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