Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24627/94

by Reino and Sinikka NICK

and Sini HOKKANEN

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 20 April 1994 by

Reino and Sinikka Nick and Sini Hokkanen against Finland and registered

on 18 July 1994 under file No. 24627/94;

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 Nick are husband and wife, Finnish citizens born

in 1939 and 1944 respectively. Mr. Nick is an engineer and Mrs. Nick

a designer and housewife. The applicants Nick are the maternal

grandparents of the third applicant, a Finnish citizen born in 1983.

All applicants reside at Järvenpää. Before the Commission they are

represented by Ms. Helena Molander, Children's Ombudsman of the

Mannerheim League for Child Welfare.

1. Introduction

The facts underlying the case were to some extent already subject

to proceedings before the organs of the Convention, namely in respect

of Application No. 19823/93. That case had been lodged by

Mr. Teuvo Hokkanen both in his own name and on behalf of his daughter

Sini, i.e. the third applicant in the present case. The application was

declared inadmissible by the Commission, inter alia, insofar as it had

been brought on behalf of Sini. On 22 October 1993 the Commission

adopted its Report in pursuance of Article 31 of the Convention. The

Court rendered its judgment on 23 September 1994 (Eur. Court H.R.,

Hokkanen v. Finland, Series A no. 299-A).

The applicants in the present case consider that the Report of

the Commission concerning Application No. 19823/92 contains incorrect

information on a number of points. They have particular misgivings

about the following passages:

"... On 30 April 1985 the applicant's wife, the mother of

[Sini], committed suicide. According to the applicant, he

then agreed with [Sini's] maternal grandparents [i.e. the

Nicks] that they would provisionally take care of [Sini]

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 [Sini]. During this

period [Sini] spent the weekends with the applicant.

According to the applicant, [the Nicks] demanded, in

November 1985, at a time when [Sini] was staying with him,

that [she] come to stay with them or otherwise

[Mrs. Sinikka Nick] would commit suicide ... (paras. 17-18

of the Report).

...

In an opinion of 22 January 1987 ... the Child Guidance

Centre considered that custody of [Sini] should remain with

the applicant. According to the Centre, the contact between

the applicant and [Sini] was mutual, namely through playing

and discussions. The opinion stated, inter alia: ...

(para. 33).

...

In the spring of 1989 the National Board for Social Welfare

ordered [the Nicks] to allow [Sini's] mental state and her

attitude towards the applicant to be investigated

(para. 52).

...

In an opinion of 7 May 1991 ... the Child and Family

Guidance Centre of Tuusula confirmed the views submitted by

the Child Guidance Centre of Central Uusimaa in its opinion

[of] 22 January 1987. It noted that [the Nicks] had refused

to participate in interviews for the purpose of carrying

out a further investigation, and that they had also refused

to subject [Sini] to such an investigation ... (para. 65).

...

In response to the applicant's request for measures to be

taken by the Social Welfare Board of Järvenpää, ..., the

Board on 25 June 1992 stated that the Child and Family

Guidance Centre of Järvenpää had offered [the Nicks] 'an

opportunity to obtain assistance and to discuss the matter

concerning visiting rights'. [The Nicks] had refused,

however, to contact the Centre ... (para. 77)."

In the proceedings before the Court in the Hokkanen case the

applicants Nick were granted leave to submit written observations on

any facts which they considered had been dealt with inaccurately in the

Commission's Report. They availed themselves of this possibility (see

Hokkanen judgment, p. 8, para. 5). At the hearing before the Court the

Delegate of the Commission took note of these observations and pointed

out the documentary basis for certain statements in the Commission's

Report and the extent to which the other contested statements had been

qualified by the words "According to the applicant" (see Cour/Misc (94)

110; No. 46,164 (the Court's Verbatim Record), pp. 5-6).

2. The particular circumstances of the case

The facts of the present case, as submitted by the applicants or

apparent from the above-mentioned judgment, may be summarised as

follows.

From 1985 to 1994 the applicants Nick were involved in a dispute

with Sini's father, Mr. Teuvo Hokkanen, principally concerning custody

and access in respect of her. Following Sini's mother's death

Mr. Hokkanen had, according to the applicants, accepted that the

applicants Nick should permanently care for her. Subsequently they had

refused to restore Sini to him, considering that a return would have

contravened her interests. In 1988 the Supreme Court confirmed

Mr. Hokkanen's custody of Sini and ordered her return to him. This

court order was not enforced.

In 1990 the Social Welfare Board (sosiaalilautakunta, social-

nämnden) of Tuusula instituted a second round of court proceedings with

a view to having custody of Sini transferred to the applicants Nick.

On 25 September 1991 the Helsinki Court of Appeal (hovioikeus,

hovrätten) ordered that custody of Sini should be transferred to them.

It also prescribed certain access arrangements concerning Mr. Hokkanen

and Sini (see Hokkanen judgment, loc.cit., pp. 13-14, para. 29 and

pp. 14-16, paras. 33-37). On 21 January 1992 the Supreme Court (korkein

oikeus, högsta domstolen) refused Mr. Hokkanen leave to appeal (ibid.,

p. 14, para. 31).

In the ensuing enforcement proceedings which Mr. Hokkanen

instituted in June 1992 the County Administrative Board (läänin-

hallitus, länsstyrelsen) of Uusimaa on 31 December 1992 ordered the

applicants Nick to comply with the access arrangements ordered by the

Court of Appeal on 25 September 1991 on pain of having to pay an

administrative fine (ibid., p. 15, para. 35). On 21 October 1993 the

Court of Appeal upheld an appeal lodged by the applicants Nick against

the County Administrative Board's decision. Its judgment was preceded

by a hearing on 2 September 1993. On 4 February 1994 the Supreme Court

refused Mr. Hokkanen leave to appeal (ibid., pp. 15-16, para. 37).

The applicants Nick lodged unsuccessful petitions with the

National Board for Social Welfare (sosiaalihallitus, socialstyrelsen)

in 1987 and with the Parliamentary Ombudsman (eduskunnan oikeusasia-

mies, riksdagens justitieombudsman) in 1987 and 1991 regarding the

treatment to which they considered themselves subjected by the

authorities.

COMPLAINTS

1. In so far as can be ascertained from the applicants' submissions

they complain that their right to respect for their family life was

violated as a result of the treatment to which they were subjected by

the authorities in the course of the applicants Nick's dispute with

Mr. Hokkanen concerning Sini. They submit that it was only in the Court

of Appeal's judgment of 21 October 1993 that this right of theirs was

finally recognised. They invoke Article 8 of the Convention.

2. The applicants also complain of having been subjected to inhuman

and degrading treatment by the authorities in the course of the

applicants Nick's dispute with Mr. Hokkanen. They consider, in

particular, that prior to 21 October 1993 the authorities' failed to

take Sini's own opinion into account. They invoke Article 3 of the

Convention.

3. The applicants further complain that Sini's return to

Mr. Hokkanen against her will would have jeopardised her right to

personal security. They invoke Article 5 of the Convention.

4. The applicants furthermore complain that prior to the Court of

Appeal's judgment of 21 October 1993 they were denied a fair hearing

within a reasonable time by an impartial tribunal. They invoke

Article 6 of the Convention.

5. The applicants also complain that prior to the Court of Appeal's

judgment of 21 October 1993 the only interests safeguarded in the

course of the applicant Nicks' dispute with Mr. Hokkanen were those of

the last-mentioned. They invoke Article 5 of Protocol No. 7.

6. Finally, the applicants complain that, since their petitions to

the National Board for Social Welfare and the Parliamentary Ombudsman

were unsuccessful, they were denied an effective remedy within the

meaning of Article 13 of the Convention.

THE LAW

1. The applicants first appear to complain that their right to

respect for their family life was violated as a result of the treatment

to which they were subjected by the authorities during the applicants

Nick's dispute with Mr. Hokkanen concerning Sini. They submit that it

was only in the Court of Appeal's judgment of 21 October 1993 that this

right of theirs was finally recognised. They invoke Article 8 (Art. 8)

of the Convention which, in so far as relevant, reads as follows:

"1. Everyone has the right to respect for his ... family

life, ...

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 observes that at least from her mother's death

onwards Sini has effectively been cared for by the applicants Nick. It

therefore considers that at least from that moment onwards the

applicants' relationship has constituted "family life" within the

meaning of Article 8 para. 1 (Art. 8-1) of the Convention (see, e.g.,

Eur. Court H.R., Kroon and others v. the Netherlands judgment of

27 October 1994, Series A no. 297-C, pp. 55-56, para. 30). This finding

does not preclude the existence of "family life" within the meaning of

the same provision between Sini and her father, Mr. Hokkanen. In its

judgment in the case of Hokkanen v. Finland the Court indeed found that

such "family life" existed between the two (pp. 19-20, para. 54 of the

judgment).

The Commission recalls that the essential object of Article 8

(Art. 8) is to protect the individual against arbitrary interference

by the public authorities. There may in addition be positive

obligations inherent in an effective "respect" for family life. Whilst

the boundaries between the State's positive and negative obligations

under this provision do not lend themselves to precise definition, the

applicable principles are similar. In particular, in both contexts

regard must be had to the fair balance that has to be struck between

the competing interests of the individual or individuals involved as

well as the community as a whole, and in both contexts the State is

recognised as enjoying a certain margin of appreciation (cf. ibid., p.

20, para. 55).

The question arising in the present case is essentially whether

there has been a failure on the part of the Finnish authorities to

respect the "family life" prevailing between the present applicants

while attempting to strike a fair balance between the interests as well

as the rights and freedoms of these applicants as well as those of

Mr. Hokkanen (cf. ibid. p. 22, para. 58).

In the Hokkanen judgment the Court found that the applicants Nick

had initially repeatedly refused to comply with the court-ordered

provisional access arrangements concerning Sini and Mr. Hokkanen (see

ibid., p. 10, paras. 11-12); that they had subsequently refused to

fulfil their court-ordered obligation to restore Sini to Mr. Hokkanen;

and that they had finally refused to cooperate with the authorities for

the purpose of implementing the court-ordered final access arrangements

between Sini and Mr. Hokkanen (see ibid., pp. 10 et seq., paras. 15 et

seq.).

The Commission observes that despite this refusal on the part of

the applicants Nick the authorities considered themselves unable to

intervene in the dispute between them and Mr. Hokkanen with a view to

effectively enforcing the court orders issued at Mr. Hokkanen's

request. The Commission furthermore recalls that by judgment of

25 September 1991 the Court of Appeal transferred custody of Sini to

the applicants Nick, finding that the fact that she lived with them

since 30 April 1985 militated strongly in favour of her remaining in

their care (see ibid., pp. 13-14, para. 29).

Having regard to the above facts, the conflicting interests at

stake and the State's margin of appreciation, the Commission is

satisfied that the authorities made reasonable efforts to show respect

for the present applicants' "family life". There is therefore no

appearance of any violation of Article 8 (Art. 8).

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 applicants also complain of having been subjected to inhuman

and degrading treatment by the authorities in the course of the

applicants Nick's dispute with Mr. Hokkanen. They consider, in

particular, that prior to 21 October 1993 the authorities' failed to

take Sini's own opinion into account. They invoke Article 3 (Art. 3)

of the Convention which reads as follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

The Commission recalls that the assessment of treatment alleged

to be contrary to that provision is relative and must take account of

all the circumstances of the case (e.g., Eur. Court H.R., Ireland v.

the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65,

para. 162). In the circumstances of this case the Commission cannot

find that the treatment to which the applicants consider themselves to

have been subjected attained the threshold of "inhuman and degrading"

treatment within the meaning of Article 3 (Art. 3) 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.

3. The applicants further complain that Sini's return to

Mr. Hokkanen against her will would have jeopardised her right to

personal security. They invoke Article 5 (Art. 5) of the Convention

which reads, in its introductory part, as follows:

"Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure

prescribed by law:

..."

The Commission notes that even according to the applicants

themselves the situation which allegedly could have raised an issue

under Article 5 (Art. 5) never materialised. In these circumstances

there is no appearance of any violation of that provision.

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. The applicants furthermore complain that prior to the Court of

Appeal's hearing on 2 September 1993 and its subsequent judgment of

21 October 1993 they were denied a fair hearing within a reasonable

time by an impartial tribunal. They invoke Article 6 (Art. 6) of the

Convention.

(a) Insofar as the applicants complain that they were denied a fair

hearing before an impartial tribunal, the Commission notes that even

according to the applicants themselves such a hearing was afforded to

them by the Court of Appeal on 2 September 1993. Moreover, in its

subsequent judgment the Court of Appeal held that Sini should not be

forced to meet her father but be allowed to decide for herself,

considering her maturity. It therefore found in the applicants' favour

(see pp. 15-16, para. 37 of the Hokkanen judgment).

In these circumstances the Commission considers that the

applicants may not claim to be "victims" within the meaning of

Article 25 para. 1 (Art. 25-1)of the Convention of a violation of

Article 6 (Art. 6) on account of the alleged denial of a fair hearing

by an impartial tribunal.

It follows that this aspect of the complaint is incompatible

ratione personae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

(b) Insofar as the applicants complain about the length of the court

proceedings, the Commission recalls that in the Hokkanen v. Finland

judgment the Court found no violation of Article 6 para. 1 (Art. 6-1)

on account of the duration of the second set of custody proceeding

starting on 13 August 1990 and terminating on 21 January 1992 (see p.

26, para. 72 of the judgment). The question arises whether the two sets

of custody proceedings as well as the related enforcement proceedings

can be considered as a whole for the purposes of examining the present

grievance (cf., a contrario, No. 12366/86, Dec. 5.7.89, D.R. 62

pp. 172, 178; cf. also Eur. Court H.R., Silva Pontes v. Portugal

judgment of 23 March 1994, p. 13, para. 30 and p. 14, para. 33). Even

assuming that this question can be answered in the affirmative, the

Commission considers that this aspect of the complaint is in any case

inadmissible for the following reasons.

Since the Convention entered into force with respect to Finland

only on 10 May 1990, the Commission must limit its examination to

whether the facts occurring after that date disclosed a breach of the

Convention. Events prior to 10 May 1990 will therefore be taken into

account merely as a background to the issues before the Commission

(see, e.g., the above-mentioned Hokkanen judgment, p. 19, para. 53).

Having regard to its competence ratione temporis, the Commission

considers that the period of relevance to the assessment of whether the

length of the overall proceedings was "reasonable" began to run from

13 August 1990, when the second set of custody proceedings was

instituted, and terminated on 4 February 1994, when the Supreme Court

refused Mr. Hokkanen leave to appeal in the enforcement proceedings.

The total length of the proceedings which the Commission must assess

under Article 6 para. 1 (Art. 6-1) of the Convention thus amounts to

approximately three years and a half.

The reasonableness of the length of the proceedings is to be

determined in the light of the circumstances of the case and with

reference to the criteria laid down in the Court's case-law, in

particular the complexity of the case, the conduct of the applicant as

well as that of the competent authorities. On the latter point, the

importance of what is at stake for the applicant in the litigation has

to be taken into account (see, e.g., Eur. Court H.R., Allenet de

Ribemont v. France judgment of 10 February 1995, Series A no. 308,

p. 19, para. 47).

In the present case the Commission recalls that the second set

of custody proceedings lasted some eighteen months before three

judicial levels (see p. 26, para. 72 of the Hokkanen judgment). The

enforcement proceedings lasted about twenty months and also involved

three decision-making bodies. Between the end of the afore-mentioned

proceedings and the commencement of the enforcement proceeding there

was a gap of about five months preceding Mr. Hokkanen's enforcement

request.

The Commission does not consider it necessary to examine this

complaint in depth with regard to the various criteria laid down by the

Court, since already from the outset it cannot find that the length of

the overall proceedings was excessive, even bearing in mind the

duration of the first set of custody proceedings which terminated prior

to the entry into force of the Convention with regard to Finland.

Accordingly, there is no appearance of a violation of Article 6 para. 1

(Art. 6-1) on this point either.

It follows that this aspect of the complaint must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

5. The applicants also complain that prior to the Court of Appeal's

judgment of 25 September 1991 the only interests safeguarded in the

course of the applicants Nick's dispute with Mr. Hokkanen were those

of the last-mentioned. They invoke Article 5 of Protocol No. 7 (P7-5)

which 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."

The Commission notes that this provision concerns only the

equality between "spouses" in certain exhaustively listed situations.

Thus it is not applicable in the present case.

It follows that this complaint is incompatible ratione materiae

with the provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

6. Finally, the applicants complain that, since their petitions to

the National Board for Social Welfare and the Parliamentary Ombudsman

were unsuccessful, they were denied an effective remedy within the

meaning of Article 13 (Art. 13) of the Convention. This provision 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."

The Commission recalls that under Article 26 (Art. 26) of the

Convention it may only deal with a matter, inter alia, within a period

of six months from the date on which the final decision was taken. The

present complaint principally appears to concern decisions taken in

1987, i.e. even before the entry into force of the Convention with

regard to Finland, and in 1991, that is more than six months prior to

20 April 1994, when the application was introduced. However, the

Commission need not determine to what extent the complaint might

therefore be incompatible ratione temporis with the provisions of the

Convention or inadmissible for non-compliance with the six months'

rule. Instead it notes that the applicants had access to remedies

within the meaning of Article 13 (Art. 13) by virtue of the court

proceedings which eventually ended in findings in their favour not only

as regards custody of Sini but also as regards the non-enforcement of

the access arrangements concerning her and Mr. Hokkanen.

It follows that this complaint must in any case 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, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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NICK AND HOKKANEN v. FINLAND

NICK AND HOKKANEN v. FINLAND

LEXI