CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 septembre 1996

.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. 24759/94                       by Gertrude FIDLER                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 4 September 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  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 May 1994 by Gertrude FIDLER against Austria and registered on 2 August 1994 under file No. 24759/94;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government on 18 December 1995 and the observations in reply submitted by the applicant on 1 March 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1936, is an Austrian national, residing in Vienna. In the proceedings before the Commission, she is represented by Mr. G. Koller, a lawyer practising in Vienna.        The facts of the case, as submitted by the parties, may be summarised as follows.        The applicant has two grandchildren, who were born out of wedlock in 1986 and 1988, respectively. They are living with their mother, who exercises custody over them. It appears that she and the applicant's son separated in 1991.        On 12 July 1991 the applicant's son requested to be granted access to his children on a regular weekly basis. On 27 May 1992 the Favoriten District Court (Bezirksgericht) dismissed this request. The applicant's son appealed against this decision, whereupon the Favoriten District Court submitted the file to the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen).        On 15 November 1992 the applicant requested the Favoriten District Court to grant her access to her grandchildren from 5 to 6 p.m. on 24 December 1992. She submitted that she had coordinated her request with the request of the great-grandmother and offered that she would meet the children at their home, bring them to the great- grandmother and accompany them home again at 6 p.m. The District Court received the applicant's request on 26 November 1992.        According to the applicant, judge F., on 27 November 1992, told her that he was competent to deal with the case and that he would take a decision in time.        On 30 November 1992 the file was returned to the Favoriten District Court by the Vienna Public Prosecutor's Office (Staatsanwaltschaft). The court ordered the same day that it be again submitted to the Vienna Regional Civil Court, before which the appeal of the applicant's son in the above-mentioned proceedings was pending.        Also on 30 November 1992 the applicant, referring to her earlier request, stated that she and her grandchildren had in all the preceding years celebrated Christmas together. Further, should it not be possible to arrange the visit for the late afternoon of 24 December 1992, she eventually requested access to her grandchildren in the afternoon of 23 December 1992. Similar requests were made by the great-grandmother of the children and by their father, i.e. the applicant's son.        On 2 December 1992 the President of the Vienna Regional Civil Court returned the file to the District Court and ordered it to take the decisions relating to the requests for visiting rights during the Christmas holidays in time, to return the file subsequently and to report on the state of proceedings by 21 December 1992 at the latest.        On 7 December 1992 judge T. at the District Court telephoned the applicant's son and notified him of a meeting on 17 December 1992, in which the children's mother was also going to take part. It appears that the applicant was not summoned to this meeting.        On 17 December 1992 judge T. at the District Court, after having noted that the applicant's son had failed to appear in time, heard the mother of the children as regards their father's request for permission to spend 24 December 1992 with them. She submitted that the children would refuse to go with their father. The applicant's son appeared, when the children's mother had already left. Judge T. explained to him that he had intended to give the children's mother and him a possibility to reach an agreement. However, he could not take a decision, given the short period of time, and the fact that he had no personal impression of the situation.        On 20 December 1992, the applicant, referring to her requests of 15 and 30 November 1992, urged the District Court to give her notice of whether these requests had been granted.        On 7 January 1993 the Favoriten District Court dismissed the applicant's request. It noted that, at the time when the request had been submitted, the file had been before to Vienna Regional Civil Court, which returned it on 3 December 1992. At the hearing of 17 December 1992 no agreement was reached by the parents of the children. Subsequently, the file was again sent to the Regional Court, from where it was returned on 30 December 1992. Given the lapse of time, it had become impossible to grant access to the children as requested by the applicant. This decision was given by judge F.        On 31 January 1993 the applicant filed an appeal (Rekurs) with the Vienna Regional Civil Court. She complained that the District Court had denied her a fair trial. In particular, the contested decision tried to establish a link between her request for permission to spend the afternoon of 23 or 24 December 1992 with her grandchildren and the hearing of 17 December 1992. However, this hearing had not concerned her request and she had not been summoned to it. Moreover, she alleged that the decision was incorrect as regards the dates when the District Court received the file and sent it away again. Even assuming that the dates were correct, there would have been enough time between 3 and 17 December 1992 to decide upon her request. Thus, the applicant requested the Vienna Regional Civil Court to quash the District Court's decision and to decide on the merits of her original request. She also requested to be granted access to her grandchildren in the late afternoon of one of the following weekends.        On 2 March 1993 the Vienna Regional Civil Court rejected the applicant's appeal. It found that, as the date for the requested visit had already passed, there was no legitimate interest in pursuing the case.        Further, the Regional Court rejected the applicant's request to be granted permission to spend two hours with her great-grandchildren in the late afternoon of one of the following weekends. It found that this was a new request, and that it was not competent to decide on it.        On 15 July 1993 the applicant filed an appeal on points of law (außerordentlicher Revisionsrekurs) with the Supreme Court (Oberster Gerichtshof). In particular, she repeated the complaints, she had already submitted to the Regional Civil Court. She added that, should the Supreme Court uphold the lower instances' decisions, the courts would be at liberty to ignore any future requests for access to her grandchildren until the date for the requested visit had passed and then to dismiss them, due to the lapse of time.        On 21 December 1993 the Supreme Court rejected the applicant's appeal on points of law. It referred to S. 14 of the Non-Contentious Proceedings Act (Außerstreitgesetz), which provides that an appeal on points of law is only admissible, if the decision depends on the solution of a legal question, which is important for the uniformity, the certainty or the development of the law.   COMPLAINTS   1.    The applicant complains under Article 6 of the Convention that the judge at the Favoriten District Court deliberately waited until the relevant time had passed, before deciding on her request of 15 November 1992 and that, thus, the court's decision was arbitrary.   2.    The applicant also complains under Article 8 of the Convention that the courts' decisions, denying her access to her grandchildren on Christmas 1992, violated her right to respect for her family life.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 1 May 1994 and registered on 2 August 1994.        On 6 September 1995 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 18 December 1995. The applicant replied on 1 March 1996.   THE LAW   1.    The applicant complains under Article 6 (Art. 6) of the Convention that the judge at the Favoriten District Court deliberately waited until the relevant time had passed, before deciding on her request of 15 November 1992 and that, thus, the court's decision was arbitrary.        Article 6 para. 1 (Art. 6-1), so far as relevant, reads as follows:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair ... hearing by [a] ... tribunal      ..."        The Government contend that the main question is whether the applicant's case was heard within a reasonable time. They submit that the case was complex as the applicant's request has to be seen in the context of the proceedings relating to the request for weekly access by the children's father, i.e. the applicant's son, which was still pending at the appeal stage at the relevant time. Further, the Government submit that the Favoriten District Court summoned the parents of the children for 17 December 1992. As they could not reach an agreement, the court, on the basis of the file and given the limited amount of time available could only have dismissed the applicant's request. That it failed to do so before the relevant date, cannot be held against it, given that the appeal proceedings concerning the request for weekly access by the applicant's son were still pending. There was not enough time for more exhaustive steps, in particular to summon all the parties concerned, including the applicant and the children's great-grandmother, and to order an expert opinion by a child psychologist, which would have been necessary in the circumstances of the case. Finally, the Government submit that the applicant only filed her request a month before Christmas 1992.        The applicant submits in particular that her request for access to her grandchildren on Christmas 1992 had nothing to do with the request for weekly access by the father of the children. She points out that the Favoriten District Court failed to hear her or to take any other procedural steps relating to her request. In particular, her request was not at issue at the meeting of 17 December 1992 to which the court had only summoned the parents of the children concerned. Further, the applicant submits that the case was not complex and contests the Government's view that it would have necessitated an expert opinion. Finally, she maintains that she filed her request in time and that the judge at the District Court had promised her a decision in time.        The Commission considers that the issue to be decided is whether the applicant, as regards her request of 15 November 1992, had effective access to court as required by Article 6 para. 1 (Art. 6-1) of the Convention.        After an examination of this issue in the light of the parties' observations, the Commission considers that it raises questions of fact and law which can only be determined by an examination of the merits. It follows that this complaint cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.   2.    The applicant also complains under Article 8 (Art. 8) of the Convention that the courts' decisions, denying her access to her grandchildren on Christmas 1992, violated her right to respect for her family life.        The Government submit that "family life" within the meaning of Article 8 (Art. 8) requires that there must be close ties between near relatives such as grandparents and grandchildren. They may consist for instance in the maintenance of a common household or in regular contacts. The Government submit that there is nothing in the file to show that the relationship between the applicant and her grandchildren constituted family life.        The applicant contests the Government's view. She claims that it follows from the court's files that she had regular weekly contacts with her grandchildren and that a close relationship existed. She submits that the Favoriten District Court by taking its decision belatedly, displayed a lack of respect for her family life.      After an examination of this issue in the light of the parties' observations, the Commission considers that it raises questions of fact and law which can only be determined by an examination of the merits. It follows that this complaint cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE,      without prejudging the merits.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber