AS TO THE ADMISSIBILITY OF
Application No. 24627/94
by Reino and Sinikka NICK
and Sini HOKKANEN
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 20 April 1994 by
Reino and Sinikka Nick and Sini Hokkanen against Finland and registered
on 18 July 1994 under file No. 24627/94;
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 applicants Nick are husband and wife, Finnish citizens born
in 1939 and 1944 respectively. Mr. Nick is an engineer and Mrs. Nick
a designer and housewife. The applicants Nick are the maternal
grandparents of the third applicant, a Finnish citizen born in 1983.
All applicants reside at Järvenpää. Before the Commission they are
represented by Ms. Helena Molander, Children's Ombudsman of the
Mannerheim League for Child Welfare.
1. Introduction
The facts underlying the case were to some extent already subject
to proceedings before the organs of the Convention, namely in respect
of Application No. 19823/93. That case had been lodged by
Mr. Teuvo Hokkanen both in his own name and on behalf of his daughter
Sini, i.e. the third applicant in the present case. The application was
declared inadmissible by the Commission, inter alia, insofar as it had
been brought on behalf of Sini. On 22 October 1993 the Commission
adopted its Report in pursuance of Article 31 of the Convention. The
Court rendered its judgment on 23 September 1994 (Eur. Court H.R.,
Hokkanen v. Finland, Series A no. 299-A).
The applicants in the present case consider that the Report of
the Commission concerning Application No. 19823/92 contains incorrect
information on a number of points. They have particular misgivings
about the following passages:
"... On 30 April 1985 the applicant's wife, the mother of
[Sini], committed suicide. According to the applicant, he
then agreed with [Sini's] maternal grandparents [i.e. the
Nicks] that they would provisionally take care of [Sini]
until he had solved the problems caused by the death,
including a re-organisation of his farming activities
enabling him to resume the care of [Sini]. During this
period [Sini] spent the weekends with the applicant.
According to the applicant, [the Nicks] demanded, in
November 1985, at a time when [Sini] was staying with him,
that [she] come to stay with them or otherwise
[Mrs. Sinikka Nick] would commit suicide ... (paras. 17-18
of the Report).
...
In an opinion of 22 January 1987 ... the Child Guidance
Centre considered that custody of [Sini] should remain with
the applicant. According to the Centre, the contact between
the applicant and [Sini] was mutual, namely through playing
and discussions. The opinion stated, inter alia: ...
(para. 33).
...
In the spring of 1989 the National Board for Social Welfare
ordered [the Nicks] to allow [Sini's] mental state and her
attitude towards the applicant to be investigated
(para. 52).
...
In an opinion of 7 May 1991 ... the Child and Family
Guidance Centre of Tuusula confirmed the views submitted by
the Child Guidance Centre of Central Uusimaa in its opinion
[of] 22 January 1987. It noted that [the Nicks] had refused
to participate in interviews for the purpose of carrying
out a further investigation, and that they had also refused
to subject [Sini] to such an investigation ... (para. 65).
...
In response to the applicant's request for measures to be
taken by the Social Welfare Board of Järvenpää, ..., the
Board on 25 June 1992 stated that the Child and Family
Guidance Centre of Järvenpää had offered [the Nicks] 'an
opportunity to obtain assistance and to discuss the matter
concerning visiting rights'. [The Nicks] had refused,
however, to contact the Centre ... (para. 77)."
In the proceedings before the Court in the Hokkanen case the
applicants Nick were granted leave to submit written observations on
any facts which they considered had been dealt with inaccurately in the
Commission's Report. They availed themselves of this possibility (see
Hokkanen judgment, p. 8, para. 5). At the hearing before the Court the
Delegate of the Commission took note of these observations and pointed
out the documentary basis for certain statements in the Commission's
Report and the extent to which the other contested statements had been
qualified by the words "According to the applicant" (see Cour/Misc (94)
110; No. 46,164 (the Court's Verbatim Record), pp. 5-6).
2. The particular circumstances of the case
The facts of the present case, as submitted by the applicants or
apparent from the above-mentioned judgment, may be summarised as
follows.
From 1985 to 1994 the applicants Nick were involved in a dispute
with Sini's father, Mr. Teuvo Hokkanen, principally concerning custody
and access in respect of her. Following Sini's mother's death
Mr. Hokkanen had, according to the applicants, accepted that the
applicants Nick should permanently care for her. Subsequently they had
refused to restore Sini to him, considering that a return would have
contravened her interests. In 1988 the Supreme Court confirmed
Mr. Hokkanen's custody of Sini and ordered her return to him. This
court order was not enforced.
In 1990 the Social Welfare Board (sosiaalilautakunta, social-
nämnden) of Tuusula instituted a second round of court proceedings with
a view to having custody of Sini transferred to the applicants Nick.
On 25 September 1991 the Helsinki Court of Appeal (hovioikeus,
hovrätten) ordered that custody of Sini should be transferred to them.
It also prescribed certain access arrangements concerning Mr. Hokkanen
and Sini (see Hokkanen judgment, loc.cit., pp. 13-14, para. 29 and
pp. 14-16, paras. 33-37). On 21 January 1992 the Supreme Court (korkein
oikeus, högsta domstolen) refused Mr. Hokkanen leave to appeal (ibid.,
p. 14, para. 31).
In the ensuing enforcement proceedings which Mr. Hokkanen
instituted in June 1992 the County Administrative Board (läänin-
hallitus, länsstyrelsen) of Uusimaa on 31 December 1992 ordered the
applicants Nick to comply with the access arrangements ordered by the
Court of Appeal on 25 September 1991 on pain of having to pay an
administrative fine (ibid., p. 15, para. 35). On 21 October 1993 the
Court of Appeal upheld an appeal lodged by the applicants Nick against
the County Administrative Board's decision. Its judgment was preceded
by a hearing on 2 September 1993. On 4 February 1994 the Supreme Court
refused Mr. Hokkanen leave to appeal (ibid., pp. 15-16, para. 37).
The applicants Nick lodged unsuccessful petitions with the
National Board for Social Welfare (sosiaalihallitus, socialstyrelsen)
in 1987 and with the Parliamentary Ombudsman (eduskunnan oikeusasia-
mies, riksdagens justitieombudsman) in 1987 and 1991 regarding the
treatment to which they considered themselves subjected by the
authorities.
COMPLAINTS
1. In so far as can be ascertained from the applicants' submissions
they complain that their right to respect for their family life was
violated as a result of the treatment to which they were subjected by
the authorities in the course of the applicants Nick's dispute with
Mr. Hokkanen concerning Sini. They submit that it was only in the Court
of Appeal's judgment of 21 October 1993 that this right of theirs was
finally recognised. They invoke Article 8 of the Convention.
2. The applicants also complain of having been subjected to inhuman
and degrading treatment by the authorities in the course of the
applicants Nick's dispute with Mr. Hokkanen. They consider, in
particular, that prior to 21 October 1993 the authorities' failed to
take Sini's own opinion into account. They invoke Article 3 of the
Convention.
3. The applicants further complain that Sini's return to
Mr. Hokkanen against her will would have jeopardised her right to
personal security. They invoke Article 5 of the Convention.
4. The applicants furthermore complain that prior to the Court of
Appeal's judgment of 21 October 1993 they were denied a fair hearing
within a reasonable time by an impartial tribunal. They invoke
Article 6 of the Convention.
5. The applicants also complain that prior to the Court of Appeal's
judgment of 21 October 1993 the only interests safeguarded in the
course of the applicant Nicks' dispute with Mr. Hokkanen were those of
the last-mentioned. They invoke Article 5 of Protocol No. 7.
6. Finally, the applicants complain that, since their petitions to
the National Board for Social Welfare and the Parliamentary Ombudsman
were unsuccessful, they were denied an effective remedy within the
meaning of Article 13 of the Convention.
THE LAW
1. The applicants first appear to complain that their right to
respect for their family life was violated as a result of the treatment
to which they were subjected by the authorities during the applicants
Nick's dispute with Mr. Hokkanen concerning Sini. They submit that it
was only in the Court of Appeal's judgment of 21 October 1993 that this
right of theirs was finally recognised. They invoke Article 8 (Art. 8)
of the Convention which, in so far as relevant, reads as follows:
"1. Everyone has the right to respect for his ... family
life, ...
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 observes that at least from her mother's death
onwards Sini has effectively been cared for by the applicants Nick. It
therefore considers that at least from that moment onwards the
applicants' relationship has constituted "family life" within the
meaning of Article 8 para. 1 (Art. 8-1) of the Convention (see, e.g.,
Eur. Court H.R., Kroon and others v. the Netherlands judgment of
27 October 1994, Series A no. 297-C, pp. 55-56, para. 30). This finding
does not preclude the existence of "family life" within the meaning of
the same provision between Sini and her father, Mr. Hokkanen. In its
judgment in the case of Hokkanen v. Finland the Court indeed found that
such "family life" existed between the two (pp. 19-20, para. 54 of the
judgment).
The Commission recalls that the essential object of Article 8
(Art. 8) is to protect the individual against arbitrary interference
by the public authorities. There may in addition be positive
obligations inherent in an effective "respect" for family life. Whilst
the boundaries between the State's positive and negative obligations
under this provision do not lend themselves to precise definition, the
applicable principles are similar. In particular, in both contexts
regard must be had to the fair balance that has to be struck between
the competing interests of the individual or individuals involved as
well as the community as a whole, and in both contexts the State is
recognised as enjoying a certain margin of appreciation (cf. ibid., p.
20, para. 55).
The question arising in the present case is essentially whether
there has been a failure on the part of the Finnish authorities to
respect the "family life" prevailing between the present applicants
while attempting to strike a fair balance between the interests as well
as the rights and freedoms of these applicants as well as those of
Mr. Hokkanen (cf. ibid. p. 22, para. 58).
In the Hokkanen judgment the Court found that the applicants Nick
had initially repeatedly refused to comply with the court-ordered
provisional access arrangements concerning Sini and Mr. Hokkanen (see
ibid., p. 10, paras. 11-12); that they had subsequently refused to
fulfil their court-ordered obligation to restore Sini to Mr. Hokkanen;
and that they had finally refused to cooperate with the authorities for
the purpose of implementing the court-ordered final access arrangements
between Sini and Mr. Hokkanen (see ibid., pp. 10 et seq., paras. 15 et
seq.).
The Commission observes that despite this refusal on the part of
the applicants Nick the authorities considered themselves unable to
intervene in the dispute between them and Mr. Hokkanen with a view to
effectively enforcing the court orders issued at Mr. Hokkanen's
request. The Commission furthermore recalls that by judgment of
25 September 1991 the Court of Appeal transferred custody of Sini to
the applicants Nick, finding that the fact that she lived with them
since 30 April 1985 militated strongly in favour of her remaining in
their care (see ibid., pp. 13-14, para. 29).
Having regard to the above facts, the conflicting interests at
stake and the State's margin of appreciation, the Commission is
satisfied that the authorities made reasonable efforts to show respect
for the present applicants' "family life". There is therefore no
appearance of any violation of Article 8 (Art. 8).
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. The applicants also complain of having been subjected to inhuman
and degrading treatment by the authorities in the course of the
applicants Nick's dispute with Mr. Hokkanen. They consider, in
particular, that prior to 21 October 1993 the authorities' failed to
take Sini's own opinion into account. They invoke Article 3 (Art. 3)
of the Convention which reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission recalls that the assessment of treatment alleged
to be contrary to that provision is relative and must take account of
all the circumstances of the case (e.g., Eur. Court H.R., Ireland v.
the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65,
para. 162). In the circumstances of this case the Commission cannot
find that the treatment to which the applicants consider themselves to
have been subjected attained the threshold of "inhuman and degrading"
treatment within the meaning of Article 3 (Art. 3) 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.
3. The applicants further complain that Sini's return to
Mr. Hokkanen against her will would have jeopardised her right to
personal security. They invoke Article 5 (Art. 5) of the Convention
which reads, in its introductory part, as follows:
"Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure
prescribed by law:
..."
The Commission notes that even according to the applicants
themselves the situation which allegedly could have raised an issue
under Article 5 (Art. 5) never materialised. In these circumstances
there is no appearance of any violation of that provision.
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. The applicants furthermore complain that prior to the Court of
Appeal's hearing on 2 September 1993 and its subsequent judgment of
21 October 1993 they were denied a fair hearing within a reasonable
time by an impartial tribunal. They invoke Article 6 (Art. 6) of the
Convention.
(a) Insofar as the applicants complain that they were denied a fair
hearing before an impartial tribunal, the Commission notes that even
according to the applicants themselves such a hearing was afforded to
them by the Court of Appeal on 2 September 1993. Moreover, in its
subsequent judgment the Court of Appeal held that Sini should not be
forced to meet her father but be allowed to decide for herself,
considering her maturity. It therefore found in the applicants' favour
(see pp. 15-16, para. 37 of the Hokkanen judgment).
In these circumstances the Commission considers that the
applicants may not claim to be "victims" within the meaning of
Article 25 para. 1 (Art. 25-1)of the Convention of a violation of
Article 6 (Art. 6) on account of the alleged denial of a fair hearing
by an impartial tribunal.
It follows that this aspect of the complaint is incompatible
ratione personae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
(b) Insofar as the applicants complain about the length of the court
proceedings, the Commission recalls that in the Hokkanen v. Finland
judgment the Court found no violation of Article 6 para. 1 (Art. 6-1)
on account of the duration of the second set of custody proceeding
starting on 13 August 1990 and terminating on 21 January 1992 (see p.
26, para. 72 of the judgment). The question arises whether the two sets
of custody proceedings as well as the related enforcement proceedings
can be considered as a whole for the purposes of examining the present
grievance (cf., a contrario, No. 12366/86, Dec. 5.7.89, D.R. 62
pp. 172, 178; cf. also Eur. Court H.R., Silva Pontes v. Portugal
judgment of 23 March 1994, p. 13, para. 30 and p. 14, para. 33). Even
assuming that this question can be answered in the affirmative, the
Commission considers that this aspect of the complaint is in any case
inadmissible for the following reasons.
Since the Convention entered into force with respect to Finland
only on 10 May 1990, the Commission must limit its examination to
whether the facts occurring after that date disclosed a breach of the
Convention. Events prior to 10 May 1990 will therefore be taken into
account merely as a background to the issues before the Commission
(see, e.g., the above-mentioned Hokkanen judgment, p. 19, para. 53).
Having regard to its competence ratione temporis, the Commission
considers that the period of relevance to the assessment of whether the
length of the overall proceedings was "reasonable" began to run from
13 August 1990, when the second set of custody proceedings was
instituted, and terminated on 4 February 1994, when the Supreme Court
refused Mr. Hokkanen leave to appeal in the enforcement proceedings.
The total length of the proceedings which the Commission must assess
under Article 6 para. 1 (Art. 6-1) of the Convention thus amounts to
approximately three years and a half.
The reasonableness of the length of the proceedings is to be
determined in the light of the circumstances of the case and with
reference to the criteria laid down in the Court's case-law, in
particular the complexity of the case, the conduct of the applicant as
well as that of the competent authorities. On the latter point, the
importance of what is at stake for the applicant in the litigation has
to be taken into account (see, e.g., Eur. Court H.R., Allenet de
Ribemont v. France judgment of 10 February 1995, Series A no. 308,
p. 19, para. 47).
In the present case the Commission recalls that the second set
of custody proceedings lasted some eighteen months before three
judicial levels (see p. 26, para. 72 of the Hokkanen judgment). The
enforcement proceedings lasted about twenty months and also involved
three decision-making bodies. Between the end of the afore-mentioned
proceedings and the commencement of the enforcement proceeding there
was a gap of about five months preceding Mr. Hokkanen's enforcement
request.
The Commission does not consider it necessary to examine this
complaint in depth with regard to the various criteria laid down by the
Court, since already from the outset it cannot find that the length of
the overall proceedings was excessive, even bearing in mind the
duration of the first set of custody proceedings which terminated prior
to the entry into force of the Convention with regard to Finland.
Accordingly, there is no appearance of a violation of Article 6 para. 1
(Art. 6-1) on this point either.
It follows that this aspect of the complaint must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. The applicants also complain that prior to the Court of Appeal's
judgment of 25 September 1991 the only interests safeguarded in the
course of the applicants Nick's dispute with Mr. Hokkanen were those
of the last-mentioned. They invoke Article 5 of Protocol No. 7 (P7-5)
which reads as follows:
"Spouses shall enjoy equality of rights and
responsibilities of a private law character between them,
and in their relations with their children, as to marriage,
during marriage and in the event of its dissolution. This
Article shall not prevent States from taking such measures
as are necessary in the interests of the children."
The Commission notes that this provision concerns only the
equality between "spouses" in certain exhaustively listed situations.
Thus it is not applicable in the present case.
It follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2).
6. Finally, the applicants complain that, since their petitions to
the National Board for Social Welfare and the Parliamentary Ombudsman
were unsuccessful, they were denied an effective remedy within the
meaning of Article 13 (Art. 13) of the Convention. This provision 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."
The Commission recalls that under Article 26 (Art. 26) of the
Convention it may only deal with a matter, inter alia, within a period
of six months from the date on which the final decision was taken. The
present complaint principally appears to concern decisions taken in
1987, i.e. even before the entry into force of the Convention with
regard to Finland, and in 1991, that is more than six months prior to
20 April 1994, when the application was introduced. However, the
Commission need not determine to what extent the complaint might
therefore be incompatible ratione temporis with the provisions of the
Convention or inadmissible for non-compliance with the six months'
rule. Instead it notes that the applicants had access to remedies
within the meaning of Article 13 (Art. 13) by virtue of the court
proceedings which eventually ended in findings in their favour not only
as regards custody of Sini but also as regards the non-enforcement of
the access arrangements concerning her and Mr. Hokkanen.
It follows that this complaint must in any case 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy