CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 mars 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    AS TO THE ADMISSIBILITY     Application No. 12807/87 by C. against the United Kingdom             The European Commission of Human Rights sitting in private on 3 March 1988, 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                      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 3 July 1985 by C. against the United Kingdom and registered on 13 March 1987 under file No. 12807/87;           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 facts as submitted by the applicant, an Italian citizen born on 29 August 1949 living in Naples, Italy, and an engineer by profession, may be summarised as follows.           The applicant was married on 12 July 1980 and his wife is a British citizen currently living in England.   There are two children of the family, a son born on 13 October 1982 and a daughter born on 20 December 1985.   Both children hold dual nationality.           The applicant states that during the course of the first half of 1985, whilst he and his wife were living in France, it became apparent that there were a number of problems with their marriage. The applicant states that his wife became accusatory and critical of his behaviour and she spoke of separation.   The applicant states that he tried to avoid provocation from his wife but that on one occasion he had to slap his wife to stop her from telling the son demeaning things about the applicant.           After this incident the applicant's wife got drunk and threatened suicide.   The applicant calmed her down and a few days later took her to a doctor who gave her sedatives.   That Easter the applicant, his wife and son went to Italy for a visit.   The applicant's wife during the visit argued with the applicant's relatives and slapped the applicant's mother.           On 10 April 1985 the applicant's wife insisted on going to England and taking the son with her.   She left on 12 April 1985. Shortly after her return to England, she informed the applicant that she was pregnant and that she intended to return to the applicant's home shortly.           However, on 2 May 1985 the wife wrote to the applicant saying that she could never return to Italy or France explaining some of the difficulties in their relationship and in particular some of the problems she had experienced with the applicant's family and way of life.   The wife saw that the only chance for their relationship to continue was if the applicant went to live and find work in England. In this letter, the wife informed the applicant that she would be making the son a ward of court.           On 3 May 1985, in the High Court, the son was made a ward of court.   The applicant states that he was not informed about the wardship proceedings, and was not served with the documents prior to a hearing which took place on 5 June 1985 which confirmed the wardship of the son, awarding care and control to the applicant's wife and allowing the applicant liberty to apply for access.   At the hearing on 5 June 1985 the court was aware that the applicant had not been served with a summons notifying him of the proceedings, but evidence was adduced by the wife that the applicant had decided not to come within the jurisdiction because of the wardship proceedings.   The applicant was served with notice of the wardship order on 13 June 1985 when he visited England.           The applicant states that he made several attempts at a peaceful reconciliation with his wife, which were nonetheless rejected by her on the ground that she disliked Italy and the Italians.           The applicant states that he took advice from an English solicitor on the question of whether to appeal against the order of wardship on 5 June 1985.   He was not, however, able to obtain legal aid and the funds, approximately £12,500, he held in a joint bank account with his wife in England were not available to him, since the account required his signature and his wife's for withdrawals.   He did not appeal against the decision of 5 June 1985, but was advised to file an affidavit stating that he would not remove the son from the jurisdiction of the High Court.   He filed this affidavit as he was advised that unless he did so he would not be able to obtain access to his son.           The applicant subsequently instituted proceedings in England, applying to the High Court to have the wardship discharged.   He obtained legal aid with some personal contribution and was represented by counsel at the hearing which took place on 6 October 1986.   The application was turned down.   The wardship of the son was confirmed and the applicant's daughter, who had been born since the previous proceedings, was also made a ward of court and her name was changed against the applicant's will.   The applicant was granted access to his son during his visits to England, for three hours on school days, and for four hours on non-school days.   He was also granted access to his daughter for periods of a half hour in the company of his wife.           The applicant instructed his solicitors to appeal against the decision of 6 October 1986.   On 8 December 1986 however his legal aid certificate was discharged on grounds that the applicant had no prospect of success in the proposed appeal and that he did not require legal representation within the wardship proceedings.   His funds in England are still inaccessible and cannot be used to cover his legal fees.           The applicant is concerned for the safety of his son and daughter, and he states that his wife has a drinking habit and that her brother, with whom she is living, keeps in the house a three and a half metre python which is fed on live rabbits and mice.   The applicant states that his wife is suicidal, and that he is anxious about her sexual promiscuity.           The applicant finished working in France in October 1985 and returned to live in Naples, Italy.     COMPLAINTS           The applicant complains, in context of the wardship proceedings, that he has not been properly informed of the nature and cause of the accusation against him, that he has not been given adequate time and facilities for the preparation of his defence, that he has not been given the right to defend himself and that he has not been given the assistance of an interpreter as guaranteed by Article 6 para. 3 (a), (b), (c) and (e) of the Convention.   He also complains of a refusal of legal aid in order to appeal.           The applicant further complains that his right to respect for family life has been interfered with by the courts making his son a ward of court.   He invokes Article 8 of the Convention in this respect.           The applicant further complains that the obligatory confinement in England and Wales of his son against the applicant's will and against his son's will is contrary to the right to liberty safeguarded by Article 5 of the Convention.   The applicant finally complains that his son has been deprived of his right to liberty of movement and the right to leave their own country contrary to Article 2 paras. 1 and 2 of Protocol No. 4 to the Convention.     THE LAW   1.       The applicant complains that in the wardship proceedings he has not been properly informed of the nature and cause of the accusation against him, that he has not been given adequate time and facilities for the preparation of his defence, that he has not been given the right to defend himself and that he has not been given the assistance of an interpreter as guaranteed by Article 6 para. 3 (a), (b), (c) and (e) (Art. 6-3-a-b-c-e) of the Convention.   He also complains of being refused legal aid to appeal against the court's decision of 6 October 1985.           Article 6 para. 1 (Art. 6-1) the Convention provides:           "1.   In the determination of his civil rights and         obligations or of any criminal charge against him,         everyone is entitled to a fair and public hearing         within a reasonable time by an independent and         impartial tribunal established by law..."           The Commission notes first of all that the rights protected under Article 6 para. 3 (Art. 6-3) relate only to criminal proceedings.   In civil proceedings no such rights are, as such, included in the rights and freedoms guaranteed by the Convention, although the complaints made by the applicant could, in certain circumstances, amount to a failure to ensure a fair hearing under Article 6 para. 1 (Art. 6-1) of the Convention.   The Commission has considered whether the applicant, who failed to appeal, can nevertheless be said to have exhausted domestic remedies in relation to the complaints concerning the proceedings before the High Court, as required by Article 26 (Art. 26) of the Convention, but finds it however unnecessary so to decide.   On an examination of the facts of the case as presented by the applicant, the Commission finds that there is no indication that the procedural matters on which the applicant relies adversely affected the fairness of the hearing.   He has not shown that he did not have adequate time and facilities for the preparation of his case and the Commission notes that the applicant initially received legal aid and legal advice and was represented by a barrister at the hearing on 6 October 1986. Furthermore while there was no interpreter available to the applicant, he has not shown that he did not sufficiently understand the proceedings or that in this case an interpreter was necessary to ensure a fair hearing.           Insofar as the applicant complains of a withdrawal of legal aid for his appeal, the Commission observes that no right to free legal aid in civil proceedings is as such, included in the rights and freedoms guaranteed by the Convention, although the case-law of the Commission and Court has established that refusal of legal aid could in certain circumstances amount to denial of effective access to court (e.g.   Eur.   Court H.R., Airey judgment of 9 October 1979, Series A No. 32).   The Commission also recalls that the restriction on the availability of legal aid to cases with reasonable prospects of success would not normally constitute a denial of access to court, unless it could be shown that the decision of the relevant authority was arbitrary (Application No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95). In the present case, it appears that legal aid was refused on the grounds that the applicant had no prospect of success and that at that time he did not require legal representation within the wardship proceedings.   Since it also appears that the applicant would have been able to pursue the appeal himself, the Commission finds that the applicant has failed to establish that he has been denied effective access to court contrary to Article 6 (Art. 6)of the Convention.           In these circumstances the Commission finds no appearance of a violation of the provisions of Article 6 (Art. 6) of the Convention. It follows that these complaints are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains that his right to respect for family life has been interfered with by the courts making his children wards of court.           Article 8 (Art. 8) provides:           "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."           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, 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.           In the present case the applicant failed to appeal to the Court of Appeal against the order of the High Court making both children wards of court or to seek variation of the conditions of access to them and has, therefore, not exhausted the remedies available to him under English law.   While it is true that the applicant has also complained of a lack of legal aid for an appeal, the Commission has found that he would have been able to pursue the appeal himself and in those circumstances is not relieved from his obligation to exhaust the remedies available to him under domestic law.   Moreover, the refusal of legal aid, on the ground, inter alia, that the applicant had no prospect of success in the proposed appeal proceedings, does not necessarily imply that the appeal was in the circumstances an ineffective remedy, which the applicant was not required to exhaust.   An examination of the case therefore 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 the domestic remedies at his disposal.           It follows that the applicant has not complied with the conditions as to the exhaustion of domestic remedies and that this part of his application must be rejected under Article 27 para. 3 (Art. 27-3)   of the Convention.   3.       The applicant also complains that his son is obligatorily confined in the United Kingdom and prohibited from leaving, contrary to Article 5 para. 1 (Art. 5-1) of the Convention and Article 2 of Protocol No. 4 (P4-2).           Article 25 (Art. 25) of the Convention provides however that the Commission may only receive petitions from a "... person, non-governmental organisation or group of individuals claiming to be a victim of a violation ...".   It follows from this provision that the person who submits a petition must himself claim to be the victim of the alleged violation.   Accordingly insofar as the applicant complains of the restrictions imposed on his son, who is not applicant in the present case, the application is incompatible ratione personae with the provisions of the Convention and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.           However even assuming that the applicant can be construed as complaining on behalf of his son, or that he is authorised to do so, the Commission finds that it is not necessary to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, 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.           The Commission notes that the applicant has himself already agreed not to remove the son from the jurisdiction of the court in his affidavit sworn after the hearing on 5 June 1985.   The Commission further notes that it was, and is, open to the applicant to apply to the High Court in the wardship proceedings should he wish to take his children out of England and Wales.   He has, therefore, not exhausted the remedies available to him under domestic law.   Moreover, an examination of the 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 the domestic remedies at his disposal.           It follows that the applicant has not complied with the conditions as to the exhaustion of domestic remedies and that this part of his application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission                 President of the Commission             (H.C. KRÜGER)                               (C.A. NØRGAARD)