AS TO THE ADMISSIBILITY OF
Application No. 25676/94
by Carsten Bue FRANDSEN
against Denmark
The European Commission of Human Rights (Second Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, 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 12 August 1994 by
Carsten Bue Frandsen against Denmark and registered on 15 November 1994
under file No. 25676/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Danish citizen, born in 1956. He is a police
officer and resides at Odense, Denmark.
In October 1993 the applicant and his now ex-wife decided to
separate. They agreed on joint custody of their two children T and M,
born in 1983 and 1986 respectively, following their divorce. They also
agreed that T should remain with his mother and that M should stay with
the applicant.
In connection with the subsequent divorce proceedings a dispute
arose, however, as to the custody of the children. The matter was
brought before the Civil Court of Frederikssund (civilretten i
Frederikssund) which held a hearing on 11 February 1994 during which
the parties, assisted by counsel, were present and had the opportunity
to submit what in their opinion was of relevance to the outcome of the
dispute.
By judgment of the same day the Civil Court decided to award
custody of both children to the mother in particular since the Court
found it established that it would not be in the interest of the
children to be separated and to grow up in different places relatively
far away from each other.
The applicant appealed against the judgment to the High Court of
Eastern Denmark (Østre Landsret) maintaining that it would be in the
best interest of M to stay with him. In order to support this the
applicant requested an expert opinion (en børnesagkyndig undersøgelse)
on the children and their situation.
The High Court held a hearing in the case on 24 May 1994 during
which the applicant and his ex-wife again had the opportunity to
address the Court.
By judgment of 26 May 1994 the High Court rejected the
applicant's request for an expert opinion and upheld the judgment of
the lower court. While confirming that both parties were capable of
taking care of the children, the Court found it to be in the best
interest of the children to remain together with their mother.
Leave to appeal to the Supreme Court (Højesteret) was refused on
13 July 1994.
COMPLAINTS
Under Article 6 para. 1 of the Convention the applicant complains
that the decision on custody was based on an incorrect evaluation of
his son M's situation. He also maintains that the proceedings were not
fair since his request for an expert opinion was refused.
Under Article 8 of the Convention the applicant furthermore
complains that the judgment disregards his and M's right to respect for
their family life.
THE LAW
1. The applicant complains that the judgment granting custody of
both children to his former wife was based on an incorrect evaluation
of the factual prevailing circumstances.
With regard to the judicial decisions of which the applicant
complains, 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 the established
case-law of the Convention organs (see e.g. Eur. Court H.R., Schenk
judgment of 12 July 1988, Series A no. 140, p. 29, para. 45).
It is true that in this case the applicant also complains that
the proceedings were not fair due to the fact that the High Court
refused the request for an expert evaluation of the children's
situation.
In this respect the Commission notes that as a general rule it
is for the national courts to assess the evidence before them as well
as the relevance of the evidence which the parties seek to adduce. In
particular the courts have a certain discretion as to whether or not
the evidence in question would be of relevance to the outcome of a
given case.
In the present case the Commission recalls that the custody
dispute was examined by the Civil Court of Frederikssund and the High
Court of Eastern Denmark which both held oral hearings during which the
applicant, assisted by counsel, had the opportunity to address the
courts. Nothing has emerged which could lead to the conclusion that
these proceedings were not in conformity with the requirements of
Article 6 (Art. 6) of the Convention. Furthermore, the Commission
considers that the High Court did not go beyond its discretion as to
the taking of evidence when, in the particular circumstances of this
case, it considered it unnecessary to obtain an expert opinion in order
to determine the question of custody.
Accordingly, considering the proceedings as a whole, the
Commission finds no appearance of a violation of Article 6 para. 1
(Art. 6-1) 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.
2. The applicant also complains that the judgment granting custody
of M to his ex-wife violated M's and his right to respect for their
family life contrary to Article 8 (Art. 8) of the Convention.
However, the Commission notes that the national courts are in
cases like the present one often faced with the problem of making a
choice between the parents. Their decisions in this respect will not
as such disclose any lack of respect for the family life of the parent
who is not granted custody. In the circumstances of the present case
the Commission furthermore considers that the decision taken was
neither arbitrary nor disproportionate, and that the dispute was not
solved in a manner which showed lack of respect for the family life of
M.
It follows that this part of the application is also 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.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy