AS TO THE ADMISSIBILITY OF
Application No. 12223/86
by IB ROMOES
against Denmark
The European Commission of Human Rights sitting in private
on 6 October 1987, the following members being present:
MM. J.A. FROWEIN, Acting President
C.A. NØRGAARD
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 7 January 1986
by Ib Romoes against Denmark and registered on 11 June 1986 under file
N° 12223/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Danish citizen, born in 1936. He is the
proprietor of a taxi business and lives at Lynge, Denmark.
I. The applicant has previously lodged an application with the
Commission (No. 10326/83). The basis for the applicant's case before
the Commission was a custody dispute between himself and his ex-wife
following their divorce in 1976. The custody of their two children
was awarded to the mother and due to continuing difficulties between
the parties the applicant's access rights to his children were
withdrawn on 8 December 1977 and 23 August 1978 respectively.
As a consequence the applicant abducted the youngest child to
Spain in November 1978. He was arrested by the Spanish police and
brought back to Denmark. He was charged with violations of several
Articles of the Danish Penal Code and by judgment of 26 November 1980
the City Court of Brøndbyerne (retten i Brøndbyerne) sentenced him to
ten months' imprisonment. The judgment was upheld by the High Court
(Landsretten) on 13 November 1981, and leave to appeal to the
Supreme Court (Højesteret) was refused by the Ministry of Justice on
4 January 1982.
Finally the applicant submitted a petition to the Special
Court of Revision (Den særlige Klageret) for the reopening of the
proceedings. However, this petition was rejected by the Court on
6 April 1982. Before the Commission the applicant invoked Articles 6
and 13 of the Convention alleging that he did not get a fair trial and
that he did not have a remedy at his disposal which could rectify this
error.
Having found that the applicant's petition to the Special
Court of Revision did not constitute a remedy under the generally
recognised rules of international law the Commission rejected the
applicant's complaints under Article 6 on 6 October 1983 as having
been introduced out of time. As regards the alleged violation of
Article 13 of the Convention the Commission found no appearance of a
violation (Dec. 6.10.83, D.R. 35 p. 218).
II. The facts of the present case, as submitted by the applicant,
may be summarised as follows:
The applicant's two children were born on 12 October 1964 and
12 May 1970 respectively. As mentioned above the applicant and his
wife divorced in 1976. Custody of their two children was given to the
mother.
In 1980 the applicant instituted proceedings in order to have
the custody of his two sons transferred to him; however in vain.
In 1983 the applicant attempted to have the custody rights of
his youngest son transferred to him. The applicant's oldest son, born
in 1964, was no longer subject to parental custody, having reached the
age of 18. The proceedings were instituted on 20 August 1983 in the
City Court of Brøndbyerne. During the proceedings in the City Court
the parties contacted the Social and Health Authorities of Brøndby
County (Brøndby kommunes social- og sundhedsforvaltning) and they
submitted, on 24 June 1984, certain information as to the child's
situation. Furthermore the Court as well as the parties' lawyers had
separate discussions with the child.
The City Court pronounced judgment in the case on 10 May
1985. Having regard to the information which had been obtained and
after an evaluation of the parties' oral submissions in court, the
City Court did not find it established that such circumstances were
present which, in the interest of the child, would necessitate a
transfer of custody to the applicant.
On 28 May 1985 the applicant appealed against this judgment to
the High Court. The parties had the opportunity to present the case
orally in the High Court which furthermore heard the applicant's
oldest son as a witness. On the basis of the evidence so obtained the
High Court found no reason to alter the City Court judgment which
was upheld accordingly on 5 November 1985.
On 1 December 1985 the applicant applied to the Ministry of
Justice for leave to appeal to the Supreme Court. However, on
19 December 1985 the Ministry refused to grant leave to appeal.
COMPLAINTS
The applicant invokes Articles 3, 6, 8, 13 and 14 of the
Convention.
Under Article 3 of the Convention the applicant maintains that
the authorities have subjected him to inhuman and degrading treatment
and punishment during his attempts to have the custody rights
transferred to him.
Under Article 6 the applicant complains of the length of
proceedings in his most recent attempt to have the custody of his son
transferred to him. In particular he complains about the length of
the proceedings in the City Court. Furthermore he maintains that his
case was not decided upon by an impartial and independent tribunal
either in the City Court or in the High Court.
He also maintains that the authorities have not shown the
necessary respect for his right to respect for his family life and
refers in this respect to Article 8 of the Convention.
Regarding Article 14 of the Convention the applicant alleges
that the outcome of this case was based on sex discrimination.
Finally, under Article 13, the applicant maintains that he has
not had any effective remedy at his disposal since the courts have not
rectified his present situation.
THE LAW
1. The applicant has complained that he has been subjected to treatment
which is contrary to Article 3 (Art. 3) of the Convention during his attempts
to have the custody rights transferred to him. Article 3 of the Convention
reads as follows:
"No one shall be subjected to torture or to
inhuman or degrading treatment or punishment."
The Commission recalls the jurisprudence of the European Court
of Human Rights and that of the Commission according to which
treatment will be considered inhuman only if this treatment reaches a
certain stage of gravity, causing considerable mental or physical
suffering. Furthermore, as for the criteria concerning the notion of
"degrading treatment", the treatment itself will not be degrading
unless the person concerned has undergone humiliation or debasement
attaining a minimum level of severity and this level has to be
assessed with regard to the circumstances of any given case (cf. Eur.
Court H.R., Ireland v. the United Kingdom judgment of 18 January
1978, Series A No. 25).
In the present case, however, the Commission has found no
indication in the information submitted by the applicant which could
lead to the conclusion that the treatment the applicant has received
from the public authorities could be considered to be of such severity
as that envisaged by Article 3 (Art. 3) of the Convention. It follows
therefore 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. Under Article 6 (Art. 6) of the Convention the applicant has raised the
question of the length of the proceedings concerning his most recent
attempt to have the custody rights transferred to him.
Article 6 para. 1 (Art. 6-1) of the Convention inter alia provides for
a right to a hearing within a reasonable time. On this point the Commission
notes that the court proceedings commenced on 20 August 1983 and lasted until
19 December 1985 when the Ministry of Justice rejected the applicant's request
for leave to appeal to the Supreme Court. Consequently the total length of the
proceedings was approximately 2 years and 4 months.
As regards the proceedings in the City Court the Commission
recalls that they lasted from 20 August 1983 until 10 May 1985.
Having regard to the fact that the case concerned the question as to
whether or not the custody of a child should be transferred from one
parent to the other, a question which by its very nature requires to
be dealt with urgently, this period may at first sight seem too long.
However, the Commission also recalls that the custody question was
initially settled in favour of the children's mother in 1976 when the
applicant and his wife were divorced. Due to difficulties between the
parties the applicant's access rights were withdrawn and subsequently
the applicant was sentenced to ten months' imprisonment for abducting
his youngest son to Spain, without this giving rise to any questions
concerning a possible transfer of custody. Furthermore the question
of transfer of custody was again examined in 1980 but this examination
ended unsuccessfully from the applicant's point of view.
In these circumstances the Commission finds that the question
of custody of the applicant's children had been thoroughly examined on
previous occasions and an examination of the matter in the proceedings
with which the Commission is now concerned appears to be of less
urgence. The Commission also recalls that during these proceedings
the Social and Health Authorities were requested to submit certain
information which was provided on 24 June 1984.
As regards the proceedings before the High Court the Commission
notes that the applicant's appeal to the High Court was lodged on
28 May 1985 and that judgment was pronounced on 5 November 1985.
Finally the applicant's application for leave to appeal to the Supreme
Court was lodged on 1 December 1985 and the decision to refuse such
leave was taken on 19 December 1985.
When examining the length of the proceedings in the light of
the circumstances indicated above, the Commission finds no indication
of negligence or dilatoriness on the part of the courts and considers
therefore that in the special circumstances of this case the
applicant's right under Article 6 para. 1 (Art. 6-1) of the Convention to a
hearing within a reasonable time has not been violated.
Consequently this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant has also complained under Article 6 (Art. 6) of the
Convention that his case was not heard by an independent and impartial
tribunal. The Commission finds, however, that the documents and
information submitted by the applicant do not disclose any
substantiated facts which could justify a further examination of this
complaint. It follows that this part of the application is likewise manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant further complains that the judgments of the
courts regarding custody violate his right to respect for his family
life. The applicant invokes Article 8 (Art. 8) of the Convention which reads:
"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."
In the present case it appears that the Danish courts, when
deciding not to transfer the custody to the applicant, took into
account primarily the interests of the child. The Commission
recognises that, where parents are divorced, it is legitimate, or
even necessary, for the national law to provide rules covering the
relationship between parents and children which differ from the rules
which are applicable when the family unit is still maintained (cf.
No. 10271/83, Dec. 15.3.84, unpublished). In these circumstances the
Commission does not find it established that, as a result of the
courts' rulings, the applicant's family life has been interfered with
in a manner which was not justified under Article 8 para. 2 (Art. 8-2) of the
Convention by the interests of the child and it follows that this part
of the application should be rejected as being manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2).
5. Finally, the applicant has complained that he had no effective
remedy at his disposal since the courts have not rectified his
situation but rather reached their conclusions in a discriminatory
manner. He relies in this respect on Articles 13 and 14 (Art. 13, 14) of the
Convention.
The Commission recalls, however, that the applicant could
bring his case before several courts in Denmark, and the fact that
these courts ruled against the applicant does not mean that the
remedies exercised by him were not effective remedies within the
meaning of Article 13 (Art. 13) of the Convention. The Commission furthermore
finds that the courts' judgments on the matter of custody were based on
an assessment of the circumstances of the particular case and no
discriminatory elements, which could have raised an issue under
Article 14 (Art. 14) of the Convention, have emerged from the documents or
information submitted by the applicant.
It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission Acting President of the Commission
(H. C. KRÜGER) (J. A. FROWEIN)