M.C. v. Finland (dec.)

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 26

January 2001

M.C. v. Finland (dec.) - 28460/95

Decision 25.1.2001 [Section IV]

Article 8

Article 8-1

Respect for family life

Involvement of parent in decision-making process concerning the taking of his child into public care: inadmissible

In November 1993 the applicant, a Pakistani national, was arrested on suspicion of having killed his wife, the mother of his child, Y. The following day, the social authorities placed Y. in public care, on a provisional basis, and the Basic Welfare Board later confirmed the placement of Y. in care. The applicant’s access to the child was prohibited and her whereabouts were to remain undisclosed to him. As he had not been heard prior to this decision, the Board sent it to the County Administrative Court for review. The applicant lodged out of time an appeal to the County Administrative Court against the Board’s decision. Meanwhile, Y. had been placed with a foster family. In February 1994 an official of the Board then ordered that the access prohibition be maintained until Y. reached the age of twelve, her whereabouts remaining undisclosed to her relatives. The applicant appealed to the Board. In the care order proceedings, the County Administrative Court examined the applicant’s complaint, despite its having been lodged out of time, and dismissed it. The applicant lodged an appeal to the Supreme Administrative Court, requesting an oral hearing. In the meantime, he had been convicted of manslaughter and sentenced to nine years’ imprisonment. In May 1994, the Board confirmed the access prohibition issued in February 1994. The applicant appealed against this decision, contending that he had not been heard, and the County Administrative Court found in his favour, quashing the decision and remitting the case for re-examination. The court rejected the applicant’s request that his legal costs be covered by the Board. In February 1995 the access prohibition was again upheld by the Board. In March 1995 the Supreme Administrative Court rejected the applicant’s request for an oral hearing in the care order proceedings. The court considered that although he had not been heard prior to the Board’s decision of November 1993, he had been able to appeal against the order and the Board had sent the said order for review before the County Administrative Court. Therefore, according to the Supreme Administrative Court, there was no reason to quash it. The County Administrative Court quashed the Board’s decision of February 1995 and remitted it for re-examination; it rejected the applicant’s request that his legal costs be paid by the Board. In September 1995 the Board maintained the access prohibition until 2004, as initially scheduled, taking into account the opinion of an expert in child psychiatry. The applicant complained that he had not been heard in respect of the opinion. In April 1996 the County Administrative Court held an oral hearing at which the doctor was heard as witness. The applicant emphasised in his submissions to the court that he could not afford to call his own expert. The court rejected the applicant’s appeal, finding the duration of the access prohibition justified; no further appeal was open. Following the applicant's release from prison on parole, the immigration authorities decided not to renew his residence permit and eventually expelled him, prohibiting him from re-entering the country.

Inadmissible under Article 8: The placement of the applicant’s daughter in public care interfered with the applicant’s right to respect for family life. The interference was prescribed by law and aimed at protecting the health and rights of his daughter. It does not appear that the authorities overstepped their margin of appreciation in ordering and implementing the related measures, and the interference can thus be considered proportionate to the legitimate aims pursued. It remains to be determined whether, having regard to the particular circumstances of the case, the applicant was involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests. The authorities did not hear the applicant before the care order was issued in November 1993 or before the access prohibition was maintained in May 1994 and September 1995. However, the Supreme Administrative Court considered that the failure to hear the applicant in the care order proceedings had been compensated for by the County Administrative Court’s examination of the applicant’s out of time appeal. As regards the decision of May 1994, the County Administrative Court referred the matter back for re-examination, after finding that the applicant had not been heard; the applicant was able to present written submissions up to the Board’s decision of February 1995. Although he could not comment on the expert's opinion prior to the decision of September 1995, he was later able to present oral arguments to the County Administrative Court and to examine the expert as a witness. Overall, it cannot be deemed that the applicant was excluded from the decision-making process: manifestly ill-founded.

Inadmissible under Article 6 § 1 (oral hearing): According to Finland's reservation, which the Court considers valid, Finland could not guarantee a right to an oral hearing before, inter alia, the Supreme Administrative Court, since domestic law did not provide for it. The relevant part of the reservation was withdrawn as from 1 December 1996, but the impugned proceedings had ended before that date, and Finland was therefore under no obligation to provide an oral hearing in those proceedings: incompatible ratione materiae.

Article 6 § 1 (fair hearing): As regards the overall fairness of the proceedings, it has to be borne in mind that in the context of care proceedings the lack of disclosure of important documents is capable of affecting the ability of parents not only to influence the outcome of the proceedings but also to assess their prospects of making an appeal. It is established that the applicant was involved to a sufficient degree in the decision-making process for the purposes of Article 8 and for the same reasons there is no indication that the Board’s repeated failure to hear the applicant made the proceedings unfair. As to the complaint that the legal aid granted to the applicant would not cover the costs had he called an expert to counter the opinion lodged in connection with the prohibition on access, the Convention does not gurantee legal aid in civil cases. States have a free choice of means to enable individuals to have access to a court for the determination of their civil rights and obligations; a legal aid scheme constitutes one of these means but not the sole one. According to the Finnish law applicable at the time, costs incurred by an expert or any other witness testifying before the County Administrative Court were reimbursed by the State, provided that they had been summoned by the court itself. However, the applicant never requested the court to summon any expert witness; had the court accepted such a request, the costs pertaining to the expert witness would have been covered by the State. Accordingly, there is no indication that the proceedings were unfair in that only one expert witness was heard. As to the refusals to order the Board to bear the applicant’s costs, he was granted legal aid and has not substantiated the alleged detrimental effects of the refusal. Moreover, Article 6 § 1 does not guarantee to a party successful in respect of the substance of a case any absolute right to be awarded costs against the other party: manifestly ill-founded.

Article 6 § 1 (length of proceedings): The length of the proceedings (more than two years and two months and comprising three examinations by the Board and the County Administrative Court) cannot be considered excessive, even in the light of what was at stake for the applicant and his daughter: manifestly ill-founded.

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