CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.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. 27095/95                       by Therese SOGN KOUTSOFOTINOS                       against Norway and Greece           The European Commission of Human Rights (Second Chamber) sitting in private on 10 September 1997, the following members being present:              Mr.    J.-C. GEUS, Acting President            Mrs.   G.H. THUNE            MM.    A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms.    M.-T. SCHOEPFER, 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 25 October 1994 by Therese Sogn Koutsofotinos against Norway and Greece and registered on 24 April 1995 under file No. 27095/95;         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 Norwegian citizen, born in 1962. Before the Commission she is represented by Ms Berit Anne Borgen, a Norwegian lawyer in Hokksund, and Mr Constantinos Sofianos, a Greek lawyer in Athens.         The facts of the case, as submitted by the applicant and the Greek Government, may be summarised as follows.         The applicant is the mother of Angelica, born in Norway in 1988, and Johanna, born in Norway in 1991. Their father, L, is a Greek citizen. The family lived in Norway until the end of 1991 and then moved to Greece. In November 1993 the applicant moved back to Norway with the children.         On 11 December 1993 the District Court (herredsretten) of Kongsberg (Norway) granted the applicant sole interim care and custody of the children.         In January 1994 L instituted care and custody proceedings before the First Instance Court (Monomeles Protodikeio) of Patras (Greece). On 27 January 1994 the Court sent the applicant a telegram inviting her to attend its hearing on 2 March 1994. In submissions of 24 February 1994 the applicant stated that the telegram did not comply with the relevant international legal instruments acceded to by Norway and Greece and therefore did not constitute an official summons. She also demanded that the court proceedings in Greece be closed, since the Norwegian courts had already considered themselves competent in the care and custody case. She did not attend the hearing on 2 March 1994 nor was she represented by counsel.         In an interim decision of 16 March 1994 the First Instance Court granted L sole care and custody of the children and ordered that they should be handed over to him for the sake of the children's physical and mental development and "for the sake of their upbringing according to the Greek principles". The Court noted, inter alia, that Angelica knew only the Greek language, that she had been attending a nursery in Patras and that she was feeling more closely related to L than to the applicant. The Court furthermore noted that in her relations with L the applicant had occasionally and even in front of the children behaved in a "vulgar and provocative" manner, threatening to return to Norway with them. She could not be expected to meet the demands incumbent on her as a mother. The Court did not pronounce itself on access arrangements concerning the children and the applicant.         In a petition lodged in Norway on 27 April 1994 L requested that the children be returned to Greece in accordance with the 1980 Convention on the Civil Aspects of International Child Abduction (hereinafter "the 1980 Convention"). On 3 June 1994 the Enforcement Court (namsretten) of Kongsberg acceded to L's request. It noted that both de jure and de facto the applicant and L had had joint care and custody of the children. It found it established that the applicant had removed the children from Greece without L's consent and with the intention of keeping them in Norway. There were no grounds for believing that the children's return to Greece would seriously jeopardise their well-being or otherwise place them in an unacceptable situation.         On 29 August 1994 the High Court (lagmannsretten) of Eidsivating (Norway) upheld the Enforcement Court's order, finding no evidence that the children would be placed in an unacceptable or otherwise significantly worse situation in Greece than in Norway. It also noted that the First Instance Court of Patras had provisionally granted L care and custody of the children. On 14 October 1994 the Appeals Selection Committee of the Norwegian Supreme Court (Høyesteretts kjaeremålsutvalg) rejected the applicant's further appeal.         Subsequently the applicant requested that the Enforcement Court's order of 3 June 1994 not be enforced. She referred, inter alia, to the change which had occurred in the children's conditions. She also asked that her request be granted suspensive effect.         In an opinion of 22 October 1994 submitted at the applicant's counsel's request Dr M, a Norwegian psychiatrist, recommended that the children should not be returned to Greece by force. Dr M noted that Johanna only seemed to speak and understand Norwegian and that Angelica seemed to fear and oppose a return to Greece.         At its hearing on 10 November 1994 the First Instance Court of Patras noted that the applicant was neither present nor represented. Moreover, on 26 May 1994 the competent Norwegian authority had acknowledged receipt of a summons inviting the applicant to appear at the hearing. The First Instance Court therefore concluded that there was no obstacle to holding the hearing in her absence.         According to the applicant, she had been unable to attend the hearing as she had been suffering from an illness in Norway. In view of the urgency of the matter the Presiding Judge had previously refused to order the postponement of the hearing despite requests to this effect both by the applicant's and L's lawyers. In view of this refusal the applicant's lawyer had chosen not to attend the hearing.         On 5 December 1994 a notarius publicus in Norway certified that on that day the applicant had received official notification of L's Greek lawyer's submissions of 18 October 1994 in which he requested that further witnesses be heard on 8 November 1994 in the case before the First Instance Court of Patras.         According to the applicant, the notification of 5 December 1994 constituted the official summons to the hearing on 10 November 1994.         On 30 November 1994 the Appeals Selection Committee received the applicant's supplementary written pleadings of 22 September 1994 which had been lodged with the High Court. The pleadings had arrived on 23 September 1994 at the Supreme Court which had sent them back to the High Court so as to obtain L's comments thereon. The pleadings were, however, sent back to the Supreme Court without having been communicated to L.         In further submissions lodged with the Enforcement Court the applicant requested that its order of 3 June 1994 should not be enforced. She later questioned the impartiality of a judge of the Enforcement Court. On 7 December 1994 the Enforcement Court refused to examine the request for non-enforcement and apparently did not examine the question of possible partiality. On 14 December 1994 the High Court of Eidsivating refused to grant the applicant's appeal suspensive effect and on 19 December 1994 she withdrew it.    In December 1994 the applicant returned with the children to Greece, where they stayed for a month in a hotel in Patras. On 15 January 1995 she handed the children over to L following which she and the children met at certain times.         According to the applicant, she and L could not reach an access agreement and as from January-February 1995 she was no longer able to see the children. No longer feeling safe around L's family, she eventually left Patras without informing L of her new whereabouts.         On 30 January 1995 the applicant requested the First Instance Court of Patras to revoke its interim order of 16 March 1994 and provisionally grant her the care and custody of the children. Following a hearing the First Instance Court, on 9 February 1995, decided not to revoke its 1994 order after assessing the various conflicting interests and stressing the best interest of the children. It noted, in particular, that L had always shown a great interest in the care of his children and that following their return to Greece he had hired a tutor to assist in their education. Moreover, the children had already become accustomed to a Greek environment.         According to a report referred to by the Greek Government and drawn up by a member of the Social Service of the Patras Juvenile Court, L had initially seen the children for a few hours every day   on their return to Greece in order to facilitate their adjustment. After handing the children over to L on 15 January 1995 the applicant had seen them once or twice a week. About six weeks later she had moved to Athens without leaving her new address and telephone number. She had telephoned the children once a month and during five months she had seen them twice in Patras. The children had integrated well, led a stable and comfortable life and their Greek grandmother was assisting L in caring for them. L had shown a great interest in the children's psychological well-being and did not appear to demonstrate any hostility towards the applicant. He was not opposed to access between the children and the applicant. Finally, on 30 July 1995 the children had been handed over to the applicant, with whom they were to spend a one-month holiday on a Greek island.         According to the applicant, the Social Service's report was based exclusively on interviews with L.         On 13 February 1995 the Norwegian Appeals Selections Committee acknowledged that the case-file had been incomplete at the time of its decision to reject the applicant's appeal. Having perused the applicant's supplementary submissions which, for unknown reasons, had reached the Committee belatedly, it had found that they did not contain any reaction to any of L's pleadings and could not therefore have led to another outcome of the appeal proceedings even if they had arrived in time.         By judgment of 19 April 1995 the First Instance Court of Patras granted L the care and custody of the children after a fresh weighing of the conflicting interests. It noted, in particular, that both before and after the applicant and L had separated L had shown a much greater interest than the applicant in the children's needs and welfare. As for the applicant, she had failed to meet her obligations towards them as regards their everyday needs. The Court also reiterated the importance of bringing the children up "according to the Greek principles".       Under Greek law a litigant living abroad may seek recourse against a judgment by default on account of a procedural flaw such as an incorrect summons. Such recourse must be sought within 60 days from the receipt of the judgment (Article 501 of the Code of Civil Procedure). An ordinary appeal may be lodged within the same period (Articles 511 and 513).         According to a certificate issued by the Registry of the First Instance Court of Patras on 19 September 1995 and referred to by the Greek Government, the applicant had not resorted to any of the above remedies.         According to the applicant, a copy of the judgment of 19 April 1995 was mailed to her only on 25 September 1995.     COMPLAINTS         As regards Norway:   1.     The applicant complains that the return of her children from Norway to Greece failed to respect her family life and was not in the children's best interests, as it caused them mental distress and various other difficulties. She invokes Article 5 paras. 1 (d) and 5 as well as Article 8 of the Convention.   2.     The applicant furthermore complains that she was denied a fair hearing in the Norwegian care and custody proceedings. Part of her submissions to the Appeals Selections Committee had, for unknown reasons, not reached the Committee when it decided to reject her appeal.         Moreover, in accepting the request for a return of the children to Greece, the Norwegian courts failed to satisfy themselves that the Greek court's interim order of 2 March 1994 had been issued in proceedings meeting the requirements of Article 6 of the Convention.         The applicant invokes Article 6 of the Convention.   3.     As regards the Norwegian enforcement proceedings, the applicant complains that her request for non-enforcement of the order of 3 June 1994 was not given suspensive effect, although her children's situation had allegedly changed subsequently.         In her submissions of 27 September 1995 the applicant furthermore complains of the biased attitude of the judge of the High Court who dealt with her appeal against the Enforcement Court's decision of 7 December 1994. Moreover, this judge had previously dealt with L's request that the children be returned to Greece.         As regards Greece:   4.     The applicant complains that her and her children's right to respect for their family life was violated after their return to Greece. She alleges, in particular, that access was denied. She invokes Article 8 of the Convention.   5.     The applicant furthermore complains that she was not properly summoned to attend the First Instance Court's hearings in the Greek care and custody case and that the hearing on 10 November 1994 was not postponed despite her illness. She invokes Article 6 of the Convention.       In her submissions of 6 October 1995 the applicant finally complains that the First Instance Court wrongly denied her the care and custody of her children. She invokes Article 8 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 25 October 1994 and registered on 24 April 1995.         On 10 July 1995 the Rapporteur of the Commission decided, in accordance with Rule 47 para. 2 (a) of the Rules of Procedure, to request certain factual information from the Greek Government. This information was submitted on 19 September 1995 after an extension of the time-limit fixed for that purpose. The applicant submitted comments in reply on 18 October and 15 November 1995, that is to say after the expiry of the time-limit fixed for that purpose.     THE LAW         The Commission notes that the applicant's comments in reply to the information supplied by the Greek Government reached the Commission after the expiry of the time-limit fixed for that purpose. The Commission has nevertheless decided to take these comments into account.   1.     In so far as the case is directed against Norway, the applicant first complains about her children's return to Greece. She invokes Article 5 paras. 1 (d) and 5 (Art. 5-1-d, 5-5) as well as Article 8 (Art. 8) of 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."         The question arises whether the Norwegian courts, in ordering that the applicant's children be returned to Greece in accordance with the 1980 Convention, showed a lack of respect for the applicant's family life (cf. No. 20592/92, Dec. 5.4.95, not published).         The Commission recalls that there may be positive obligations inherent in such "respect", if it is to be effective (see, e.g. Eur. Court HR Hokkanen v. Finland judgment 23 September 1994, para. 55, Series A no. 299-A). It is for the national authorities to strike a fair balance between the conflicting interests at stake. What is decisive is whether the authorities have taken all necessary steps that can reasonably be demanded in the special circumstances of each case (ibid., para. 58).     The Commission further recalls that certain procedural requirements are also implicit in Article 8 (Art. 8), i.e. a parent must have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide him or her with the requisite protection of the interests at stake (see Eur. Court HR, W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, para. 64).         The Commission notes that the Norwegian courts carefully assessed whether the conditions for the applicant's children's return to Greece pursuant to the 1980 Convention were met. Furthermore, according to a report submitted by the Greek Government the applicant's children are well-balanced, properly cared for and appear to have integrated well following their return to Greece. The applicant has not submitted any counterevidence which might contradict the findings in that report.         In these circumstances, and having regard also to the children's rights under Article 8 (Art. 8) of the Convention, the Commission does not find that the Norwegian courts failed to strike a fair balance between the various conflicting interests at stake (cf. also the above- mentioned Application No. 20592/92). There is thus no appearance of any lack of respect for the applicant's family life in this respect.         Finally, in so far as certain procedural safeguards are implicit in Article 8 (Art. 8), the Commission observes that the applicant had ample opportunity to present her own views to the Norwegian courts and was involved in the proceedings to a degree sufficient to provide her with the requisite protection of her interests. Accordingly, there is no appearance of a violation of Article 8 (Art. 8) in this respect either.         No further issue arises under Article 5 (Art. 5) of the Convention.         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.     The applicant furthermore complains that she was denied a fair hearing in the Norwegian care and custody proceedings. She invokes Article 6 para. 1 (Art. 6-1) of the Convention which, in so far as relevant, reads as follows:         "In the determination of his civil rights and obligations       ... against him, everyone is entitled to a fair ... hearing       ... by an independent and impartial tribunal established by       law. ..."         The applicant complains that her supplementary submissions to the Appeals Selections Committee had not yet reached the Committee when it decided to reject her appeal. She also complains that in accepting the request for her children's return to Greece the Norwegian courts failed to satisfy themselves that the Greek court's interim order of 2 March 1994 had been issued in proceedings meeting the requirements of Article 6 (Art. 6) of the Convention.         The task of the Convention organs is to ascertain whether the proceedings, considered as a whole, including the way in which evidence was taken and submitted, were fair. The Commission 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 court decision or judgment has no legal justification and thereby violates a party's right to receive a fair trial (cf. Eur. Court HR, De Moor v. Belgium judgment of 23 June 1994, Series A no. 292-A, p. 18, para. 55, No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).         The Commission first notes that the applicant has not substantiated the contents of the supplementary observations which, for unknown reasons, arrived at the Appeals Selection Committee only after it had rejected her appeal. The Commission also notes the letter of 13 February 1995 in which the Committee, having studied the applicant's supplementary submissions, concluded that they could not have led to another outcome had they arrived in time for the Committee's consideration of her appeal.         As regards the alleged failure on the part of the Norwegian courts to verify the fairness of the Greek proceedings, the Commission considers that an issue could arise under Article 6 (Art. 6) of the Convention only if it emerges that the Greek court order of 2 March 1994 was the result of a flagrant denial of justice (see Eur. Court HR, Drozd and Janousek v. France and Spain judgment of 26 June 1992, Series A no. 240, pp. 34-35, para. 110). The Commission notes, however, that the First Instance Court of Patras invited the applicant to attend its hearing on 2 March 1994 and that she became aware of the planned hearing at the latest on 24 February 1994. She has not shown that it was impossible for her at that stage at least to arrange for her legal representation at the hearing. Finally, it is not for the Commission to examine whether she was summoned to the hearing in accordance with international instruments governing the service abroad of judicial documents.         Considering the Norwegian court proceedings as a whole, the Commission cannot find any indication that they were unfair. Accordingly, there is no appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention 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 applicant also complains that the Norwegian authorities refused to suspend the order that her children be returned to Greece, although the children's situation had allegedly changed after that order had been issued. In her submissions of 27 September 1995 she furthermore complains that a judge of the Enforcement Court was partial in his examination of her non-enforcement request.         The Commission recalls that under Article 26 (Art. 26) of the Convention it may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. The applicant, however, eventually withdrew her appeal to the High Court against the Enforcement Court's decision not to stay enforcement.         The Commission therefore concludes that the applicant did not exhaust the domestic remedies available to her under Norwegian law. Moreover, an examination of this complaint does not disclose the existence of any special circumstances which might have absolved her, according to the generally recognised rules of international law, from exhausting those remedies.         It follows that this complaint must be rejected for non-exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3) of the Convention.   4.     In so far as the case is directed against Greece, the applicant first complains that her and her children's right to respect for their family life was violated after their return to that country. She alleges, in particular, that access was denied. She invokes Article 8 (Art. 8) of the Convention.         The Commission finds no substantiation of the applicant's allegation that she and her children were prevented from meeting. Nor can the Commission find any indication that the Greek authorities, for any other reason, failed to respect the applicant's family life.         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.     The applicant furthermore complains that she was not properly and timely summoned to attend the First Instance Court's hearings and that its hearing on 10 November 1994 was not postponed despite her illness. She invokes Article 6 (Art. 6) of the Convention. In her submissions of 6 October 1995 she also complains that the First Instance Court wrongly denied her the care and custody of her children. In this respect she invokes Article 8 (Art. 8) of the Convention.         The Commission recalls the exhaustion requirement prescribed in Article 26 (Art. 26) of the Convention. It notes that the applicant apparently received the First Instance Court's judgment of 19 April 1995 at the latest towards the end of 1995. To date, however, there is no indication that she has resorted to any of the remedies prescribed by the Greek Code of Civil Procedure.         The Commission therefore concludes that the applicant has failed to exhaust the domestic remedies available to her under Greek law both in regard to the material outcome of the proceedings and in regard to the alleged procedural flaws. Moreover, an examination of this complaint does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting those remedies.         It follows that this complaint must be rejected for non-exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.      M.-T. SCHOEPFER                                J.-C. GEUS       Secretary                                Acting President to the Second Chamber                       of the Second Chamber