AS TO THE ADMISSIBILITY OF
Application No. 19760/92
by Anne and Maria KETONEN
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 12 October 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 10 March 1992 by
Anne and Maria KETONEN against Finland and registered on 24 March 1992
under file No. 19760/92;
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 applicants are mother and child, born in 1958 and 1983,
respectively, and resident in Vaasa. The mother is a psychiatrist by
profession. The applicants are represented by Mr. Heikki Salo, a lawyer
in Helsinki.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
Particular circumstances of the case
In 1983 the first applicant married K. and gave birth to the
second applicant, their mutual child (hereinafter "Maria").
In July 1987 the first applicant and K. were granted judicial
separation (asumusero, hemskillnad) by the City Court (raastuvanoikeus,
rådstuvurätten) of Turku. Maria was ordered to live with the first
applicant. In August 1988 the first applicant and K. divorced, but were
ordered to remain custodians of Maria, K. being responsible for Maria's
possessions and the first applicant for other custody-related matters.
Maria was ordered to live with the first applicant. K. was not granted
any rights to visit Maria.
In 1989 K. instituted proceedings for the purpose of obtaining
rights to visit Maria. Meanwhile, the first applicant requested the
revocation of the shared custody of her.
A first hearing before the City Court was held on
12 October 1989. After certain witnesses had been heard a further
hearing was fixed at 23 November 1989.
Following the hearing on 23 November 1989 the City Court by an
interim order granted K. provisional visiting rights and further
requested the Social Welfare Board (sosiaalilautakunta, socialnämnden)
of Turku to submit an opinion.
The City Court's request for an opinion arrived at the Social
Welfare Centre (sosiaalikeskus, socialcentralen) of Turku on
27 December 1989. In March 1990 the Centre transferred the request to
the Child and Family Guidance Centre (kasvatus- ja perheneuvola,
uppfostrings- och familjerådgivningen) of Turku.
In the course of the investigation social welfare officials
refused to hear a number of persons referred to by the first applicant,
including a psychiatrist who had interviewed Maria on a previous
occasion. They also refused to consider a medical report regarding
Maria which the applicant had presented.
Following a hearing on 19 March 1990 the City Court revoked its
interim order of 23 November 1989, observing that K. had not availed
himself of his visiting rights.
Following a further hearing on 10 May 1990 the City Court fixed
a further hearing at 19 July 1990, since the requested opinion from the
Social Welfare Centre had not yet been submitted. In its opinion to
the City Court dated 21 June 1990 and limited to the question of
visiting rights the Child and Family Guidance Centre proposed that no
meetings take place between Maria and K. during a period of one year,
as the conditions for meetings would at the time not be suitable from
Maria's point of view in the light of the serious disputes between the
first applicant and K.
In a further opinion to the City Court dated 5 July 1990 and
concentrating on the custody question the Social Welfare Centre
concluded that continued joint custody of Maria was preferable. As
regards the visiting rights, the Centre referred to the report of
21 June 1989 submitted by the Child and Family Guidance Centre.
In the course of the proceedings before the City Court the first
applicant was refused the right to study certain documents kept by the
Social Welfare Centre and including an opinion which had been
communicated to K., but not to her.
Following the hearing on 19 July 1990 the City Court fixed a
further hearing at 30 August 1990. In its judgment following that
hearing the City Court found that the shared custody of Maria should
be revoked and the first applicant should remain as her sole custodian.
It further rejected K.'s request for visiting rights.
On 14 May 1991 the Court of Appeal (hovioikeus, hovrätten) of
Turku quashed the City Court's judgment of 30 August 1990 by granting
K. visiting rights. The Court of Appeal noted that a year had passed
without meetings taking place between Maria and K., and that K. had
stated that he would not forcibly remove Maria from the first
applicant's home, should she object to meeting him. The Court of Appeal
further ordered that custody of Maria should be shared.
On 16 September 1991 the Supreme Court (korkein oikeus, högsta
domstolen) refused the first applicant leave to appeal.
In December 1991 the first applicant instituted further
proceedings before the City Court, requesting that K.'s visiting rights
be revoked.
On 26 February 1992 the City Administrative Court (maistraatti,
magistraten) of Turku rejected K.'s request for enforcement of his
visiting rights, considering that enforcement against Maria's will
could contravene her interests.
On 5 March 1992 the City Court held a hearing concerning the
first applicant's action of December 1991 and fixed a further hearing
at 13 May 1992.
On 19 March 1992 the Deputy Parliamentary Ombudsman (eduskunnan
apulaisoikeusasiamies, riksdagens biträdande justitieombudsman)
considered, in response to a complaint lodged by the first applicant,
that social authorities responsible for investigating custody and
access matters have a discretion in the procedure relating to their
investigations. It had not been shown that the social welfare officials
in the applicants' case had abused their discretion or otherwise acted
contrary to the interests of Maria when refusing, in 1990, to accept
the evidence proposed to them by the first applicant. In any case, the
first applicant had been given the opportunity to present the evidence
in the court proceedings pending at the time. The Deputy Ombudsman
further considered that the disclosure of the opinion of the Child and
Family Guidance Centre to K. without him having requested it had been
in breach of the applicable instructions issued by the National Social
Welfare Board (sosiaalihallitus, social-styrelsen) and that the Centre
had furthermore behaved incorrectly in refusing to communicate the
opinion to the first applicant.
In regard to the length of the proceedings the Deputy Ombudsman
noted that the first applicant and K. had been interviewed separately
by social welfare officials in January 1990. A joint interview
scheduled for 27 February 1990 had had to be cancelled due to the first
applicant's refusal to attend it. Moreover, in view of her subsequent
complaint to the Social Welfare Board concerning the investigation and
her report to the police concerning certain social welfare officials
the Social Welfare Centre had considered it appropriate to refer the
investigation to the Child and Family Guidance Centre. The Deputy
Ombudsman concluded therefore that there had been a justified reason
for the delay in the submission of the investigation requested by the
City Court.
In regard to alleged deficiencies in the Social Welfare Centre's
opinion of 5 July 1990 the Deputy Ombudsman criticised the procedure
on the basis that the parties had not been heard prior to the drawing
up of the opinion and that it had not contained any reasoning in
support of the conclusion reached.
The Deputy Ombudsman finally noted, however, that the outcome of
the proceedings before the City Court had been favourable to the first
applicant, since she had been granted sole custody of Maria and since
K.'s request for visiting rights had been rejected.
In its judgment following a hearing on 13 May 1992 concerning the
first applicant's action of December 1991 the City Court decided to
maintain the shared custody of Maria, but found it to be in her
interests that K.'s visiting rights be revoked. Regard was, in
particular, had to a witness statement by Ms. Maija-Liisa Koski, a
psychiatrist, according to whom the enforcement of the visiting rights,
as ordered by the Court of Appeal on 14 May 1991, would contravene
Maria's interests. According to Mrs. Koski, Maria considered K. as a
stranger and did not wish to meet him. Due to Maria's negative reaction
to meetings with K. the first applicant had refused to comply with the
visiting rights ordered by the Court of Appeal.
In its judgment of 3 February 1993 the Court of Appeal partly
quashed the City Court's judgment of 13 May 1992 by revoking the joint
custody of Maria. Regard was had to her minor possessions and the
related disagreements between the first applicant and K. which they had
been unable to solve without assistance from the authorities. The Court
of Appeal further upheld the City Court's finding that no visiting
rights should be granted to K.
On 17 May 1993 the Supreme Court granted K. leave to appeal
against the Court of Appeal's judgment of 3 February 1993 in so far as
it concerned his visiting rights. On 2 March 1994 the Supreme Court
rejected his appeal.
Relevant domestic law
1. The 1983 Act on Custody and Visiting Rights with Regard to
Children
According to the 1983 Act (laki 361/83 lapsen huollosta ja
tapaamisoikeudesta, lag 361/83 ang. vårdnad om barn och umgängesrätt;
"the 1983 Act"), decisions concerning custody and visiting rights with
regard to a child shall be based primarily on the interests of the
child. Particular regard shall be had to the optimal implementation of
custody and visiting rights in the future (section 10, subsection 1).
In a matter concerning custody and visiting rights with regard to a
child the child's own wishes and opinion shall, if possible, be
obtained, having regard to the child's age and maturity and provided,
inter alia, that the parents are unable to reach an agreement on the
matter or if, for some other reason, consultation shall be regarded as
being necessary in the interests of the child. The child's opinion
shall be obtained tactfully, having regard to its stage of maturity and
without causing harm to the relations between the child and its parents
(section 11).
The court shall, when deciding a matter concerning custody and
rights to visit a child, consider the interests and wishes of the child
according to what is prescribed in sections 10 and 11 (section 9,
subsection 4). The court may issue an interim order as to where the
child should live, the rights to visit it and the conditions attached
thereto. For special reasons it may also issue an interim order as
regards custody. No appeal lies against an interim order (section 17,
subsections 1 and 2).
2. The 1975 Act on the Enforcement of Decisions Concerning Custody
and Visiting Rights with Regard to Children
According to the 1975 Act (laki 523/75 lapsen huollosta ja
tapaamisoikeudesta annetun päätöksen täytäntöönpanosta, lag 523/75 om
verkställighet av beslut som gäller vårdnad om barn och umgängesrätt),
enforcement of a decision or an interim order shall not take place
contrary to the child's will if the child is twelve years of age. The
same applies if a child under twelve years of age is so mature that
regard can be had to its own will (section 1 and section 6, as amended
by Act 366/83).
3. Remedy against unnecessary suspension of court proceedings
The Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs
Balk) affords a party, who is of the opinion that the proceedings
before the court of the first instance have been unnecessarily
suspended, the possibility to lodge a complaint with the Court of
Appeal within thirty days from the suspension (chapter 16,
section 4).
4. The 1951 Act on Publicity of Public Documents
Under the 1951 Act (laki 83/51 yleisten asiakirjain
julkisuudesta; lag 83/51 om allmänna handlingars offentlighet; "the
1951 Act") documents drawn up and issued by an authority, or which have
been submitted to an authority and are still in that authority's
possession, are public (section 2, subsection 1). If an official
refuses access to such a document, that decision may be submitted for
reconsideration by the same authority, following which there lies an
appeal under the general rules for appeals against a decision of that
authority. If no right of appeal exists, an appeal may be lodged with
the authority to which the first-mentioned authority is subordinated.
If no such authority exists, an appeal against a state authority's
decision may be lodged with the Supreme Administrative Court (korkein
hallinto-oikeus, högsta förvaltningsdomstolen). An appeal against a
decision by another authority may be lodged with a County
Administrative Court (lääninoikeus, länsrätt) (section 8, subsection.
1, as amended by Act no. 472/87).
COMPLAINTS
1. The applicants complain that there has been a lack of respect for
their family life. Due to the "legal uncertainty" pertaining to the
custody of, and the rights to visit Maria the applicants' situation has
been, and continues to be, precarious. They consider there to be no
family life between Maria and K. and emphasise that, even after having
been granted visiting rights in respect of Maria, K. has not exercised
them. Because of the negligent behaviour of the authorities in
investigating her interests Maria has been subjected to considerable
mental distress. Reference is also made to the lack of equality of arms
between the first applicant and K., since the possibility for the first
applicant to obtain documents drawn up by the investigating authorities
was limited. The applicants invoke Articles 3 and 8 of the Convention
and Article 5 of Protocol No. 7 to the Convention.
2. Under Article 6 of the Convention the applicants consider the
length of the overall proceedings to be excessive, in particular in
view of Maria's age.
3. The applicants further complain that they did not receive a fair
trial, since the Court of Appeal allegedly only based its judgment of
14 May 1991 on presumptions and not on evidence. They again invoke
Article 6 of the Convention.
4. Under Article 6 of the Convention the applicants also complain
that they were refused access to the Supreme Court.
5. In their letter of 22 September 1993 the applicants also complain
of the lack of an effective remedy against the alleged lack of respect
for their family life.
THE LAW
1. The applicants complain that there has been a lack of respect for
their family life due to the "legal uncertainty" pertaining to the
custody of, and the rights to visit Maria, the deficient investigations
of Maria's interests and the alleged lack of equality of arms in the
proceedings. They invoke Articles 3 and 8 (Art. 3, 8) of the Convention
and Article 5 of Protocol No. 7 (P7-5) to the Convention.
The Commission has examined the complaint under Article 8
(Art. 8) of the Convention, which 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 Commission initially recalls that the Convention entered into
force with regard to Finland on 10 May 1990. The Commission will
therefore limit its examination to whether the facts occurring after
that date disclosed a breach of Article 8 (Art. 8). Events prior to
10 May 1990 will be taken into account merely as a background to the
issues before the Commission (Eur. Court H.R., Hokkanen v. Finland
judgment of 23 September 1994, Series A no. 299-A, para. 53).
The Commission observes that as from February 1993 the first
applicant is Maria's sole custodian and that as from May 1992 K. has
had no visiting rights with regard to Maria. Leaving aside the question
whether the applicants can under these circumstances claim to be
"victims" under Article 25 (Art. 25) of the Convention, the Commission
considers that the complaint is inadmissible for the following reasons.
The Commission considers that the complaint raises the question
whether there has been a lack of respect for the applicants' right to
respect for their family life. It recalls that the notion of 'respect'
enshrined in Article 8 (Art. 8) is not clear-cut. This is the case
especially where the positive obligations implicit in that concept are
concerned. Its requirements will vary considerably from case to case
according to the practices followed and the situations obtaining in the
Contracting States. In determining whether or not such an obligation
exists, regard must be had to the fair balance that has to be struck
between the general interest and the interests of the individual as
well as to the margin of appreciation afforded to the Contracting
States (Eur. Court H.R., B. v. France judgment of 25 March 1992,
Series A no. 232-C, pp. 47 et seq., paras. 44 et seq.).
At the time of the entry into force of the Convention with regard
to Finland the first set of proceedings for the determination of the
custody of, and rights to visit Maria, were pending before the City
Court of Turku. This part of the proceedings terminated, in substance,
in the Court of Appeal's finding that custody of Maria should be shared
and that K. should be granted visiting rights. The Commission considers
that the suffering allegedly inflicted on the applicants due to K.'s
unwillingness to exercise his visiting rights is not as such imputable
to the respondent State. In any case, the City Court revoked K.'s
provisional visiting-rights at an early stage of the proceedings and
prior to 10 May 1990. The Commission observes that in May 1991 K. was
again granted visiting rights, but these were apparently never enforced
in view of Maria's interests. The "legal uncertainty" which could
arguably be said to have been caused by the first set of court
proceedings before three court instances lasted about two years out
which a period of one and a half years took place subsequent to
10 May 1990. The Commission notes that the second set of proceedings,
also before three court instances, was instituted by the first
applicant soon after the termination of the first set of proceedings
and also lasted about two years and three months. The legal uncertainty
caused by these proceedings may be considered to have lasted an even
shorter period, since enforcement of K.'s visiting rights was refused
already in February 1992 in consideration of Maria's interests. The
second set of proceedings ended in the appointment of the first
applicant as Maria's sole custodian and the refusal to grant K. any
rights to visit Maria.
In so far as certain procedural safeguards are implicit in
Article 8 (Art. 8) (cf. e.g. Eur. Court H.R., W. v. the United Kingdom
judgment of 8 July 1987, Series A no. 121-A, p. 28, para. 63), the
Commission observes the Deputy Ombudsman's findings in regard to the
procedural flaws in the investigation by the Social Welfare Centre in
the course of the first set of court proceedings. However, as also
pointed out by Deputy Ombudsman, the first applicant was given an
opportunity to present her evidence in the actual court proceedings.
She therefore had ample possibilities to present her own views to the
courts. As regards the refused access to certain documents in the case
and the communication of part of the documents only to K., the
Commission observes that the first applicant did not exhaust the
domestic remedies provided by the 1951 Act.
In conclusion, the Commission cannot find that the courts'
consideration of the question of the custody of, and rights to visit
Maria in any way contravened the interests of the applicants. On the
contrary, it notes that the first applicant's objections to shared
custody of Maria and the granting of visiting rights to K. were
successful.
Having regard to the above-mentioned various elements, the
Commission concludes, that a fair balance was struck between the
conflicting interests at stake in the present case (cf., a contrario,
T.H. (Hokkanen) v. Finland, Comm. Report 22.10.93, para. 146,
Eur. Court H.R., Series A no. 299-A; see also the above-mentioned
Hokkanen judgment, para. 55 et seq.). Accordingly, there has been no
lack of respect for the applicants' family life.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. Under Article 6 (Art. 6) of the Convention the applicants
consider the length of the proceedings to be excessive, in particular
in view of Maria's age.
The Commission has examined this complaint under Article 6
para. 1 (Art. 6-1) which reads, as far as relevant in the present case:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ...
hearing within a reasonable time by [a] ... tribunal
established by law." The Commission observes that
under the Code of Judicial Procedure a party who considers
that the proceedings before a court of the first instance
have been unnecessarily suspended may lodge a complaint
with the Court of Appeal. There is no indication that the
applicants have availed themselves of this remedy. The
Commission will, however, leave aside the question whether
domestic remedies have been exhausted, as required by
Article 26 (Art. 26) of the Convention, since the complaint
is, in any event, inadmissible for the reasons stated
below.
The Commission reiterates that the reasonableness of the length
of proceedings must be assessed in the light of the circumstances of
each case and having regard to the following criteria: the complexity
of the case, the conduct of the parties and that of the authorities
dealing with the case (e.g., Eur. Court H.R., Vernillo judgment of
20 February 1991, Series A no. 198, p. 12, para. 30). The Commission
will furthermore limit its examination to whether the facts occurring
after 10 May 1990 disclosed a breach of Article 6 para. 1 (Art. 6-1),
taking, however, account of the state of the proceedings and the
applicant's situation on that day (e.g., Eur. Court H.R., Martins
Moreira judgment of 26 October 1988, Series A no. 143, p. 16,
para. 43).
In the present case the first set of custody and access
proceedings were instituted in July 1989. At the time of the entry into
force of the Convention with regard to Finland, the case had been
pending before the City Court for about ten months and three hearings
had been held. A further three hearings were held prior to the judgment
rendered in August 1990. The subsequent proceedings before the Court
of Appeal lasted about eight months and the proceedings before the
Supreme Court less than four months. The total length of the first set
of proceedings, as conducted on and subsequent to 10 May 1990, thus
amounted to fifteen months.
The Commission observes that enforcement proceedings commenced
soon after the termination of the first set of proceedings. These were
interrupted, however, by the further proceedings instituted by the
first applicant in December 1991. The proceedings before the City Court
lasted about six months, before the Court of Appeal about nine months
and before the Supreme Court about one year. As found above, the total
length of the second set of proceedings thus amounts to about two years
and three months.
In the light of the criteria laid down in the Court's case-law
and having regard to the particular circumstances of the case the
Commission cannot find that the length of the proceedings complained
of exceeded a "reasonable time". Accordingly, there is no appearance
of a violation of Article 6 para. 1 (Art. 6-1) in this respect.
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicants further complain that they did not receive a fair
trial, since the Court of Appeal allegedly only based its judgment of
14 May 1991 on presumptions and not on evidence. They again invoke
Article 6 (Art. 6) of the Convention. The Commission has considered
also this complaint under the above-cited Article 6 para. 1 (Art. 6-1).
It recalls, however, that it is normally not competent to deal with a
complaint alleging that errors of law and 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 or one of its Protocols, for instance in that a
judgment has no legal justification and thereby violates a party's
right to receive a fair trial (cf. Eur. Court H.R., De Moor judgment
of 23 June 1994, Series A no. 292-A, para. 55; No. 7987/77,
Dec. 13.12.79, D.R. 18 pp. 31, 45). As a general rule, however, it is
for the domestic courts to assess the evidence before them, in
particular since they have the benefit of hearing witnesses and
assessing their credibility (Eur. Court H.R., Klaas judgment of
22 September 1993, Series A no. 269-A, pp. 17-18, paras. 29-30).
In the present case the Commission observes that the judgment of
the Court of Appeal of 14 May 1991 in the proceedings in which the
first applicant was, in one respect, the plaintiff and, in the other
respect, the defendant, was based on an assessment of the interests of
Maria in pursuance of the 1983 Act. The material submitted to the
Commission does not call the findings of the Court of Appeal into
question. There is thus no indication that the first applicant was
denied a fair trial. Accordingly, there is no appearance of a violation
of Article 6 para. 1 (Art. 6-1) in this respect either.
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. Under Article 6 (Art. 6) of the Convention the applicants also
complain that they were refused access to the Supreme Court.
The Commission has considered also this complaint under the
above-cited Article 6 para. 1 (Art. 6-1). It observes that, although
the applicants were refused leave to appeal to the Supreme Court, they
had already had access to courts in two instances. Thus, there is no
appearance of a violation of Article 6 para. 1 (Art. 6-1) on this point
either.
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. In their letter of 22 September 1993 the applicants also complain
of the lack of an effective remedy against the alleged lack of respect
for their family life.
The Commission has considered this complaint under Article 13
(Art. 13) of the Convention, which reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
Leaving aside the question whether the applicants have complied
with the six months' rule prescribed by Article 26 (Art. 26) of the
Convention, the Commission considers that the applicants have no
"arguable claim" of a breach of a violation of a substantive Convention
provision which would warrant a remedy under Article 13 (Art. 13)
(Eur. Court H.R., Powell and Rayner judgment of 21 February 1990,
Series A no. 172, p. 20, para. 46). The Commission refers to its above
conclusion with regard to the complaint examined under Article 8
(Art. 8) of the Convention.
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy