AS TO THE ADMISSIBILITY OF
Application No. 20592/92
by Jan OLSSON
against Norway
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 April 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 3 July 1992 by
Jan OLSSON against Norway and registered on 7 September 1992 under file
No. 20592/92;
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 applicant is a Swedish citizen born in 1944. He is currently
residing at Jork, Germany. He is a physicist by profession.
The facts of the case, as submitted by the applicant or apparent
from the documents submitted, may be summarised as follows.
Particular circumstances of the case
1. Custody and access orders and Norway's refusal to have the
applicant's children returned
In 1975 the applicant married a Norwegian citizen, H. The
applicant and his wife subsequently lived in Germany, where three
children were born to them: Hadrian in 1976, Anita in 1978 and Lucas
in 1979. All of them are Swedish citizens and their first language is
German. In May 1989 the applicant and H. factually separated, the
children remaining with the applicant.
On 15 May 1990 H. removed the children from Germany and settled
with another man, A., in Norway, without informing the applicant of
their whereabouts.
On 18 June 1990 the Central Office for Population Registration
(Sentralkontoret for folkeregistrering) ordered, on H.'s and A.'s
request, that their address be kept confidential. In the request H. had
allegedly stated that she had sole custody of the children. The order
was valid for one year.
In an interim decision of 27 July 1990 the District Court
(Amtsgericht) of Buxtehude (Germany) granted H. sole custody of the
children.
In August 1990 the applicant located H. and the children in
Norway. He then instituted proceedings before the District Court
(herredsretten) of Lier, Røyken and Hurum (Norway), requesting rights
to visit the children. These proceedings ended in a court-approved
settlement on 5 November 1990 granting the applicant such rights. The
settlement did not affect the joint custody of the children under
Norwegian law, nor did it imply that the applicant's visiting rights
could only be exercised in Norway.
While exercising his visiting rights pursuant to the settlement
the applicant brought the children back to Germany for the Christmas
holidays in 1990. It had apparently been agreed that the children would
return to Norway on 2 January 1991.
On 2 January 1991 the Court of Appeal (Oberlandesgericht) of
Celle (Germany) quashed the interim decision of the District Court of
Buxtehude, the applicant's and H.'s joint custody of the children thus
being maintained. The applicant therefore kept the children in Germany.
On 4 January 1991, however, H. again removed the children from
Germany and brought them to Norway. On 15 January 1991 she instituted
divorce and custody proceedings before the City Court (byretten) of
Drammen (Norway), alleging, inter alia, that the applicant had failed
to comply with the settlement of 5 November 1990 by refusing to let the
children return to Norway on 2 January 1991. When interviewed by a
German social welfare officer on that day, the children had allegedly
stated that they wished to return to Norway. It was further alleged
that after the children's removal the applicant had declined to return
their passports and personal belongings and that after their return the
children had objected to seeing the applicant in Germany.
The applicant objected to H.'s action for divorce and custody,
alleging, inter alia, that the children had twice been removed from
Germany in breach of the 1980 Convention on the Civil Aspects of
International Child Abduction (hereinafter "the 1980 Convention"). The
proceedings were then adjourned pending the outcome of his request for
a return of the children pursuant to the 1980 Convention.
In a petition to the Ministry of Justice (justisdepartementet)
on 2 May 1991 the applicant requested the return of his children in
accordance with the 1980 Convention. On 26 June 1991 the Enforcement
Court (namsretten) of Drammen rejected the request, noting that the
1980 Convention had not entered into force with regard to Germany at
the time of the children's removal from that country in May 1990.
Accordingly, Norway was not required to return the children.
The applicant's appeal to the High Court (lagmannsretten) of
Eidsivating was rejected on 19 September 1991. On 16 December 1991 the
Appeals Selection Committee of the Supreme Court (Høyesteretts
kjaeremålsutvalg) rejected his further appeal. The applicant was
notified of this judgment on 5 January 1992.
By a judgment of 4 March 1992 the Presiding Judge of the City
Court of Drammen rejected the applicant's challenge of judge L. as
being biased in the proceedings brought by H. The applicant's appeal
against this decision was rejected by the High Court of Eidsivating on
11 June 1992. On 12 November 1992 the Appeals Selection Committee of
the Supreme Court rejected his further appeal.
On 16 December 1992 the divorce and custody proceedings before
the City Court of Drammen were resumed. The parties were heard on
14 and 15 April 1993. The applicant's renewed challenge of judge L. as
being biased was again rejected. The applicant requested that the
proceedings be further adjourned, inter alia pending the outcome of his
criminal complaints concerning the children's removal from Germany.
This request was also rejected.
On the merits H. objected to shared custody of the children. She
also objected to visiting rights being granted to the applicant, and
requested alternatively that the exercise of such rights take place in
Norway. She referred to the deep conflicts between her and the
applicant. The applicant had, for instance, objected to the children
moving to Norway and to their attending school there. His
correspondence with their Norwegian teachers and parents of other
Norwegian children had become a heavy burden for two of the children.
Moreover, the children preferred living with H. When Hadrian and Lucas
had considered visiting the applicant in Germany, the applicant had
allegedly told Hadrian that he would not be welcome in Germany unless
he moved there permanently. Lucas had allegedly been told that the
applicant would be unable to pay for his holidays in Germany.
The applicant objected to a divorce. He further requested sole
custody of the children and that H. be granted visiting rights. He
alleged, inter alia, that H. had obstructed reasonable schooling for
the children and that she had arbitrarily removed the children from
Germany. He objected to the statements by the children, alleging that
they had been influenced by H. He emphasised that the children were
Swedish citizens and had relatives in Sweden, for which reason he
objected to the exercise of any visiting rights having to take place
in Norway.
In its judgment of 28 April 1993 the City Court pronounced H.'s
and the applicant's divorce and further granted H. sole custody of the
children. The applicant was granted rights to visit Hadrian and Lucas
according to the terms of the settlement of 5 November 1990. The
custody and access decision was immediately enforceable. The City Court
considered that both parents were fit to be custodians, but found that
H. had been closer to the children in their everyday life. It further
took account of statements made by the children on 15 April 1993
indicating that they all wished to continue living with H., with whom
they apparently felt more secure. In view of the conflicts between H.
and the applicant shared custody was excluded. Both Hadrian and Lucas
had stated a wish that the applicant should have visiting rights. Anita
had objected to such rights being granted. The City Court noted Anita's
age and found that significant weight must be given to her own opinion.
The applicant lodged several requests for a revision and
clarification of the District Court's judgment pursuant to section 157
of the Code of Civil Procedure (tvistemålsloven). These requests are
allegedly still pending.
2. The applicant's criminal and other complaints
On 10 October and 26 November 1990 the applicant filed criminal
complaints with the police of Drammen, asserting that his children had
been abducted by H. and A. and that he was being prevented from
availing himself of his visiting rights. He alleged that these measures
violated section 216 of the Penal Code (straffeloven) which makes child
abduction a criminal offence.
On 19 September 1991 the police of Drammen formally decided to
take no action in respect of the applicant's complaint of
10 October 1990, considering that the obstruction of the applicant's
use of his visiting rights constituted no criminal offence.
On 25 April 1992 the applicant lodged a further complaint with
the Public Prosecutor (statsadvokaten) of Eidsivating. This was
formally left without action on 27 August 1992, the prosecutor
considering that it did not show any reasonable grounds for
investigating whether an offence under public prosecution had been
committed.
On 30 November 1992 the Public Prosecutor also left the
applicant's further complaint of 26 November 1990 without action.
On 21 January 1993 the Deputy Prosecutor-General (riksadvokaten)
decided to take no action in respect of the applicant's complaints
concerning the lack of a police investigation and the failure to bring
criminal charges against H. and A. He stated, inter alia, the
following:
(translation)
"... [At the time of the children's first removal from
Germany] [the applicant] and [H.] had shared custody of
them. This must be assumed to mean that one of the parents
cannot lawfully prevent the other from availing himself or
herself of his or her parental rights. In such
circumstances it is likely that [H.'s] behaviour could,
from a purely factual point of view, fall within the ambit
of section 216 of the Penal Code. There is no reason,
however, to pursue the matter by instituting an
investigation for the purpose of bringing criminal charges.
In addition to the fact that the events took place some two
years and nine months ago, the possible criminal behaviour
ended, in any case, already after a period of two months,
namely on 27 July 1990, when a German court granted [H.]
sole custody of the children. That judgment has also been
the basis for the subsequent court decisions made in
Norway.
The decisive factor for [my] assessment is, however, that
the fundamental dispute in the case ... cannot be resolved
by penal sanctions. The matter should be resolved by civil
courts.
In addition, possible criminal charges against [H.] would
undoubtedly affect the children negatively and cause a
further strain on them. In such a situation the use of the
limited resources available in the field of criminal
procedure would be questionable and in clear conflict with
the ... instructions concerning the priorities to be made.
..."
In his letter of 21 December 1993 to the Prosecutor-General, the
Parliamentary Ombudsman (stortingets ombudsman for forvaltningen)
observed that the applicant's criminal complaints had not been subject
to any investigations. He questioned the Deputy Prosecutor-General's
decision of 21 January 1993, given that it had been based on the
consideration that the principal matters at issue should be decided in
civil proceedings as well as on a consideration of the children's
interests. The Ombudsman underlined that under domestic law an
investigation shall be carried out when a criminal complaint provides
reasonable grounds for investigating whether an offence under public
prosecution has been committed. Thus, a complaint could only be left
without action if it was clear that the reported behaviour did not
constitute such an offence. Finally, taking no action on a complaint
which objectively concerns suspected criminal behaviour on the grounds
that the matter is in reality a dispute under civil law could be seen
as taking a stand on the question of criminal responsibility. The
Ombudsman invited the Prosecutor-General to clarify his position on the
matter. It is unclear whether any such reply has been submitted.
The applicant has also lodged numerous other unsuccessful
complaints with Norwegian authorities for the purpose of having his
children returned to Germany.
The applicant has allegedly been unable to see his children
between 4 January 1991 and 14 April 1993 and as from that date onwards.
COMPLAINTS
1. The applicant complains under Article 8 of the Convention about
lack of respect for his family life essentially resulting from the
following:
After his children's first removal from Germany in 1990 Norway
refused his request to return them pursuant to the 1980 Convention.
Although Germany was not a Party to the 1980 Convention at the time of
that removal, this would not have prevented an agreement from being
reached between the two countries for the purpose of having the
children returned. However, no active steps were taken by Norway to
this end in spite of the applicant's de facto care of the children at
the time of their removal and in spite of their ties to Germany. On the
contrary, their whereabouts were ordered to be kept secret from the
applicant. Nor were the children returned after their second removal
from Germany in 1991, although this occurred after the entry into force
of the 1980 Convention in respect of that country and after shared
custody of the children had been maintained by a German court. Finally,
in spite of the applicant's numerous complaints the Norwegian
authorities have failed to take legal action against the purported
child abductors. The applicant claims that this prolonged the arbitrary
keeping of the children in Norway which prevented him from exercising
his custody and visiting rights and which eventually resulted in
custody being awarded solely to H. and visiting rights being awarded
to himself only in respect of two of his children.
2. The applicant further complains that he has been deprived of an
effective remedy within the meaning of Article 13 of the Convention
against the violations of his rights under Article 8.
THE LAW
1. The applicant complains about lack of respect for his family life
and invokes Article 8 (Art. 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 Commission considers that in the assessment of whether the
Norwegian authorities showed a lack of respect for the applicant's
family life it has to examine separately the various acts of which he
complains.
(a) The refusal to return the applicant's children after their
first removal from Germany
The first question to be answered is whether the Norwegian
authorities, in not returning the applicant's children to Germany in
1990, showed a lack of respect for the applicant's family life. The
Commission is not required to decide whether or not the facts alleged
by the applicant in this connection disclose any appearance of a
violation of Article 8 (Art. 8) of the Convention. It follows from
Article 26 (Art. 26) that the Commission may only deal with a matter
which has been brought to its attention within six months from the end
of the decision complained of, or from the end of the situation
complained of (e.g., No. 11123/84, Dec. 9.12.87, D.R. 54 pp. 52 et
seq.)
The Commission observes that the situation here complained of,
namely that the Norwegian authorities refused, in 1990, to return the
applicant's children to Germany, ended at the latest with the
children's return to that country in December 1990. The present
application was lodged on 3 July 1992, which is more than six months
later. An examination of the complaint does not disclose the existence
of any special circumstances which might have interrupted or suspended
the running of the six months' period.
It follows that this aspect of the complaint has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
(b) The secrecy order concerning the children's whereabouts
The next question to be answered is whether the Norwegian
authorities, in ordering that the applicant's children's whereabouts
in Norway as from May 1990 be kept secret from him, showed a lack of
respect for his family life. However, recalling the above-mentioned six
months' rule, the Commission again considers that it is not required
to decide whether or not the facts alleged in this respect disclose any
appearance of a violation of Article 8 (Art. 8) of the Convention.
The Commission observes that the secrecy order concerning the
applicant's children's whereabouts was issued on 18 June 1990 and
expired one year later. Even if the six months' period is considered
to have started from the date of expiry of the order in June 1991 the
present complaint was lodged more than six months later, namely on
3 July 1992. An examination of the complaint does not disclose the
existence of any special circumstances which might have interrupted or
suspended the running of the six months' period.
It follows that this aspect of the complaint has also been
introduced out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
(c) The refusal to return the applicant's children after their
second removal from Germany
The next question to be examined is whether the Norwegian
authorities, in refusing the applicant's request for a return of his
children to Germany in 1991, showed a lack of respect for his family
life as guaranteed by Article 8 (Art. 8) of the Convention. The
Commission recalls that there may be positive obligations inherent in
such "respect", if it is to be effective (cf., e.g. Eur. Court H.R.,
Hokkanen judgment of 23 September 1994, Series A no. 299-A,
para. 55). However, in a dispute concerning custody or visiting rights
in respect of a child any obligation to apply coercion must be limited,
since the interests as well as the rights and freedoms of all concerned
must be taken into account, and more particularly the best interests
of the child and its rights under Article 8 (Art. 8). It is for the
national authorities to strike a fair balance between the conflicting
interests at stake. What is decisive is whether the authorities have
taken all necessary steps as can reasonably demanded in the special
circumstances of each case (cf. the above-mentioned Hokkanen judgment,
loc.cit., para. 58).
The Commission further recalls that certain procedural
requirements are also implicit in Article 8 (Art. 8), i.e. a parent
must have been involved in the decision-making process, seen as a
whole, to a degree sufficient to provide him or her with the requisite
protection of the interests at stake (cf. Eur Court H.R., W. v. the
United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, para.
64).
As regards the present aspect of the complaint under Article 8
(Art. 8), the Commission recalls that at the time of the children's
second removal from Germany in January 1991 joint custody of them had
been maintained by judgment of a German court. However, when
interviewed by a German social welfare officer on 2 January 1991, the
children, then fourteen, twelve and eleven years old, appear to have
expressed the wish to return to Norway. The applicant apparently had
no intention of complying with this wish and two days later the
children were removed to Norway by their mother. After the children's
return to Norway the applicant had apparently declined to return their
passports and personal belongings. Moreover, after their return the
children had apparently objected to seeing the applicant in Germany.
The Commission considers that in these particular circumstances,
and having regard notably to the children's age and their rights under
Article 8 (Art. 8), it has not been shown that the Norwegian
authorities failed to strike a fair balance between the various
conflicting interests at stake. There is thus no appearance of any lack
of respect for the applicant's family life in this respect.
Finally, in so far as certain procedural safeguards are implicit
in Article 8 (Art. 8), the Commission observes that the applicant had
ample opportunity to present his own views to the Norwegian courts and
that he also made use of this opportunity. He was thus involved in the
proceedings to a degree sufficient to provide him with the requisite
protection of his interests. Accordingly, there is no appearance of a
violation of Article 8 (Art. 8) in this respect either.
It follows that this aspect of the complaint must also be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
(d) The alleged failure to take other measures
The last question to be examined is whether the Norwegian
authorities, in failing to take other measures demanded by the
applicant, showed a lack of respect for his family life under Article 8
(Art. 8) of the Convention. However, recalling its considerations under
para. 1 (c) above, the Commission cannot find that the Norwegian
authorities, in dealing with the applicant's various complaints, failed
to strike a fair balance between the various conflicting interests at
stake. There is thus no appearance of any lack of respect for the
applicant's family life in this respect either.
It follows that this aspect of the complaint must also be
rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains that he has been deprived of an
effective remedy within the meaning of Article 13 (Art. 13) of the
Convention against the violations of his rights under Article 8
(Art. 8). Article 13 (Art. 13) 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."
In the light of its above conclusions in respect of the complaint
under Article 8 (Art. 8) of the Convention the Commission considers
that the applicant has no "arguable claim" of any violation of that
provision which would warrant a remedy under Article 13 (Art. 13) (Eur.
Court H.R., Powell and Rayner judgment of 21 February 1990, Series A
no. 172, p. 20, para. 46).
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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy