AS TO THE ADMISSIBILITY OF
Application No. 23759/94
by W. J.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 20 May 1998, the following members being present:
MM N. BRATZA, Acting President
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
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 11 December 1993
by W. J. against Austria and registered on 25 March 1994 under file
No. 23759/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on 3 June
1996 and the observations in reply submitted by the applicant on
30 September and 11 November 1996 and 11 March 1998 ;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a refugee of Iranian origin born in 1956. Since
1989 he has lived in the United Kingdom where he was granted political
asylum in 1993.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the case
In 1982 the applicant married an Austrian national in Spain. The
couple settled in Austria. Their marital life comprised several
periods when the spouses lived separately.
In 1983 the applicant tried to force the door of his wife's flat
and was conditionally sentenced to six weeks' imprisonment. For this
reason he was expelled from Austria on 21 January 1984. Upon his
wife's request the applicant was allowed to come back on 21 April 1984.
On 19 June 1984 a son, Marco, was born of the marriage.
In March 1985 the applicant's spouse left her husband and
petitioned for divorce. In June and October 1985 the Fünfhaus District
Court (Bezirksgericht) granted the applicant access to his son. In
November 1985 the Vienna Regional Court (Landesgericht) quashed these
decisions.
Following criminal complaints brought by a judge and two legal
assistants of the Fünfhaus District Court, the Vienna Regional Criminal
Court (Landesgericht für Strafsachen) convicted the applicant, on
28 January 1986, of uttering dangerous threats. It was established
that the applicant had verbally threatened the aforesaid persons and
had stated that he would return to Austria as a terrorist and kill all
persons who had dealt with his case. The applicant was conditionally
sentenced to three months' imprisonment.
On 20 January 1987 the applicant and his wife were divorced on
the ground that the applicant had committed a serious matrimonial
offence. In particular, reference was made to the applicant's failure
to provide maintenance to his family, to unsubstantiated accusations
of various offences which he had brought against his wife and to his
attempt to have his wife deprived of Austrian nationality.
On 11 April 1988 the Fünfhaus District Court awarded custody of
Marco to his mother and dismissed the applicant's request for visiting
rights. The District Court established that the applicant had brought
various unsubstantiated accusations against his wife and had been
aggressive to her, that he had stated that he would not hesitate to use
force in order to get hold of his son and that he hated Austria. The
court established that the mother took appropriate care of Marco and
that he had very good relations with her.
The District Court further noted that the applicant had not been
able to integrate into society in Austria and that he had a tendency
to reacting inadequately and in an unforeseeable manner. It noted that
the applicant had, without any reason, offended judges and other
officials, uttered threats in their respect and concluded that the
mother's fear that he could abduct Marco abroad was justified to a
certain extent. The court based its findings on two expert opinions,
on a report delivered by a youth welfare office and also on the
impression both the applicant and his former wife had made on it in the
course of the proceedings.
On 9 May 1988 the Federal Police Directorate
(Bundespolizeidirektion) in Vienna banned the applicant from Austria
for an unlimited period. The decision was based mainly on the facts
that in 1983 and in 1986 the applicant had been convicted of criminal
offences and conditionally sentenced to imprisonment, that he had not
shown that he was able to earn his living in Austria, and that he had
a tendency to behave aggressively. On 11 June 1988 the applicant was
expelled. The applicant submits that he was sentenced to death in Iran
but managed to escape.
On 27 October 1988 the Vienna Regional Court dismissed the
applicant's appeal against the Fünfhaus District Court's decision of
11 April 1988. On 6 June 1989 the Supreme Court (Oberster Gerichtshof)
rejected the appeal on a point of law lodged by the applicant.
Between 1990 and 1992 the applicant filed two further requests
to the Fünfhaus District Court for custody and access to his son. Both
were dismissed and the final decisions on them were delivered by the
Supreme Court on 24 October 1990 and on 17 June 1993 respectively. The
courts found that the applicant could not meet his son in Austria
because of the ban. He could not meet his son abroad either as the
latter was under age and could not travel abroad alone. The mother
could not be required to accompany the child because of tensions
between her and the applicant. In the courts' view, the contact of the
applicant with his son would have in such circumstances an adverse
effect on the child's well-being.
On 4 March 1992 the Vienna Regional Court decided that the
Fünfhaus District Court was competent to deal with the case
notwithstanding that the applicant's former wife often changed her
residence.
On 16 February 1994 the applicant lodged a new request for
custody and access with the Fünfhaus District Court. He challenged,
without success, all judges of the Fünfhaus District Court for bias on
the ground that he had been earlier convicted of threatening judges of
that court.
On 5 December 1994 the Fünfhaus District Court dismissed the
applicant's request of 16 February 1994. In accordance with
Section 178b of the Civil Code (see "The relevant domestic law and
practice" below), the court heard Marco. The applicant's former wife
was allowed to attend the examination but she did not interfere with
it. Neither the applicant nor his lawyer were present. The
applicant's lawyer was subsequently provided with the record of the
examination of Marco.
According to the record, Marco did not want to meet his father
and feared that he might abduct him abroad. The son alleged that "his
former father" had told lies about his mother, that he could not
communicate with his father and that he did not want to travel abroad.
After the examination of Marco was concluded, the court heard the
applicant's former wife. She stated that she did not agree to granting
visiting rights to the applicant as she feared, because of the
accusations which the applicant had brought against her, that he could
try to influence the child against her. However, she would not be
opposed to granting visiting rights to the applicant in the future
should he change his behaviour.
The court found that the mother looked after the child
competently. It did not contest the applicant's view that it was
necessary for the child to meet his father. For this reason it did not
order an expert's opinion on this point as requested by the applicant.
The District Court dismissed the request for access as the
applicant could not travel to Austria. The child could not be sent
abroad alone, and it could not be required of the mother to accompany
Marco both for financial reasons and because of tensions between the
parents. These tensions resulted from various unsubstantiated
accusations the applicant had kept bringing against his former wife
and, in the court's view, they would prevent the child from
establishing positive relations to his father. Because of the ban it
was not possible to establish relations between the child and the
applicant gradually.
The request for custody was also dismissed on the ground that the
applicant had not put forward any new arguments.
In its decision the District Court considered that the presence
of the applicant or his lawyer while Marco was heard was not necessary
as hearing of a child under Section 178b of the Civil Code was not
considered as examination of a party or a witness under Austrian law.
It recalled that parties to proceedings were not allowed to ask any
questions on such occasions. It further held that, in any event, the
decision on the applicant's claims could be taken without hearing the
child as no new circumstances had arisen in the case.
The applicant appealed. He complained that neither he nor his
lawyer had been present when the District Court had heard his son in
the presence of the mother, and that the court had not heard him in
person. On 29 March 1995 the Vienna Regional Court dismissed the
appeal.
The Regional Court found that unsubstantiated accusations which
the applicant had kept bringing against his former wife caused tensions
between the parents which, as the mother feared, could destroy the
son's confidence in her if the father had contact. The court referred
also to the child's statement and concluded that granting visiting
rights to the applicant would be against the child's interest.
In addition, the court noted that the applicant could not meet
his son in Austria and that it was out of question that the contacts
take place abroad. The court underlined that the applicant's request
for access to his son had not been dismissed because of the binding
effect of the ban on his stay in Austria, but because the contacts
would not promote the child's well-being. In the Regional Court's
view, the facts of the case had been established with sufficient
certainty, and there was nothing to show that any relevant new
information could be obtained by hearing the applicant.
On 24 May 1995 the Supreme Court rejected the applicant's
extraordinary appeal on points of law.
B. The relevant domestic law and practice
Under Austrian law proceedings concerning children's care are
non-contentious. They are conducted in accordance with the relevant
provisions of the Civil Code in a flexible way and the judge has a wide
discretion as to the circumstances in which he or she collects the
evidence which he or she considers necessary in order to take a
decision.
Under Section 178b of the Civil Code, before it delivers a
decision concerning a child's care or education the court shall, so far
as possible, hear the child concerned. Such hearing of a child is not
considered as examination of a party or of a witness. Its purpose is
to give the child an opportunity to express his or her own wishes to
the court and thus to enable the judge to perceive and clarify the
circumstances essential to taking the decision also from the child's
point of view. Parties to the proceedings are not allowed to ask
questions during such hearings.
COMPLAINTS
The applicant complains that his rights under Articles 1, 2, 3,
5, 6, 10 and 12 of the Convention were violated while he lived in
Austria.
He further complains under Article 3 of the Convention of the
refusal to grant him access to his son in the proceedings concerning
his last two requests to this effect.
The applicant also complains that his rights under Article 6
para. 1 of the Convention were violated in the different sets of
proceedings before the Austrian courts to which he was a party after
his expulsion. In particular, as regards the last set of proceedings
leading to the Supreme Court's decision of 24 May 1995, the applicant
complains that (i) his former wife attended the examination of his son
whereas his lawyer was absent, and that it could not be established
from the minutes whether the court had a correct view of the child's
personality, (ii) the courts did not order an expert's opinion on the
necessity for the child to meet his father and (iii) the courts refused
to hear him in person.
In the applicant's view, the aforesaid proceedings were not fair
as the courts based their decisions on his former wife's fear, for
which there existed no objective reasons. He alleges a violation of
the principle of equality of arms in that the courts relied on the
mother's submissions without hearing himself and failed to give
relevant and sufficient reasons for their decision that granting
visiting rights to the applicant would not be in the child's interest.
The applicant further alleges a violation of Article 6 para. 1
of the Convention in the last set of proceedings in that the Fünfhaus
District Court's judges lacked impartiality because in the past he had
threatened judges of that court and because a judge who had earlier
dealt with his case became president of the aforesaid court. He also
complains that the Fünfhaus District Court was not competent under
Austrian law to deal with the case as at the relevant time his former
wife lived with his son outside its district.
The applicant alleges a violation of Article 8 of the Convention
in that he did not obtain access to his son.
Finally, the applicant alleges a violation of Articles 13 and 14
of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 December 1993 and registered
on 25 March 1994.
On 28 February 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
3 June 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 30 September 1996 also after an
extension of the time-limit. He supplemented his observations on
11 November 1996 and 11 March 1998.
On 2 July 1996 the Commission granted the applicant legal aid.
THE LAW
1. The applicant alleges a violation of Articles 1, 2, 3, 5, 6, 10,
12 and 14 (Art. 1, 2, 3, 5, 6, 10, 12, 14) of the Convention which
occurred during the period when he lived in Austria. He also alleges
a violation of Article 6 (Art. 6), both taken alone and in conjunction
with Article 14 (Art. 6+14) of the Convention, in the proceedings
leading to the Supreme Court's decisions of 6 June 1989 and 24 October
1990 respectively. The applicant also complains that the Fünfhaus
District Court was not competent under Austrian law to deal with his
case.
The Commission notes that the applicant was expelled from Austria
on 11 June 1988, that the final decisions in the aforesaid two sets of
proceedings were delivered by the Supreme Court on 6 June 1989 and
24 October 1990 respectively, and that the final decision as regards
the jurisdiction of the Fünfhaus District Court to deal with the
applicant's case was delivered by the Vienna Regional Court on 4 March
1992. Since the application was introduced on 11 December 1993, in
respect of the aforesaid complaints the applicant failed to comply with
the six months' time-limit laid down in Article 26 (Art. 26) of the
Convention.
It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant further complains about the proceedings concerning
his requests for access and custody which ended by the decisions of the
Supreme Court of 17 June 1993 and 24 May 1995 respectively. He alleges
a violation of Article 6 para. 1 (Art. 6-1) of the Convention which
provides, so far as relevant, as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing ... by an ...
impartial tribunal established by law."
The Commission first notes that the proceedings in question
concerned the applicant's requests for custody and access to his son.
They were decisive for the applicant's relations with his son and the
scope of his "civil rights and obligations" in this respect.
Accordingly, Article 6 para. 1 (Art. 6-1) of the Convention is
applicable to these proceedings (see, mutatis mutandis, Eur. Court HR,
O. v. the United Kingdom judgment of 8 July 1987, Series A no. 120,
pp. 25-26, paras. 58-60; No. 9580/81, Dec. 13.3.84, D.R. 36, p. 100).
It must therefore be determined whether the guarantees of Article 6
para. 1 (Art. 6-1) were respected in the present case.
a) The applicant alleges that the Fünfhaus District Court's judges
lacked impartiality because in 1986 he had been convicted for
threatening the judges of that court and because a judge who had
earlier dealt with his case later became president of that court.
The Commission notes that it does not appear from the documents
submitted that in the proceedings in question the applicant's case was
dealt with by the judge of the Fünfhaus District Court who had lodged
the criminal complaint against the applicant leading to the latter's
conviction of 8 January 1986, and the fact that a judge who had earlier
dealt with the applicant's case became later president of the Fünfhaus
District Court does not, as such, cast any doubt on the impartiality
of the judges who examined the applicant's requests under
consideration.
b) The applicant further complains that the proceedings leading to
the Supreme Court's decision of 24 May 1995 were not fair.
The Government submit that the applicant's right to a fair trial
was respected in the proceedings in question. They maintain that the
right of a party to civil proceedings to have evidence examined by a
court is not an absolute one and that the judges are entitled to admit
only such evidence which they consider relevant in the particular
circumstances of a case.
In particular, the Government recall that under Austrian law the
hearing of a child under Section 178b of the Civil Code is not
considered as examination of a witness or hearing of a party. They
further point out that the applicant's former wife exercised no
influence on the son while he was heard by the court and conclude that
her presence while the District Court heard the child did in no way
interfere with the applicant's right to a fair trial.
The Government further submit, with reference to the arguments
set out in the relevant judicial decisions, that the evidence the
courts had before them permitted them to establish the relevant facts
with sufficient certainty without hearing the applicant. They
therefore consider that the courts' failure to hear the applicant did
not interfere with his rights under Article 6 para. 1 (Art. 6-1).
Finally, the Government recall that it was not contested by the
courts that, in principle, it was necessary for the son to meet his
father. The Government are therefore of the opinion that obtaining of
an expert opinion to this effect was not necessary.
The applicant contends that the proceedings were not fair as the
courts dealing with his case heard his former wife but failed to hear
him, that the District Court heard his son in the presence of his
former wife whereas neither he nor his lawyer could be present, and
that the courts did not accept his proposals that the child be examined
by an expert with a view to establishing in an objective way whether
granting access to the applicant was in the child's interest.
The Commission recalls that Article 6 para. 1 (Art. 6-1) does not
lay down rules on admissibility of evidence which is primarily a matter
for regulation under national law. The task of the Convention organs
is to ascertain whether the proceedings in their entirety, including
the way in which evidence was permitted, were "fair" within the meaning
of Article 6 para. 1 (Art. 6-1).
As regards the requirements inherent in the concept of "fair
hearing", the Contracting States have greater latitude when dealing
with cases concerning civil rights and obligations than they have when
dealing with criminal cases. Nevertheless, the requirement of
"equality of arms", in the sense of a "fair balance" between the
parties, applies in principle to such cases as well as to criminal
cases. It implies that each party must be afforded a reasonable
opportunity to present his or her case - including his evidence - under
conditions that do not place him or her at a substantial disadvantage
vis-à-vis his opponent. It is left to the national authorities to
ensure in each individual case that the requirements of a "fair
hearing" are met (see Eur. Court HR, Dombo Beheer B.V. v. the
Netherlands judgment of 27 October 1993, Series A no. 274, p. 19,
paras. 32 and 33).
The Commission notes that the purpose of the proceedings in
question was to establish whether, in the particular circumstances of
the case, it was possible to grant the applicant's requests for custody
and access. The proceedings were non-contentious in their character.
In accordance with the nature of such proceedings, the judges had a
wide discretion as to the circumstances in which the evidence which
they considered necessary was to be collected.
To the extent that the applicant complains that neither he nor
his lawyer was present when his son was heard, the Commission recalls
that under Section 178b of the Civil Code the Fünfhaus District Court
was under an obligation to hear also the applicant's son. The
Commission notes that such hearing of a child is not considered as
examination of a party or of a witness under Austrian law. Its purpose
is to give the child an opportunity to express his or her own wishes
to the court and thus to enable the judge to perceive and clarify the
circumstances essential to taking the decision also from the child's
point of view. Parties to the proceedings are not allowed to ask
questions during such hearings.
The Commission admits that it may have been more appropriate to
hear the child in absence of both the applicant and his former wife in
order to exclude any influence of the interested parties. However,
given the aforesaid specific features of the proceedings in question
and considering that the applicant's former wife interfered in no way
with the hearing of the child, that the applicant's lawyer was provided
with the record of the hearing and apparently had an effective
opportunity to submit the applicant's point of view regarding the
child's statements, and in regard of the Fünfhaus District Court's
finding that the decision on the applicant's claims could have been
taken without hearing the child as no new circumstances had arisen in
the case, the Commission considers that the hearing of Marco in the
presence of his mother while neither the applicant nor his lawyer was
present was not contrary to the requirements of a fair trial within the
meaning of Article 6 para. 1 (Art. 6-1).
To the extent that the applicant complains that the courts
refused to hear him in person, the Commission notes that the courts
examining the applicant's requests found nothing to show that any
relevant new information could be obtained by hearing the applicant,
and the Commission has before it no information that would permit to
reach a different conclusion. Furthermore, the Commission notes that
it has not been contested by the applicant that he had an opportunity
to have knowledge of and comment on the evidence before the court, and
that he was free to present his case through the intermediary of his
lawyer and to submit any evidence which he considered relevant. In
these circumstances, the Commission considers that the courts' failure
to hear the applicant in person did not contravene his rights under
Article 6 para. 1 (Art. 6-1).
As regards the applicant's complaint that the courts refused to
order an expert's opinion with a view to establishing whether or not
there was a need for the child to meet his father, the Commission notes
that the courts did not contest the applicant's view that it was
necessary for the child to have contacts with his father. However,
they found, for reasons set out in their decisions, that in the
particular circumstances of the case it was not possible to establish
contacts between the applicant and his son in a way that would respect
the interests of the child. The Commission therefore considers that
the refusal to order an expert opinion as requested by the applicant
did not infringe the applicant's right to a fair hearing within the
meaning of Article 6 para. 1 (Art. 6-1).
c) The applicant further complains that the courts erroneously
relied on the submissions of his former wife and failed to give
relevant and sufficient reasons for their decisions.
The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (see eg. No. 19890/92, Dec. 3.5.93, D.R. 74 p. 234).
The Commission notes that in the present case the courts found,
for reasons expressly set out in their decisions, that in the
particular circumstances of the case establishment of contacts between
the applicant and his son would have an adverse effect on the child's
well-being. In the Commission's view, this decision is not arbitrary.
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.
3. The applicant complains that he did not obtain access to his son.
He alleges a violation of Article 8 (Art. 8) of the Convention which
provides, so far as relevant, as follows:
"1. Everyone has the right to respect for his ... family life,
...
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 Government submit, with reference to the reasons set out in
the relevant judicial decisions, that the interference with the
applicant's right to respect for his family life pursued the aim of
protecting the child's well-being. They maintain that the interference
was necessary in a democratic society within the meaning of Article 8
para. 2 (Art. 8-2). In particular, they point out that the applicant
has not been allowed, because of the offences which he committed in the
past, to enter Austria, and that the tensions between him and his
former wife, which resulted from unsubstantiated accusations which he
kept bringing against the latter, rendered contacts abroad
impossible.
The applicant admits that the interference in question pursued
the legitimate aim of protecting the health of his son. However, he
contends that this interference cannot be regarded as necessary in a
democratic society. In particular, he considers it irrelevant that he
was banned from Austria. The applicant further submits that the mere
fact that his wife feared a further escalation of tensions between her
and the applicant and that he could influence the child against her
cannot justify the decision to prevent him from any contact with his
son.
The Commission notes that it has not been contested between the
parties that the dismissal of the applicant's requests for access to
his son constituted an interference with the applicant's right to
respect for his family life. The question whether or not this
interference can be justified, on the basis that it was "in accordance
with the law", pursued one or several of the legitimate aims referred
to in Article 8 para. 2 (Art. 8-2) and was "necessary in a democratic
society", must therefore be addressed.
It has not been disputed before the Commission that the
interference in question was "in accordance with the law", namely the
relevant provisions of the Civil Code, and that it pursued the
legitimate aim of protecting the health of the applicant's son. The
Commission has before it no information to the contrary.
The only point which is in dispute in the present case is whether
or not this interference can be regarded as "necessary in a democratic
society". In this respect, the Commission recalls that the notion of
necessity implies that the interference corresponds to a pressing
social need and, in particular, that it is proportionate to the
legitimate aim pursued; in determining whether an interference is
"necessary in a democratic society", the Convention organs will take
into account that a margin of appreciation is left to the Contracting
States. Furthermore, in exercising their supervisory jurisdiction, the
Convention organs must look at the impugned decisions in the light of
the case as a whole and must determine whether the reasons adduced to
justify the interferences at issue are "relevant and sufficient" (see
Eur. Court HR, Olsson v. Sweden judgment of 24 March 1998, Series A
no. 130, pp. 31-32, paras. 67, 68).
The Commission notes that the proceedings under
consideration concerned respectively the third and fourth request of
the applicant for visiting rights. Each of these requests was examined
at three levels of jurisdiction and the domestic courts found no
relevant new circumstances that would allow them to depart from their
earlier decisions on the issue.
In particular, in the last set of proceedings the Fünfhaus
District Court found that the applicant had kept bringing
unsubstantiated accusations against his former wife. This resulted in
tensions between the parents which, in the court's view, would prevent
the child from establishing positive relations to the applicant. The
District Court further noted that because of the ban imposed on him
following his conviction of criminal offences the applicant could not
come to Austria with a view to visiting his son. Given his age, Marco
could not be sent abroad alone, and it could not be required of the
mother to accompany him both for financial reasons and because of the
aforesaid tensions existing between the parents. The District Court
concluded that in such circumstances it was not possible to establish
contacts between the applicant and his son in a way that would not be
against the child's interest.
When it examined the applicant's appeal against the aforesaid
decision, the Vienna Regional Court similarly found that
unsubstantiated accusations which the applicant had kept bringing
against his former wife caused tensions between the parents which could
destroy the son's confidence in his mother. In its decision of
29 March 1995 the Vienna Regional Court also noted that the applicant's
son had expressed his wish not to meet his father and underlined that
the applicant's request for access to his son had not been dismissed
because of the binding effect of the ban on his entry to Austria, but
because the contacts would not promote the child's well-being.
Thus, the domestic courts established, for reasons set out above,
that in the particular circumstances of the case contacts between the
applicant and his son could not be established in a way which would not
be harmful to the child's well-being.
The Commission is satisfied that the reasons on which the courts
based the decisions in question are relevant and sufficient and
considers, having regard to the margin of appreciation reserved to the
Austrian authorities, that the interference complained of was not
disproportionate to the legitimate aim pursued. Accordingly, it can
be regarded as "necessary in a democratic society" within the meaning
of Article 8 para. 2 (Art. 8-2).
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.
4. The applicant further alleges a violation of Article 3 (Art. 3)
of the Convention in that his aforesaid requests for access were not
granted.
The Commission considers that the essential issues in this
respect arise under Article 8 (Art. 8) of the Convention. Having
regard to its above finding on the applicant's complaint under Article
8 (Art. 8), the Commission considers that the dismissal of the
applicant's above requests cannot be regarded as constituting inhuman
or degrading treatment within the meaning of Article 3 (Art. 3) of the
Convention (see, mutatis mutandis, Hendriks v. the Netherlands, Comm.
Report 8.3.82, D.R. 29, p. 20, para. 130).
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.
5. The applicant further complains that he was discriminated against
in the last two sets of proceedings concerning his requests for
access. He alleges a violation of Article 14 (Art. 14) of the
Convention which provides as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission has examined this complaint but finds, on the
basis of the information before it, that there is nothing to
substantiate the allegation that the applicant was discriminated
against in the enjoyment of his Convention rights contrary to
Article 14 (Art. 14) of the Convention.
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.
6. Finally, the applicant alleges a violation of Article 13
(Art. 13) of the Convention. However, the guarantees of Article 13
(Art. 13) apply only to a grievance which can be regarded as "arguable"
(see Eur. Court HR, Powell and Rayner v. the United Kingdom judgment
of 21 February 1990, Series A no. 172, p. 14, para. 31, with further
references). In the present case the Commission has rejected the
substantive claims either as being inadmissible for the applicant's
failure to respect the six months' time-limit set out in Article 26
(Art. 26) of the Convention or as disclosing no appearance of a
violation of the Convention. Accordingly, they cannot be regarded as
"arguable".
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 N. BRATZA
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy