CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 octobre 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 10895/84                       by 1.   G.R.                       and 2.   D.R.                       against Austria             The European Commission of Human Rights sitting in private on 5 October 1987 the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                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 2 April 1984 by 1.   G.R. and 2.   D.R. against Austria and registered on 5 April 1984 under file N° 10895/84;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   &_THE FACTS&S           The first applicant, G.R., is an Austrian citizen, born in 1939 and living in Vienna.   The second applicant is his daughter, D., who was born in 1969 and is living with her father in Vienna.   I   1.      In a previous application (no. 8893/80) the first applicant complained that, subsequent to his divorce, Austrian courts placed their two children in the custody of his ex-wife.   He also complained that, in the child-custody proceedings, his children were heard by the court without his knowledge so that he was unable to put questions or to comment on the result of this hearing.   The previous application was rejected on 5 March 1983 as being, with regard to both complaints, manifestly ill-founded.           According to the facts established in the previous application the Vienna District Court decided on 24 April 1979, for the second time, a previous decision having been quashed, to entrust the mother with the children's custody.   This decision was based on three medical reports, on which the applicant had been given the opportunity to submit his comments.   He objected, inter alia, that the children had been accompanied by their mother when they saw one of the experts.   He thought that the expert should have examined whether this had influenced the children's answers to questions.           Having regard to the experts' proven professional experience and skill and referring to the fact that all expert opinions and also a report of the Youth Office agreed to give preference to the mother, the Court considered the applicant's objections to be unfounded.   In agreement with the expert opinions, it concluded that granting the mother custody was in the interest of the children (two girls), in view of their reliable preference for their mother, their biological development and sex, and the continuity of their social sphere.           The applicant's appeal was dismissed by the Vienna Regional Court on 18 June 1979.    Shortly before, on 1 June 1979, the District Court heard the two children, as the applicant had complained that the children had not been heard by the Court itself.           The applicant then appealed to the Supreme Court, complaining that the reasons stated in the decisions of the lower courts were insufficient and that he had not been informed of the children's hearing on 1 June 1979.   This appeal was rejected by the Supreme Court on 29 October 1979 as being inadmissible.   The Court stated that the alleged violations were not of such severity as to constitute ground for nullity.   2.       With regard to the complaint relating to the hearing of the children, the Commission stated in its decision of 5 March 1983 rejecting the previous application that the first applicant had had the possibility to submit his comments on this hearing in his appeal to the Vienna Regional Court.   It considered that the applicant apparently failed to specify what kind of further questions should have been put to the children and concluded that, in these circumstances, there was no appearance of a violation of Article 6 of the Convention.           As regards the complaint under Article 8 in conjunction with Article 14 of the Convention, the Commission took into account the fact that, in the light of the medical expert opinions, it was in the best interest of the children that they stay with their mother since they had expressed a reliable preference for this solution, which was also justified for certain objective reasons, including the sex of the children, their biological development and the continuity of their social sphere.   In these circumstances, the measure complained of was considered to be justified under Article 8 (2) of the Convention.           In this respect the Commission added that the applicant's legitimate interests were sufficiently taken into account by giving him a right to visit the children.     II             The applicants furthermore submit the following:           In February 1983 D. was placed in the custody of the first applicant with his ex-wife's consent.           On 27 January 1984 the Vienna District Court appointed the Youth Office to act as trustee (Sachwalter) with regard to maintenance claims of the first applicant's two children.           Following the first applicant's appeal, the Vienna Regional Court quashed the order of 27 January 1984 insofar as it related to the second applicant, i.e. the first applicant's daughter, D..           The Supreme Court restored this part of the order of 27 January 1984, on further appeal by the mother, stating that the appointment of a trustee was justified in view of the fact that the first applicant had fallen into important arrears with the maintenance payments.           Meanwhile, in a decision of 6 December 1982, the Vienna District Court had ordered the first applicant to pay maintenance of monthly AS 2,500.- for the period of 1 January 1978 - 30 September 1978 and AS 3,000.- for the period 1 October 1978 - 30 November 1982 for each of his two children.           The first applicant lodged an appeal against the order of 6 December 1982 stating that since 6 September 1982 he had been granted the custody of his daughter D. and that between 1 January 1978 and 31 September 1981 both daughters lived in his household.   Consequently, they had, in his opinion, no claim for the period in question and, in any case, the amounts awarded were out of proportion to his income.           On 31 March 1983 the Vienna Regional Court rejected the appeal except for the maintenance claim awarded to the daughter, D., for the period 1 October 1982 - 30 November 1982.   To this extent the order complained of was quashed.           A further appeal was rejected by the Supreme Court on 5 July 1983 as being inadmissible.   This decision was served on the first applicant on 4 October 1983.     &_COMPLAINTS&S   1.       The first applicant criticises the Commission's decision to reject his previous application.   He points out that - contrary to the Commission's finding - he could not complain to the Vienna Regional Court that the Vienna District Court had not given him the possibility to comment on the result of the hearing of his children, because he only learnt of the hearing through the Regional Court's decision.           Furthermore, he points out that the decision conferring custody to his ex-wife did not contain any regulation regarding his right to visit his children.   2.       Both applicants complain that the Supreme Court wrongly confirmed the appointment of a trustee for the second applicant.           They consider that there is danger that the trustee will use the maintenance payments for other purposes than intended, i.e. that he will not hand over the money to the children but to their mother.   3.       Both applicants further complain that the Austrian Courts wrongly fixed the amounts of maintenance to be paid by the first applicant for the period June 1978 - November 1979 and that the Supreme Court wrongly dismissed the appeal in this matter on the ground that there was no possibility for an appeal under Austrian law.   The second applicant alleges that the decisions complained of affect her in a negative way as they diminish her father's possibility to support her financially.           They invoke Article 6 of the Convention.     &_THE LAW&S   1.       The first applicant repeats his complaints which were the subject of his previous application no. 8893/80.   By virtue of Article 27 para. 1 (b) (Art. 27-1-b-) of the Convention the Commission cannot, however, deal with the present application unless it contains "relevant new information".           In the present case the applicants submits that, contrary to the findings of the Commission, he could not submit any comments on the hearing of his children to the Vienna Regional Court as it was only through the decision of this Court that he learnt of the hearing having taken place shortly before.   He further points out that whilst the District Court decided which of the parents should be granted the custody, it did not, at the same time, regulate the right of visit.           This information was already submitted in connection with the previous application as the applicant produced copies of all domestic decisions and of the grounds of his appeals.   Under exceptional circumstances information submitted in support of a previous application which was declared inadmissible may, in the context of a new application, be considered to be "new" and "relevant" if, for reasons outside the applicant's responsibility, it has not been made known to the Commission before deciding on the admissibility of the previous application and if such knowledge could have altered the basis upon which the Commission's previous decision was taken (cf. Dec. 8206/78, 10.7.81, D.R. 25, 147).   However, no such reasons are given in the present case.           Even considering that the applicant did not have an occasion to comment on the statements made by his children before the District Court judge, it follows from the decision given on the applicant's appeal by the Vienna Regional Court on 18 June 1979 that the children's statements only confirmed "what they had previously said during a psychiatric examination, namely that they preferred the mother" (see p. 5 of the Commission's decision of 5 March 1983).   With regard to these statements the applicant did, however, have the opportunity to submit his comments and he made use of it by objecting that the expert should have taken into account possible pressure exercised by the mother who was present when the children were interviewed by the expert.   These objections were considered by the competent domestic court and rejected as being unfounded.           As regards the finding at the end of the Commission's decision of 5 March 1983 that the applicant's legitimate interests were sufficiently taken into account, by giving him a right to visit the children, it has first to be noted that this was a subsidiary argument and, in any event, the applicant had a right under Sections 148, 178 of the Austrian Civil Code (ABGB) to visit his children and in his previous application he did not allege that he could not make use of this right.           It follows from the foregoing considerations that the applicant has not submitted any "relevant new information" and this part of the application is accordingly inadmissible under Article 27 para. 1 (b) (Art. 27-1-b-) of the Convention.   2.       With regard to the judicial decisions of which both applicants complain, relating to the appointment of a trustee and to arrears of maintenance payments, 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 e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           It is true that in this case the applicants allege a violation of Article 6 (Art. 6) of the Convention.           However, apart from alleging errors of law and fact, the applicants have not substantiated their complaint and there is nothing to show that the decisions complained of were reached in proceedings that were conducted in an unfair manner.   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           &_DECLARES THE APPLICATION INADMISSIBLE.&S       Secretary to the Commission                President of the Commission          (H.C. KRÜGER)                                (C.A. NØRGAARD)