European Court of Human Rights

FIRST SECTION

DECISION

Application no. 24998/04
by Matei VAIDA
against Austria

The European Court of Human Rights (First Section), sitting on 19 March 2009 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 29 June 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Matei Vaida, is an Austrian national who was born in 1964 and lives in Bucharest. He was represented before the Court by Mr A. Vasiliu, a lawyer practising in Bucharest. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the Law Department at the Federal Ministry of European and International Affairs.

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

The applicant is the father of a daughter born in wedlock on 6 August 2001. The applicant and his wife were resident in Baden. They separated in September 2002. Subsequently, the applicant's wife brought divorce proceedings before the Baden District Court. In April 2003 the applicant moved to Romania.

On 1 October 2003 the applicant's wife applied to the Baden District Court requesting that sole custody of her daughter be transferred to her.

By decision of 19 November 2003 the District Court, without having held a hearing, provisionally transferred sole custody of the child to the applicant's wife.

The decision was served on the applicant at his former address in Baden by registered letter. As the letter could not be handed out to the applicant personally it was deposited at the post office from which it was returned as “not collected” after the expiry of the two-week time-limit set for this purpose.

On 19 January 2004 the applicant's counsel lodged an appeal against that decision.

On 12 February 2004 the Wiener Neustadt Regional Court (Landesgericht) rejected the appeal as being lodged out of time.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he was denied access to the Austrian courts in that he was not duly summoned and informed of the proceedings.

Furthermore, the applicant alleged that the proceedings violated his right to equality between spouses under Article 5 of Protocol No. 7.

THE LAW

The application was communicated to the respondent Government, who submitted their observations on 16 December 2008. Having been asked to submit his observations in reply, the applicant informed the Court by letter of 30 January 2009 that he wished to withdraw his application.

The Court refers to Article 37 § 1 of the Convention, which provides as follows:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application; or

...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court takes note of the applicant's wish to withdraw his case and sees no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Søren Nielsen Christos Rozakis
Registrar President