AS TO THE ADMISSIBILITY OF
Application No. 32842/96
by Pekka NUUTINEN
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 15 January 1998, the following members being present:
MM N. BRATZA, Acting President
M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 26 August 1996 by
Pekka NUUTINEN against Finland and registered on 2 September 1996 under
file No. 32842/96;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 7 January 1997 and the observations in reply submitted
by the applicant on 10 March 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Finnish citizen, born in 1965 and resident in
Kuopio. He is represented by Mr Janne Kangas, a lawyer in Helsinki.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the case
In 1987 the applicant was convicted of having caused danger to
others and sentenced to one year's imprisonment. In 1990 he was
convicted of attempted manslaughter (committed without his full senses)
and sentenced to three years' imprisonment. In January 1992 he was
convicted of having threatened and assaulted his then girlfriend H and
of having subjected her to coercion. Those offences had been committed
without the applicant's full senses during H's pregnancy in
October 1991, when their relationship had been ending. He was sentenced
to three months' imprisonment.
In March 1992 H gave birth to a daughter, I. The two subsequently
moved from Kuopio to Helsinki. In November 1992 the applicant
recognised I as his child. In the light of H's objections a judge of
the then City Court (raastuvanoikeus, rådstuvurätten) of Kuopio refused
to confirm the recognition.
In an action of 21 September 1993 the applicant requested the
City Court to confirm his paternity in respect of I, that custody of
her be shared and that she be granted a right to see him every second
weekend from Friday to Sunday night. In addition, the applicant
requested access arrangements enabling I to spend part of the annual
holidays with him. The City Court's summons was served on H on
13 October 1993, the first hearing having been fixed for
14 January 1994.
It transpires from an annotation on the summons that H's address
in Helsinki was not available to the City Court, as its disclosure by
"the address service" had been "prohibited". The summons was
nevertheless served on H in Helsinki.
Before the City Court H contested the paternity claim and
objected to joint custody and to any form of access between I and the
applicant. The hearing was adjourned until 6 May 1994, the City Court
having, on 14 January 1994, ordered the parties to deliver blood
samples by 8 April 1994 on pain of an administrative fine in the amount
of FIM 1,000. H was under a duty to have samples delivered by I.
In April 1994 H married another man.
Taking note of H's failure to deliver blood samples, the City
Court, on 6 May 1994, adjourned the proceedings until 9 September 1994.
H was ordered to produce the samples by 12 August 1994 on pain of a
fine of FIM 2,000. At its hearing on 9 September 1994 the City Court
adjourned the proceedings until 16 December 1994, having decided to
seek opinions on the question of access both from the Kuopio Social
Welfare Board (in respect of the applicant) and from the Helsinki
Social Welfare Board (in respect of H and I).
On 2 December 1994 the Helsinki Social Welfare Board, without
indicating any reasons, requested that the time-limit for the
submission of its final opinion be extended until 31 May 1995.
According to the Government, the Board based its request on H's strong
fears of the applicant and on her new pregnancy which was expected to
end in December 1994.
On receipt of the request for an extension the District Court
requested the Helsinki Social Welfare Board to provide it with a
preliminary opinion by 14 December 1994.
In its opinion of 12 December 1994 the Kuopio Social Welfare
Board noted that the applicant did not wish to be in contact with H and
her new husband but was willing to accept that the authorities act as
intermediaries during an initial period of access. Moreover, he
considered that the initial meetings between him and I should take
place in the city or town where I was resident.
In its preliminary opinion of 14 December 1994 the Helsinki
Social Welfare Board suggested, according to the Government, that the
examination of the access question be adjourned until the end of
May 1995 so that a convenient solution for I could be found in the
exceptional situation. The Board's opinion has not been made available
to the Commission.
On 16 December 1994 the Kuopio District Court (käräjäoikeus,
tingsrätten; the former City Court) confirmed the applicant's paternity
in respect of I and ordered, on an interim basis, that the two could
meet for two hours on the last Saturday of March, April and May 1995.
The meetings were to take place in Helsinki on premises to be proposed
by "Pienperheyhdistys ry", an association working in this field. The
District Court finally adjourned the proceedings until 2 June 1995.
In a written opinion of 2 March 1995 drawn up for the purposes
of the access proceedings Dr V, a specialist in medicine and surgery
and also a child and youth psychiatrist, stated as follows:
(translation from Finnish)
"[H], [I], [H's husband] and [their son] have paid a visit
to my practice.
[H] has shown to me a number of documents relating to
certain court proceedings; in part to the [access
proceedings] and in part to [the applicant's assault of H].
It transpires from the documents that it is intended to
organise unsupervised meetings between [I] and [the
applicant].
On the basis of the above material I must, as an expert,
prohibit the meetings in question until further notice.
Both supervised and, in particular, unsupervised meetings
would amount to a flagrant violation of the best interests
of the child and would subject [I] at least to a serious
mental and possibly also physical danger and could damage
her mental development to an extent which would be
difficult to treat.
This opinion is of a preliminary character because I am
currently examining the matter [more] thoroughly. The
examination will last a few months, following which I will
be prepared to submit a more detailed and more reasoned
opinion.
The above is being submitted on my honour and conscience.
(signature and title)"
In a letter of 22 March 1995 the Helsinki Social Welfare
Authority informed the applicant that the meeting between him and I
fixed for 25 March 1995 would not take place. H had informed the
Authority that she had no intention of bringing I to the meeting-place,
the reason being that she feared that I might be subjected to
"something harmful". The Authority's attempts to convince H to comply
with the court order had been unsuccessful.
On 18 April 1995 the applicant lodged a request for enforcement
with the County Administrative Board (lääninhallitus, länsstyrelsen)
of Uusimaa acting as Chief Bailiff (ulosotonhaltija, överexekutor). He
referred to H's failure to bring I to the meeting fixed for March.
Moreover, a leading official of the Helsinki Social Welfare Authority
had informed the applicant that H was keeping his paternity secret
from I.
In a further letter to the applicant the Helsinki Social Welfare
Authority stated, without providing any explanations, that H would not
bring I to the meeting fixed for April either.
On 22 May 1995 the applicant repeated his enforcement request,
referring to H's failure to bring I to the April meeting.
On 29 May 1995 the Helsinki Social Welfare Board submitted its
final opinion to the District Court on the question of access. The
opinion has not been made available to the Commission. According to the
Government, the Board noted H's strong fears and suspicions in respect
of the applicant's and his intentions. H seemed to fear that the
applicant's and I's meetings would cause physical or psychological harm
to I or her new family. In the explosive situation at hand it would be
difficult to organise the visits in an atmosphere which could be
beneficial to I. Visits should nevertheless be aimed at in the long
perspective, it being in I's best interests to meet her father in
secure conditions and to be able to form her own opinion of him.
On 2 June 1995 the District Court adjourned the access
proceedings until 15 June 1995 at H's request. In its decision of
15 June 1995 it afforded custody of I solely to H, granted I a right
to see the applicant for two hours on the last Saturday of every second
month and ordered H to pay the fine of FIM 1,000 for not having
complied with its order of 14 January 1994. As regards the question of
access the District Court stated:
(translation from Finnish)
"According to the opinion of the ... Helsinki Social
Welfare Authority [I] is a well-balanced child with a
trusting attitude towards adults. Witness [V] has stated in
his report that the tests carried out by [H], Chief
Psychologist, and [V's] psychological interviews have shown
that she is well cared for, mentally balanced, has
developed and continues to develop well ... According to
[V], [I] is a healthy and happy child. [He] is of the
opinion that [the applicant] cannot be granted access
rights ..., since [H] is afraid of meeting [him] and [I]
can sense that fear on the part of her custodian.
Bearing in mind that the three-year-old [I] is a well-
balanced child, who is behaving in a manner which is
adequate for her age, short meetings between her and her
biological father and other strangers cannot be considered
harmful to her, provided [her] custodian is able to support
her mentally in connection with the meetings. There is thus
no reason to prohibit access ... completely. ...
For these reasons, ... the District Court finds that [I] is
entitled to meet her father and to stay in contact with
him. ..."
The District Court specified that the meetings between the
applicant and I were to take place at a centre for children in
Kauniainen (near Helsinki), where they could be supervised.
Both parties appealed against the District Court's final
decision.
On 4 July 1995 the County Administrative Board appointed an
official of the Helsinki Social Welfare Authority to act as conciliator
in the enforcement proceedings. She was ordered to submit her report
by 1 August 1995. H's lawyer informed the conciliator that H could not
be reached in July 1995, since she was on holiday.
On 19 July 1995 the conciliator requested to be replaced by
another official, the applicant having objected to her appointment as
she had been involved in drawing up the Helsinki Social Welfare
Authority's opinion to the Kuopio District Court.
On 21 July 1995 the County Administrative Board appointed the
suggested official to act as conciliator and ordered her to submit her
report by 15 August 1995. H informed the conciliator that she wished
the matter to be handled by her lawyer, who would be on holiday until
15 August 1995.
On 10 August 1995 the applicant repeated his enforcement request
and referred to H's failure to bring I to the July meeting.
In her report of 21 August 1995 the conciliator concluded that
the situation was completely "locked" and that conciliation therefore
had to be excluded. H was categorically opposed to any access between
I and the applicant and had refused to even discuss the matter in
person with the conciliator. The applicant, for his part, was
approaching the matter so aggressively and expressing such threats that
it rendered any dialogue difficult. Even his telephone calls to the
conciliator had been impertinent and had contained threats.
Heard in writing by the County Administrative Board, H referred,
inter alia, to the applicant's convictions and prison sentences. It
appears that H also invoked V's opinion of 2 March 1995. In his
rejoinder the applicant essentially considered that such material was
irrelevant for the purposes of the enforcement proceedings. He,
moreover, pointed out that Dr V had retired from his post and had
expressed his views against remuneration by H.
On 19 September 1995 the County Administrative Board rejected the
applicant's request for enforcement of the access arrangements ordered
on 16 December 1994, noting that the District Court's interim order of
that date had been replaced by its final decision of 15 June 1995. The
applicant appealed to the Helsinki Court of Appeal (hovioikeus,
hovrätten).
On 29 September 1995 the Court of Appeal of Eastern Finland
dismissed both parties' appeal in the proceedings concerning custody
and access and in essence upheld the District Court's judgment of
15 June 1995. Both parties sought leave to appeal to the Supreme Court
(korkein oikeus, högsta domstolen).
On 7, 8 and 9 December 1995 the applicant repeated his
enforcement request, referring to H's failure to bring I to the
September and November meetings.
On 19 December 1995 the Helsinki Court of Appeal, acting as
appellate body in the enforcement proceedings, quashed the County
Administrative Board's decision of 19 September 1995 and ordered it to
reconsider the applicant's request as if it also comprised a request
for enforcement of the access arrangements ordered on 15 June 1995.
The County Administrative Board joined the remitted request and
the applicant's fresh request for enforcement and again heard H in
writing. According to the Board's summary she stated, inter alia, as
follows:
"... [The applicant's] intention has clearly been to harass
[H] by requesting the imposition of administrative fines.
The imposition of fines would not be in the best interests
of the child, since [H's] financial possibility of caring
[for I] would thereby be significantly jeopardised. The
courts' finding that the biological father's rights are so
strong that they must be given more weight than the
experts' views on the best interests of the child is
astonishing. Both the social welfare officers of the City
of Helsinki and child psychiatrist [V] had been of the
opinion that [access between I and the applicant] would not
at this stage be in the best interests of the child."
The applicant submitted his rejoinder on 29 January 1996. On
13 February 1996 the County Administrative Board ordered H to comply,
on pain of an administrative fine of FIM 5,000, with the access
arrangements ordered on 15 June 1995 and upheld on 29 September 1995.
The Board found that H had not put forward any acceptable reason for
her refusal to bring I to the meetings fixed for July, September and
November 1995. Moreover, the Supreme Court had not suspended the
enforcement of the decision of 29 September 1995 of the Court of Appeal
of Eastern Finland. Finally, the expert views to which H had referred
and which allegedly showed that enforcement would not be in the child's
best interests had been known already to the first instance court in
the civil proceedings regarding access and custody. That material could
therefore not be invoked at the enforcement stage.
On 7 March 1996 the Supreme Court refused leave to appeal in the
civil proceedings concerning custody and access.
On 14 October 1996 the County Administrative Board ordered H to
pay the fine of FIM 5,000 and ordered her to comply with the access
arrangements on pain of a further fine of FIM 8,000.
According to the Government, the Helsinki Social Welfare Board
drew up certain further documents in the case on 6 March 1995 and
18 November 1996. These have not been made available to the Commission.
According to the applicant, the enforcement proceedings remain
pending. Furthermore, he has instituted fresh civil proceedings
regarding access and custody.
B. Relevant domestic law
According to the 1975 Paternity Act (isyyslaki, lag om faderskap
700/1975), a court shall of its own motion collect all the evidence
which is necessary for a paternity investigation (section 30). Cases
relating to the establishment or annulment of paternity shall be dealt
with urgently (section 46).
According to the 1983 Act on Custody and Access Rights with
Regard to Children (laki lapsen huollosta ja tapaamisoikeudesta, lag
ang. vårdnad om barn och umgängesrätt 361/1983), the court shall place
primary emphasis on the interests of the child and have particular
regard to the most effective means of implementing custody and access
rights in the future (sections 9 and 10). The court's interim orders
and decisions are immediately enforceable, unless they state otherwise
(sections 17 and 19).
The 1975 Act on the Enforcement of Decisions concerning Custody
of Children and Access Rights (laki lapsen huollosta ja
tapaamisoikeudesta annetun päätöksen täytäntöönpanosta, lag om
verkställighet av beslut som gäller vårdnad om barn och umgängesrätt
523/1975) was in force up to 1 December 1996, when it was replaced by
Act no. 619/1996. Under the 1975 Act enforcement proceedings were to
be instituted before the Chief Bailiff which, before ordering
enforcement, was to assign as a conciliator a person appointed by the
Social Welfare Board or another suitable person to mediate between the
parties with a view to enforcing the decision and to draw up a report.
Such mediation was to be aimed at persuading the person taking care of
the child to comply voluntarily with his or her obligations under the
relevant decision. Conciliation was not to be ordered if it was evident
from previous attempts that it would be unsuccessful or, in the case
of a custody decision, if immediate enforcement was in the child's
interests and dictated by strong reasons (sections 4 and 4a). The Chief
Bailiff's decision could, unless otherwise stated therein, be enforced
immediately (section 13).
If deemed necessary, the Chief Bailiff had to obtain opinions
from a State and municipal authorities as well as from the child itself
and others. It could also proceed to hearing witnesses and experts and
have the child examined by a physician (section 11 of the 1975 Act).
If, following the access decision, the conditions had changed so
significantly that a re-examination by the civil court would be in the
best interests of the child, the Chief Bailiff was to dismiss the
enforcement request (section 7 of the 1975 Act).
The Chief Bailiff could impose an administrative fine for
enforcement purposes (section 5). According to the 1889 Penal Code
(rikoslaki, strafflag), such a fine shall be fixed on the basis of the
means of the person concerned. If the fine cannot be collected, it must
be converted into a prison sentence (chapter 2, sections 4 and 5).Under
the 1975 Act enforcement could not take place against the child's own
wishes if he or she was twelve years of age or sufficiently mature for
his or her wishes to be taken into account (section 6). The 1996 Act
contains a similar provision (section 2).
According to 1996 Act, a request for enforcement shall be lodged
with the competent district court which shall normally appoint a
conciliator to mediate and draw up a report (sections 6 and 8). The
District Court may hear the conciliator, the child and others orally,
obtain opinions from State and municipal authorities and order that the
child be examined by a physician or other expert (section 12).
The 1996 Act furthermore provides for the possibility of fetching
the child with a view to enforcing access arrangements, if it is likely
that they would not materialise otherwise and there are particularly
weighty reasons for such a measure, bearing in mind the best interests
of the child (section 16). The conciliator or a representative of the
social welfare authority shall be present during the fetching. He or
she shall request the presence of a person close to the child and, if
necessary, that of a physician or other expert (section 24). All
measures shall be carried out without shocking the child. If
enforcement is impossible due to, for instance, the shock experienced
by the child, it shall be postponed (section 3).
The district court may, on pain of an administrative fine, order
the defendant to hand over the child to the party seeking enforcement
and, inter alia, to disclose the child's whereabouts (sections 15 and
17). For particular reasons, the fine may be staggered, depending on
the duration of the non-compliance (section 18).
COMPLAINTS
1. The applicant complains that the proceedings were excessively
lengthy, particularly as they involved a number of unnecessary
adjournments before the District Court. He emphasises that under
domestic law paternity actions are to be dealt with speedily. He
invokes Article 6 of the Convention.
2. The applicant also complains that the court-ordered access
arrangements in respect of his daughter were excessively limited. The
authorities have failed to make sufficient efforts to enforce even
those visiting rights. Instead the authorities have ordered the
daughter's address and telephone number to be kept secret. As a result
the applicant has not once been able to see or otherwise contact her
nor obtain any information about her from the authorities. He invokes
Article 8 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 August 1996 and registered
on 2 September 1996.
On 13 September 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
7 January 1997, after an extension of the time-limit fixed for that
purpose. The applicant replied on 10 March 1997. On 15 April 1997 the
Commission granted the applicant legal aid.
THE LAW
1. The applicant complains that the proceedings have been
excessively lengthy, particularly as they involved a number of
unnecessary adjournments before the District Court. He invokes
Article 6 para. 1 (Art. 6-1) of the Convention, which reads, in so far
as relevant:
"In the determination of his civil rights ..., everyone is
entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established
by law. ..."
The Government submit that the complaint is manifestly
ill-founded. The length of the proceedings have not exceeded a
reasonable time, bearing in mind the complexity of the case and the
conduct of both the applicant and the relevant authorities. The
combined paternity, custody and access proceedings were conducted at
three court levels and commenced on 21 September 1993, when the
applicant requested the City Court to issue a summons against H. They
ended with the Supreme Court's decision of 7 March 1996, having thus
lasted almost two years and six months. In the Government's opinion the
matter could be considered particularly complex. The adjournments of
the proceedings before the first instance court were necessary so as
to obtain the various material which the social welfare and health care
authorities were obliged to submit under domestic law. The safeguarding
of I's best interests as well as the birth of H's second child also
delayed the proceedings. Finally, the Government argue that the
applicant himself was partly responsible for the delay by his
"demanding, threatening and aggressive behaviour" which rendered the
social welfare authorities' work more difficult.
As regards the length of the overall proceedings, including those
before the enforcement authorities, the Government again stress the
particular complexity of the case. The enforcement proceedings were
instituted by the applicant on 20 April 1995 and have not yet ended.
The first conciliator and the County Administrative Board actively
sought to avoid delays resulting from the applicant's request to have
her replaced. The conciliation efforts were interrupted when it became
clear that they would remain fruitless. The County Administrative
Board's first decision was made five months after the applicant's first
request for enforcement.
The applicant contends that the length of the proceedings cannot
be considered reasonable. They were delayed, inter alia, because the
Kuopio City Court failed to collect all evidence already in the
proceedings leading to the refusal to confirm his recognition of
paternity in 1992.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs on the question
of "reasonable time", and having regard to all the information in its
possession, that an examination of the merits of the complaint is
required.
2. The applicant also complains that the court-ordered access
arrangements excessively limited his right to see his daughter I; that
the authorities have failed to make sufficient efforts to enforce even
these arrangements; and that the authorities have ordered I's and her
mother's address to be kept secret. As a result the applicant has not
once been able to see or otherwise contact his daughter nor obtain any
information about her from the authorities. The applicant invokes
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 private and
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 Government accept that Article 8 (Art. 8) is applicable but
submit that this complaint is also manifestly ill-founded. The positive
obligation inherent in an effective respect for family life is not
absolute. According to the social welfare officials and the second
conciliator involved in the dispute, the relationship between the
applicant and H has been exceptionally complicated. Given their very
strong negative attitude both towards each other and the authorities,
the latter must be considered to have done everything that could
reasonably be expected of them to facilitate the enforcement of the
access arrangements in respect of I. The non-enforcement of those
arrangements has been due to H's non-compliance with the court orders.
Moreover, on Dr V's advice she has not told I that I is the daughter
of the applicant and not that of H's present husband. However, the
Government cannot be held directly responsible for H's behaviour.
The Government furthermore consider that the applicant himself
has failed to cooperate with the authorities in order to find a
solution which would be "working and positive from the child's point
of view" and based on an investigation which would be "as reliable and
impartial as possible". Instead the applicant's "demanding, threatening
and aggressive" behaviour towards the authorities shows that H's
fearful attitude has been justified. The Government submit, moreover,
that already in October 1991 the applicant threatened H and her
parents. Reference is also made to his convictions of attempted
manslaughter and assault as well as to a report on his mental health
submitted in the proceedings leading to his conviction of the latter
offence in 1990. The Government consider that the applicant suffers
from serious psychological problems.
The Government submit no observations in regard to the alleged
concealing of the address and telephone number of the applicant's
daughter.
The applicant refutes the relevance of the report on his mental
health which is outdated. In any event, the said report shows that he
is no more aggressive than others. After his release from prison in
1990 he has never been deemed to be in need of therapy and during the
last five years his conduct has also been blameless.
The applicant contends that in 1995 he would have been willing
to negotiate with the officials of the Helsinki Social Welfare
Authority also by other means than over the telephone, provided steps
had been taken to organise meetings between the applicant and his
daughter on the Authority's premises. As a result of the authorities'
ineffectiveness he has still never seen her or been able to contact her
by mail or telephone. Instead he has been obliged to institute further
enforcement proceedings and to seek a reassessment of the substance of
the custody and access matter.
The applicant finally considers that his right to respect for the
confidentiality of his conversations with his physician has been
violated in the course of the proceedings before the Commission. The
contents of those conversations have, without sufficiently weighty
reasons, been conveyed to other authorities and in part to the
Government's representatives before the Commission.
The Commission considers, in the light of the parties'
submissions, that this part of the case raises complex issues of law
and of fact under the Convention, the determination of which should
depend on an examination of the merits of the application. The
Commission concludes, therefore, that this part of the application is
not manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for declaring it
inadmissible have been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.F. BUQUICCHIO N. BRATZA
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy