AS TO THE ADMISSIBILITY OF
Application No. 21642/93
by S. G.P.
against Spain
The European Commission of Human Rights (Second Chamber) sitting in
private on 12 January 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. 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 1 February 1993 by
S. G.P. against Spain and registered on 8 April 1993 under file No.
21642/93;
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
Particular circumstances of the case
The applicant is a Spanish national born in 1946. He is an official
of the merchant Navy. Before the Commission he is represented by M.
Francisco Javier Carbonell Rodriguez, a lawyer practising in Madrid.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 22 November 1990, the applicant's spouse introduced
simultaneously two actions for legal separation and interim measures
before the Judge of first instance of Alcala de Henares, complaining of
violent behaviour of her husband towards her and their sons. She invoked
Article 82 para. 1 of the Civil Code, which refers to "offensive and
harmful behaviour and any other serious and repeated violations of
conjugal duties". By decision of 18 January 1991, the first instance
Judge of Alcala de Henares granted the interim measures applied for by
the applicant's spouse, namely the custody over their sons, the use of
the conjugal domicile and a monthly maintenance allowance.
The applicant opposed both petitions of his spouse.
By decision of 9 April 1991, the first instance Judge dismissed the
plea of the applicant's spouse in the main proceedings and suspended the
interim measures adopted, considering that the allegations of ill-
treatment and vexatious behaviour had not been proven. Consequently, on
30 April 1991, the interim measures were declared without effect.
The applicant's spouse lodged an appeal with the Audiencia
Provincial of Madrid against the decision given in the main proceedings.
By decision (providencia) of 8 May 1991, the Audiencia Provincial
suspended the effects of the decision appealed. Consequently, the
interim measures were applied again. As the applicant's appeals against
the former decision were dismissed, be sought relief before the
Constitutional Court and lodged a "de amparo" appeal, alleging a
violation of Article 24 of the Spanish Constitution, in that he did not
have the right to an effective remedy against the decision of the
Audiencia Provincial concerning interim measures. The Constitutional
Court declared the appeal inadmissible on 9 March 1992 as being
manifestly ill-founded.
By decision of 29 May 1992, the Audiencia Provincial of Madrid
granted the legal separation and confirmed the interim measures with
slight modifications taking into account the applicant's profession,
especially concerning the regime of visits to his sons. The Audiencia
Provincial based its decision on the loss of "affectio conjugalis" which
had not as such been invoked by the applicant's spouse before the First
Instance Court and interpreted Article 82 of the Civil Code as not
requiring proof of any vexatious or humiliating behaviour.
The applicant lodged again an appeal of "amparo" with the
Constitutional Court alleging another violation of Article 24 of the
Spanish Constitution. On 14 December 1992, the Constitutional Court
declared the appeal inadmissible as being manifestly ill-founded.
The applicant is at present involved in proceedings before the
Supreme Court, complaining of a judicial error.
Relevant domestic law
(Original)
Código Civil, artículo 82
"Son causas de separación:
1° El abandono injustificado del hogar, la infidelidad conyugal,
la conducta injuriosa o vejatoria y cualquier otra violación grave
o reiterada de los deberes conyugales"...
(Translation)
Civil Code, Article 82
"The following constitute reasons for legal separation:
1st. The unjustified abandoning of the marital domicile, the
conjugal infidelity in marriage, the humilliating or vexatious
behaviour, or any other serious and repeated violation of the
conjugal duties".
COMPLAINTS
1. The applicant complains under Article 8 of the Convention that the
legal separation and the interim measures adopted in the legal separation
proceedings wrongly interfered with the exercise of his right to respect
for his family life.
2. The applicant further complains that he has not had the right to an
effective remedy in order to suspend the execution of the interim
measures in question, taking into account that those measures were
confirmed on the basis of a judicial interpretation of the legal
provisions, and not on the basis of the texts themselves. He states that
this also amounts to a violation of his right to respect for his family
life and invokes Article 13, combined with Article 8 of the Convention.
3. The applicant finally complains that he did not have the right to
an independent tribunal insofar as the Audiencia Provincial of Madrid,
after having recognised that the loss of the "affectio conjugalis" is not
expressly provided for in the law, granted the legal separation and
confirmed the interim measures. In the applicant's opinion, this also
constitutes an interference with his right to respect for his family
life. He invokes Articles 6 para. 1 and 8 of the Convention.
THE LAW
1. The applicant considers that the legal separation and the interim
measures adopted in the legal separation proceedings in which he is
involved wrongly interfered with the exercise of his right to respect for
his private and family life under Article 8 (Art. 8) of the Convention,
which provides 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."
With regard to the judicial decisions of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its task is to ensure the observance of the
obligations undertaken by the parties in the Convention. In particular,
it is not competent to deal with an application alleging that errors of
law or fact have been committed by domestic courts, except where it
considers that such errors might have involved a possible violation of
any of the rights and freedoms set out in the Convention (see e.g. No.
7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).
Assuming that the decisions complained of interfered with the
applicant's right to respect for his family life, the Commission has
examined whether they were "in accordance with the law" and "necessary
in a democratic society" for any of the purposes set out in para. 2 of
Article 8 (Art. 8).
It first observes that the Audiencia Provincial based its decision
of 29 May 1992 on an interpretation of Article 82 of the Civil Code which
does not appear to be arbitrary, given that Article 82 of the Civil Code
refers in a general way to "any ... serious and repeated violation of the
conjugal duties". The Commission is therefore satisfied that the
interference complained of was lawful. It also finds that it could
reasonably be considered as necessary in a democratic society for the
rights and freadoms of others, i.e. the applicant's spouse and sons.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. As regards the alleged lack of an effective remedy against the
execution of the interim measures concerned, the Commission notes that
the applicant has used the remedies available under Spanish law. The fact
that he did not succeed does not amount to a violation of his right,
under Article 13 (Art. 13) of the Convention, to an effective remedy
before a national authority.
It follows that this part of the application must also be rejected
as being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
3. The applicant finally complains under Articles 6 para. 1 and 8
(Art. 6-1, 8) of the Convention that he did not have the right to an
independent tribunal in that the Audiencia Provincial of Madrid granted
the legal separation on the basis of a reason which had not as such been
invoked by the applicant's spouse before the Court of first instance,
namely the lack of "affectio conjugalis". In the applicant's opinion,
this also constitutes an interference with his right to respect for his
family life.
The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention
states :
"In the determination of his civil rights and obligations...,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law". ...
In this respect, the Commission considers that the Audiencia
Provincial was simply appreciating the factual situation and the law, in
a way which was different from the applicant's point of view. 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 unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy