AS TO THE ADMISSIBILITY OF
Application No. 27095/95
by Therese SOGN KOUTSOFOTINOS
against Norway and Greece
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mr. J.-C. GEUS, Acting President
Mrs. G.H. THUNE
MM. A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, 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 25 October 1994
by Therese Sogn Koutsofotinos against Norway and Greece and registered
on 24 April 1995 under file No. 27095/95;
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 Norwegian citizen, born in 1962. Before the
Commission she is represented by Ms Berit Anne Borgen, a Norwegian
lawyer in Hokksund, and Mr Constantinos Sofianos, a Greek lawyer in
Athens.
The facts of the case, as submitted by the applicant and the
Greek Government, may be summarised as follows.
The applicant is the mother of Angelica, born in Norway in 1988,
and Johanna, born in Norway in 1991. Their father, L, is a Greek
citizen. The family lived in Norway until the end of 1991 and then
moved to Greece. In November 1993 the applicant moved back to Norway
with the children.
On 11 December 1993 the District Court (herredsretten) of
Kongsberg (Norway) granted the applicant sole interim care and custody
of the children.
In January 1994 L instituted care and custody proceedings before
the First Instance Court (Monomeles Protodikeio) of Patras (Greece).
On 27 January 1994 the Court sent the applicant a telegram inviting her
to attend its hearing on 2 March 1994. In submissions of
24 February 1994 the applicant stated that the telegram did not comply
with the relevant international legal instruments acceded to by Norway
and Greece and therefore did not constitute an official summons. She
also demanded that the court proceedings in Greece be closed, since the
Norwegian courts had already considered themselves competent in the
care and custody case. She did not attend the hearing on 2 March 1994
nor was she represented by counsel.
In an interim decision of 16 March 1994 the First Instance Court
granted L sole care and custody of the children and ordered that they
should be handed over to him for the sake of the children's physical
and mental development and "for the sake of their upbringing according
to the Greek principles". The Court noted, inter alia, that Angelica
knew only the Greek language, that she had been attending a nursery in
Patras and that she was feeling more closely related to L than to the
applicant. The Court furthermore noted that in her relations with L the
applicant had occasionally and even in front of the children behaved
in a "vulgar and provocative" manner, threatening to return to Norway
with them. She could not be expected to meet the demands incumbent on
her as a mother. The Court did not pronounce itself on access
arrangements concerning the children and the applicant.
In a petition lodged in Norway on 27 April 1994 L requested that
the children be returned to Greece in accordance with the 1980
Convention on the Civil Aspects of International Child Abduction
(hereinafter "the 1980 Convention"). On 3 June 1994 the Enforcement
Court (namsretten) of Kongsberg acceded to L's request. It noted that
both de jure and de facto the applicant and L had had joint care and
custody of the children. It found it established that the applicant had
removed the children from Greece without L's consent and with the
intention of keeping them in Norway. There were no grounds for
believing that the children's return to Greece would seriously
jeopardise their well-being or otherwise place them in an unacceptable
situation.
On 29 August 1994 the High Court (lagmannsretten) of Eidsivating
(Norway) upheld the Enforcement Court's order, finding no evidence that
the children would be placed in an unacceptable or otherwise
significantly worse situation in Greece than in Norway. It also noted
that the First Instance Court of Patras had provisionally granted L
care and custody of the children. On 14 October 1994 the Appeals
Selection Committee of the Norwegian Supreme Court (Høyesteretts
kjaeremålsutvalg) rejected the applicant's further appeal.
Subsequently the applicant requested that the Enforcement Court's
order of 3 June 1994 not be enforced. She referred, inter alia, to the
change which had occurred in the children's conditions. She also asked
that her request be granted suspensive effect.
In an opinion of 22 October 1994 submitted at the applicant's
counsel's request Dr M, a Norwegian psychiatrist, recommended that the
children should not be returned to Greece by force. Dr M noted that
Johanna only seemed to speak and understand Norwegian and that Angelica
seemed to fear and oppose a return to Greece.
At its hearing on 10 November 1994 the First Instance Court of
Patras noted that the applicant was neither present nor represented.
Moreover, on 26 May 1994 the competent Norwegian authority had
acknowledged receipt of a summons inviting the applicant to appear at
the hearing. The First Instance Court therefore concluded that there
was no obstacle to holding the hearing in her absence.
According to the applicant, she had been unable to attend the
hearing as she had been suffering from an illness in Norway. In view
of the urgency of the matter the Presiding Judge had previously refused
to order the postponement of the hearing despite requests to this
effect both by the applicant's and L's lawyers. In view of this refusal
the applicant's lawyer had chosen not to attend the hearing.
On 5 December 1994 a notarius publicus in Norway certified that
on that day the applicant had received official notification of L's
Greek lawyer's submissions of 18 October 1994 in which he requested
that further witnesses be heard on 8 November 1994 in the case before
the First Instance Court of Patras.
According to the applicant, the notification of 5 December 1994
constituted the official summons to the hearing on 10 November 1994.
On 30 November 1994 the Appeals Selection Committee received the
applicant's supplementary written pleadings of 22 September 1994 which
had been lodged with the High Court. The pleadings had arrived on
23 September 1994 at the Supreme Court which had sent them back to the
High Court so as to obtain L's comments thereon. The pleadings were,
however, sent back to the Supreme Court without having been
communicated to L.
In further submissions lodged with the Enforcement Court the
applicant requested that its order of 3 June 1994 should not be
enforced. She later questioned the impartiality of a judge of the
Enforcement Court. On 7 December 1994 the Enforcement Court refused to
examine the request for non-enforcement and apparently did not examine
the question of possible partiality. On 14 December 1994 the High Court
of Eidsivating refused to grant the applicant's appeal suspensive
effect and on 19 December 1994 she withdrew it. In December 1994 the
applicant returned with the children to Greece, where they stayed for
a month in a hotel in Patras. On 15 January 1995 she handed the
children over to L following which she and the children met at certain
times.
According to the applicant, she and L could not reach an access
agreement and as from January-February 1995 she was no longer able to
see the children. No longer feeling safe around L's family, she
eventually left Patras without informing L of her new whereabouts.
On 30 January 1995 the applicant requested the First Instance
Court of Patras to revoke its interim order of 16 March 1994 and
provisionally grant her the care and custody of the children. Following
a hearing the First Instance Court, on 9 February 1995, decided not to
revoke its 1994 order after assessing the various conflicting interests
and stressing the best interest of the children. It noted, in
particular, that L had always shown a great interest in the care of his
children and that following their return to Greece he had hired a tutor
to assist in their education. Moreover, the children had already become
accustomed to a Greek environment.
According to a report referred to by the Greek Government and
drawn up by a member of the Social Service of the Patras Juvenile
Court, L had initially seen the children for a few hours every day on
their return to Greece in order to facilitate their adjustment. After
handing the children over to L on 15 January 1995 the applicant had
seen them once or twice a week. About six weeks later she had moved to
Athens without leaving her new address and telephone number. She had
telephoned the children once a month and during five months she had
seen them twice in Patras. The children had integrated well, led a
stable and comfortable life and their Greek grandmother was assisting
L in caring for them. L had shown a great interest in the children's
psychological well-being and did not appear to demonstrate any
hostility towards the applicant. He was not opposed to access between
the children and the applicant. Finally, on 30 July 1995 the children
had been handed over to the applicant, with whom they were to spend a
one-month holiday on a Greek island.
According to the applicant, the Social Service's report was based
exclusively on interviews with L.
On 13 February 1995 the Norwegian Appeals Selections Committee
acknowledged that the case-file had been incomplete at the time of its
decision to reject the applicant's appeal. Having perused the
applicant's supplementary submissions which, for unknown reasons, had
reached the Committee belatedly, it had found that they did not contain
any reaction to any of L's pleadings and could not therefore have led
to another outcome of the appeal proceedings even if they had arrived
in time.
By judgment of 19 April 1995 the First Instance Court of Patras
granted L the care and custody of the children after a fresh weighing
of the conflicting interests. It noted, in particular, that both before
and after the applicant and L had separated L had shown a much greater
interest than the applicant in the children's needs and welfare. As for
the applicant, she had failed to meet her obligations towards them as
regards their everyday needs. The Court also reiterated the importance
of bringing the children up "according to the Greek principles".
Under Greek law a litigant living abroad may seek recourse
against a judgment by default on account of a procedural flaw such as
an incorrect summons. Such recourse must be sought within 60 days from
the receipt of the judgment (Article 501 of the Code of Civil
Procedure). An ordinary appeal may be lodged within the same period
(Articles 511 and 513).
According to a certificate issued by the Registry of the First
Instance Court of Patras on 19 September 1995 and referred to by the
Greek Government, the applicant had not resorted to any of the above
remedies.
According to the applicant, a copy of the judgment of
19 April 1995 was mailed to her only on 25 September 1995.
COMPLAINTS
As regards Norway:
1. The applicant complains that the return of her children from
Norway to Greece failed to respect her family life and was not in the
children's best interests, as it caused them mental distress and
various other difficulties. She invokes Article 5 paras. 1 (d) and 5
as well as Article 8 of the Convention.
2. The applicant furthermore complains that she was denied a fair
hearing in the Norwegian care and custody proceedings. Part of her
submissions to the Appeals Selections Committee had, for unknown
reasons, not reached the Committee when it decided to reject her
appeal.
Moreover, in accepting the request for a return of the children
to Greece, the Norwegian courts failed to satisfy themselves that the
Greek court's interim order of 2 March 1994 had been issued in
proceedings meeting the requirements of Article 6 of the Convention.
The applicant invokes Article 6 of the Convention.
3. As regards the Norwegian enforcement proceedings, the applicant
complains that her request for non-enforcement of the order of
3 June 1994 was not given suspensive effect, although her children's
situation had allegedly changed subsequently.
In her submissions of 27 September 1995 the applicant furthermore
complains of the biased attitude of the judge of the High Court who
dealt with her appeal against the Enforcement Court's decision of
7 December 1994. Moreover, this judge had previously dealt with L's
request that the children be returned to Greece.
As regards Greece:
4. The applicant complains that her and her children's right to
respect for their family life was violated after their return to
Greece. She alleges, in particular, that access was denied. She invokes
Article 8 of the Convention.
5. The applicant furthermore complains that she was not properly
summoned to attend the First Instance Court's hearings in the Greek
care and custody case and that the hearing on 10 November 1994 was not
postponed despite her illness. She invokes Article 6 of the
Convention. In her submissions of 6 October 1995 the applicant
finally complains that the First Instance Court wrongly denied her the
care and custody of her children. She invokes Article 8 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 25 October 1994 and registered
on 24 April 1995.
On 10 July 1995 the Rapporteur of the Commission decided, in
accordance with Rule 47 para. 2 (a) of the Rules of Procedure, to
request certain factual information from the Greek Government. This
information was submitted on 19 September 1995 after an extension of
the time-limit fixed for that purpose. The applicant submitted comments
in reply on 18 October and 15 November 1995, that is to say after the
expiry of the time-limit fixed for that purpose.
THE LAW
The Commission notes that the applicant's comments in reply to
the information supplied by the Greek Government reached the Commission
after the expiry of the time-limit fixed for that purpose. The
Commission has nevertheless decided to take these comments into
account.
1. In so far as the case is directed against Norway, the applicant
first complains about her children's return to Greece. She invokes
Article 5 paras. 1 (d) and 5 (Art. 5-1-d, 5-5) as well as Article 8
(Art. 8) of the Convention.
Article 8 (Art. 8) of the Convention 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 question arises whether the Norwegian courts, in ordering
that the applicant's children be returned to Greece in accordance with
the 1980 Convention, showed a lack of respect for the applicant's
family life (cf. No. 20592/92, Dec. 5.4.95, not published).
The Commission recalls that there may be positive obligations
inherent in such "respect", if it is to be effective (see, e.g. Eur.
Court HR Hokkanen v. Finland judgment 23 September 1994, para. 55,
Series A no. 299-A). 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 that
can reasonably be demanded in the special circumstances of each case
(ibid., 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 (see Eur. Court HR, W.
v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29,
para. 64).
The Commission notes that the Norwegian courts carefully assessed
whether the conditions for the applicant's children's return to Greece
pursuant to the 1980 Convention were met. Furthermore, according to a
report submitted by the Greek Government the applicant's children are
well-balanced, properly cared for and appear to have integrated well
following their return to Greece. The applicant has not submitted any
counterevidence which might contradict the findings in that report.
In these circumstances, and having regard also to the children's
rights under Article 8 (Art. 8) of the Convention, the Commission does
not find that the Norwegian courts failed to strike a fair balance
between the various conflicting interests at stake (cf. also the above-
mentioned Application No. 20592/92). 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 her own views to the Norwegian courts and
was involved in the proceedings to a degree sufficient to provide her
with the requisite protection of her interests. Accordingly, there is
no appearance of a violation of Article 8 (Art. 8) in this respect
either.
No further issue arises under Article 5 (Art. 5) of the Convention.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant furthermore complains that she was denied a fair
hearing in the Norwegian care and custody proceedings. She invokes
Article 6 para. 1 (Art. 6-1) of the Convention which, in so far as
relevant, reads as follows:
"In the determination of his civil rights and obligations
... against him, everyone is entitled to a fair ... hearing
... by an independent and impartial tribunal established by
law. ..."
The applicant complains that her supplementary submissions to the
Appeals Selections Committee had not yet reached the Committee when it
decided to reject her appeal. She also complains that in accepting the
request for her children's return to Greece the Norwegian courts failed
to satisfy themselves that the Greek court's interim order of
2 March 1994 had been issued in proceedings meeting the requirements
of Article 6 (Art. 6) of the Convention.
The task of the Convention organs is to ascertain whether the
proceedings, considered as a whole, including the way in which evidence
was taken and submitted, were fair. The Commission is normally not
competent to deal with a complaint alleging that errors of law and 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 or one of its Protocols,
for instance in that a court decision or judgment has no legal
justification and thereby violates a party's right to receive a fair
trial (cf. Eur. Court HR, De Moor v. Belgium judgment of 23 June 1994,
Series A no. 292-A, p. 18, para. 55, No. 25062/94, Dec. 18.10.95,
D.R. 83, p. 77).
The Commission first notes that the applicant has not
substantiated the contents of the supplementary observations which, for
unknown reasons, arrived at the Appeals Selection Committee only after
it had rejected her appeal. The Commission also notes the letter of
13 February 1995 in which the Committee, having studied the applicant's
supplementary submissions, concluded that they could not have led to
another outcome had they arrived in time for the Committee's
consideration of her appeal.
As regards the alleged failure on the part of the Norwegian
courts to verify the fairness of the Greek proceedings, the Commission
considers that an issue could arise under Article 6 (Art. 6) of the
Convention only if it emerges that the Greek court order of 2 March
1994 was the result of a flagrant denial of justice (see Eur. Court HR,
Drozd and Janousek v. France and Spain judgment of 26 June 1992, Series
A no. 240, pp. 34-35, para. 110). The Commission notes, however, that
the First Instance Court of Patras invited the applicant to attend its
hearing on 2 March 1994 and that she became aware of the planned
hearing at the latest on 24 February 1994. She has not shown that it
was impossible for her at that stage at least to arrange for her legal
representation at the hearing. Finally, it is not for the Commission
to examine whether she was summoned to the hearing in accordance with
international instruments governing the service abroad of judicial
documents.
Considering the Norwegian court proceedings as a whole, the
Commission cannot find any indication that they were unfair.
Accordingly, there is no appearance of a violation of Article 6 para. 1
(Art. 6-1) of the Convention in this respect.
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.
3. The applicant also complains that the Norwegian authorities
refused to suspend the order that her children be returned to Greece,
although the children's situation had allegedly changed after that
order had been issued. In her submissions of 27 September 1995 she
furthermore complains that a judge of the Enforcement Court was partial
in his examination of her non-enforcement request.
The Commission recalls that under Article 26 (Art. 26) of the
Convention it may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken. The applicant, however, eventually
withdrew her appeal to the High Court against the Enforcement Court's
decision not to stay enforcement.
The Commission therefore concludes that the applicant did not
exhaust the domestic remedies available to her under Norwegian law.
Moreover, an examination of this complaint does not disclose the
existence of any special circumstances which might have absolved her,
according to the generally recognised rules of international law, from
exhausting those remedies.
It follows that this complaint must be rejected for
non-exhaustion of domestic remedies under Article 27 para. 3
(Art. 27-3) of the Convention.
4. In so far as the case is directed against Greece, the applicant
first complains that her and her children's right to respect for their
family life was violated after their return to that country. She
alleges, in particular, that access was denied. She invokes Article 8
(Art. 8) of the Convention.
The Commission finds no substantiation of the applicant's
allegation that she and her children were prevented from meeting. Nor
can the Commission find any indication that the Greek authorities, for
any other reason, failed to respect the applicant's family life.
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.
5. The applicant furthermore complains that she was not properly and
timely summoned to attend the First Instance Court's hearings and that
its hearing on 10 November 1994 was not postponed despite her illness.
She invokes Article 6 (Art. 6) of the Convention. In her submissions
of 6 October 1995 she also complains that the First Instance Court
wrongly denied her the care and custody of her children. In this
respect she invokes Article 8 (Art. 8) of the Convention.
The Commission recalls the exhaustion requirement prescribed in
Article 26 (Art. 26) of the Convention. It notes that the applicant
apparently received the First Instance Court's judgment of 19 April
1995 at the latest towards the end of 1995. To date, however, there is
no indication that she has resorted to any of the remedies prescribed
by the Greek Code of Civil Procedure.
The Commission therefore concludes that the applicant has failed
to exhaust the domestic remedies available to her under Greek law both
in regard to the material outcome of the proceedings and in regard to
the alleged procedural flaws. Moreover, an examination of this
complaint 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 those remedies.
It follows that this complaint must be rejected for
non-exhaustion of domestic remedies under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary Acting President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy