Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25676/94

by Carsten Bue FRANDSEN

against Denmark

The European Commission of Human Rights (Second Chamber) sitting

in private on 28 February 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 12 August 1994 by

Carsten Bue Frandsen against Denmark and registered on 15 November 1994

under file No. 25676/94;

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 facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a Danish citizen, born in 1956. He is a police

officer and resides at Odense, Denmark.

In October 1993 the applicant and his now ex-wife decided to

separate. They agreed on joint custody of their two children T and M,

born in 1983 and 1986 respectively, following their divorce. They also

agreed that T should remain with his mother and that M should stay with

the applicant.

In connection with the subsequent divorce proceedings a dispute

arose, however, as to the custody of the children. The matter was

brought before the Civil Court of Frederikssund (civilretten i

Frederikssund) which held a hearing on 11 February 1994 during which

the parties, assisted by counsel, were present and had the opportunity

to submit what in their opinion was of relevance to the outcome of the

dispute.

By judgment of the same day the Civil Court decided to award

custody of both children to the mother in particular since the Court

found it established that it would not be in the interest of the

children to be separated and to grow up in different places relatively

far away from each other.

The applicant appealed against the judgment to the High Court of

Eastern Denmark (Østre Landsret) maintaining that it would be in the

best interest of M to stay with him. In order to support this the

applicant requested an expert opinion (en børnesagkyndig undersøgelse)

on the children and their situation.

The High Court held a hearing in the case on 24 May 1994 during

which the applicant and his ex-wife again had the opportunity to

address the Court.

By judgment of 26 May 1994 the High Court rejected the

applicant's request for an expert opinion and upheld the judgment of

the lower court. While confirming that both parties were capable of

taking care of the children, the Court found it to be in the best

interest of the children to remain together with their mother.

Leave to appeal to the Supreme Court (Højesteret) was refused on

13 July 1994.

COMPLAINTS

Under Article 6 para. 1 of the Convention the applicant complains

that the decision on custody was based on an incorrect evaluation of

his son M's situation. He also maintains that the proceedings were not

fair since his request for an expert opinion was refused.

Under Article 8 of the Convention the applicant furthermore

complains that the judgment disregards his and M's right to respect for

their family life.

THE LAW

1. The applicant complains that the judgment granting custody of

both children to his former wife was based on an incorrect evaluation

of the factual prevailing circumstances.

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or 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. The Commission refers, on this point, to the established

case-law of the Convention organs (see e.g. Eur. Court H.R., Schenk

judgment of 12 July 1988, Series A no. 140, p. 29, para. 45).

It is true that in this case the applicant also complains that

the proceedings were not fair due to the fact that the High Court

refused the request for an expert evaluation of the children's

situation.

In this respect the Commission notes that as a general rule it

is for the national courts to assess the evidence before them as well

as the relevance of the evidence which the parties seek to adduce. In

particular the courts have a certain discretion as to whether or not

the evidence in question would be of relevance to the outcome of a

given case.

In the present case the Commission recalls that the custody

dispute was examined by the Civil Court of Frederikssund and the High

Court of Eastern Denmark which both held oral hearings during which the

applicant, assisted by counsel, had the opportunity to address the

courts. Nothing has emerged which could lead to the conclusion that

these proceedings were not in conformity with the requirements of

Article 6 (Art. 6) of the Convention. Furthermore, the Commission

considers that the High Court did not go beyond its discretion as to

the taking of evidence when, in the particular circumstances of this

case, it considered it unnecessary to obtain an expert opinion in order

to determine the question of custody.

Accordingly, considering the proceedings as a whole, the

Commission finds no appearance of a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also complains that the judgment granting custody

of M to his ex-wife violated M's and his right to respect for their

family life contrary to Article 8 (Art. 8) of the Convention.

However, the Commission notes that the national courts are in

cases like the present one often faced with the problem of making a

choice between the parents. Their decisions in this respect will not

as such disclose any lack of respect for the family life of the parent

who is not granted custody. In the circumstances of the present case

the Commission furthermore considers that the decision taken was

neither arbitrary nor disproportionate, and that the dispute was not

solved in a manner which showed lack of respect for the family life of

M.

It follows that this part of the application is also 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 Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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FRANDSEN v. DENMARK

FRANDSEN v. DENMARK

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