AS TO THE ADMISSIBILITY OF
Application No. 19823/92
by T. and S.H.
against Finland
The European Commission of Human Rights sitting in private on
9 February 1993, 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
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
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 10 April 1992 by
T. and S.H. against Finland and registered on 13 April 1992 under file
No. 19823/92;
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 1 October 1992 and the observations in reply submitted
by the applicant on 10 November 1992;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a farmer born in 1953 and resident at J.
The second applicant is a schoolgirl born in 1983 and resident at X.
They are father and daughter and both Finnish citizens. Before the
Commission they are represented by Mr. Heikki Salo, a lawyer practising
in Helsinki.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
On 30 April 1985 the first applicant's wife and the mother of the
second applicant committed suicide. The first applicant then agreed
with the second applicant's maternal grand-parents (hereinafter "R.N."
and "S.N.") that they would provisionally take care of the second
applicant until he had solved the problems caused by the death,
including a re-organisation of his farming activities enabling him to
resume the care of the second applicant. During this period the
applicants met regularly.
In November 1985, when the second applicant was staying with the
first applicant, R.N. and his son demanded that the second applicant
come and stay with R.N. and S.N., or otherwise S.N. would commit
suicide. The first applicant complied, allegedly reluctantly, in order
to prevent S.N. from committing suicide.
Subsequently the first applicant was informed that R.N. and S.N.
would not return the second applicant to him. Conciliation efforts
involving the Social Welfare Board (sosiaalilautakunta, socialnämnden)
of X. were unsuccessful, R.N. and S.N. refusing to return the second
applicant.
On 9 December 1985 the first applicant reported the grandparents
to the Chief (nimismies, länsman) of the Rural Police District of
Tuusula who, in his function as Bailiff (ulosottomies, utmätningsman),
refused executive assistance and directed him to institute proceedings
before the County Administrative Board (lääninhallitus, länsstyrelsen)
of Uusimaa in its function as Executor in Chief (ulosotonhaltija,
överexekutor).
R.N. and S.N. subsequently brought an action against the first
applicant before the District Court (kihlakunnanoikeus, häradsrätten)
of Tuusula, requesting that the care and control of the second
applicant be transferred to them.
On 28 January 1986 the action was dismissed, as R.N. and S.N.
were considered to lack locus standi.
In February 1986 the first applicant requested the County
Administrative Board to take measures in order to have the second
applicant returned to him. In an opinion submitted by the conciliator
appointed by the Social Welfare Board the first applicant's
circumstances were not found to prevent such a return.
On 2 May 1986 the County Administrative Board rejected the
request, noting that the second applicant had been staying with R.N.
and S.N. with the first applicant's consent. Having regard to, inter
alia, the time which had elapsed from the moment when the second
applicant had been moved to live with R.N. and S.N., as well as to the
interaction between the second applicant and her father, her return
could have been contrary to her interests. The Board directed both
parties to institute care proceedings before the District Court.
On 5 July 1986 the District Court dismissed R.N. as the second
applicant's guardian ad litem.
Care proceedings were instituted by both parties. Following a
hearing on 16 July 1986 the District Court decided to obtain the Social
Welfare Board's opinion. It further provisionally ordered that the
second applicant was to stay with R.N. and S.N. and granted the first
applicant certain visiting rights.
R.N. and S.N. refused to comply with the order.
On 30 September 1986 the County Administrative Board ordered
them, under penalty of an administrative fine (uhkasakko, vite) of
2.000 FIM each, to comply with the order.
In a preliminary opinion of 28 October 1986 to the District Court
the Social Welfare Board considered it to be in the second applicant's
interests to have a relationship with both R.N. and S.N. as well as her
father. It noted, however, that the second applicant's right to see her
father had not been enforced, but found nothing to prevent the second
applicant from continuing, for the time being, to live with R.N. and
S.N.
On 31 October 1986 the District Court held a further hearing and
again adjourned the case. The first applicant was again granted
provisional visiting rights.
R.N. and S.N. refused to comply with the order.
In an opinion of 12 January 1987 to the District Court
Mr. Erkki Rutanen, a psychologist, supported the proposal that the
second applicant be returned to her father.
On 21 January 1987 the County Administrative Board rejected the
first applicant's request for execution of the District Court's order
of 16 July 1986. It further found that, as his visiting rights had been
amended by the District Court on 31 October 1986, the administrative
fine imposed on R.N. and S.N. had ceased to be valid.
In an opinion of 22 January 1987 to the District Court the Child
Guidance Centre (kasvatusneuvola, uppfostringsrådgivningen) of Central
Uusimaa supported the proposal that the care and control of the second
applicant should remain with her father. The opinion stated, inter
alia:
"...
The grand-parents' negative attitude towards [the second
applicant's] father as well as their frightening picture of
the way in which their daughter died prevent the
development of a normal relationship between [the second
applicant] and her father and make the second applicant
fear [him]. The father can accept that [the second
applicant] is fond of [her] grandparents. These, however,
treat [the second applicant] in a possessive way and view
any attachment of [the second applicant] to her father as
a loss of [her]. For example, in one situation subject to
[our] investigation, where apart from both parties three
officials were present and no danger could have been caused
by [the first applicant] [R.N.] 'ties' [the second
applicant] to herself by preventing her from moving around
freely in the room and even from having eye-to-eye contact
with [the first applicant]".
On the basis of our investigations and our knowledge of
child and family psychology we conclude that [the second
applicant's] father is better suited than her grandparents
to provide an environment supporting her healthy mental
development and that it is in her interests to live
permanently in her father's family..."
In a final opinion of 23 January 1987 the Social Welfare Board
considered that the care and control of the second applicant should
remain with her father and that she should live with him.
On 26 January 1987 the District Court confirmed that the first
applicant had the care and control of the second applicant and ordered
that she be handed over to him.
On 10 March 1987 the County Administrative Board ordered R.N. and
S.N., under penalty of a fine of 8.000 FIM each, to comply with the
District Court's decision of 26 January 1987.
R.N. and S.N. persisted in their refusal.
On 6 May 1987 R.N.'s and S.N.'s appeal against the District
Court's decision was rejected by the Court of Appeal (hovioikeus,
hovrätten) of Helsinki.
On 7 May 1987 the County Administrative Board ordered R.N. and
S.N. to return the second applicant to the first applicant and to pay
2.000 FIM each of the previously imposed fine.
On 13 May 1987 the first applicant requested the Chief of the
Rural Police District of X. to execute the County Administrative
Board's decision.
On 20 May 1987 it was discovered that the second applicant had
been moved to an unknown place.
On 29 May 1987 the first applicant lodged a complaint with the
Chancellor of Justice (oikeuskansleri, justitiekanslern), alleging that
the authorities were neglecting to take sufficient measures in order
to find and return the second applicant to him.
On 23 June 1987 the Court of Appeal rejected R.N.'s and S.N.'s
appeal against the County Administrative Board's decision of
10 March 1987.
On 30 July 1987 the Supreme Court (korkein oikeus, högsta
domstolen) granted R.N. and S.N. leave to appeal against the decision
of the Court of Appeal of 6 May 1987. It further ordered a stay of
execution of that decision, or, alternatively, that execution be
suspended.
On 17 May 1988 the Supreme Court rejected R.N.'s and S.N.'s
appeal and quashed the order for a stay of execution.
On 18 May 1988 the first applicant requested the Chief of the
Rural Police District of X. to take measures in order to have the
second applicant returned to him.
In the meantime, R.N. and S.N. requested a stay of execution and
an annulment of the Supreme Court's decisions.
On 10 June 1988 the first applicant renewed his request of
18 May 1988, this time to the Chief of the Rural Police District of
Mäntyharju, where the second applicant had been found to have been
moved.
On the same day R.N. and S.N. requested the Social Welfare Board
to investigate whether the execution of the Supreme Court's decision
would be in the second applicant's interests. The matter was
subsequently transferred to the National Board for Social Welfare
(sosiaalihallitus, socialstyrelsen).
On 6 July 1988 the Chancellor of Justice found no reason to take
measures with regard to the first applicant's complaint, finding that
following the County Administrative Board's decision of 7 May 1987
measures had immediately been taken in order to have it executed. He
noted, however, the subsequent order by the Supreme Court for a stay
of execution of the decisions of the Court of Appeal of 6 May and
23 June 1987, and R.N.'s and S.N.'s request for a stay of execution of
the Supreme Court's decisions of 17 May 1988.
On 13 September 1988 the Supreme Court rejected R.N.'s and S.N.'s
request for a stay of execution, as well as their request for an
annulment of the Supreme Court's decisions.
In the spring of 1989 the National Board for Social Welfare
ordered R.N. and S.N. to allow the second applicant's mental state and
her attitude towards her father to be investigated.
On 30 May 1990 it recommended the Social Welfare Board to take
measures to have the care and control of the second applicant
transferred to R.N. and S.N., to have the first applicant granted
visiting rights, and that another person be appointed the second
applicant's guardian.
On 13 August 1990 the Social Welfare Board requested that the
District Court transfer the care and control of the second applicant
to R.N. and S.N., but that the first applicant remain her guardian and
be granted visiting rights. The Board found, however, that the first
applicant was suitable to be responsible for the second applicant's
upbringing, that he could offer her a good home environment, and that
the second applicant's right to see him had not been enforced during
her stay with R.N. and S.N.
The case was first before the District Court on 19 September
1990, but was adjourned, the Court having decided to obtain an opinion
from the Guardianship Board (holhouslautakunta, förmynderskapsnämnden)
of Tuusula.
In an opinion of 31 October 1990 to the District Court the
Guardianship Board proposed, by a majority, that the first applicant
be dismissed as the second applicant's legal and accountable guardian.
On 14 November 1990 the District Court decided to obtain a
further report and opinion from the Child Guidance Centre (kasvatus-
neuvola, uppfostringsrådgivningen) of Central Uusimaa. The second
applicant was provisionally ordered to stay with R.N. and S.N. and the
first applicant was granted certain visiting rights.
R.N. and S.N. refused to comply with the court order.
On 20 December 1990 the first applicant requested the County
Administrative Board to take measures to execute the court order.
On 1 January 1991 the Child Guidance Centre of Central Uusimaa
ceased to exist. Its functions were taken over by the Child and Family
Guidance Centre (perhe- ja kasvatusneuvola, familje- och uppfostrings-
rådgivningen) of Tuusula.
On 31 January 1991 the first applicant renewed his request of
20 December 1990 to the County Administrative Board.
On 28 March 1991 the County Administrative Board ordered R.N. and
S.N., under penalty of an administrative fine of 5.000 FIM each, to
comply with the order.
R.N. and S.N., however, persisted in their refusal.
In an opinion of 7 May 1991 to the District Court the Child and
Family Guidance Centre of Tuusula confirmed the views submitted by the
Child Guidance Centre of Central Uusimaa in its opinion to the District
Court on 22 January 1987. It noted that R.N. and S.N. had refused to
participate in interviews for the purpose of carrying out a further
investigation, and that they had also refused to submit the second
applicant to such an investigation. It further referred to a statement
by the working group behind an opinion of 13 December 1989 by the
Lastenlinna children's hospital, according to which, although the
second applicant related to R.N. and S.N. as her psychological parents,
there were no mental obstacles for her to meet her father, and that,
on the contrary, such meetings were in her interests.
On 8 May 1991 the District Court rejected the Social Welfare
Board's request.
Following separate appeals by R.N. and S.N. as well as the Social
Welfare Board, the Court of Appeal on 24 July 1991 ordered a stay of
execution of the District Court's decision.
On 25 September 1991 the Court of Appeal, by a majority, partly
quashed the District Court's decision and transferred the care and
control of the second applicant to R.N. and S.N.. The first applicant
was granted certain visiting rights. The Court found that there were
particularly weighty reasons for maintaining the actual care situation
and for transferring the care and control of the second applicant to
R.N. and S.N. It noted, in particular, that the second applicant had
been living with R.N. and S.N. since 30 April 1985, that according to
the opinion by the children's hospital the second applicant's most
important relationship was that with R.N. and S.N., that she conceived
their home as her own, that it was important that this relationship and
home environment should not be greatly changed, but that she should be
able to meet her father and create a realistic relationship with him.
The Court considered, however, that the first applicant should remain
the second applicant's guardian.
The Court further had regard to the opinion of 7 May 1991 by the
Child and Family Guidance Centre of Tuusula. The Court finally noted
that references had been made to the second applicant's own wish not
to see her father. However, having regard to her age and the fact that
she clearly had not been able to form such an opinion without being
affected by others, it found that no significant importance could be
attached to it.
On 21 January 1992 the Supreme Court rejected the first
applicant's request for a hearing and refused him leave to appeal. The
decision contained no reasons.
Subsequently the first applicant lodged a request for enforcement
of the Court of Appeal's decision of 25 September 1991.
On 10 November 1992 the first applicant renewed his request.
To date R.N. and S.N. have not once complied with the Court of
Appeal's decision granting the first applicant visiting rights, nor
does their lawyer reply to letters from the applicants' lawyer before
the Commission.
At present the first applicant cohabits with a woman, with whom
he has two children.
Relevant domestic law and practice
The Act on the Enforcement of Decisions Regarding Custody of and
Access to Children (laki 523/75 lapsen huollosta ja tapaamisoikeudesta
annetun päätöksen täytäntöönpanosta, lag 523/75 om verkställighet av
beslut som gäller vårdnad om barn och umgängesrätt; hereinafter "the
1975 Act") concerns interim and final court decisions as well as
agreements confirmed by a Social Welfare Board (Section 1, as amended
by Act no. 366/83).
Before deciding a request for enforcement of a decision granting
custody of, or visiting rights to, a child, the Executor in Chief shall
assign a mediator who shall try to convince the person keeping the
child to agree to fulfil his or her obligations under the decision. No
mediator shall be appointed, if it is clear that a mediation would be
unsuccessful or if it is in the child's interest that the execution
should, for weighty reasons, be immediately enforced (Section 4, as
amended by Act no. 366/83).
The Executor in Chief may order that a decision shall be enforced
under penalty of an administrative fine or order the Bailiff to fetch
the child (Section 5).
If the child is twelve years old, or older, a decision shall not
be enforced contrary to his or her will. The same applies if a child
under twelve years of age is so developed that regard can be had to his
or her own will. (Section 6, as amended by Act no. 366/86).
A decision refusing the enforcement of a decision shall state the
circumstances warranting the refusal. The Social Welfare Board of the
municipality where the child is residing shall be informed (Section 7,
para. 2).
If the child is being cared for by someone other than the person
who has been granted custody, visiting rights or any other lawful right
to keep the child, the Executor in Chief shall, if requested, take
measures to have the child handed over to its legal custodian despite
the absence of a decision referred to in Section 1, paras. 1 or 2
(Section 8, para. 1, as amended by Act no. 366/86).
The Executor in Chief shall reject a request for enforcement made
under Section 8, para. 1 and direct the parties to institute custody
proceedings before a court of law, if, inter alia, the child has been,
with the custodian's consent, handed over to be cared for by somebody
else, and provided there is reason to believe that a return of the
child to his or her custodian would be contrary to the child's
interests, having regard to the length of stay with the carer, the
interaction and relation between the child and the carer, as well as
to the nature of that relationship (Section 8, para. 2).
A decision made by the Executor in Chief in pursuance of the 1975
Act is immediately enforceable provided it is not stated otherwise in
the decision. It may be appealed in pursuance of the 1895 Execution Act
(ulosottolaki 37/1895, utsökningslag 37/1895), that is to a court of
appeal and from there, with leave to appeal, to the Supreme Co
However, decisions made under Section 7 and Section 8, para. 2, are not
subject to appeal (Section 13).
Decisions regarding custody of and access to a child shall be
based primarily on the interests of the child. Particular regard shall
be had to the optimal implementation of the custody and access in the
future (Section 10 of the 1983 Act on Custody of and Access to Children
(laki 361/83 lapsen huollosta ja tapaamisoikeudesta, lag 361/83 ang.
vårdnad om barn och umgängesrätt; hereinafter "the 1983 Act").
In cases such as the present one the child's own wishes and
opinion shall, if possible, be obtained, having regard to the child's
age and maturity (Section 11).
When a custody or access matter is pending before a court of law,
the court may issue an interim order as to where the child should live,
the right of access and the conditions attached thereto. For special
reasons the court may also issue an interim order as regards the
custody. No appeal lies against an interim order (Section 17,
paras. 1-2).
A decision pertaining to the custody of, or access to, a child,
or ordering a child to live with someone, is immediately enforceable
without having acquired legal force, provided it is not stated
otherwise in the decision (Section 19 of the 1983 Act).
Under Chapter 3, Section 12, para. 2 of the Execution Act a court
of appeal or the Supreme Court may stay or suspend execution of a
decision which has not yet acquired legal force.
Courts of appeal may in civil matters hold oral hearings, if
considered necessary (Chapter 26, Section 7 of the Code of Judicial
Procedure (Oikeudenkäymiskaari, Rättegångs Balk)). The same applies to
the Supreme Court (Chapter 30, Section 20).
The Supreme Court may grant leave to appeal only if this is of
importance, having regard to the application of the law in other
similar cases, or to the uniformity of that application, or if, because
of a procedural or other fault, there is a particular reason to annul
or nullify a decision, or there is another weighty reason warranting
the granting of leave to appeal (Chapter 30, Section 3, para. 1).
COMPLAINTS
1. The applicants complain of a violation of their right to respect
for their family life. By allowing R.N. and S.N. to keep the second
applicant despite court decisions to the contrary, the authorities
failed to promote the re-unification of the applicants speedily. Whilst
an interference with the right at issue may be justified, for instance
for the protection of a child's health, no such circumstances were at
hand in the applicants' case. On the contrary, all authorities involved
found the first applicant suited to be responsible for the second
applicant's upbringing and that he could give her a good home
environment. Thus, the authorities' negligence to promote the re-
unification of the applicants contravened the second applicant's
interests. The applicants have not met since 1986.
The applicants object to the reasoning of the Court of Appeal in
its decision of 25 September 1991 according to which an arbitrary
keeping of a child, if long enough, amounts to a particularly weighty
reason for depriving a parent of legal custody of his child. Such
reasoning clearly jeopardises the principle of legality.
The applicants invoke Article 8 of the Convention and Article 5
of Protocol No. 7 to the Convention.
2. The applicants, invoking Article 6 para. 1 of the Convention,
also complain that the proceedings before the Court of Appeal and the
Supreme Court from 1991 to 1992 were unfair in that no oral hearing
took place.
They further complain of the length of the custody proceedings
and of the absence of reasoning in the Supreme Court's decision of
21 January 1992 refusing leave to appeal.
3. The applicants finally complain that they have been and continue
to be deprived of an effective remedy as guaranteed under Article 13
of the Convention, having regard to the authorities' failure to take
measures in order to have them re-united, the excessive length of the
proceedings, and the fact that, in view of R.N.'s and S.N.'s financial
situation, the administrative fines imposed on them had no effect and
were, in any case, not executed.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 April 1992 and registered
on 13 April 1992.
On 29 June 1992 the Commission decided to invite the respondent
Government to submit written observations on the admissibility and
merits of the application.
The Commission rejected the applicants' request for an interim
measure under Rule 36, but decided to give the application precedence.
The Government's observations were submitted on 10 October 1992
and the applicant's observations in reply on 10 November 1992.
On 23 October 1992 the Commission granted the applicants legal
aid.
THE LAW
1. The Commission first observes that the first applicant has
brought the application in his own name and in the name of his
daughter, but that he is no longer the second applicant's custodian.
Although remaining her guardian he is not competent under Finnish law
to act on his daughter's behalf except in matters mainly relating to
the administration of her possessions. As the application does not
concern any such matter, the Commission concludes that the first
applicant cannot in the present case represent his daughter before the
Commission, but can only pursue the application in his personal
capacity. The Commission therefore limits its examination of the case
to the complaints of the first applicant, hereinafter referred to as
"the applicant". The second applicant will hereinafter be referred to
as "S.".
2. The applicant complains of a violation of his right to respect
for his family life. By allowing R.N. and S.N. to keep S. despite court
decisions to the contrary, the authorities failed to act speedily to
promote the re-unification of the applicant with his daughter. In
particular, the applicant objects to the reasoning of the Court of
Appeal in its decision of 25 September 1991, according to which an
arbitrary keeping of a child, if long enough, amounts to a particularly
weighty reason for depriving a parent of the legal custody of his
child. Such reasoning clearly jeopardises the principle of legality.
The applicant invokes Article 8 (Art. 8) of the Convention and
Article 5 of Protocol No. 7 (P7-5) to 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."
Article 5 of Protocol No. 7 (P7-5) to the Convention reads as
follows:
"Spouses shall enjoy equality of rights and
responsibilities of a private law character between them,
and in their relations with their children, as to marriage,
during marriage and in the event of its dissolution. This
Article shall not prevent States from taking such measures
as are necessary in the interests of the children."
As regards the lack of enforcement of the District Court's
interim decision of 14 November 1990 granting the first applicant
visiting rights to S., the Government argue that the complaint is
inadmissible for non-exhaustion of domestic remedies. Although R.N. and
S.N. refused to comply with the interim decision, the first applicant
failed to renew, as prescribed under domestic law, his request that the
fines imposed on R.N. and S.N. be ordered to be paid.
As regards the lack of enforcement of the District Court's final
decision of 8 May 1991 upholding the first applicant's status as S.'s
custodian, the Government submit that the complaint in this respect is
manifestly ill-founded, as a stay of execution of that decision may
have been ordered in the interests of S.
The subsequent transfer of S.'s custody from the first applicant
to R.N. and S.N. was, in the Government's view, justified under para. 2
of Article 8 (Art. 8), as it was based on S.'s lengthy stay with R.N.
and S.N., which had led to the establishment of a family life between
them. In these circumstances the right of a child to enjoy respect for
her family life must prevail over the rights of her father despite his
status as guardian. Whether or not R.N.'s and S.N.'s keeping of S. was
legal was not necessarily decisive for the transfer of custody.
As regards the lack of enforcement of the District Court's
interim decision of 14 November 1990, the applicant refutes the
Government's non-exhaustion objection and refers to the Rieme judgment
(Eur. Court H.R., judgment of 22 April 1992, paras. 49-50, to be
published in Series A no. 226-B). In any case, the District Court's
final decision was rendered before the fines imposed on R.N. and S.N.
had been ordered to be paid. Thus, his enforcement request could not
be pursued.
As regards the lack of enforcement of the District Court's final
decision upholding the applicant's status as S.'s custodian, the
applicant recalls that, when staying execution of that decision in
July 1991, the Court of Appeal was aware of the opinion of the Child
and Family Guidance Centre of Tuusula of May 1991 finding the first
applicant to be more suitable as S.'s custodian than R.N. and S.N. and
noting that, due to R.N.'s and S.N.'s lack of co-operation, none of the
meetings planned between the first applicant and S. had taken place,
thus preventing S. from developing a realistic picture of her father.
As regards the transfer of S.'s custody to R.N. and S.N., the
applicant points out that, had the previous court decisions been
enforced, R.N. and S.N. would have been unable to refer to any "de
facto care" of S. Allowing this arbitrary retention of a child for the
purpose of establishing a relationship which can then be exploited to
have the child's custody transferred, impairs the principle of
legality. Moreover, the Government have not substantiated the alleged
grounds for justification under Article 8 para. 2 (Art. 8-2) of the
Convention.
The applicant finally recalls that not even subsequent to the
transfer of S.'s custody have R.N. and S.N. allowed him to meet S., a
right granted in connection with that transfer and considered to be in
S.'s interests.
The Commission must ascertain whether, and to what extent, it is
competent ratione temporis to examine the complaint. It recalls that,
in accordance with the generally recognised rules of international law,
the Convention only governs, for each Contracting Party, facts
subsequent to the entry into force of the Convention with regard to
that Party (e.g. No. 9453/81, Dec. 13.12.82, D.R. 31 pp. 204, 208).
Where the facts consist of a series of proceedings the entry into force
of the Convention divides that series in two parts, the earlier one
being outside the Commission's competence. On the other hand, where a
court decision has been made subsequent to the entry into force of the
Convention in the respondent State, the Commission is competent to
examine the proceedings leading up to that decision (e.g. No. 17925/91,
Kaunisto v. Finland, Dec. 8.10.91, unpublished; No. 11306/84, Dec.
16.10.86, D.R. 50 p. 162). Where the complaint concerns a continuing
situation it falls within the Commission's competence ratione temporis,
notwithstanding the fact that the situation complained of is a
consequence of a decision which was made or an occurrence which took
place prior to the entry into force of the Convention with regard to
the Contracting Party. The Convention entered into force with regard
to Finland on 10 May 1990.
In the present case the Commission observes that the applicant
has been refused access to S. as from the end of 1985, irrespective of
his then status as her custodian and guardian, and, following the
transfer of custody to R.N. and S.N., irrespective of the visiting
rights granted to him. The refusal of access must, thus, be considered
a continuing situation falling within the Commission's competence
ratione temporis (No. 214/56, Dec. 9.6.58, Yearbook 2 p. 214 (234)).
The Commission must next examine whether the applicant has
exhausted domestic remedies as required by Article 26 (Art. 26) of the
Convention. It observes that the Government have not substantiated
their objection that effective domestic remedies have not been
exhausted, nor does the Commission itself find that any further
remedies should have been exhausted. It follows that the objection must
be rejected.
The Commission has carried out a preliminary examination of the
applicant's complaints under Article 8 (Art. 8) of the Convention and
Article 5 of Protocol No. 7 (P7-5) to the Convention in the light of
the parties' submissions. It considers that they raise questions of
fact and law of such a complex nature that their determination requires
an examination of the merits. This part of the application cannot
therefore be declared inadmissible as being manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
No other reason for declaring the complaints inadmissible has been
established.
3. The applicant also complains that the proceedings before the
Court of Appeal of Helsinki and the Supreme Court from 1991 to 1992
were unfair in that he was refused an oral hearing. He further
complains of the length of the custody proceedings and of the lack of
reasoning in the Supreme Court's decision of 21 January 1992 refusing
leave to appeal. He invokes Article 6 para. 1 (Art. 6-1) of the
Convention, which reads, insofar as it is relevant:
"In the determination of his civil rights..., everyone is
entitled to a fair and public hearing within a reasonable
time..."
As regards the complaint relating to the fairness of the
proceedings before the Court of Appeal and the Supreme Court from 1991
to 1992, the Government submit that it is incompatible ratione materiae
with the provisions of the Convention in view of their reservation
under Article 64 (Art. 64) of the Convention, according to which
Finland cannot at present guarantee a right to an oral hearing in
proceedings before the courts of appeal and the Supreme Court. In any
case, the applicant waived his right to request an oral hearing before
the Court of Appeal of Helsinki. Reference is made to the Håkansson and
Sturesson judgment (Eur. Court H.R., judgment of 21 February 1990,
Series A no. 171-A).
As regards the complaint concerning the length of the
proceedings, the Government argue that it is incompatible ratione
temporis with the provisions of the Convention insofar as it relates
to events prior to 10 May 1990. The re-opened custody proceedings
starting on 13 August 1990 were terminated on 21 January 1992. In view
of the fact that they included proceedings before courts at three
levels their length must be considered reasonable.
The applicant submits that Finland's reservation only applies
insofar as the current Finnish legislation does not provide a right to
an oral hearing. However, the International Covenant on Civil and
Political Rights (hereinafter "the Covenant"), to which Finland has
made no reservation, has been incorporated into Finnish legislation in
the form of an Act of Parliament. The reservation at issue must
therefore be interpreted in the light of Article 14 para. 1 of the
Covenant. The applicant further refers to the Supreme Court's decision
of 13 May 1992 (no. 1992:107).
The applicant refutes the Government's assertion that he waived
any right to an oral hearing before the Court of Appeal. He had no
reason to lodge an appeal against the decision of the District Court.
However, in his request for leave to appeal to the Supreme Court he did
request an oral hearing. The Court of Appeal transferred the custody
of S. merely on the basis of written submissions. In any case, the
absence of reasoning in the Supreme Court's refusal of leave to appeal
rendered the proceedings unfair.
(i) The Commission will first deal with the reservation question. The
reservation made by the respondent Government in accordance with
Article 64 (Art. 64) of the Convention reads, insofar as it is
relevant, as follows:
"For the time being, Finland cannot guarantee a right to an
oral hearing insofar as the current Finnish laws do not
provide such a right. This applies to:
1. proceedings before the Courts of Appeal [and] the
Supreme Court...in accordance with Chapter 26 [Section]
7..., as well as Chapter 30 Section 20, of the Code of
Judicial Procedure..."
Article 14 para. 1 of the Covenant reads, in its relevant part,
as follows:
"...In the determination of...his rights...in a suit at
law, everyone shall be entitled to a fair and public
hearing..."
The Commission observes that the Covenant, having been
incorporated into Finnish law by means of Act no. 107/75, entered into
force with regard to Finland on 23 March 1976 and that no reservation
has been made in respect of the right enshrined in Article 14 para. 1
of the Covenant. The question therefore arises whether its reservation
to Article 6 para. 1 (Art. 6-1) of the Convention also covers any right
to an oral hearing which the Covenant may guarantee.
It appears from the interpretation of Article 14 para. 1 of the
Covenant that the right to an oral hearing before appellate courts is
not guaranteed in that provision to the same extent as by Article 6
para. 1 (Art. 6-1) of the Convention. Thus, in a published decision
rendered in 1989 regarding the absence of an oral hearing in criminal
proceedings before a Finnish court of appeal, the Human Rights
Committee "believe[d] that the absence of oral hearings in the
appellate proceedings raises no issue under Article
14..."(Communication No. 301/1988, 1989 Annual Report, Doc. A/44/40,
p. 300, para. 6.4.).
It is true that in certain particular circumstances the Covenant
has been interpreted to require an oral hearing before an appellate
court (Communication No. 387/1989, CCPR/C/46/D/387/1989, 5.11.92; the
case concerned the absence of an oral hearing on appeal in Finnish
criminal proceedings). The Commission cannot, however, speculate
whether the present case belongs to that category of exceptional cases,
but rather has to proceed from the main principle that "the absence of
oral hearings in the appellate proceedings raises no issue under
Article 14 [of the Covenant]". Therefore, no right to an oral hearing
under Finnish law, circumventing Finland's reservation to the
Convention, can be derived from the Covenant. The Commission concludes
that the Finnish reservation covers the applicant's complaint of the
absence of an oral hearing before the Court of Appeal and the Supreme
Court. It follows that this aspect of the complaint under Article 6
para. 1 (Art. 6-1) of the Convention must be rejected under Article 27
para. 2 (Art. 27-2) as being incompatible ratione materiae with the
provisions of the Convention.
(ii) Insofar as the applicant's complaint under Article 6 para. 1
(Art. 6-1) of the Convention relates to the absence of reasoning in the
Supreme Court's decision refusing leave to appeal, the Commission
considers that an examination under Finnish law as to whether leave to
appeal to the Supreme Court shall be granted only amounts to an
examination as to whether the conditions under Chapter 30, Section 3,
para. 1 of the Code of the Judicial Procdeure are at hand. It does not
amount to an examination of the merits of the appeal. The role of the
Finnish Supreme Court is, in this respect, similar to that of the
Swedish Supreme Court (see, regarding the latter, No. 11855/85, Dec.
15.7.87, D.R. 53 p. 190, at pp. 199-200). The Commission finds,
therefore, that the leave to appeal examination by the Finnish Supreme
Court did not involve a determination of the applicant's civil rights
within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention. It follows
that this aspect of the complaint under Article 6 para. 1 (Art. 6-1)
must also be rejected pursuant to Article 27 para. 2 (Art. 27-2) as
being incompatible ratione materiae with the provisions of the
Convention.
(iii) Insofar as the applicant's complaint under Article 6 para. 1
(Art. 6-1) of the Convention relates to the length of the custody
proceedings, the Commission first has to ascertain whether and to what
extent it is competent ratione temporis to examine it.
The first set of custody proceedings terminated on 13 September
1988, that is prior to 10 May 1990, when the Convention entered into
force with regard to Finland. The second set of the proceedings
commenced subsequent to that date. Consequently, for the reasons set
out above (pp. 12-13), the Commission is not competent to include the
first set of those proceedings in its examination of the complaint
about the length of the custody proceedings. It follows that this
aspect of the case must be rejected under Article 27 para. 2
(Art. 27-2) of the Convention as being incompatible ratione temporis
with the provisions of the Convention.
(iv) The Commission has, in the light of the parties' submissions,
carried out a preliminary examination of the complaint under Article 6
para. 1 (Art. 6-1) of the Convention insofar as it relates to the
length of the second set of proceedings commencing on 13 August 1990
and terminating on 21 January 1992. It considers that it raises
questions of fact and law of such a complex nature that their
determination requires an examination of the merits. This part of the
complaint cannot therefore be declared inadmissible as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other ground for declaring it inadmissible has been
established.
4. The applicant finally complains that he has been, and continues
to be, deprived of an effective remedy as guaranteed by Article 13
(Art. 13) of the Convention. He refers to the authorities' failure to
take measures in order to have him re-united with his daughter, the
excessive length of the proceedings and the fact that, in view of
R.N.'s and S.N.'s financial situation, the administrative fines imposed
on them had no effect and were, in any case, not ordered to be paid.
Article 13 (Art. 13) of the Convention 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. "
The Government maintain their non-exhaustion objection and argue
that the first applicant has not used the procedure for
administratively fining R.N. and S.N. to the full extent possible and
necessary in order to obtain enforcement of his visiting rights.
The applicant contends that it is impossible to make use of the
system compelling somebody to comply with a court decision to any
further extent than has been done in the present case. To date not a
single fine has been enforced against R.N. and S.N.
The Commission considers this complaint to be closely connected
to the complaints under Article 8 (Art. 8) of the Convention and
Article 5 of Protocol No. 7 (P7-5) admitted above. It also raises
questions of fact and law of such a complex nature that their
determination requires an examination of the merits. The complaint
under Article 13 (Art. 13) cannot therefore be declared inadmissible
as being manifestly ill-founded. No other ground for declaring the
complaint inadmissible has been established.
For these reasons, the Commission, by a majority,
AS REGARDS THE COMPLAINTS AS LODGED BY THE FIRST APPLICANT
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the complaints under Article 8 (Art. 8) of the Convention and
Article 5 of Protocol No. 7 to (P7-5) the Convention, Article 6
para. 1 (Art. 6-1) of the Convention (length of the second set
of custody proceedings) and Article 13 (Art. 13) of the
Convention;
DECLARES INADMISSIBLE the remainder of his complaints; and
AS REGARDS THE COMPLAINTS AS LODGED ON BEHALF OF S.
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NORGAARD)
Full & Egal Universal Law Academy