. 7 (P7-5), as under Article 26
(Art. 26) of the Convention, it may only deal with a matter after all
domestic remedies have been exhausted according to the general rules
of international law and within a period of six months form the date
on which the final decision was taken.
The Commission observes that the applicant lost his parental
authority over his children by virtue of the District Court's decision
of 28 April 1988. He introduced the present application only on
introduced on 10 January 1996.
It follows that the applicant has failed to comply with the
six months' time-limit stipulated in Article 26 (Art. 26) of the
Convention.
Accordingly this part of the application must be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
3. The applicant complains under Article 6 (Art. 6) of the
Convention that the Fünfhaus District Court did not make any further
investigations after the Court of Appeal had quashed the first
decision.
Even assuming that this complaint could raise an issue under
Article 6 (Art. 6) of the Convention, the Commission observes that the
applicant has not made this complaint before the national courts and
has therefore failed to comply with the requirement of exhausting
domestic remedies as provided for in Article 26 (Art. 26) of the
Convention (No. 11425/85, Dec. 5.10.87, D.R. 53 p. 76).
It follows that this part of the complaint has to be rejected in
accordance with Article 27 para. 3 (Art. 27-3) of the Convention.
4. The applicant complains under Article 13 (Art. 13) of the
Convention that he has no right to file directly a complaint with the
Constitutional Court for a constitutional review of the legislation.
Assuming that Article 13 (Art. 13) of the Convention is
applicable the Commission recalls that the Convention organs have
consistently held that it cannot be deduced from Article 13 (Art. 13)
that there must be a remedy against legislation as such which is
considered not to be in conformity with the Convention. (No. 24581/94,
Dec. 6.4.95, D.R. 81, p. 129).
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.
For these 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