FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45983/99 
by Fadime and Mehmet KAPLAN  
against Austria

The European Court of Human Rights (First Section), sitting on 14 February 2006 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges,

and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 29 October 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

 

THE FACTS

The first applicant, Fadime Kaplan is the mother of the second applicant, Mehmet Kaplan. They are Turkish nationals, born in 1968 and 1990, respectively, and live in Vienna. They are represented before the Court by Mr H. Pochieser, a lawyer practising in Vienna.

The respondent Government are represented by Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Following difficulties in the relationship with her husband which involved violent assaults by him, the first applicant left the common household in March 1991. On 29 March 1991 the first applicant’s husband instituted divorce proceedings with the Kirchberg/Wagram District Court (Bezirksgericht). The court subsequently, on 15 May 1991, suspended divorce proceedings as the first applicant had meanwhile moved back to the common household and had reconciled herself with her husband.

On 28 May 1991 the first applicant, following another violent assault by her husband and his family, again left the common household.

On 11 July 1991 she filed an action with the Kirchberg/Wagram District Court (Bezirksgericht) for sole custody of the two children from the marriage, F, born in November 1988, and the second applicant, who stayed at their father’s. On 26 July 1991 the District Court granted her provisional custody of the second applicant, at that time a nursling. Subsequently, on 2 August 1991, the second applicant was taken away from the applicant’s husband by compulsory means. On 5 August 1991 the first applicant requested the provisional custody of F and further that the District Court withdraw, as an interim measure, F’s name from her husband’s passport. She submitted that she feared that her husband would bring F to Turkey.

On 20 August 1991 the applicant’s husband requested that the divorce proceedings be resumed. However, in a further hearing before the District Court on 7 November 1991, the parties agreed to suspend the divorce proceedings until the outcome of criminal proceedings instituted against the first applicant’s husband concerning his violent assaults against the first applicant.

In February 1992 the District Court informed the first applicant and her husband that at the moment it would not take any further official measures concerning the custody of their children. It referred in this regard to a report by the Tulln Administrative Authority (Bezirkshauptmannschaft) stating that despite the efforts of its social workers and the parties’ repeated questioning by the Youth Office no solution could be reached. Both parents claimed custody, objected to visit arrangements in neutral surroundings and were uncertain whether they wished divorce or not. The District Court in particular referred to the Administrative Authority’s statement that there were no reasons to change the present situation of separation of the two children.

On 23 April 1992 the first applicant reiterated, in the context of submissions made in another matter with the court, her request of July 1991 for sole custody of F.

In June 1994, after the criminal proceedings against him had been terminated, the first applicant’s husband requested that divorce proceedings be resumed. On 25 November 1994 the District Court pronounced the divorce. With final decision of 28 September 1995 the Supreme Court (Oberster Gerichtshof) confirmed the District Court’s findings. No decision was taken on the custody of the children.

On 12 June 1996 the first applicant again requested that sole custody of F be granted to her and that the court issue an injunction prohibiting the father from bringing F to Turkey. She submitted that her former husband did not sufficiently care for F and planned to place F with his relatives in Turkey at the end of the school year. This would adversely affect the child’s well-being.

On 14 June 1996 the District Court, without holding a formal hearing, dismissed the latter request. It noted that a possible transfer would not adversely affect the well-being of F, who and whose family, including the first applicant, were still more closely related to Turkey than to Austria.

The applicant appealed and complained inter alia that the District Court had not taken sufficient evidence and had not taken account of the fact that F’s transfer to Turkey would in perpetuity frustrate her right to visit which would adversely affect F’s well-being.

In his submissions of 24 July 1996 the first applicant’s former husband contested to have any intention to bring F to Turkey and requested that custody of F be granted to him.

On 26 July 1996, the Krems Regional Court (Landesgericht) quashed the District Court’s decision and remitted the case back to the District Court to take further evidence as to the concrete danger of F’s transfer to Turkey and, eventually, his well-being there.

The District Court subsequently, on 6 August 1996, requested the Tulln District Administrative Authority for further investigations. On 8 November 1996 the Administrative Authority submitted its report in which it expressed itself in favour of F’s stay at his father’s. The District Court, on the same day, requested the Vienna Youth Welfare Office (Amt für Jugend und Familie) for further information.

In March 1997 the first applicant informed the District Court that F had moved to Turkey and that she had now no contact with the child.

On 9 June 1997 the District Court rejected all pending requests and declared the custody proceedings null and void. It noted that The Hague Convention concerning the powers of authorities and the law applicable in respect of the protection of infants of 6 October 1961 was applicable to the proceedings at issue. Article 1 of this convention provides that the judicial or administrative authorities of the State of the habitual residence of an "infant" have power to take measures directed to the protection of his or her person or property. In so doing they apply their own law. The District Court found that, having regard to the fact that F was staying since Christmas 1996 with his grandparents in Turkey, had signed off residence and school in Austria and was attending school in Turkey, this country had to be regarded as his habitual residence. Therefore, the case had ceased to be within the scope of Austrian jurisdiction.

The applicant appealed and, at the same time, lodged a motion of bias against the competent judge H at the District Court. In the latter regard she submitted inter alia that H’s inactivity had brought about the facts on the ground of which the Austrian jurisdiction had ceased.

On 15 July 1997 the Krems Regional Court rejected the motion of bias. On 9 October 1997 it dismissed the first applicant’s appeal without holding a hearing. It noted that neither the European Convention on Recognition and Enforcement of decisions concerning the custody of children and on restoration of custody of children, nor The 1980 Hague Convention on the Civil Aspects of International Child Abduction were applicable to the present case as until now no decision on the custody of F had been taken and the applicant’s former husband had exercised factual custody over F since May 1991. The first applicant had not actually exercised her custody right at the time of F’s removal from Austria to Turkey, which, therefore had not been “wrongful” within the meaning of the latter convention.

On 6 November 1997 the applicant lodged an extraordinary appeal on points of law (außerordentlicher Revisionsrekurs) with the Supreme Court. She submitted inter alia that she had not voluntarily renounced to the exercise of F’s custody. Her former husband and his family had hindered her access to F so that she had only been able to see him in secret when he was attending school. F’s transfer to Turkey entirely cut off her contact to him. She invoked Articles 8, 13, 14 and Article 5 of Protocol no. 7 of the Convention. She further complained that throughout the proceedings no public hearing had been held and that the decisions had not been pronounced publicly.

On 16 April 1998 the Supreme Court rejected the extraordinary appeal on points of law. It noted with reference to Austria’s reservation to Article 6 of the Convention that custody proceedings would not necessarily require a public hearing, and that the parties’ right to present their case was duly complied with by submitting written statements, which the applicant had been able to do. The decision of the District Court to annul the proceedings, resulting in a shift of jurisdiction from Austria to Turkey, was lawful. The 1980 Hague Convention expressly referred to the actual exercise of custody as a condition for its application. The first applicant’s submissions that she had been hindered in the actual exercise of her custody were not relevant as the 1980 Hague Convention served the child’s and not the parents’ interest and the same applied as regards the 1961 The Hague Convention. Under this aspect, an interference with the first applicant’s rights under Article 8 of the Convention was justified. The decision was served on 29 April  998.

B.  Relevant domestic law and practice

Section 185 of the Non-Contentious Proceedings Act 1854 (Außerstreitgesetz) provides for oral hearings in custody and guardianship proceedings. Case-law and doctrine consider that hearings under this act are not public (see Fasching, Lehrbuch des österreichischen Zivilprozessrechts, Wien, 1984, marginal number 682; Gögl, Der Beweis im Verfahren außer Streitsachen, ÖJZ 1956, 344 (347); and Klicka/Oberhammer, Das Ausserstreitverfahren, 1995, p. 29, marginal number 42).

On 1 January 2005 a new draft of the Non-Contentious Proceedings Act entered into force and repealed the 1854 Act. It provides for the conduct of oral and public hearings (Sections 18 and 19) as a general rule and leaves it to the discretion of the court to decide whether or not the public should be excluded for the protection of the persons involved in a particular case. In family-law and guardianship proceedings, Section 140 provides for oral hearings open only to the parties. The court may decide to hold a public hearing, unless protected details of a person’s private and family life are discussed, a party opposes or it would be incompatible with the child’s well-being.

COMPLAINTS

1.  The first applicant complained under Article 6 § 1 of the Convention about the lack of a public hearing in the custody proceedings and a public pronouncement of the decisions, and about the length of the custody proceedings.

2.  The first applicant also complained that upon her requests for custody of F no proceedings involving the taking of evidence were conducted. Instead, the District Court’s inactivity enabled her former husband to bring F to Turkey before a substantive decision on custody was taken. Thus, jurisdiction moved to Turkey, resulting in a de facto determination of the custody issue. The applicant invoked Articles 6, 8 and 13 of the Convention and Article 5 of Protocol No. 7.

3.  The second applicant complained under Articles 6, 8 and 13 of the Convention that under Austrian law he had no substantive or formal right to respect for family life with his brother.

THE LAW

A. The first applicant’s complaints

1. The first applicant complained under Article 6 § 1 of the Convention that there was no public hearing in the custody proceedings and no public pronouncement of the decisions. She also complained that the custody proceedings lasted unreasonably long. Article 6 § 1 reads as follows:

“1.  In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time .... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

(a)  As regards the complaint about the lack of a public hearing, the Government pointed out that the right to a public hearing is not absolute and that an exclusion of the public is admissible under Article 6 § 1 of the Convention, inter alia, when required for the interests of juveniles or the protection of the private life of the parties, or when strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice. The Non-Contentious Proceedings Act 1854 expressly requires public hearings in certain areas and, in others, leaves their conduct to the discretion of the court. According to the practice of the Austrian courts, custody proceedings involving minors were usually not held in public to secure the privacy of children and their parents. This served also the court’s interest of ascertaining the truth since young witnesses were often likely to be far less willing or able to tell the truth when under psychological pressure created by a larger audience. The parties were, however, free to request at any time the conduct of an oral and public hearing, which enabled the judge dealing with a particular case to take into account all the circumstances when balancing the interests. Referring to the cases of B. and P. v the United Kingdom (nos. 36337/97 and 35974/97, §§ 38-41, ECHR 2001-III), the Government submitted that court proceedings involving custody decisions of minors were prime examples of such justified exclusion. In the present case the first applicant, who was represented by counsel throughout the proceedings, never filed a request for an oral hearing although she was well aware of the practice of the Austrian courts to conduct a public hearing in custody proceedings not ex officio but only upon request by a party. In particular, she could have done so, for example, after the case had been remitted to the District Court for supplementing the proceedings. Relying on the Court’s case-law (see A.T. v. Austria, no. 32636/96, § 36, 28 May 1997; Pauger v. Austria, judgment of 28 May 1997, Reports of Judgments and Decisions 1997-III, p. 896, § 60; and Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, pp. 19-20, § 58), the Government argued that the first applicant, thus, implicitly waived her right to a public hearing. She only raised the complaint in her extraordinary appeal on points of law.

The first applicant contested the Government’s view. She argued that neither did Section 185 of the current Non-Contentious Proceedings Act stipulate that oral hearings were to be held exclusively on a party’s request, nor was there such court practice as contended by the Government. Rather it would have been the court’s duty to hold a hearing ex officio. Further, she submitted that it was a general principle under Austrian law that, if the conduct of hearings was not compulsory, but only on request by a party, this was explicitly stated in the law (see, for example, Section 67d of the Code of Administrative Offences). If the law provided for a waiver, this was likewise mentioned explicitly (see Section 492 Code of Civil Procedure). There were no such provisions under the Non-Contentious Proceedings Act. Moreover, the courts had not explained why they refrained from holding a hearing and the Government have not submitted any domestic case-law which supported their view.

The Court notes that Austria’s reservation to Article 6 § 1 concerning the requirement that hearings be public has been found to be invalid (see Eisenstecken v. Austria, no. 29477/95, §§ 29, ECHR 2000-X).

It reiterates that Article 6 § 1 of the Convention provides that, in the determination of civil rights and obligations, “everyone is entitled to a fair and public hearing”. The public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 § 1, a fair hearing, the guarantee of which is one of the foundations of a democratic society (see Sutter v. Switzerland, judgment of 22 February 1984, Series A no. 74, § 26).

However, the requirement to hold a public hearing is subject to exceptions. This is apparent from the text of Article 6 § 1 itself, which contains the provision that “the press and public may be excluded from all or part of the trial ... where the interests of juveniles or the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. Moreover, it is established in the Court’s case-law that, even in a criminal law context where there is a high expectation of publicity, it may on occasion be necessary under Article 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses or to promote the free exchange of information and opinion in the pursuit of justice (see Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, § 70; Jasper v. the United Kingdom [GC], no. 27052/95, § 52, 16 February 2000; Z  v. Finland, judgment of 25 February 1997, Reports 1997-I, § 99; and T. v. the United Kingdom [GC], no. 24724/94, §§ 83-89, 16 December 1999).

The Court has already considered that in the course of proceedings where exclusively legal or highly technical matters are at stake, the requirements of Article 6 may be fulfilled even in the absence of a hearing. Moreover, neither the letter nor the spirit of this provision prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, p. 19, § 58; and Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002).

Further, as regards civil proceedings, the Court does not find it inconsistent with Article 6 § 1 for a State to designate an entire class of cases as an exception to the general rule of public hearings if this is considered necessary in the interests of morals, public order or national security or required by the interests of juveniles or the protection of the private life of the parties (see Campell and Fell v. the United Kingdom, judgment of 28 June 1984, Series A no. 80, §§ 87-88; B. and P. v. the United Kingdom, nos. 36337/97 and 35974/97, § 39, ECHR 2001-III), although the need for such a measure must always be subject to the Court’s control (see Riepan v. Austria, no. 35115/97, § 34, ECHR 2000-XII; and B. and P., cited above).

Turning to the circumstances of the present case, the Court considers that custody proceedings fall, in principle, within the category of cases that may be exempt from the conduct of public hearings under Article 6 § 1 of the Convention, namely when required by the interests of juveniles or the protection of the private life of the parties.

It observes, however, that the issue of whether or not hearings are public in custody proceedings under the Austrian Non-Contentious Proceedings Act 1854 is in dispute between the parties. While the Government contended on the one hand that the conduct of oral and public hearings were within the discretion of the court and that the parties were free to make a request to this effect, they submitted, on the other hand, that hearings in custody proceedings were usually not public for the protection of juveniles and the persons involved. The first applicant maintained that hearings in custody proceedings were not public at all.

The Court observes that Section 185 of the Non-Contentious Proceedings Act 1854 provides for oral hearings. The first applicant has not made a request to hold an oral hearing throughout the proceedings, she has only complained in her extraordinary appeal on points of law that there had been no oral and public hearings. Thus, insofar as the first applicant may be understood to complain also about the absence of an oral hearing, the Court considers that she failed to exhaust domestic remedies as the first applicant had not requested one already before the court of first or second-instance.

As to the complaint about the lack of a public hearing, the Court observes that, in respect of custody proceedings, the 1854 Act does not contain any explicit provision. It only mentions public hearings in the context of an appointment of a guardian (Section 239). The Government have not submitted domestic case-law which would prove their view that hearings in custody proceedings were held in public on request by a party. Given the silence of the Austrian law on that point, the views expressed by academic writers and that no conclusive arguments were submitted by the Government to the contrary, the Court accepts the first applicant’s view that hearings in custody proceedings under the Non-Contentious Proceedings Act are not public (see B. Relevant domestic law and practice). It is therefore irrelevant for the purposes of Article 6 § 1 whether or not the applicant has asked for a public hearing, because no such possibility was provided for by the specific domestic law (see Diennet v. France, judgment of 26 September 1995, Series A no. 325-A, p 14, § 31; and Eisenstecken, cited above, § 33).

The Court considers that a domestic rule providing for hearings to be held exclusively in camera and, thus, for a general exclusion of the public from hearings, may be incompatible with the requirements under Article 6 § 1, if the law does not at all provide for discretion by the court to justify its necessity (see e contrario, B. and P., cited above, § 39). However, in the present case the Court does not need to decide whether the general exclusion of the public from hearings in custody proceedings under the Non-Contentious Proceedings Act infringes Article 6 § 1 of the Convention for the following reason. It observes that the proceedings at issue ended with a formal decision because the determination of custody of F. had ceased to fall within the jurisdiction of Austrian courts. The Court considers that this matter concerned a legal question where a hearing was not required at all (see Varela Assalino, cited above). Having regard to the above, the Court concludes that the absence of a public hearing in the particular circumstances of the case did not amount to a breach of Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

(b)  As regards the complaint about the lack of a public pronouncement of the decisions, the Government submitted that the public pronouncement of a decision in custody proceedings would frustrate the aim pursued by the exclusion of the general public, namely to ensure the privacy of the persons involved. In any event, anyone who could establish a legal interest in the decision was entitled under Austrian law to inspect the file and to make copies thereof. Moreover, the most important decisions by Austrian courts, primarily those of the Supreme Court and appellate courts, were published electronically on the Federal Government’s Legal Information System. Thereby the general public could access and analyse the jurisdiction and practice of the courts in various fields.

The applicants contested this view and maintained that no single decision or judgment of a first-instance court (district or regional court) was published on the Federal Government’s Legal Information System.

The Court recalls that the form of publicity given under domestic law to a “judgment” must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 § 1 (see Sutter v. Switzerland, judgment of 22 February 1984, Series A no. 74, § 33). In the Sutter case the Court found that the above requirement was satisfied by the fact that anyone who could establish an interest could consult or obtain a copy of the full text of judgments of the Military court of Cassation, together with the fact that that court’s most important judgments were published in an official collection (see Sutter, cited above, § 34; and B. and P., cited above, § 45). In the cases of B. and P. the Court was satisfied that judgments of first-instance courts in child residence cases, and judgments of the Court of Appeal and of first-instance courts in cases of special interest, were routinely published, thereby enabling the public to study the manner in which the courts generally approached such cases and the principles applied in deciding them (§ 47).

The Court notes that the decisions in the present case were not pronounced publicly, but, as the Government submitted, anybody who could establish an interest could obtain copies of the file and judgments of special interest were routinely published on the Internet in the Federal Government’s Legal Information System. It observes, in particular, that the Supreme Court’s decision of 16 April 1998 is published on the Federal Government’s Legal Information System. Thus, the Court considers that the requirement of a public pronouncement under Article 6 § 1 of the Convention was complied with in the present case.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

(c)  The first applicant also complained under Article 6 about the length of the custody proceedings, which started on 11 July 1991 and ended on 29 April 1998. Thus, they lasted over six years and nine months. The Court notes, however, that the applicant failed to make an application under Section 91 of the Courts Act for the acceleration of the proceedings (see Holzinger v. Austria (no. 1), no. 23459/94, §§ 24-25, ECHR 2001-I).

It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

2. The first applicant further complained under Articles 6, 8, 13 and Article 5 of Protocol No. 7 of the Convention that the District Court’s inactivity enabled her former husband to bring F. to Turkey before a substantive decision on custody was taken. Thus jurisdiction moved to Turkey, which brought about a de facto determination of the custody issue. The Court considers that this complaint should be examined under Article 8 of the Convention.

Article 8 reads 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 Government argued that the first applicant had failed to exhaust domestic remedies: The District Court had informed the first applicant and her husband on 13 February 1992 that it would not take any further procedural measures as regards the custody of her children for the time being. The basis of this decision was the fact that under the relevant Turkish legislation applicable to the proceedings at issue, once divorce proceedings had been instituted, all necessary provisional measures, including measures concerning the custody of common children, were to be taken within the framework of divorce proceedings. The first applicant, who was represented by counsel, did not challenge this decision and had to be aware of the thus resulting procedural delay. Furthermore, the first applicant had never lodged an application under Section 91 of the Courts Act (Gerichtsorganisationsgesetz) which, according to the Court’s case-law (Holzinger v. Austria (no. 1), no. 23459/94, § 25, ECHR 2001-I) was an effective remedy for speeding up proceedings. The first applicant, after her first request for custody of F on 11 July 1991, did not make use of any remedy or request to expedite the taking of a decision in custody proceedings until 12 June 1996. Finally, the first applicant had not complained about the District Court’s conduct of the proceedings under Article 8 or Article 5 of Protocol no. 7 in the domestic proceedings.

The first applicant did not comment on the Government’s observations.

The Court recalls that the application of the rule of exhaustion must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, Article 35 must be applied with some degree of flexibility and without excessive formalism (see, as a recent authority, Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 117, 24 February 2005, with further references).

Turning to the particular facts of the case, the Court notes that the first applicant requested the Austrian courts to grant her custody of F in June 1991. In August 1991 she requested that provisional custody of F was granted to her. After the District Court, in February 1992, had informed her that it would not take any official measures for the moment, she reiterated her request for custody of F in April 1992 and in June 1996. At this latter time divorce proceedings had ended. Moreover, in August 1991 and June 1996, she requested the District Court to grant interim measures in order to hinder her husband to bring F to Turkey. The Court notes that such requests, by their very nature, call for a speedy decision by the courts. The Court, therefore, is satisfied that the steps the first applicant took before the courts constituted sufficient remedy for the purpose of her complaint under Article 8 of the Convention. The Government’s objection that the first applicant had failed to exhaust domestic remedies accordingly fails.

The Government accepted that the custody proceedings at issue constituted an interference with the first applicant’s rights under Article 8 of the Convention. They argued, however, that the obligation of national authorities to take measures to facilitate contact by a non-custodial parent with children pending, or after divorce, was not absolute. In the present case, the Austrian courts were not to be blamed for their inactivity as initially, under the Turkish legislation applicable to the proceedings at issue, no decision on the custody could be taken since such decision had to be taken in the framework of divorce proceedings. After the first applicant’s new request for custody of F in June 1996, the courts acted without delay. The Government further pointed out that a transfer of F’s custody from his father to the first applicant could at no time be considered as granted. The procedural steps taken in the proceedings at issue exclusively served the best interest of the children.

The first applicant did not submit any further observations.

The Court considers, in the light of the parties’ submissions, that the complaint raises complex issues of law and fact, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. The second applicant’s complaints

The second applicant complained under Articles 6, 8 and 13 of the Convention that, under Austrian law, he had no substantive or formal right to respect for family life with his brother.

The Government contended that the Austrian family legislation does not contain a right laid down expressis verbis of a minor to be brought up together with his sibling, and accordingly there was no procedural regulation for the participation of a sibling in custody proceedings. Parties to such proceedings were, in principle, the concerned parents and the child. However, the second applicant could have requested to participate in the custody proceedings concerning his brother. Such request could have been filed by the second applicant himself after his reaching the age of 14, or, prior to this date, by his legal representative. The second applicant was free to bring the issue of his alleged right to be with his brother before three instances, up to the Supreme Court which was under obligation to address the Constitutional Court (Verfassungsgerichtshof) if it had any concern about the compatibility of the relevant family legislation with Article 8 of the Convention. Having regard to the fact that the second applicant did not make any use of this possibility, he had not exhausted domestic remedies in respect of his complaint. The Government further pointed out that not even the first applicant had ever referred to the second applicant in her requests for custody of F.

The second applicant did not reply to the observations made by the Government in this matter.

The Court observes that the second applicant has not brought the issue of his right to be brought up with his brother before the competent domestic courts. Nor has the first applicant, in any of her submissions, referred to this issue before the domestic authorities.

It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the first applicant’s complaint about the District Court’s inactivity in the custody proceedings admissible without prejudging the merits;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

KAPLAN v. AUTRICHE DECISION


KAPLAN v. AUTRICHE DECISION