CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 1994

.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. 19760/92                       by Anne and Maria KETONEN                       against Finland         The European Commission of Human Rights (First Chamber) sitting in private on 12 October 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              Mrs.   M.F. BUQUICCHIO, Secretary to the 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 March 1992 by Anne and Maria KETONEN against Finland and registered on 24 March 1992 under file No. 19760/92;         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 applicants are mother and child, born in 1958 and 1983, respectively, and resident in Vaasa. The mother is a psychiatrist by profession. The applicants are represented by Mr. Heikki Salo, a lawyer in Helsinki.         The facts of the case, as submitted by the applicants, may be summarised as follows.   Particular circumstances of the case         In 1983 the first applicant married K. and gave birth to the second applicant, their mutual child (hereinafter "Maria").         In July 1987 the first applicant and K. were granted judicial separation (asumusero, hemskillnad) by the City Court (raastuvanoikeus, rådstuvurätten) of Turku. Maria was ordered to live with the first applicant. In August 1988 the first applicant and K. divorced, but were ordered to remain custodians of Maria, K. being responsible for Maria's possessions and the first applicant for other custody-related matters. Maria was ordered to live with the first applicant. K. was not granted any rights to visit Maria.         In 1989 K. instituted proceedings for the purpose of obtaining rights to visit Maria. Meanwhile, the first applicant requested the revocation of the shared custody of her.         A first hearing before the City Court was held on 12 October 1989. After certain witnesses had been heard a further hearing was fixed at 23 November 1989.         Following the hearing on 23 November 1989 the City Court by an interim order granted K. provisional visiting rights and further requested the Social Welfare Board (sosiaalilautakunta, socialnämnden) of Turku to submit an opinion.         The City Court's request for an opinion arrived at the Social Welfare Centre (sosiaalikeskus, socialcentralen) of Turku on 27 December 1989. In March 1990 the Centre transferred the request to the Child and Family Guidance Centre (kasvatus- ja perheneuvola, uppfostrings- och familjerådgivningen) of Turku.         In the course of the investigation social welfare officials refused to hear a number of persons referred to by the first applicant, including a psychiatrist who had interviewed Maria on a previous occasion. They also refused to consider a medical report regarding Maria which the applicant had presented.         Following a hearing on 19 March 1990 the City Court revoked its interim order of 23 November 1989, observing that K. had not availed himself of his visiting rights.         Following a further hearing on 10 May 1990 the City Court fixed a further hearing at 19 July 1990, since the requested opinion from the Social Welfare Centre had not yet been submitted.   In its opinion to the City Court dated 21 June 1990 and limited to the question of visiting rights the Child and Family Guidance Centre proposed that no meetings take place between Maria and K. during a period of one year, as the conditions for meetings would at the time not be suitable from Maria's point of view in the light of the serious disputes between the first applicant and K.         In a further opinion to the City Court dated 5 July 1990 and concentrating on the custody question the Social Welfare Centre concluded that continued joint custody of Maria was preferable. As regards the visiting rights, the Centre referred to the report of 21 June 1989 submitted by the Child and Family Guidance Centre.         In the course of the proceedings before the City Court the first applicant was refused the right to study certain documents kept by the Social Welfare Centre and including an opinion which had been communicated to K., but not to her.         Following the hearing on 19 July 1990 the City Court fixed a further hearing at 30 August 1990. In its judgment following that hearing the City Court found that the shared custody of Maria should be revoked and the first applicant should remain as her sole custodian. It further rejected K.'s request for visiting rights.         On 14 May 1991 the Court of Appeal (hovioikeus, hovrätten) of Turku quashed the City Court's judgment of 30 August 1990 by granting K. visiting rights. The Court of Appeal noted that a year had passed without meetings taking place between Maria and K., and that K. had stated that he would not forcibly remove Maria from the first applicant's home, should she object to meeting him. The Court of Appeal further ordered that custody of Maria should be shared.         On 16 September 1991 the Supreme Court (korkein oikeus, högsta domstolen) refused the first applicant leave to appeal.         In December 1991 the first applicant instituted further proceedings before the City Court, requesting that K.'s visiting rights be revoked.         On 26 February 1992 the City Administrative Court (maistraatti, magistraten) of Turku rejected K.'s request for enforcement of his visiting rights, considering that enforcement against Maria's will could contravene her interests.         On 5 March 1992 the City Court held a hearing concerning the first applicant's action of December 1991 and fixed a further hearing at 13 May 1992.         On 19 March 1992 the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman) considered, in response to a complaint lodged by the first applicant, that social authorities responsible for investigating custody and access matters have a discretion in the procedure relating to their investigations. It had not been shown that the social welfare officials in the applicants' case had abused their discretion or otherwise acted contrary to the interests of Maria when refusing, in 1990, to accept the evidence proposed to them by the first applicant. In any case, the first applicant had been given the opportunity to present the evidence in the court proceedings pending at the time.   The Deputy Ombudsman further considered that the disclosure of the opinion of the Child and Family Guidance Centre to K. without him having requested it had been in breach of the applicable instructions issued by the National Social Welfare Board (sosiaalihallitus, social-styrelsen) and that the Centre had furthermore behaved incorrectly in refusing to communicate the opinion to the first applicant.         In regard to the length of the proceedings the Deputy Ombudsman noted that the first applicant and K. had been interviewed separately by social welfare officials in January 1990. A joint interview scheduled for 27 February 1990 had had to be cancelled due to the first applicant's refusal to attend it. Moreover, in view of her subsequent complaint to the Social Welfare Board concerning the investigation and her report to the police concerning certain social welfare officials the Social Welfare Centre had considered it appropriate to refer the investigation to the Child and Family Guidance Centre. The Deputy Ombudsman concluded therefore that there had been a justified reason for the delay in the submission of the investigation requested by the City Court.         In regard to alleged deficiencies in the Social Welfare Centre's opinion of 5 July 1990 the Deputy Ombudsman criticised the procedure on the basis that the parties had not been heard prior to the drawing up of the opinion and that it had not contained any reasoning in support of the conclusion reached.         The Deputy Ombudsman finally noted, however, that the outcome of the proceedings before the City Court had been favourable to the first applicant, since she had been granted sole custody of Maria and since K.'s request for visiting rights had been rejected.         In its judgment following a hearing on 13 May 1992 concerning the first applicant's action of December 1991 the City Court decided to maintain the shared custody of Maria, but found it to be in her interests that K.'s visiting rights be revoked. Regard was, in particular, had to a witness statement by Ms. Maija-Liisa Koski, a psychiatrist, according to whom the enforcement of the visiting rights, as ordered by the Court of Appeal on 14 May 1991, would contravene Maria's interests. According to Mrs. Koski, Maria considered K. as a stranger and did not wish to meet him. Due to Maria's negative reaction to meetings with K. the first applicant had refused to comply with the visiting rights ordered by the Court of Appeal.         In its judgment of 3 February 1993 the Court of Appeal partly quashed the City Court's judgment of 13 May 1992 by revoking the joint custody of Maria. Regard was had to her minor possessions and the related disagreements between the first applicant and K. which they had been unable to solve without assistance from the authorities. The Court of Appeal further upheld the City Court's finding that no visiting rights should be granted to K.         On 17 May 1993 the Supreme Court granted K. leave to appeal against the Court of Appeal's judgment of 3 February 1993 in so far as it concerned his visiting rights. On 2 March 1994 the Supreme Court rejected his appeal.       Relevant domestic law   1.     The 1983 Act on Custody and Visiting Rights with Regard to       Children         According to the 1983 Act (laki 361/83 lapsen huollosta ja tapaamisoikeudesta, lag 361/83 ang. vårdnad om barn och umgängesrätt; "the 1983 Act"), decisions concerning custody and visiting rights with regard to a child shall be based primarily on the interests of the child. Particular regard shall be had to the optimal implementation of custody and visiting rights in the future (section 10, subsection 1). In a matter concerning custody and visiting rights with regard to a child the child's own wishes and opinion shall, if possible, be obtained, having regard to the child's age and maturity and provided, inter alia, that the parents are unable to reach an agreement on the matter or if, for some other reason, consultation shall be regarded as being necessary in the interests of the child. The child's opinion shall be obtained tactfully, having regard to its stage of maturity and without causing harm to the relations between the child and its parents (section 11).         The court shall, when deciding a matter concerning custody and rights to visit a child, consider the interests and wishes of the child according to what is prescribed in sections 10 and 11 (section 9, subsection 4). The court may issue an interim order as to where the child should live, the rights to visit it and the conditions attached thereto. For special reasons it may also issue an interim order as regards custody. No appeal lies against an interim order (section 17, subsections 1 and 2).   2.     The 1975 Act on the Enforcement of Decisions Concerning Custody       and Visiting Rights with Regard to Children         According to the 1975 Act (laki 523/75 lapsen huollosta ja tapaamisoikeudesta annetun päätöksen täytäntöönpanosta, lag 523/75 om verkställighet av beslut som gäller vårdnad om barn och umgängesrätt), enforcement of a decision or an interim order shall not take place contrary to the child's will if the child is twelve years of age. The same applies if a child under twelve years of age is so mature that regard can be had to its own will (section 1 and section 6, as amended by Act 366/83).   3.     Remedy against unnecessary suspension of court proceedings         The Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk) affords a party, who is of the opinion that the proceedings before the court of the first instance have been unnecessarily suspended, the possibility to lodge a complaint with the Court of Appeal within thirty days from the suspension (chapter 16, section 4).   4.     The 1951 Act on Publicity of Public Documents         Under the 1951 Act (laki 83/51 yleisten asiakirjain julkisuudesta; lag 83/51 om allmänna handlingars offentlighet; "the 1951 Act") documents drawn up and issued by an authority, or which have been submitted to an authority and are still in that authority's possession, are public (section 2, subsection 1).   If an official refuses access to such a document, that decision may be submitted for reconsideration by the same authority, following which there lies an appeal under the general rules for appeals against a decision of that authority. If no right of appeal exists, an appeal may be lodged with the authority to which the first-mentioned authority is subordinated. If no such authority exists, an appeal against a state authority's decision may be lodged with the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). An appeal against a decision by another authority may be lodged with a County Administrative Court (lääninoikeus, länsrätt) (section 8, subsection. 1, as amended by Act no. 472/87).   COMPLAINTS   1.     The applicants complain that there has been a lack of respect for their family life. Due to the "legal uncertainty" pertaining to the custody of, and the rights to visit Maria the applicants' situation has been, and continues to be, precarious. They consider there to be no family life between Maria and K. and emphasise that, even after having been granted visiting rights in respect of Maria, K. has not exercised them. Because of the negligent behaviour of the authorities in investigating her interests Maria has been subjected to considerable mental distress. Reference is also made to the lack of equality of arms between the first applicant and K., since the possibility for the first applicant to obtain documents drawn up by the investigating authorities was limited. The applicants invoke Articles 3 and 8 of the Convention and Article 5 of Protocol No. 7 to the Convention.   2.     Under Article 6 of the Convention the applicants consider the length of the overall proceedings to be excessive, in particular in view of Maria's age.   3.     The applicants further complain that they did not receive a fair trial, since the Court of Appeal allegedly only based its judgment of 14 May 1991 on presumptions and not on evidence. They again invoke Article 6 of the Convention.   4.     Under Article 6 of the Convention the applicants also complain that they were refused access to the Supreme Court.   5.     In their letter of 22 September 1993 the applicants also complain of the lack of an effective remedy against the alleged lack of respect for their family life.   THE LAW   1.     The applicants complain that there has been a lack of respect for their family life due to the "legal uncertainty" pertaining to the custody of, and the rights to visit Maria, the deficient investigations of Maria's interests and the alleged lack of equality of arms in the proceedings. They invoke Articles 3 and 8 (Art. 3, 8) of the Convention and Article 5 of Protocol No. 7 (P7-5) to the Convention.         The Commission has examined the complaint under Article 8 (Art. 8) of the Convention, which 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."         The Commission initially recalls that the Convention entered into force with regard to Finland on 10 May 1990. The Commission will therefore limit its examination to whether the facts occurring after that date disclosed a breach of Article 8 (Art. 8). Events prior to 10 May 1990 will be taken into account merely as a background to the issues before the Commission (Eur. Court H.R., Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, para. 53).         The Commission observes that as from February 1993 the first applicant is Maria's sole custodian and that as from May 1992 K. has had no visiting rights with regard to Maria. Leaving aside the question whether the applicants can under these circumstances claim to be "victims" under Article 25 (Art. 25) of the Convention, the Commission considers that the complaint is inadmissible for the following reasons.         The Commission considers that the complaint raises the question whether there has been a lack of respect for the applicants' right to respect for their family life. It recalls that the notion of 'respect' enshrined in Article 8 (Art. 8) is not clear-cut. This is the case especially where the positive obligations implicit in that concept are concerned. Its requirements will vary considerably from case to case according to the practices followed and the situations obtaining in the Contracting States. In determining whether or not such an obligation exists, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual as well as to the margin of appreciation afforded to the Contracting States (Eur. Court H.R., B. v. France judgment of 25 March 1992, Series A no. 232-C, pp. 47 et seq., paras. 44 et seq.).         At the time of the entry into force of the Convention with regard to Finland the first set of proceedings for the determination of the custody of, and rights to visit Maria, were pending before the City Court of Turku. This part of the proceedings terminated, in substance, in the Court of Appeal's finding that custody of Maria should be shared and that K. should be granted visiting rights. The Commission considers that the suffering allegedly inflicted on the applicants due to K.'s unwillingness to exercise his visiting rights is not as such imputable to the respondent State. In any case, the City Court revoked K.'s provisional visiting-rights at an early stage of the proceedings and prior to 10 May 1990. The Commission observes that in May 1991 K. was again granted visiting rights, but these were apparently never enforced in view of Maria's interests. The "legal uncertainty" which could arguably be said to have been caused by the first set of court proceedings before three court instances lasted about two years out which a period of one and a half years took place subsequent to 10 May 1990.   The Commission notes that the second set of proceedings, also before three court instances, was instituted by the first applicant soon after the termination of the first set of proceedings and also lasted about two years and three months. The legal uncertainty caused by these proceedings may be considered to have lasted an even shorter period, since enforcement of K.'s visiting rights was refused already in February 1992 in consideration of Maria's interests. The second set of proceedings ended in the appointment of the first applicant as Maria's sole custodian and the refusal to grant K. any rights to visit Maria.         In so far as certain procedural safeguards are implicit in Article 8 (Art. 8) (cf. e.g. Eur. Court H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121-A, p. 28, para. 63), the Commission observes the Deputy Ombudsman's findings in regard to the procedural flaws in the investigation by the Social Welfare Centre in the course of the first set of court proceedings. However, as also pointed out by Deputy Ombudsman, the first applicant was given an opportunity to present her evidence in the actual court proceedings. She therefore had ample possibilities to present her own views to the courts. As regards the refused access to certain documents in the case and the communication of part of the documents only to K., the Commission observes that the first applicant did not exhaust the domestic remedies provided by the 1951 Act.         In conclusion, the Commission cannot find that the courts' consideration of the question of the custody of, and rights to visit Maria in any way contravened the interests of the applicants. On the contrary, it notes that the first applicant's objections to shared custody of Maria and the granting of visiting rights to K. were successful.         Having regard to the above-mentioned various elements, the Commission concludes, that a fair balance was struck between the conflicting interests at stake in the present case (cf., a contrario, T.H. (Hokkanen) v. Finland, Comm. Report 22.10.93, para. 146, Eur. Court H.R., Series A no. 299-A; see also the above-mentioned Hokkanen judgment, para. 55 et seq.). Accordingly, there has been no lack of respect for the applicants' family life.         It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     Under Article 6 (Art. 6) of the Convention the applicants consider the length of the proceedings to be excessive, in particular in view of Maria's age.         The Commission has examined this complaint under Article 6 para. 1 (Art. 6-1) which reads, as far as relevant in the present case:         "1.   In the determination of his civil rights and       obligations   ..., everyone is entitled to a fair ...       hearing within a reasonable time by [a] ... tribunal       established by law."        The Commission observes that       under the Code of Judicial Procedure a party who considers       that the proceedings before a court of the first instance       have been unnecessarily suspended may lodge a complaint       with the Court of Appeal. There is no indication that the       applicants have availed themselves of this remedy. The       Commission will, however, leave aside the question whether       domestic remedies have been exhausted, as required by       Article 26 (Art. 26) of the Convention, since the complaint       is, in any event, inadmissible for the reasons stated       below.         The Commission reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of each case and having regard to the following criteria: the complexity of the case, the conduct of the parties and that of the authorities dealing with the case (e.g., Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30). The Commission will furthermore limit its examination to whether the facts occurring after 10 May 1990 disclosed a breach of Article 6 para. 1 (Art. 6-1), taking, however, account of the state of the proceedings and the applicant's situation on that day (e.g., Eur. Court H.R., Martins Moreira judgment of 26 October 1988, Series A no. 143, p. 16, para. 43).         In the present case the first set of custody and access proceedings were instituted in July 1989. At the time of the entry into force of the Convention with regard to Finland, the case had been pending before the City Court for about ten months and three hearings had been held. A further three hearings were held prior to the judgment rendered in August 1990. The subsequent proceedings before the Court of Appeal lasted about eight months and the proceedings before the Supreme Court less than four months. The total length of the first set of proceedings, as conducted on and subsequent to 10 May 1990, thus amounted to fifteen months.         The Commission observes that enforcement proceedings commenced soon after the termination of the first set of proceedings. These were interrupted, however, by the further proceedings instituted by the first applicant in December 1991. The proceedings before the City Court lasted about six months, before the Court of Appeal about nine months and before the Supreme Court about one year. As found above, the total length of the second set of proceedings thus amounts to about two years and three months.         In the light of the criteria laid down in the Court's case-law and having regard to the particular circumstances of the case the Commission cannot find that the length of the proceedings complained of exceeded a "reasonable time". Accordingly, there is no appearance of a violation of Article 6 para. 1 (Art. 6-1) in this respect.         It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicants further complain that they did not receive a fair trial, since the Court of Appeal allegedly only based its judgment of 14 May 1991 on presumptions and not on evidence. They again invoke Article 6 (Art. 6) of the Convention.   The Commission has considered also this complaint under the above-cited Article 6 para. 1 (Art. 6-1). It recalls, however, that it is normally not competent to deal with a complaint alleging that errors of law and 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 or one of its Protocols, for instance in that a judgment has no legal justification and thereby violates a party's right to receive a fair trial (cf. Eur. Court H.R., De Moor judgment of 23 June 1994, Series A no. 292-A, para. 55; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45). As a general rule, however, it is for the domestic courts to assess the evidence before them, in particular since they have the benefit of hearing witnesses and assessing their credibility (Eur. Court H.R., Klaas judgment of 22 September 1993, Series A no. 269-A, pp. 17-18, paras. 29-30).         In the present case the Commission observes that the judgment of the Court of Appeal of 14 May 1991 in the proceedings in which the first applicant was, in one respect, the plaintiff and, in the other respect, the defendant, was based on an assessment of the interests of Maria in pursuance of the 1983 Act. The material submitted to the Commission does not call the findings of the Court of Appeal into question. There is thus no indication that the first applicant was denied a fair trial. Accordingly, there is no appearance of a violation of Article 6 para. 1 (Art. 6-1) in this respect either.         It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     Under Article 6 (Art. 6) of the Convention the applicants also complain that they were refused access to the Supreme Court.         The Commission has considered also this complaint under the above-cited Article 6 para. 1 (Art. 6-1). It observes that, although the applicants were refused leave to appeal to the Supreme Court, they had already had access to courts in two instances. Thus, there is no appearance of a violation of Article 6 para. 1 (Art. 6-1) on this point either.         It follows that this complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.     In their letter of 22 September 1993 the applicants also complain of the lack of an effective remedy against the alleged lack of respect for their family life.         The Commission has considered this complaint under Article 13 (Art. 13) of the Convention, which reads as follows:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy before a       national authority notwithstanding that the violation has been       committed by persons acting in an official capacity."         Leaving aside the question whether the applicants have complied with the six months' rule prescribed by Article 26 (Art. 26) of the Convention, the Commission considers that the applicants have no "arguable claim" of a breach of a violation of a substantive Convention provision which would warrant a remedy under Article 13 (Art. 13) (Eur. Court H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172, p. 20, para. 46). The Commission refers to its above conclusion with regard to the complaint examined under Article 8 (Art. 8) of the Convention.           It follows that this complaint must also be rejected as being 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 First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)