CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 février 1993

.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. 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