FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 60457/00
by Eleni KOSMOPOULOU
against Greece
The European Court of Human Rights (First Section), sitting on 10 October 2002 as a Chamber composed of
MrsF. Tulkens, President,
MrC.L. Rozakis,
MrP. Lorenzen,
MrsN. Vajić,
MrE. Levits,
MrA. Kovler,
MrV. Zagrebelsky, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application lodged on 16 August 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Eleni Kosmopoulou, is a Greek national, born in 1965 and living in Athens. She is represented before the Court by Mr S. Tsakyrakis, a lawyer practising in Athens.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 April 1987 the applicant got married. On 23 January 1988 her daughter was born.
On 19 November 1996 the applicant left the family home and went to England. She left her daughter with her husband.
Proceedings concerning the custody of the applicant’s daughter
On 6 February 1997 the applicant’s husband lodged an application for interim measures with the Athens single-member First Instance Civil Court asking for the provisional care of the child. On 1 March 1997 the applicant filed a contrary application asking for the provisional care of the child.
On 2 May 1997 the court awarded provisionally the custody of the child to the father (judgment no. 11208/1997).
On 12 January 1998 the court awarded definitely the custody of the child to the father (judgment no. 1/1998). The applicant’s appeal against this judgment was dismissed by the Athens Court of Appeal on 29 February 2000 (judgment no. 1559/2000). The applicant did not appeal in cassation against that judgment.
Proceedings concerning visiting rights
In the meanwhile, on 9 and 23 May 1997 the applicant and her husband respectively asked the Athens single-member First Instance Civil Court to establish a provisional arrangement concerning their access to the child. The hearing of the applicant’s petition was scheduled for 28 May 1997 and then postponed to 9 July 1997, when the hearing of the father’s petition was scheduled, in order to be examined jointly.
On 6 June 1997 the applicant submitted a new petition asking the court to oblige her husband to bring the child to her house. On the same day the judge issued a provisional order ruling that the applicant should have the child every Saturday from 10 a.m. to 2 p.m. On Saturday 7 June 1997 the applicant’s husband failed to comply with that obligation. On 9 June 1997 he asked the court to revoke the judge’s provisional order. The court granted his claim on 10 June 1997 (judgment no. 15142/1997).
On 30 July 1997 the court decided that the child should stay with her mother once a week and for some days during school holidays (judgment no. 21171/1997).
On 2 August 1997 the applicant spent the day with her daughter.
On 6 August 1997 the applicant’s husband asked the court to revise judgment no. 21171/1997. The hearing took place on 8 August 1997. On 9 August 1997 the child was brought to her mother’s house but refused to stay with her. On 11 August 1997 the court reduced the number of days the child could spend with her mother (judgment no. 22372/1997). On 23 August the child refused again to stay with her mother and physically assaulted her.
On 27 August and 23 September 1997 the applicant’s husband asked for the revision of judgments nos. 21171/1997 and 22372/1997. He also asked for the provisional suspension of the applicant’s visiting rights. The judge granted his requests and suspended the applicant’s visiting rights without previously hearing the applicant.
On 24 September 1997 the applicant appealed against the suspension of her visiting rights. On 29 September 1997 the judge dismissed her request (judgment no. 26451/1997).
On 11 December 1997 the court stated that the contact of the child with her mother was indispensable and that the father who had the custody was obliged to facilitate that contact. The court further found that the reluctance of the child to see her mother was due to the behaviour of her father who involved the child in his own disputes and problems with the applicant (judgment no. 34780/1997).
On 16 December 1997 the applicant summoned her husband asking him to comply with judgement no. 34780/1997 but her action was of no avail.
On 12 May 1998 the applicant asked the court to take notice that her husband had purposely prevented her contacts with the child, from 8 September 1997 to 4 October 1998. On 26 February 1999 the court dismissed the applicant’s request on the ground that the child did not want to see her mother and that the defendant was not responsible for obstructing their contacts (judgment no. 493/1999).
On 3 May 1999 the applicant appealed. On 12 February 2001 the Court of Appeal dismissed her appeal. The court noted that the applicant was not able to meet with her daughter due to the latter’s absolute refusal to see her mother. This refusal was the result of the child’s feelings of distress when the applicant left the family home. The child’s father did as much as he could in order to reunite his family. Moreover, the applicant resided abroad and thus it would be in any event impossible to visit her daughter once a week. The child’s interest should prevail and it should be by all means avoided to put any further strain on her mental health (judgment no. 971/2001).
On 25 June 2001 the applicant appealed in cassation. The hearing took place on 15 January 2002. On 7 March 2002 the Court of cassation rejected the applicant’s recourse as being ill-founded (judgment no. 429/2002).
Criminal proceedings
On 16 February 1998 the applicant lodged a criminal complaint against her husband for obstructing her contacts with her daughter. On 10 May 1999 the Athens single-member Criminal Court declared the applicant’s husband not guilty. Following that judgment the applicant lodged criminal complaints against her husband every time the latter failed to comply with the court’s rulings. The father also initiated various criminal proceedings against the applicant. Currently, more than thirty-five criminal proceedings are pending.
COMPLAINTS
1. The applicant complains under Article 6 of the Convention that the judge suspended twice her access to the child without previously hearing her.
2. The applicant further complains under Article 8 of the Convention of a violation of her right to family life.
THE LAW
1. The applicant first complains about the fairness of the proceedings. In particular she complains that her visiting rights were suspended twice by the judge, in August and September 1997, without a previous hearing. She relies on Article 6 of the Convention, which, in so far as relevant, provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Court notes that the applicant has failed to introduce this complaint within six months of the judge’s decisions of 27 August and 23 September 1997, as required by Article 35 § 1 of the Convention. Furthermore, she has failed to substantiate the existence of any special circumstances which might have excused her from observing the time-limit laid down in Article 35 § 1 of the Convention.
It follows that this part of the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.
2. The applicant further complains that the Greek authorities failed to ensure her family life with her daughter. In particular, she considers that the Greek courts failed to promote her speedy reunion with her daughter. They suspended twice her access to the child and did not ensure the enforcement of their rulings. She relies on Article 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 Government submitted that the applicant had failed to exhaust the domestic remedies which were available to her under Greek law. To start with, she did not appeal in cassation against judgment no. 1559/2000 of the Athens Court of Appeal, which gave definitely the custody of the child to the father. Further, she did not ask for a definite arrangement of her visiting rights. Lastly, the proceedings concerning the provisional arrangement of her visiting rights were still pending.
As to the merits, the Government pointed out that the right to respect for family life within the meaning of Article 8 included the right of a divorced parent, who was deprived of custody following the break up of the marriage, to have access to or contact with his child and that the State might not interfere with the exercise of that right otherwise than in accordance with the conditions set out in paragraph 2 of that Article. The Government further stressed that in assessing the question of whether or not the refusal of the right of access to the non-custodial parent was in conformity with Article 8, the interests of the child predominated.
As regards the present case, the Government affirmed that the Greek authorities had not interfered in any way with the exercise of the applicant’s right to have contact with her daughter. In particular, although the applicant was the non-custodial parent, her contact with her daughter had been arranged by court judgments in an absolutely satisfactory manner, namely it had been arranged for the child to spend every weekend with her mother and some days during school holidays. These judgments were issued within a very reasonable time, respected entirely the principle of equality between the parties, were founded on a multitude of evidence and were fully reasoned. In this respect, the Government emphasised that the above issues were examined thoroughly in the framework of more than ten proceedings.
The Government further submitted that the two decisions to suspend the applicant’s visiting rights (in August and September 1997) were taken in order to protect the child’s mental health, who had refused, only a few days before the suspension was pronounced, in conditions of extreme tension, to stay with her mother.
The applicant refuted the Government’s arguments. To start with, she affirmed that even if she could see her daughter today, she would still have a valid complaint concerning the long period she had no access to her and that under Greek law there were no proceedings for the redress of this violation. Therefore, she claimed that when they submitted that she should have appealed to the Court of Cassation for custody, the Government bypassed the main issue, namely that under the specific circumstances of the case, even a favourable ruling would not have been effective at all with regard to the violation which has already been suffered. In any event, she noted that the custody was something different from the visiting rights in that someone might seek visiting rights without wanting the custody.
Further, the applicant claimed that it was not necessary to have recourse to the regular procedure in order to have her visiting rights reasserted; in fact, the court had already granted her such rights in the interim measures procedure and its judgment was immediately enforceable. In this respect the applicant stressed that the problem was not the judgment as such but its implementation. Therefore, she believed that the regular procedure would have added nothing to her case.
Lastly, the applicant submitted that she continued her effort to regain contact with her daughter. In a letter dated 5 July 2002 she informed the Court that the proceedings concerning the provisional arrangement of her visiting rights were exhausted and that she had lost her case (see above). However, she reiterated that even if she had won her case the fact would remain that she had not been able to see her daughter for more than five years. The applicant pointed out that in the three years elapsed between the last time she saw her daughter and the time she lodged her application with the Court, she had been involved in over 80 proceedings (visiting rights, custody, criminal proceedings), trying in vain to ensure access to her daughter. She concluded that the national authorities had ample opportunity to redress the violation but they failed.
As to the merits, the applicant affirmed that the Greek courts had failed to promote her speedy reunion with her child. This had also a crucial impact on the whole case since her ex-husband and his relatives had used that period to accomplish their aim of alienating her from her daughter. Moreover, the courts’ rulings concerning the applicant’s visiting rights remained a dead letter because her ex-husband systematically obstructed her communication with her daughter, using as an excuse the latter’s refusal to see her mother. The applicant agreed that in such kind of cases the interest of the child should be paramount and emphasised that she had great respect for her daughter’s will. However, she noted that, given the serious consequences that the lack of communication with one of the parents has for the child, the reluctance should be authentic and the child’s will free from manipulation. The applicant believed that in her case these requirements were not met.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52, and the Akdıvar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions, 1996-IV, p. 1210, §§ 65-67).
In the present case the Government first affirmed that the applicant had failed to appeal in cassation against judgment no. 1559/2000, awarding definitely the custody of the child to the father. However, the Court notes that the applicant did not complain before it that she was the non-custodial parent, but that she was unable to see her daughter for more than five years up to this day. Therefore, the fact that she did not appeal in cassation against judgment no. 1559/2000 had no impact on the enforcement of her visiting rights.
Further, the Government reproached the applicant for not asking for a definite arrangement of her visiting rights. The Court notes in this respect that according to the applicant the impossibility to see her daughter mainly resulted from her ex-husband’s refusal to comply with the courts’ rulings granting her provisionally visiting rights. In fact, before applying to the Court the applicant had already been involved in numerous proceedings trying unsuccessfully to ensure access to her daughter. Therefore, the Court is of the opinion that even if the applicant had asked for a definite arrangement of her visiting rights she would have had no certainty that her husband would have abided by the courts’ rulings; in any event a family life problem of this kind, requiring a speedy resolution, cannot depend on a lengthy determination by the domestic courts. In view of the above, the Court considers that there were special circumstances which dispensed the applicant from the obligation to exhaust the remedies suggested by the Government.
Lastly, the Court notes that the proceedings concerning the provisional arrangement of the applicant’s visiting rights have been in the meantime exhausted and that the applicant has lost her case. Therefore, the Government’s objection in this respect cannot be upheld.
The Court considers, in the light of the parties’ submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint concerning her right to family life;
Declares the remainder of the application inadmissible.
Erik FriberghFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy