CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 janvier 1991

.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. 14063/88                       by Søren Erik JENSEN                       against Denmark             The European Commission of Human Rights sitting in private on 7 January 1991, the following members being present:                MM.   S. TRECHSEL, Acting President                   C. A. NØRGAARD                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J. C. SOYER                   H. DANELIUS              Sir   Basil HALL              Mr.   F. MARTINEZ              Mrs.   J. LIDDY              MM.   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                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 2 March 1988 by Søren Erik JENSEN against Denmark and registered on 26 July 1988 under file No. 14063/88;           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 25 January 1990 and the observations submitted in reply by the applicant on 11 March 1990;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a Danish citizen, born in 1936.   He is an engineer and resides at Ringsted, Denmark.   A.       The particular facts of the case           By judgment of 7 September 1984 the applicant and his wife separated on the condition inter alia that he paid her alimony until further notice.   On the basis of this judgment the competent authorities decided, on 20 June 1985, that the applicant should pay 2,000 Danish crowns a month to his wife as from 3 April 1985.           The applicant refused, however, to pay alimony.   He alleged that his ex-wife lived with another man for which reason she was not entitled to such alimony.   Accordingly, he asked to be relieved from his obligation to pay but his request was rejected by the competent authorities of the County of Western Zealand (Vestsjællands Statsamt) on 19 August 1985.   Subsequent requests were rejected on 12 December 1985 and 12 May 1986 by the Directorate of Family Law (Familieretsdirektoratet).           As the applicant nevertheless refused to pay the Municipality of Ringsted (Ringsted Kommune) levied execution on a bank deposit of 8,000 Danish crowns belonging to the applicant and ordered the applicant's employer to withhold 3,000 Danish crowns per month of the applicant's salary in accordance with Section 5 of the Collection of Alimony Act (Lov om inddrivelse af underholdsbidrag) until the outstanding alimony had been paid.           The case was brought before the Bailiff's Court (fogedretten) of Ringsted where, during a preliminary court session on 15 April 1986, the applicant maintained first that his ex-wife was not entitled to alimony and in the alternative that the amount was too high.   The Municipality of Ringsted maintained first that the Bailiff's Court was not competent to examine the merits of the case and in the alternative that the facts, as submitted by the applicant, were incorrect.           The Bailiff's Court pronounced its decision (kendelse) on 17 June 1986, prior to which the parties had agreed that the Court was competent also to consider the merits of the case.   On the basis of the statements of the parties and the witnesses heard and after an evaluation of the written evidence submitted, the Court found that no such economic interests existed between the applicant's ex-wife and her new companion that the applicant could be relieved from his duty to pay alimony.   Having regard to the applicant's financial situation the Court furthermore found that the sum to be paid was appropriate. The Court considered the execution measures to be lawful and the applicant's objections in this respect were accordingly rejected.           The applicant appealed against this decision to the High Court of Eastern Denmark (Østre Landsret) where he maintained his views as expressed by him in the Bailiff's Court.   On 26 January 1987 a preliminary court session was held in the High Court sitting with one judge, P.   The court transcript from this court session reads as follows:           (Translation):   "The case was discussed.   The judge declared that the court, as the Bailiff's Court, in a case concerning the collection of alimony already due, also had the competence to decide upon the amount of alimony and the existence of such claims.   Having regard to the information now available, the particularly strict case-law regarding the annulment of the alimony already due and to the decisions of the County of Western Zealand and the Directorate of Family Law, the judge declared that an appeal in his opinion would be without prospects of success from the applicant's point of view.   The judge therefore proposed that the applicant considered discontinuing the case."           The applicant refused to do so, however, and the High Court thus examined the case on 2 September 1987 sitting with three judges, including P.   It appears that the court session was public.   However, at the beginning of the proceedings counsel for the applicant's ex-wife indicated that his client found it unpleasant if the applicant's and her daughter, who was present, was to attend the court hearing. She would therefore like the daughter to leave the court room.   Counsel for the applicant had no objections to this and, accordingly, the daughter felt obliged to leave the room which she did.   No formal decision as to the closing of the doors was taken by the Court.           The High Court then proceeded to hear the parties as well as one witness.   The applicant submits that he wanted an additional four witnesses heard.   These witnesses were not heard.   However, it does not appear that the applicant requested the Court to take a formal decision on the matter.           Judgment was pronounced on 7 September 1987.   The relevant part of this judgment reads as follows.           (Translation)   "For the reasons set out in (the Bailiff Court's) decision and since what has been brought forward in the High Court cannot lead to another result, the High Court upholds the decision."           The applicant subsequently submitted to the Ministry of Justice a request for leave to appeal to the Supreme Court (Højesteret).   He maintained that the judgment was contrary to domestic case-law and that the High Court had committed procedural errors in that, prior to the examination of the case, one of the High Court judges (P) advised him to discontinue the case, that the court session was not open to the public, that the judgment was without sufficient foundation and reasoning and that the High Court refused to hear four witnesses.           On 29 January 1988 the Ministry of Justice refused to grant leave to appeal.           The competent administrative authorities decided on 24 February 1988 that the applicant, retroactively as from 3 November 1987, was no longer to pay alimony to his ex-wife.   B.       Relevant domestic law and practice   a)       As regards alimony obligations section 49 of the Matrimonial Act (aegteskabsloven) provides that, in the event of judicial separation or divorce, it shall be determined whether one spouse is obliged to pay alimony to the other.   According to section 50 subsection 1 the court shall, if the parties fail to come to an agreement on the question of alimony, rule on the matter of the obligation to pay alimony and the duration of such obligation while it is up to the competent administrative authorities to determine the amount.   Section 53 subsection 1 of the Act provides that an alimony obligation established by court ruling may be changed by a new court ruling where materially altered circumstances or other special considerations warrant it.   According to section 53 subsection 2 the competent administrative authorities may alter their decision on the amount of alimony to be paid when circumstances call for it.           According to the Collection of Alimony Act municipal social committees will upon request collect alimony, cf. section 2 of the Act.   Under section 5 of the Act, alimony for a spouse may be collected for instance by deductions in the debtor's salary.   If a debtor objects to an order for deductions, the question shall be decided by the Bailiff's Court, cf. section 5 subsection 3 of the Act.   b)       As regards conciliation procedures chapter 26 of the Administration of Justice Act (sections 268-270) contains provisions obliging the court to seek conciliation in all civil law cases before the first instance.   A conciliation procedure may also take place before the High Court.   The provisions do not specify the stage of a lawsuit at which conciliation must or should be attempted.           Civil lawsuits are dealt with in two stages: preparation and oral proceedings.   Normally, preliminary court sessions deal only with the exchange of pleas, cf. section 351 of the Administration of Justice Act, but the court may instead opt to summon the parties to a special preliminary court session, cf. section 355 of the Administration of Justice Act.   Under section 355 subsection 4 this meeting is supposed to produce maximum clarity concerning the parties' position on the facts and legal aspects of the case.   Part of the effort is devoted to identifying the circumstances that will not be contested and those that will require production of evidence.   The parties must also state how they intend to produce evidence.           In the "travaux préparatoires" to section 355 it is stated inter alia:   (translation)   "The Court shall as a rule try to reach a conciliatory agreement in all civil lawsuits.   Conciliation procedure may be undertaken already in the preparatory stage of the case, cf. section 268 of the Administration of Justice Act. According to section 6 subsection 1, second sentence, of the proposal a single High Court judge may act on behalf of the Court outside the oral proceedings.   The preliminary court session referred to in (section 355) will generally be held before one judge who will often during this meeting become so well acquainted with the case that he will be able to propose a conciliatory arrangement, where possible, before any production of evidence is launched.   Where a case is obviously without prospect of success the judge may also advise the litigant to discontinue the case.   The Council finds it desirable that conciliatory procedure be attempted at the earliest possible stage of the court proceedings."   c)       The challenge of a judge is governed by sections 60 to 63 of the Administration of Justice Act.   According to section 62 of the Act the parties may, in addition to the special circumstances set out in section 60, also object to a judge hearing a case when other circumstances are capable of raising doubt about his complete impartiality.   In such instances the judge, too, if he fears that the parties cannot trust him fully, may withdraw from sitting even when no objection is lodged against him.   Where a case is heard by several judges, any one of them may raise the question whether any of the judges on the bench should step down on account of the circumstances of the case.           According to section 63 of the Administration of Justice Act the question whether or not a judge should remain on the bench, which when raised by one of the parties in civil matters is treated as other procedural objections, should as far as possible be raised before the beginning of the oral hearing.   This question may be decided without the parties having been given the opportunity to submit comments.   d)       As regards publicity in court proceedings matrimonial cases involving, for instance, alteration or contestation of divorce terms are heard in camera, cf. section 448 no. 6, compared with section 453, of the Administration of Justice Act.   This procedure is prompted by the desirability of respecting the privacy of the parties.           However, if a lawsuit is instituted regarding divorce terms either by or against a third party the case will be dealt with as an ordinary civil case.   In such cases court sessions are public, except where specific provisions to the opposite effect are prescribed, cf. section 29 subsection 1 of the Administration of Justice Act.   In exceptional circumstances the court may, however, either at the request of one of the parties or ex officio decide to close a session to the public, for instance when public proceedings would cause any individual unnecessary embarrassment, cf. section 29 subsection 3 of the Administration of Justice Act.   This happens in practice in, e.g., family-law cases.   e)       According to section 389 subsection 2 of the Administration of Justice Act court orders and decisions taken by a High Court may be appealed against to the Supreme Court unless otherwise provided by law.   COMPLAINTS           The applicant complains under Article 6 para. 1 of the Convention that he did not get a fair and public hearing by an impartial tribunal in the High Court of Eastern Denmark, in particular in the light of the fact that one of the High Court judges had declared prior to the main hearing that he considered the case without prospects of success, and since his friends were not allowed to attend the hearing although the court transcripts indicated that the court session was public.           Under Article 6 of the Convention the applicant also complains that the Court refused his request to have four witnesses heard.           The applicant furthermore invokes Articles 13 and 17 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 2 March 1988 and registered on 26 July 1988.           The Commission decided on 8 November 1989 to bring the application to the notice of the respondent Government, inviting them to submit written observations on the admissibility and merits of the case.           The Government's observations were submitted on 25 January 1990 and the applicant's observations in reply were submitted on 11 March 1990.           On 16 February 1990 the Commission refused the applicant's request for legal aid.   THE LAW   1.       The applicant has made a number of complaints under Article 6 para. 1 (Art. 6-1) of the Convention in regard to the proceedings in the High Court of Eastern Denmark when this Court determined his dispute with his ex-wife and the competent administrative authorities concering his obligation to pay alimony.           Article 6 para. 1 (Art. 6-1) of the Convention reads as follows:   "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.   Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."           The respondent Government do not dispute that this provision applies in the present case.   The Commission recalls that to a certain extent the court proceedings concerned the enforcement of already fixed claims of alimony and, according to the Commission's case-law such proceedings do not necessarily involve a determination of civil rights and obligations within the meaning of the above provision (cf. No. 11258/84, Dec. 7.7.86, D.R. 48 p. 225).   However, from the court transcripts of the Bailiff's Court as well as the High Court it is clear that the courts considered themselves competent not only to determine such already fixed claims but also to rule on the merits, i.e. the existence of an obligation to pay alimony.   Accordingly the Commission finds that such issues were determined in the proceedings which call for the application of Article 6 (Art. 6) of the Convention.   The Commission shall therefore examine the applicant's complaints under this provision.   2.       The applicant has complained that the decision of the High Court was wrong and based on an unacceptable interpretation of the applicable legislation.           In this respect the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its established case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           It is true that the applicant has made a number of complaints under Article 6 para. 1 (Art. 6-1) of the Convention concerning the manner in which his case was dealt with in the High Court of Eastern Denmark and the Commission will examine these separately below.   a)       The applicant has complained that one of the High Court judges had declared, prior to the main hearing, that he considered the case to be without prospects of success from the applicant's point of view. The Commission has examined this particular complaint under Article 6 para. 1 (Art. 6-1) of the Convention in so far as it guarantees a right to an impartial tribunal.           The respondent Government have submitted that the applicant failed to exhaust domestic remedies as he did not challenge the judge in accordance with section 62 of the Administration of Justice Act.           The applicant has submitted that it was not until the proceedings had come to an end that he realised the alleged bias of the judge and subsequently he did, in his request for leave to appeal, complain about this matter.   Furthermore, he submits, the judge acted in accordance with domestic law and practice when he tried to negotiate a settlement between the parties for which reason a challenge under section 62 of the Administration of Justice Act would have been without prospects of success.           The Commission recalls that under Article 26 (Art. 26) of the Convention it may only deal with a complaint after all domestic remedies have been exhausted according to the generally recognised rules of international law.   However, if it can be established that the remedies that may exist are ineffective or inadequate, either as a result of an administrative practice or otherwise, the domestic remedies rule does not apply (cf.   No. 10486/83, Dec. 9.10.86, D.R. 49 p. 86).           In the present case it is undisputed that judge P carried out his conciliation attempts in accordance with established practice consistent with the Administration of Justice Act.   The applicant could not, therefore, have pointed at any breach of Danish law when complaining about this situation.   In these circumstances the Commission finds that no effective remedies were available within the meaning of Article 26 (Art. 26) of the Convention in regard to this complaint. Accordingly, the Commission does not reject this complaint for non-observance of the domestic remedies rule.           However, the Commission recalls that the preliminary court session on 26 January 1987 was held in accordance with section 355 of the Administration of Justice Act and aimed at producing maximum clarity concerning the parties' position and at identifying the factual and legal circumstances of the case.   Having regard to this and to what has otherwise been established as regards preparatory meetings (see above: relevant domestic law and practice) the Commission does not consider it as such contrary to Article 6 para. 1 (Art. 6-1) of the Convention when a judge advises litigants on a possible outcome of a case.   Furthermore, there is no indication that the judge went beyond his competence by for example putting undue pressure on the applicant. Therefore no issue arises as to the impartiality of the hearing in that the same judge subsequently took part in the examination of the case.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   b)       The applicant has also complained that the hearing in the High Court was not public, as his daughter was forced to leave the court room, and thus contrary to Article 6 para. 1 (Art. 6-1) of the Convention.           In this respect the Government have again submitted that the applicant failed to exhaust domestic remedies whereas the applicant submits that he was tricked into believing that he could not protest when his daughter left the court room.           The Commission finds that it may be left open whether Article 26 (Art. 26) of the Convention has been complied with in regard to this complaint.   From the facts of the case it has been established that the question of the participation of the applicant's daughter was discussed and that the applicant's lawyer had no objections to her leaving the court room.   Furthermore the Commission recalls that where a person is represented by a lawyer he must generally exercise his procedural rights through this lawyer (cf.   No. 7138/75, Dec. 5.7.77, D.R. 9 p. 50).   In these circumstances the Commission has not found any facts which could lead to the conclusion that the applicant's right to a public hearing was not respected.           It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   c)       Under Article 6 (Art. 6) of the Convention the applicant has furthermore complained that the four witnesses were not heard in the High Court.           However, the Commission is not required to decide whether or not the facts alleged by the applicant in this respect disclose any appearance of a violation of Article 6 (Art. 6) since, as already indicated above, under Article 26 (Art. 26) of the Convention, it may only deal with a 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 obtain a decision on this issue from the High Court, a decision which, if necessary, could have been appealed against to the Supreme Court.   The applicant has, therefore, not exhausted the remedies available to him under Danish law.           It follows that this part of the application must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.   3.       The Commission has finally examined the applicant's complaints under Articles 13 (Art. 13) and 17 (Art. 17) of the Convention as submitted by him. However, an examination of these complaints does not disclose any appearance of a violation of the Convention.   It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission by a majority           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission             Acting President of the Commission             (H. C. KRUGER)                               (S. TRECHSEL)