AS TO THE ADMISSIBILITY OF

                      Application No. 20592/92

                      by Jan OLSSON

                      against Norway

      The European Commission of Human Rights (Second Chamber) sitting

in private on 5 April 1995, the following members being present:

           Mr.   H. DANELIUS, President

           Mrs.  G.H. THUNE

           MM.   G. JÖRUNDSSON

                 S. TRECHSEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

           Mr.   K. ROGGE, 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 3 July 1992 by

Jan OLSSON against Norway and registered on 7 September 1992 under file

No. 20592/92;

      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 applicant is a Swedish citizen born in 1944. He is currently

residing at Jork, Germany. He is a physicist by profession.

      The facts of the case, as submitted by the applicant or apparent

from the documents submitted, may be summarised as follows.

Particular circumstances of the case

      1.   Custody and access orders and Norway's refusal to have the

           applicant's children returned

      In 1975 the applicant married a Norwegian citizen, H. The

applicant and his wife subsequently lived in Germany, where three

children were born to them: Hadrian in 1976, Anita in 1978 and Lucas

in 1979. All of them are Swedish citizens and their first language is

German. In May 1989 the applicant and H. factually separated, the

children remaining with the applicant.

      On 15 May 1990 H. removed the children from Germany and settled

with another man, A., in Norway, without informing the applicant of

their whereabouts.

      On 18 June 1990 the Central Office for Population Registration

(Sentralkontoret for folkeregistrering) ordered, on H.'s and A.'s

request, that their address be kept confidential. In the request H. had

allegedly stated that she had sole custody of the children. The order

was valid for one year.

      In an interim decision of 27 July 1990 the District Court

(Amtsgericht) of Buxtehude (Germany) granted H. sole custody of the

children.

      In August 1990 the applicant located H. and the children in

Norway. He then instituted proceedings before the District Court

(herredsretten) of Lier, Røyken and Hurum (Norway), requesting rights

to visit the children. These proceedings ended in a court-approved

settlement on 5 November 1990 granting the applicant such rights. The

settlement did not affect the joint custody of the children under

Norwegian law, nor did it imply that the applicant's visiting rights

could only be exercised in Norway.

      While exercising his visiting rights pursuant to the settlement

the applicant brought the children back to Germany for the Christmas

holidays in 1990. It had apparently been agreed that the children would

return to Norway on 2 January 1991.

      On 2 January 1991 the Court of Appeal (Oberlandesgericht) of

Celle (Germany) quashed the interim decision of the District Court of

Buxtehude, the applicant's and H.'s joint custody of the children thus

being maintained. The applicant therefore kept the children in Germany.

      On 4 January 1991, however, H. again removed the children from

Germany and brought them to Norway. On 15 January 1991 she instituted

divorce and custody proceedings before the City Court (byretten) of

Drammen (Norway), alleging, inter alia, that the applicant had failed

to comply with the settlement of 5 November 1990 by refusing to let the

children return to Norway on 2 January 1991. When interviewed by a

German social welfare officer on that day, the children had allegedly

stated that they wished to return to Norway. It was further alleged

that after the children's removal the applicant had declined to return

their passports and personal belongings and that after their return the

children had objected to seeing the applicant in Germany.

      The applicant objected to H.'s action for divorce and custody,

alleging, inter alia, that the children had twice been removed from

Germany in breach of the 1980 Convention on the Civil Aspects of

International Child Abduction (hereinafter "the 1980 Convention"). The

proceedings were then adjourned pending the outcome of his request for

a return of the children pursuant to the 1980 Convention.

      In a petition to the Ministry of Justice (justisdepartementet)

on 2 May 1991 the applicant requested the return of his children in

accordance with the 1980 Convention. On 26 June 1991 the Enforcement

Court (namsretten) of Drammen rejected the request, noting that the

1980 Convention had not entered into force with regard to Germany at

the time of the children's removal from that country in May 1990.

Accordingly, Norway was not required to return the children.

      The applicant's appeal to the High Court (lagmannsretten) of

Eidsivating was rejected on 19 September 1991. On 16 December 1991 the

Appeals Selection Committee of the Supreme Court (Høyesteretts

kjaeremålsutvalg) rejected his further appeal. The applicant was

notified of this judgment on 5 January 1992.

      By a judgment of 4 March 1992 the Presiding Judge of the City

Court of Drammen rejected the applicant's challenge of judge L. as

being biased in the proceedings brought by H. The applicant's appeal

against this decision was rejected by the High Court of Eidsivating on

11 June 1992. On 12 November 1992 the Appeals Selection Committee of

the Supreme Court rejected his further appeal.

      On 16 December 1992 the divorce and custody proceedings before

the City Court of Drammen were resumed. The parties were heard on

14 and 15 April 1993. The applicant's renewed challenge of judge L. as

being biased was again rejected. The applicant requested that the

proceedings be further adjourned, inter alia pending the outcome of his

criminal complaints concerning the children's removal from Germany.

This request was also rejected.

      On the merits H. objected to shared custody of the children. She

also objected to visiting rights being granted to the applicant, and

requested alternatively that the exercise of such rights take place in

Norway. She referred to the deep conflicts between her and the

applicant. The applicant had, for instance, objected to the children

moving to Norway and to their attending school there. His

correspondence with their Norwegian teachers and parents of other

Norwegian children had become a heavy burden for two of the children.

Moreover, the children preferred living with H. When Hadrian and Lucas

had considered visiting the applicant in Germany, the applicant had

allegedly told Hadrian that he would not be welcome in Germany unless

he moved there permanently. Lucas had allegedly been told that the

applicant would be unable to pay for his holidays in Germany.

      The applicant objected to a divorce. He further requested sole

custody of the children and that H. be granted visiting rights. He

alleged, inter alia, that H. had obstructed reasonable schooling for

the children and that she had arbitrarily removed the children from

Germany. He objected to the statements by the children, alleging that

they had been influenced by H. He emphasised that the children were

Swedish citizens and had relatives in Sweden, for which reason he

objected to the exercise of any visiting rights having to take place

in Norway.

      In its judgment of 28 April 1993 the City Court pronounced H.'s

and the applicant's divorce and further granted H. sole custody of the

children. The applicant was granted rights to visit Hadrian and Lucas

according to the terms of the settlement of 5 November 1990. The

custody and access decision was immediately enforceable. The City Court

considered that both parents were fit to be custodians, but found that

H. had been closer to the children in their everyday life. It further

took account of statements made by the children on 15 April 1993

indicating that they all wished to continue living with H., with whom

they apparently felt more secure. In view of the conflicts between H.

and the applicant shared custody was excluded. Both Hadrian and Lucas

had stated a wish that the applicant should have visiting rights. Anita

had objected to such rights being granted. The City Court noted Anita's

age and found that significant weight must be given to her own opinion.

      The applicant lodged several requests for a revision and

clarification of the District Court's judgment pursuant to section 157

of the Code of Civil Procedure (tvistemålsloven). These requests are

allegedly still pending.

      2.   The applicant's criminal and other complaints

      On 10 October and 26 November 1990 the applicant filed criminal

complaints with the police of Drammen, asserting that his children had

been abducted by H. and A. and that he was being prevented from

availing himself of his visiting rights. He alleged that these measures

violated section 216 of the Penal Code (straffeloven) which makes child

abduction a criminal offence.

      On 19 September 1991 the police of Drammen formally decided to

take no action in respect of the applicant's complaint of

10 October  1990, considering that the obstruction of the applicant's

use of his visiting rights constituted no criminal offence.

      On 25 April 1992 the applicant lodged a further complaint with

the Public Prosecutor (statsadvokaten) of Eidsivating. This was

formally left without action on 27 August 1992, the prosecutor

considering that it did not show any reasonable grounds for

investigating whether an offence under public prosecution had been

committed.

      On 30 November 1992 the Public Prosecutor also left the

applicant's further complaint of 26 November 1990 without action.

      On 21 January 1993 the Deputy Prosecutor-General (riksadvokaten)

decided to take no action in respect of the applicant's complaints

concerning the lack of a police investigation and the failure to bring

criminal charges against H. and A. He stated, inter alia, the

following:

      (translation)

      "... [At the time of the children's first removal from

      Germany] [the applicant] and [H.] had shared custody of

      them. This must be assumed to mean that one of the parents

      cannot lawfully prevent the other from availing himself or

      herself of his or her parental rights. In such

      circumstances it is likely that [H.'s] behaviour could,

      from a purely factual point of view, fall within the ambit

      of section 216 of the Penal Code. There is no reason,

      however, to pursue the matter by instituting an

      investigation for the purpose of bringing criminal charges.

      In addition to the fact that the events took place some two

      years and nine months ago, the possible criminal behaviour

      ended, in any case, already after a period of two months,

      namely on 27 July 1990, when a German court granted [H.]

      sole custody of the children. That judgment has also been

      the basis for the subsequent court decisions made in

      Norway.

      The decisive factor for [my] assessment is, however, that

      the fundamental dispute in the case ... cannot be resolved

      by penal sanctions. The matter should be resolved by civil

      courts.

      In addition, possible criminal charges against [H.] would

      undoubtedly affect the children negatively and cause a

      further strain on them. In such a situation the use of the

      limited resources available in the field of criminal

      procedure would be questionable and in clear conflict with

      the ... instructions concerning the priorities to be made.

      ..."

      In his letter of 21 December 1993 to the Prosecutor-General, the

Parliamentary Ombudsman (stortingets ombudsman for forvaltningen)

observed that the applicant's criminal complaints had not been subject

to any investigations. He questioned the Deputy Prosecutor-General's

decision of 21 January 1993, given that it had been based on the

consideration that the principal matters at issue should be decided in

civil proceedings as well as on a consideration of the children's

interests. The Ombudsman underlined that under domestic law an

investigation shall be carried out when a criminal complaint provides

reasonable grounds for investigating whether an offence under public

prosecution has been committed. Thus, a complaint could only be left

without action if it was clear that the reported behaviour did not

constitute such an offence. Finally, taking no action on a complaint

which objectively concerns suspected criminal behaviour on the grounds

that the matter is in reality a dispute under civil law could be seen

as taking a stand on the question of criminal responsibility. The

Ombudsman invited the Prosecutor-General to clarify his position on the

matter. It is unclear whether any such reply has been submitted.

      The applicant has also lodged numerous other unsuccessful

complaints with Norwegian authorities for the purpose of having his

children returned to Germany.

      The applicant has allegedly been unable to see his children

between 4 January 1991 and 14 April 1993 and as from that date onwards.

COMPLAINTS

1.    The applicant complains under Article 8 of the Convention about

lack of respect for his family life essentially resulting from the

following:

      After his children's first removal from Germany in 1990 Norway

refused his request to return them pursuant to the 1980 Convention.

Although Germany was not a Party to the 1980 Convention at the time of

that removal, this would not have prevented an agreement from being

reached between the two countries for the purpose of having the

children returned. However, no active steps were taken by Norway to

this end in spite of the applicant's de facto care of the children at

the time of their removal and in spite of their ties to Germany. On the

contrary, their whereabouts were ordered to be kept secret from the

applicant. Nor were the children returned after their second removal

from Germany in 1991, although this occurred after the entry into force

of the 1980 Convention in respect of that country and after shared

custody of the children had been maintained by a German court. Finally,

in spite of the applicant's numerous complaints the Norwegian

authorities have failed to take legal action against the purported

child abductors. The applicant claims that this prolonged the arbitrary

keeping of the children in Norway which prevented him from exercising

his custody and visiting  rights and which eventually resulted in

custody being awarded solely to H. and visiting rights being awarded

to himself only in respect of two of his children.

2.    The applicant further complains that he has been deprived of an

effective remedy within the meaning of Article 13 of the Convention

against the violations of his rights under Article 8.

THE LAW

1.    The applicant complains about lack of respect for his family life

and invokes 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 considers that in the assessment of whether the

Norwegian authorities showed a lack of respect for the applicant's

family life it has to examine separately the various acts of which he

complains.

      (a)  The refusal to return the applicant's children after their

      first removal from Germany

      The first question to be answered is whether the Norwegian

authorities, in not returning the applicant's children to Germany in

1990, showed a lack of respect for the applicant's family life. The

Commission is not required to decide whether or not the facts alleged

by the applicant in this connection disclose any appearance of a

violation of Article 8 (Art. 8) of the Convention. It follows from

Article 26 (Art. 26) that the Commission may only deal with a matter

which has been brought to its attention within six months from the end

of the decision complained of, or from the end of the situation

complained of (e.g., No. 11123/84, Dec. 9.12.87, D.R. 54 pp. 52 et

seq.)

      The Commission observes that the situation here complained of,

namely that the Norwegian authorities refused, in 1990, to return the

applicant's children to Germany, ended at the latest with the

children's return to that country in December 1990. The present

application was lodged on 3 July 1992, which is more than six months

later. An examination of the complaint does not disclose the existence

of any special circumstances which might have interrupted or suspended

the running of the six months' period.

      It follows that this aspect of the complaint has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

      (b)  The secrecy order concerning the children's whereabouts

      The next question to be answered is whether the Norwegian

authorities, in ordering that the applicant's children's whereabouts

in Norway as from May 1990 be kept secret from him, showed a lack of

respect for his family life. However, recalling the above-mentioned six

months' rule, the Commission again considers that it is not required

to decide whether or not the facts alleged in this respect disclose any

appearance of a violation of Article 8 (Art. 8) of the Convention.

      The Commission observes that the secrecy order concerning the

applicant's children's whereabouts was issued on 18 June 1990 and

expired one year later. Even if the six months' period is considered

to have started from the date of expiry of the order in June 1991 the

present complaint was lodged more than six months later, namely on

3 July 1992. An examination of the complaint does not disclose the

existence of any special circumstances which might have interrupted or

suspended the running of the six months' period.

      It follows that this aspect of the complaint has also been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

      (c)  The refusal to return the applicant's children after their

      second removal from Germany

      The next question to be examined is whether the Norwegian

authorities, in refusing the applicant's request for a return of his

children to Germany in 1991, showed a lack of respect for his family

life as guaranteed by Article 8 (Art. 8) of the Convention. The

Commission recalls that there may be positive obligations inherent in

such "respect", if it is to be effective (cf., e.g. Eur. Court H.R.,

Hokkanen judgment of 23 September 1994, Series A no. 299-A,

para. 55). However, in a dispute concerning custody or visiting rights

in respect of a child any obligation to apply coercion must be limited,

since the interests as well as the rights and freedoms of all concerned

must be taken into account, and more particularly the best interests

of the child and its rights under Article 8 (Art. 8). 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 as can reasonably demanded in the special

circumstances of each case (cf. the above-mentioned Hokkanen judgment,

loc.cit., 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 (cf. Eur Court H.R., W. v. the

United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, para.

64).

      As regards the present aspect of the complaint under Article 8

(Art. 8), the Commission recalls that at the time of the children's

second removal from Germany in January 1991 joint custody of them had

been maintained by judgment of a German court. However, when

interviewed by a German social welfare officer on 2 January 1991, the

children, then  fourteen, twelve and eleven years old, appear to have

expressed the wish to return to Norway. The applicant apparently had

no intention of complying with this wish and two days later the

children were removed to Norway by their mother. After the children's

return to Norway the applicant had apparently declined to return their

passports and personal belongings. Moreover, after their return the

children had apparently objected to seeing the applicant in Germany.

      The Commission considers that in these particular circumstances,

and having regard notably to the children's age and their rights under

Article 8 (Art. 8), it has not been shown that the Norwegian

authorities failed to strike a fair balance between the various

conflicting interests at stake. 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 his own views to the Norwegian courts and

that he also made use of this opportunity. He was thus involved in the

proceedings to a degree sufficient to provide him with the requisite

protection of his interests. Accordingly, there is no appearance of a

violation of Article 8 (Art. 8) in this respect either.

      It follows that this aspect of the complaint must also be

rejected as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

      (d)  The alleged failure to take other measures

      The last question to be examined is whether the Norwegian

authorities, in failing to take other measures demanded by the

applicant, showed a lack of respect for his family life under Article 8

(Art. 8) of the Convention. However, recalling its considerations under

para. 1 (c) above, the Commission cannot find that the Norwegian

authorities, in dealing with the applicant's various complaints, failed

to strike a fair balance between the various conflicting interests at

stake. There is thus no appearance of any lack of respect for the

applicant's family life in this respect either.

      It follows that this aspect of the complaint must also be

rejected as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

2.    The applicant further complains that he has been deprived of an

effective remedy within the meaning of Article 13 (Art. 13) of the

Convention against the violations of his rights under Article 8

(Art. 8). Article 13 (Art. 13) 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."

      In the light of its above conclusions in respect of the complaint

under Article 8 (Art. 8) of the Convention the Commission considers

that the applicant has no "arguable claim" of any violation of that

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).

      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, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber       President of the Second Chamber

        (K. ROGGE)                           (H. DANELIUS)