AS TO THE ADMISSIBILITY OF
Application No. 16534/90
by H.O.
against Iceland
The European Commission of Human Rights sitting in private on
12 October 1992, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H. C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 December 1989
by H.O. against Iceland and registered on 30 April 1990 under file No.
16534/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 23 March and 28 July 1992 and the observations in reply
submitted by the applicant on 27 April and 3 September 1992;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is an Icelandic citizen, born in 1945. She resides
in Reykjavik. Before the Commission she is represented by Mr. Pétur
Gunnlaugsson, a lawyer practising in Reykjavik.
A. The particular facts of the case
The applicant and her husband, S, separated in August 1985. They
could not agree on the question of custody of their son A, born
in 1973, their son B, born in 1974, and their daughter C, born in 1981,
and they chose to refer the matter to the Ministry of Justice for
decision. After having obtained the opinion of the child welfare
committee and subsequently, in accordance with the applicant's request,
the opinion of the Child Welfare Council of Iceland, the Ministry of
Justice decided, on 19 August 1985, that S should have custody of the
children.
The applicant and S divorced in September 1986 and a dispute
arose again with regard to custody of the children. Opinions were
obtained from the respective child welfare committees of the
municipalities where the applicant and S lived. Their opinions were
received by the Ministry of Justice on 2 and 16 December 1986. Both
recommended that custody of the children remain with S. On 13 February
1987 the Ministry of Justice decided, inter alia on the basis of the
above opinions, that custody of the children remain with S.
On 26 June 1987 the Ministry of Justice received a request from
the applicant to review its custody decision of 13 February 1987. The
applicant emphasised in particular that custody of the youngest child,
the daughter C, should be transferred to her as the question of the
custody over the other children had been solved. The matter was again
referred to the child welfare committees and their opinions were
received by the Ministry on 2 November 1987 and 11 February 1988
respectively. The first opinion recommended that custody of the
daughter C be transferred to the applicant, mainly on the grounds that
the children's conditions at home had been disturbed by their moving
abroad, as in the autumn of 1987 S had moved to Spain with the three
children. It was also stated that the applicant's social circumstances
were much better than before. In the other opinion the social
circumstances of the applicant were described, without a stand being
taken as to how custody should be arranged.
In November 1987 the Ministry of Justice asked the Spanish social
welfare authorities to submit an opinion concerning S in respect of the
custody question. The opinion of the International Social Service in
Spain was received by the Ministry on 6 February 1989. The opinion
concluded that the circumstances of S and his family in Spain were
good, that C had adapted well to the new conditions, and that it was
in her best interests to continue to stay with her father.
In February of the same year the applicant requested that the
Ministry, before deciding on her request for a transfer of custody,
obtain a new opinion of the competent Icelandic child welfare
committee, as more than one year had passed since the committee
delivered its last opinion concerning her circumstances. The Ministry
granted this request and, in April 1989, requested an opinion from the
child welfare committee on the applicant's situation. The opinion was
received by the Ministry on 21 August 1989. It recommended that custody
of C be transferred to the applicant, as her situation was good.
On 28 August 1989 the Ministry of Justice decided to leave the
custody of C with her father. In its decision, the Ministry stated
inter alia:
(translation)
"According to Section 39, sub-section 2, of Act No. 9/1981 the
Ministry may, upon the request of either parent, change its
previous decision on custody, if such a change is considered
justifiable in the light of the circumstances of the case and
having regard to the child's interests and needs.
This provision must be interpreted in such a way as to justify
a transfer of custody if the parent who has custody neglects the
parental duties, is unable to fulfil them, or if there are other
special reasons. On the other hand, it cannot be considered
sufficient for a transfer of custody that the social situation
of the parent who does not have custody has changed for the
better, and it must be considered to be in the child's interest
to secure a stable upbringing.
Having regard to the above and taking into account the documents
submitted in this case, inter alia the report of the social
authorities in Spain, the Ministry considers that the conditions
set out in Section 39, sub-section 2, of the Act in respect of
children are not fulfilled and therefore rejects the applicant's
request."
The applicant did not approve of this conclusion and a meeting
with the Minister of Justice took place on 30 August 1989 during which
the applicant criticised the Ministry's handling of the case and
alleged that alien views had governed the decision taken. By letter of
1 September 1989 the Ministry pointed out to the applicant that it was
open to her to refer her complaints to the Parliamentary Ombudsman or
to the courts.
The applicant lodged her formal complaint with the Parliamentary
Ombudsman on 9 September 1989. On 12 January 1990 the Ministry of
Justice sent its report and the case-file to the Parliamentary
Ombudsman who concluded, on 4 May 1990, that there was no reason to
criticise the Ministry's treatment of the case.
On 2 August 1990 the applicant requested the Ministry of Justice
to change its decision of 28 August 1989. The applicant's request was
accompanied by a psychiatrist's report. However, the Ministry
considered that the applicant's request and the documents enclosed
provided no indication that the grounds on which the Ministry's custody
decision of 28 August 1989 was based had changed so as to justify, with
regard to the child's interests and needs, a new examination of the
matter. The applicant's request for a review of the Ministry's earlier
decision with regard to C's custody was accordingly refused on
9 August 1990.
On 21 August 1990 the applicant again requested the Ministry of
Justice to change its decision concerning the custody of C. On
8 July 1992 the Ministry of Justice informed the applicant that a new
Child Act had entered into force on 1 July 1992 which entitled her to
refer the matter of custody to the courts. The applicant was therefore
requested to inform the Ministry whether she intended to leave the case
with the Ministry or whether she intended to pursue the matter in
court. It appears that the custody issue is still pending in the
Ministry of Justice and that the applicant does not intend to bring it
before the courts in accordance with the provisions of the Child Act
which entered into force on 1 July 1992. Furthermore, it appears that
the daughter, C, has in fact been living with the applicant in Iceland
since July 1990.
B. Relevant domestic law
Section 2 of the Constitution of the Republic of Iceland of 17
June 1944 provides as follows:
(translation)
"The legislative power is jointly vested in the Althing and the
President of the Republic of Iceland. The executive power is
exercised by the President and other governmental authorities in
accordance with this Constitution and other laws of the land. The
judicial power is exercised by the judiciary."
Section 60 of the Constitution reads as follows:
(translation)
"The judges shall resolve all disputes over the extent of the
power of administrative officers. But no one seeking a judicial
ruling thereunto can evade obeying temporarily an order of the
administrative officer by submitting the matter to judicial
decision."
Section 66 of the Code of Civil Procedure of 23 June 1936
provides as follows:
(translation)
"The courts have jurisdiction to adjudicate any matter in
controversy to which the law of the land applies, provided it is
not exempt from their jurisdiction by statute or custom, or by
virtue of its nature."
Statute provisions on separation of married couples, separation
agreements and the power to resolve disputes are found in Act no. 60
of 29 May 1972 (hereinafter referred to as the Marriage Act) in respect
of contracting and terminating marriage. The concept of separation, as
relating to married couples, is twofold under Icelandic law. First, a
married couple can be granted a separation under Section 31 of the
Marriage Act. Secondly, when one year has passed since the separation
and the couple have not been living together during that period, each
of them can, as a general principle, claim divorce under Section 34 of
the Marriage Act. According to the provisions of the Marriag
married person may also, by reason of certain facts, be entitled to
divorce in the absence of previous separation.
By Section 9 of Act no. 39 of 26 May 1992, Section 47 of the
Marriage Act was amended. It now provides that, in the event of
separation or divorce, custody of the children shall be determined in
accordance with the provisions of the Child Act. The Marriage Act no
longer contains provisions relating to custody arrangements. The
amendment entered into force on 1 July 1992.
The previous Child Act of 15 April 1981 contained in its
Chapter 8 provisions on parental duties, custody and rights of access.
Section 38, subsection 1, provided that if married or cohabiting
parents separated they should decide who should have custody of their
child, provided this would not be contrary to the child's interests.
It furthermore provided that if a decision on custody was contrary to
the child's interests, or if the parents disagreed, the Ministry of
Justice, having obtained the opinion of a child welfare committee,
should decide on the matter in fairness, in the best interest of the
child and having regard to its circumstances and needs. Custody should
remain undivided with one parent.
According to Section 38, subsection 2, of the previous Child Act
custody should always be determined when the parents separated and when
a decision was made concerning divorce. The Ministry of Justice, or a
court of law, could decide provisionally on the custody of children
whose parents wanted separation or divorce.
Section 39, subsection 1, of the previous Child Act provided that
an agreement between parents, concluded in accordance with Section 38,
could be changed by a decision of the Ministry of Justice, if the
parties agreed to refer the matter to the Ministry, or else by
judgment. A change could only be made if it was justified by changed
circumstances and having regard to the child's interests and needs.
Finally, Section 39, subsection 2, of the previous Child Act
provided that if the Ministry of Justice decided how the custody of a
child should be arranged, it could change its decision at the request
of either parent, if a change was deemed justified in the light of
changed circumstances and having regard to the child's interests and
needs. The same applied where a court of law had awarded the custody
of a child to one parent.
On 1 July 1992 a new Child Act (Act No. 20 of 22 May 1992)
entered into force. The new Act provides for some changes in the
handling of custody cases. The Act's main principles relating to
custody disputes are found in its Sections 34, 35 and 36 which read as
follows:
(translation)
"Section 34
If parents disagree on custody of a child, their dispute
shall be resolved in a court of law. The Ministry of
Justice may resolve disputes concerning custody, provided
the parties agree to give power of resolution to the
Ministry. If separation has been applied for in court the
same court shall resolve disputes concerning custody,
unless the parties are in agreement to refer resolution in
the matter of custody to the Ministry of Justice. Even if
a magistrate decides on an application for separation, a
dispute relating to custody of a child may be referred to
judicial resolution. Such cases shall be proceeded with
expeditiously.
The court or the Ministry of Justice shall, in the
resolution passed, decide which parent shall have custody
depending on how the child's interests are best served.
Joint custody may only be ordered if the parents agree on
such arrangement. In case neither parent is deemed fit for
having custody, the child welfare committee shall have
custody as provided for in the Child Welfare Act.
The Ministry of Justice shall generally seek the opinion of
the child welfare committee before a matter involving
custody is brought to a conclusion. A court shall seek the
opinion of the child welfare committee if deemed advisable.
A child who has reached 12 years of age shall be provided
with an opportunity of expressing its views in the matter
of a custody dispute, except if this is deemed likely to
harm the child or irrelevant for the outcome of the matter.
A younger child may also be consulted, as the case may be,
having regard to its age and maturity. A court of law, or
the Ministry of Justice, may entrust examination of a
child's views, and the preparation of a report thereon, to
one or more specialists.
In cases of particular need a representative may be
appointed for a child in order to protect its interests
when the matter of custody is resolved; his fee shall be
paid by the State Treasury.
Further provisions relating to procedure in cases of this
nature are in Chapter VIII and IX of this Act.
Section 35
In case one parent requests that changes be made to an
agreement relating to custody, or to a resolution of a
court of law or the Ministry of Justice in that respect,
the matter shall be resolved by a court of law, or by the
Ministry of Justice if the parties agree on such procedure.
A request in accordance with this subsection shall only be
granted if the change is deemed justified on account of
changed circumstances and with a view to the child's
interests and needs. The following subsection shall,
however, apply to a parent's request for cancellation of an
agreement on joint custody of a child.
Parents having joint custody of a child under an agreement
may at any time ... request that such agreement be
cancelled. The magistrate may then validate a new agreement
between the parents, as the case may be, in accordance with
the provisions of Section 33, subsection 4, and any
disputes shall be referred to a court of law or the
Ministry of Justice for resolution, as provided for in
Sections 34 and 36.
If a mother has custody of a child according to Section 30,
subsection 2, the child's custody may be transferred to its
father on his request, if such custody arrangement is
deemed best to serve the interests of the child. When
resolving a matter in accordance with this subsection the
child's ties to its father shall be among the factors taken
into account. The provisions of the 1st and 2nd sentences
of Section 34, subsection 1, shall apply to cases to which
this subsection applies.
Section 36
In a case of dispute concerning the custody of a child a
court of law or the Ministry of Justice, dependent on where
the procedure is conducted, may decide provisionally how
the matter of the child's custody shall be arranged, as
best suits the interests of the child. Such decisions may
be altered by reason of significant changes in the
circumstances. A decision on provisional custody
arrangements is not binding on the authority which shall
pass the resolution concerning permanent custody
arrangements, and the legal competence of the authority
rendering a decision on custody provisionally, shall not be
affected as regards resolution of the custody dispute in
other respects."
Section 77 of the Act contains a special temporary provision
concerning the custody cases which were in progress at the Ministry of
Justice when the Act entered into force on 1 July 1992. Section 77,
subsection 1, reads as follows:
(translation)
"Parties to disputes involving custody subject to procedure
at the Ministry of Justice when this Act enters into force
shall be informed of their right to seek judicial
resolution thereof. A time-limit may be set for the parties
to decide whether to request cancellation of the procedure
at the Ministry of Justice."
COMPLAINTS
The applicant complains, under Article 6 para. 1 of the
Convention, that in the circumstances of the present case, only the
Ministry of Justice can decide on the question of the transfer of
custody rights whereas she cannot have this issue determined by a court
as she considers the existing possibilities in Iceland to be
ineffective and insufficient.
She furthermore complains that the Ministry's decisions to refuse
her request for a transfer of custody of her daughter C are incorrect.
She does not in this respect invoke any Articles of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 December 1989 and registered
on 30 April 1990.
On 6 January 1992 the Commission decided to bring the application
to the notice of the respondent Government and to invite them to submit
written observations on its admissibility and merits.
The Government's observations were submitted on 23 March 1992 and
the applicant's observations in reply were submitted on 27 April 1992.
The Government submitted supplementary observations on 28 July 1992 and
the applicant's supplementary observations in reply were submitted on
3 September 1992.
Legal aid was granted to the applicant on 10 July 1992.
THE LAW
1. The applicant complains that she does not have access to a
tribunal for the determination of the custody dispute between her and
her ex-husband. She invokes in this respect Article 6 para. 1
(Art. 6-1) of the Convention which in its relevant parts reads:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing ...
by an independent and impartial tribunal established by
law."
It is not in dispute between the parties that the issue of a
transfer of custody concerns a "civil right" within the meaning of
Article 6 (Art. 6) of the Convention. The Commission must consequently
examine whether the applicant had access to a tribunal within the
meaning of the above provision.
The applicant submits that she had no access to a court with full
jurisdiction on questions of law and fact under the legislation which
was in force until 1 July 1992. As the initial decision on custody was
taken by the Ministry of Justice the only judicial control would be
under Section 60 of the Icelandic Constitution which, however, could
only lead to an invalidation of the administrative decision if the
procedure was formally unlawful, but the court would have no power to
change an allegedly unfair or unjust decision.
The applicant furthermore submits that the new Child Act of
22 May 1992 which entered into force on 1 July 1992 is not essentially
different from the old legislation. If parents decide to submit their
dispute to the Ministry of Justice a subsequent decision from the
Ministry cannot be referred to the court for a final decision except,
as in the old system, under Section 60 of the Constitution.
Furthermore, according to Section 35, subsection 1, of the new Act a
transfer of custody will only be granted if this is deemed justified
on account of changed circumstances. Accordingly, so the applicant
contends, the new legislation does not provide a system whereby the
administrative decision may be referred unconditionally to a court for
final decision.
The Government submit that although the previous Child Act did
in fact allow parents to bring a custody dispute directly before the
ordinary courts of law for final determination, a parent could not
obtain such a direct determination unless the initial decision on
custody had been taken by a court. Accordingly, the Government accept
that since the applicant initially chose to refer the matter to the
Ministry of Justice instead of to a court, she could not subsequently
bring it directly before a court under the Child Act of 1981.
However, the Government maintain that Section 60 of the
Constitution allows the applicant, according to established practice,
to refer her case to the ordinary courts of law requesting that the
disputed administrative decision be invalidated. The Government submit
that such litigation would result in a judicial examination of all
aspects of the case in order to ascertain whether the administrative
decision was reasonable in the light of the facts and the available
evidence, and whether correct procedures had in other respects been
observed.
Finally the Government refer to the new Child Act of 1 July 1992
from which it is clear that the applicant may bring her custody claims
before the courts for final determination.
As regards the applicant's objections to the involvement of an
administrative authority in custody disputes, the Commission recalls
that Article 6 para. 1 (Art. 6-1) of the Convention does not require
that the procedure which determines civil rights and obligations is
conducted at each of its stages before tribunals meeting the
requirements of this provision. An administrative procedure may thus
precede the determination of civil rights by the tribunal envisaged in
Article 6 para. 1 (Art. 6-1) (see Ettl and Others v. Austria, Comm.
Report 3.7.85, para. 77 et seq., Eur. Court H.R., Series A no. 117,
p. 23.) There must, however, be a subsequent control by a judicial body
which has full jurisdiction and provides the guarantees of Article 6
para. 1 (Art. 6-1) (see Eur. Court H.R., Albert and Le Compte judgment
of 10 February 1983, Series A no. 58, p. 16, para. 29).
In the present case the Commission recalls that the applicant
may, at any moment, challenge before the ordinary courts of law, the
administrative decisions taken in respect of the custody dispute in
accordance with Section 60 of the Icelandic Constitution and, after
1 July 1992, in accordance with the Child Act, but that she has chosen
not to avail herself of this opportunity although this has been pointed
out to her explicitly on at least two occasions by the respondent
Government.
Accordingly the Commission finds that the applicant had access
to a domestic court. It remains to be determined whether this court
fulfils the requirement of Article 6 (Art. 6) of the Convention in
respect of its jurisdiction.
As regards the judicial review open to the applicant before
1 July 1992 the Commission finds that the court would be able to review
also the facts of the case in that it can examine inter alia whether
they have been incorrectly or incompletely established by the Ministry
of Justice. While the purpose of such review is to determine any
procedural defects leading to the unlawfulness of the decision the
Commission has not found limits in respect of the assessment and
supplementation of the facts. Furthermore, the Commission notes that
the court can quash the contested decision as being unlawful if, after
its examination of the facts, it finds that they were incorrect or
incomplete. The Ministry of Justice would be bound by the court's
decision and thus the court can impose its own views as to the
assessment of the facts on the administrative authorities concerned.
Furthermore, as regards the review available as from 1 July 1992,
the Commission finds it established that this review goes even further
in that the court may decide directly on the question of custody or on
a transfer thereof. As it has not found any other grounds for the
available court review to be at variance with Article 6 para. 1
(Art. 6-1) of the Convention, the Commission is satisfied that the
applicant had, and has, at her disposal a tribunal within the meaning
of Article 6 (Art. 6) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains that the decisions of the Ministry
of Justice to refuse her requests for a transfer of custody are
erroneous and unfair.
The Commission is not required, however, to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of the Convention as, under Article 26 (Art. 26), it may only
deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law.
As set out above, the applicant has not brought the case before
the ordinary courts of law and has not, therefore, exhausted the
remedies available to her under Icelandic law. Moreover, an examination
of the case does not disclose the existence of any special
circumstances which might have absolved the applicant, according to the
generally recognised rules of international law, from exhausting the
domestic remedies at her disposal.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and this part of the
application must therefore be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy