AS TO THE ADMISSIBILITY OF
Application No. 12797/87
by J.D.N.
against France
The European Commission of Human Rights sitting in private on
6 February 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRESCHEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 12 December 1983
by J.D.N. against France and registered on 1 January 1987 under file
No. 12797/87;
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
The applicant is a Dutch national, born in 1934 and presently
resides in Lochem, the Netherlands. He is an artist. Before the
Commission he is represented by Mr. G.P. Hamer, a lawyer, practising
in Amsterdam.
For several years the applicant lived in France together with his
wife and three children.
On 22 October 1982 the Regional Court (tribunal de grande
instance) of Bergerac decided on the applicant's divorce and gave the
custody over his three children to the mother. The Court also provided
for an arrangement concerning the applicant's right to visit his
children.
He appealed against this decision to the Court of Appeal (cour
d'appel) of Bordeaux on 19 November 1982. Pending the appeal, the
Judge Rapporteur (conseiller de la mise en état) decided, on request
of both parties, on the modalities of the right to visit the children.
Because the applicant had taken the children to the Netherlands - in
violation of the applicable provisions of the judgment of the Regional
Court - the Judge Rapporteur ordered that the visits should take place
in France and that the applicant should give the children's passports
to his ex-wife.
In its decision of 20 December 1984 the Court of Appeal rejected
the applicant's request and upheld both the decision of the Regional
Court and the decision of the Judge Rapporteur.
In order to lodge an appeal with the Court of Cassation (Cour de
cassation) the applicant, on 4 February 1985, filed a request for free
legal aid with the Legal Aid Bureau (bureau d'aide judiciaire) of the
Court of Cassation. On 13 June 1985 his request was rejected, although
his financial resources were not adequate to pay for legal aid himself,
on the ground that the judgment of the Court of Appeal appeared to be
legally justified and not admissible for cassation.
COMPLAINTS
1. The applicant complains of a violation of Article 6 of the
Convention because proceedings before Regional Court, Court of Appeal
and Legal Aid Bureau were conducted in French which he alleges not to
understand.
2. He also complains of the procedure before the Legal Aid Bureau
which was not public and in which the decision was not rendered
publicly.
3. He furthermore complains of the denial of access to the Court of
Cassation because of the decision of the Legal Aid Bureau.
4. Finally, he invokes Article 8 concerning the restricted right to
visit his children in France which constitutes an interference with his
family life.
THE LAW
1. Concerning the applicant's complaint under Article 6 (Art. 6) of
the Convention regarding the proceedings which were all conducted in
French only, the Commission notes that the applicant did not raise this
issue in the national proceedings. Consequently, he did not exhaust
the remedies available to him under French law, as required under
Article 26 (Art. 26) of the Convention.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and that this part of the
application must therefore be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
2. As regards the procedure before the Legal Aid Bureau the
Commission considers that Article 6 (Art. 6) is not applicable since
there is neither a determination of a criminal charge nor of civil
rights and obligations when the Legal Aid Bureau determines whether or
not the conditions required for granting free legal aid have been
fulfilled.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention and must be
rejected under Article 27 para. 2 (Art. 27-2) of the Convention.
3. As regards the applicant's complaint concerning the access to the
Court of Cassation, the Commission recalls that the Convention does not
impose an obligations on the States Parties to provide free legal aid
for every dispute relating to a civil right (see Airey judgment of
9 October 1979 Eur. Court H.R., Series A no. 32, p. 15).
In the present case, the Commission notes that the request for
free legal aid was rejected on the ground that the judgment of the
Court of Appeal appeared to be legally justified and inadmissible for
cassation.
The Commission considers that a legal aid system can only operate
effectively, given the limited resources available, by establishing
machinery to select which cases should be legally aided (cf.
No. 8158/79, Dec. 10.7.80, D.R. 21, p. 95).
In these circumstances, the Commission does not find that the
rejection of the request for free legal aid amounts to a breach of
Article 6 (Art. 6) of the Convention.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
4. The applicant also complains of his restricted right to visit his
children and invokes in this respect Article 8 (Art. 8) of the
Convention. The Commission considers that although he did not appeal
to the Court of Cassation the decision of the Bureau clearly shows that
an appeal to the Court of Cassation would have no prospects of success.
Therefore, this complaint cannot be rejected for non-exhaustion of
domestic remedies.
However, the Commission is of the opinion that even assuming that
there is an interference with the applicant's right to respect for his
family life, the limitation on the modalities of the applicant's right
to visit his children could be regarded as necessary in a democratic
society for the protection of the rights of others. It was therefore
justified under Article 8 para. 2 (Art. 8-2) of the Convention. In
this respect the Commission notes that the applicant has not been
denied the rights to visit his children, but that the way in which he
could exercise this right has only been modified as a consequence of
the fact that the applicant illegally took his children to the
Netherlands.
Therefore, 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.
Secretary to the Commission President to the Commission
(H.C. KRÜGER) (C.A. NØRGGARD)
Full & Egal Universal Law Academy