CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 février 1990

.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 OF                          Application No. 12797/87                                by J.D.N.                             against France         The European Commission of Human Rights sitting in private on 6 February 1990, the following members being present:         MM.   C.A. NØRGAARD, President            J.A. FROWEIN            S. TRESCHEL            F. ERMACORA            E. BUSUTTIL            G. JÖRUNDSSON            A.S. GÖZÜBÜYÜK            A. WEITZEL            J.-C. SOYER            H.G. SCHERMERS            H. DANELIUS            J. CAMPINOS            H. VANDENBERGHE       Mrs. G.H. THUNE       Sir   Basil HALL       MM.   F. MARTINEZ            C.L. ROZAKIS       Mrs. J. LIDDY       Mr.   L. LOUCAIDES         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 12 December 1983 by J.D.N. against France and registered on 1 January 1987 under file No. 12797/87;         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 applicant is a Dutch national, born in 1934 and presently resides in Lochem, the Netherlands.   He is an artist.   Before the Commission he is represented by Mr. G.P. Hamer, a lawyer, practising in Amsterdam.         For several years the applicant lived in France together with his wife and three children.         On 22 October 1982 the Regional Court (tribunal de grande instance) of Bergerac decided on the applicant's divorce and gave the custody over his three children to the mother.   The Court also provided for an arrangement concerning the applicant's right to visit his children.         He appealed against this decision to the Court of Appeal (cour d'appel) of Bordeaux on 19 November 1982.   Pending the appeal, the Judge Rapporteur (conseiller de la mise en état) decided, on request of both parties, on the modalities of the right to visit the children. Because the applicant had taken the children to the Netherlands - in violation of the applicable provisions of the judgment of the Regional Court - the Judge Rapporteur ordered that the visits should take place in France and that the applicant should give the children's passports to his ex-wife.         In its decision of 20 December 1984 the Court of Appeal rejected the applicant's request and upheld both the decision of the Regional Court and the decision of the Judge Rapporteur.         In order to lodge an appeal with the Court of Cassation (Cour de cassation) the applicant, on 4 February 1985, filed a request for free legal aid with the Legal Aid Bureau (bureau d'aide judiciaire) of the Court of Cassation.   On 13 June 1985 his request was rejected, although his financial resources were not adequate to pay for legal aid himself, on the ground that the judgment of the Court of Appeal appeared to be legally justified and not admissible for cassation.   COMPLAINTS   1.     The applicant complains of a violation of Article 6 of the Convention because proceedings before Regional Court, Court of Appeal and Legal Aid Bureau were conducted in French which he alleges not to understand.   2.     He also complains of the procedure before the Legal Aid Bureau which was not public and in which the decision was not rendered publicly.   3.     He furthermore complains of the denial of access to the Court of Cassation because of the decision of the Legal Aid Bureau.   4.     Finally, he invokes Article 8 concerning the restricted right to visit his children in France which constitutes an interference with his family life.   THE LAW   1.     Concerning the applicant's complaint under Article 6 (Art. 6) of the Convention regarding the proceedings which were all conducted in French only, the Commission notes that the applicant did not raise this issue in the national proceedings.   Consequently, he did not exhaust the remedies available to him under French law, as required under Article 26 (Art. 26) of the Convention.         It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and that this part of the application must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.     As regards the procedure before the Legal Aid Bureau the Commission considers that Article 6 (Art. 6) is not applicable since there is neither a determination of a criminal charge nor of civil rights and obligations when the Legal Aid Bureau determines whether or not the conditions required for granting free legal aid have been fulfilled.         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.   3.     As regards the applicant's complaint concerning the access to the Court of Cassation, the Commission recalls that the Convention does not impose an obligations on the States Parties to provide free legal aid for every dispute relating to a civil right (see Airey judgment of 9 October 1979 Eur. Court H.R., Series A no. 32, p. 15).         In the present case, the Commission notes that the request for free legal aid was rejected on the ground that the judgment of the Court of Appeal appeared to be legally justified and inadmissible for cassation.         The Commission considers that a legal aid system can only operate effectively, given the limited resources available, by establishing machinery to select which cases should be legally aided (cf. No. 8158/79, Dec. 10.7.80, D.R. 21, p. 95).         In these circumstances, the Commission does not find that the rejection of the request for free legal aid amounts to a breach of Article 6 (Art. 6) of the Convention.         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.   4.     The applicant also complains of his restricted right to visit his children and invokes in this respect Article 8 (Art. 8) of the Convention.   The Commission considers that although he did not appeal to the Court of Cassation the decision of the Bureau clearly shows that an appeal to the Court of Cassation would have no prospects of success. Therefore, this complaint cannot be rejected for non-exhaustion of domestic remedies.         However, the Commission is of the opinion that even assuming that there is an interference with the applicant's right to respect for his family life, the limitation on the modalities of the applicant's right to visit his children could be regarded as necessary in a democratic society for the protection of the rights of others.   It was therefore justified under Article 8 para. 2 (Art. 8-2) of the Convention.   In this respect the Commission notes that the applicant has not been denied the rights to visit his children, but that the way in which he could exercise this right has only been modified as a consequence of the fact that the applicant illegally took his children to the Netherlands.         Therefore, this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission                  President to the Commission         (H.C. KRÜGER)                                (C.A. NØRGGARD)