CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 octobre 1992

.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. 17865/91                       by Pirkko TASKINEN                       against Finland         The European Commission of Human Rights sitting in private on 14 October 1992, the following members being present:              MM.    J.A. FROWEIN, President of the First Chamber                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  B. MARXER              Mr.    M. de SALVIA, Secretary to the First Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 10 June 1990 by Pirkko TASKINEN against Finland and registered on 1 March 1991 under file No. 17865/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     THE FACTS         The applicant is a Finnish citizen born in 1941 and resident at Savonlinna. She is a cleaning-lady by profession.         The facts of the case, as they appear from the applicant's submissions and the information submitted by the Government, may be summarised as follows.   Particular circumstances of the case                                     I.         On 1 October 1984 the applicant was ordered to undergo treatment in a psychiatric hospital due to serious paranoia.         On 14 December 1984 she was discharged.         By a decision of 29 January 1985 of the City Court (raastuvan- oikeus, rådstuvurätten) of Savonlinna the applicant, represented by a guardian ad litem, obtained judicial separation from her then husband, O.N. The custody of their children Hannu, born in 1976, and Heikki, born in 1981, was given to O.N.   The applicant was given a right to visit them on the first and the third Saturday of the month.         In 1986 and 1988 the applicant reported O.N. to the police, alleging that he had been sexually abusing the children. In the first- mentioned case the Public Prosecutor decided not to bring charges, having regard to the lack of evidence. In the latter-mentioned case the investigation was closed by the police, finding that no new evidence had been submitted by the applicant.         From 22 June to 8 July 1988 Hannu was, pursuant to the 1983 Child Welfare Act (lastensuojelulaki 683/83, barnskyddslag 683/83) taken into institutional care at the child psychiatric clinic of the University Hospital of Kuopio. Thereafter he stayed for a month in the children's home of Mäntyharju. From 8 August 1988 to 31 May 1989 he again stayed in the University Hospital. From 10 June 1989 to 31 May 1990 he again stayed in the children's home. During these periods Hannu spent certain shorter periods with O.N., with whom he has been living since 1 June 1990.         In October 1988 the applicant and O.N. divorced.         On 9 May 1989 the City Court rejected the applicant's claim that the custody of the children be transferred to her or, alternatively, that her visiting-rights be extended.         The City Court had regard to the fact that the children had mostly been living with their father. The specialist doctor of the clinic where Hannu was staying had submitted an opinion to the Court according to which there were no grounds for transferring the custody. In its opinion to the Court the Social Welfare Board (sosiaalilautakunta, socialnämnden) of Savonlinna had reached the same conclusion and objected to the requested extension of visiting-rights. According to the opinion Hannu was to be placed in a children's home in accordance with the consent obtained from O.N.         The City Court furthermore found it appropriate that the custody of the children remain with one of the parents. The Court concluded that it had not been shown that there had been a change in the circumstances following the decision of 29 January 1985 as regards the custody matter, nor had any grounds been shown for extending the applicant's visiting-rights.         The decision was upheld upon the applicant's appeal on 1 September 1989 by the Court of Appeal (hovioikeus, hovrätten) of Eastern Finland.         In the proceedings regarding the transfer of custody the applicant was represented by the Public Legal Adviser (yleinen oikeusavustaja, allmänna rättsbiträdet) of the City of Savonlinna.         By a decision of 2 August 1990 the National Medical Board (lääkintöhallitus, medicinalstyrelsen) found no reasons for taking any measures in respect of the applicant's allegation that she had not been allowed to visit Hannu or to write to him at the psychiatric clinic, nor did the Board find any indication of ill-treatment of Hannu at that clinic.                                     II.         On 7 April 1986 the City Council (kaupunginvaltuusto, stads- fullmäktige) of Savonlinna approved a town plan affecting the applicant's property.         On 9 December 1986 the County Administrative Board (läänin- hallitus, länsstyrelsen) of Mikkeli rejected the applicant's appeal. No further appeal was lodged by the applicant.                                    III.         On 17 April 1990 the City Council approved a land acquisition plan for the period from 1989 to 2000.         On 5 July 1990 the County Administrative Court (lääninoikeus, länsrätten) of Mikkeli partly dismissed the appeal for lack of competence and partly referred it to the County Administrative Board. No further appeal was lodged by the applicant.                                     IV.         On 31 March 1989 the Unemployment Fund for State Workers and Officials (valtion työntekijäin ja viranhaltijain työttömyyskassa, arbetslöshetskassan för statligt anställda arbetare och tjänstemän) rejected the applicant's request for a daily unemployment allowance for certain periods of time.         On 4 January 1990 the Board for the Protection of the Unemployed (työttömyysturvalautakunta, arbetslöshetsnämnden) upheld the decision upon the applicant's appeal.         The applicant's further appeal was rejected by the Insurance Court (vakuutusoikeus, försäkringsdomstolen) on 13 September 1990. No appeal lay against that decision.   Relevant domestic law         Under Sections 2 and 3 of the 1983 Act on the Execution of Decisions on Custody and Visiting-Rights (laki 366/83 lapsen huollosta ja tapaamisoikeudesta annetun päätöksen täytäntöönpanosta, lag 366/83 om verkställighet av beslut rörande vårdnad om barn; hereinafter "the 1983 Act") execution of visiting-rights shall be requested by an application to be lodged with the Chief Executory Officer (ulosotonhaltija, överexekutor) at the child's residence. Should the application be imperfect the applicant shall be given an opportunity to supplement it within a reasonable period of time.         Under Section 13, para. 2 an appeal against the decision of the Chief Executory Officer lies to the competent Court of Appeal and from there, with leave to appeal, to the Supreme Court (korkein oikeus, högsta domstolen). There is no appeal against certain decisions. Those exceptions are, however, not of relevance in the present case.         Under Section 13 of the 1973 Act on Public Legal Assistance (laki 88/73 yleisestä oikeusaputoiminnasta, lag 88/73 om allmän rättshjälpsverksamhet; hereinafter "the 1973 Act") free or partially free assistance may be granted, depending on the financial situation of the person applying for it.     COMPLAINTS   1.     The applicant alleges that for three years she has been refused access to her children. She submits that in her contacts with the Enforcement Office (ulosottoviranomainen, utsökningsmyndigheten) and the Social Welfare Board she has referred to the City Court's decisions allowing her to visit her children, but in vain. She furthermore alleges that she was refused public legal assistance before the Enforcement Office.   2.     She further alleges ill-treatment of Hannu at the hospital, and of Heikki while he has been staying with O.N.   3.     She also alleges that as a result of the City Council's decisions of 7 April 1986 and 17 April 1990 she has been deprived of certain real property.   4.     She finally complains of the refusal to grant her daily unemployment allowance.         She invokes no particular provision of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 10 June 1990 and registered on 1 March 1991.         On 9 April 1992 the Rapporteur pursuant to Article 47, paragraph 2 (a) of the Rules of Procedure requested the respondent Government to submit certain information. The information was submitted on 26 May 1992.     THE LAW   1.     The applicant complains of refused access to her children. She refers to unsuccessful contacts with, inter alia, the Enforcement Office. She further alleges that she has been refused public legal assistance before the Enforcement Office. The Commission has considered this complaint under Article 8 (Art. 8) of the Convention, which reads:         "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."   (a)    As regards the applicant's alleged lack of access to her children the Commission first recalls that, in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry force with respect to that Party. The Convention entered into force with respect to Finland on 10 May 1990.         It follows that insofar as the complaint relates to a period prior to that date it is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).         Insofar as the complaint relates to facts subsequent to that date the Commission further recalls that it 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 a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law. In the present case, it has not been shown that the applicant has requested the Chief Executory Officer to execute the decision of the City Court of Savonlinna of 29 January 1985 granting her visiting-rights with regard to Hannu and Heikki. This possibility is still open to the applicant. She has, therefore, not exhausted the remedies available to her under Finnish law. Moreover, an examination of the case does not disclose the existence of any special circumstance which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at her disposal.         It follows that this part of the complaint must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   (b)    As regards the alleged refusal of public legal assistance the Commission observes that in the court proceedings regarding the transfer of custody requested by the applicant she was represented by the Public Legal Adviser of Savonlinna. However, as regards the question of enforcement of her visiting-rights there is no indication that she applied for public legal assistance.         It follows that this part of the complaint is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant further alleges that her children have been ill- treated, Hannu at the hospital and Heikki by O.N.   (a)    As regards the alleged ill-treatment of Hannu the Commission observes that the applicant's complaint to the National Medical Board in 1990 was rejected. However, assuming that she has exhausted domestic remedies the complaint does not disclose any indication of a violation of the Convention or any of its Protocols.         It follows that this part of the complaint is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.     (b)    As regards the alleged ill-treatment of Heikki the Commission recalls that under Article 25 para. 1 (Art. 25-1) of the Convention it may only receive an application from a person, non-governmental organisation or group of individuals where the applicant alleges a violation by one of the Contracting Parties of the rights and freedoms set out in the Convention and where that Party has recognised this competence of the Commission. The Commission may not, therefore, receive applications directed against private individuals.          In the present case the alleged ill-treatment of Heikki is not attributable to the respondent Government.         It follows that this part of the complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant further alleges that two decisions by the City Council of Savonlinna has deprived her of certain real property.   (a)    As regards the City Council's decision of 7 April 1986 the Commission recalls that the decision was made prior to 10 May 1990, which is the date of the entry into force of the Convention with respect to Finland. However, in accordance wit the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with respect to that Party.         It follows that this part of the complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   (b)    As regards the City Council's decision of 17 April 1990 the appeal against which was dealt with by the County Administrative Board of Mikkeli following the entry into force of the Convention with regard to Finland the applicant has not shown that she has exhausted domestic remedies.         It follows that this part of the complaint must also be rejected for non-exhaustion of domestic remedies in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.   4.     The applicant finally complains of the refusal to grant her daily unemployment allowance.         The Commission recalls that the Convention or any of its Protocols does not guarantee any right to a benefit such as unemployment allowance.         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).         For these reasons, the Commission, unanimously,           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber        President of the First Chamber         (M. de SALVIA)                          (J.A. FROWEIN)