AS TO THE ADMISSIBILITY OF

                      Application No. 19760/92

                      by Anne and Maria KETONEN

                      against Finland

      The European Commission of Human Rights (First Chamber) sitting

in private on 12 October 1994, the following members being present:

           MM.   A. WEITZEL, President

                 C.L. ROZAKIS

                 F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Mrs.  J. LIDDY

           MM.   M.P. PELLONPÄÄ

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

           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 10 March 1992 by

Anne and Maria KETONEN against Finland and registered on 24 March 1992

under file No. 19760/92;

      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 applicants are mother and child, born in 1958 and 1983,

respectively, and resident in Vaasa. The mother is a psychiatrist by

profession. The applicants are represented by Mr. Heikki Salo, a lawyer

in Helsinki.

      The facts of the case, as submitted by the applicants, may be

summarised as follows.

Particular circumstances of the case

      In 1983 the first applicant married K. and gave birth to the

second applicant, their mutual child (hereinafter "Maria").

      In July 1987 the first applicant and K. were granted judicial

separation (asumusero, hemskillnad) by the City Court (raastuvanoikeus,

rådstuvurätten) of Turku. Maria was ordered to live with the first

applicant. In August 1988 the first applicant and K. divorced, but were

ordered to remain custodians of Maria, K. being responsible for Maria's

possessions and the first applicant for other custody-related matters.

Maria was ordered to live with the first applicant. K. was not granted

any rights to visit Maria.

      In 1989 K. instituted proceedings for the purpose of obtaining

rights to visit Maria. Meanwhile, the first applicant requested the

revocation of the shared custody of her.

      A first hearing before the City Court was held on

12 October 1989. After certain witnesses had been heard a further

hearing was fixed at 23 November 1989.

      Following the hearing on 23 November 1989 the City Court by an

interim order granted K. provisional visiting rights and further

requested the Social Welfare Board (sosiaalilautakunta, socialnämnden)

of Turku to submit an opinion.

      The City Court's request for an opinion arrived at the Social

Welfare Centre (sosiaalikeskus, socialcentralen) of Turku on

27 December 1989. In March 1990 the Centre transferred the request to

the Child and Family Guidance Centre (kasvatus- ja perheneuvola,

uppfostrings- och familjerådgivningen) of Turku.

      In the course of the investigation social welfare officials

refused to hear a number of persons referred to by the first applicant,

including a psychiatrist who had interviewed Maria on a previous

occasion. They also refused to consider a medical report regarding

Maria which the applicant had presented.

      Following a hearing on 19 March 1990 the City Court revoked its

interim order of 23 November 1989, observing that K. had not availed

himself of his visiting rights.

      Following a further hearing on 10 May 1990 the City Court fixed

a further hearing at 19 July 1990, since the requested opinion from the

Social Welfare Centre had not yet been submitted.  In its opinion to

the City Court dated 21 June 1990 and limited to the question of

visiting rights the Child and Family Guidance Centre proposed that no

meetings take place between Maria and K. during a period of one year,

as the conditions for meetings would at the time not be suitable from

Maria's point of view in the light of the serious disputes between the

first applicant and K.

      In a further opinion to the City Court dated 5 July 1990 and

concentrating on the custody question the Social Welfare Centre

concluded that continued joint custody of Maria was preferable. As

regards the visiting rights, the Centre referred to the report of

21 June 1989 submitted by the Child and Family Guidance Centre.

      In the course of the proceedings before the City Court the first

applicant was refused the right to study certain documents kept by the

Social Welfare Centre and including an opinion which had been

communicated to K., but not to her.

      Following the hearing on 19 July 1990 the City Court fixed a

further hearing at 30 August 1990. In its judgment following that

hearing the City Court found that the shared custody of Maria should

be revoked and the first applicant should remain as her sole custodian.

It further rejected K.'s request for visiting rights.

      On 14 May 1991 the Court of Appeal (hovioikeus, hovrätten) of

Turku quashed the City Court's judgment of 30 August 1990 by granting

K. visiting rights. The Court of Appeal noted that a year had passed

without meetings taking place between Maria and K., and that K. had

stated that he would not forcibly remove Maria from the first

applicant's home, should she object to meeting him. The Court of Appeal

further ordered that custody of Maria should be shared.

      On 16 September 1991 the Supreme Court (korkein oikeus, högsta

domstolen) refused the first applicant leave to appeal.

      In December 1991 the first applicant instituted further

proceedings before the City Court, requesting that K.'s visiting rights

be revoked.

      On 26 February 1992 the City Administrative Court (maistraatti,

magistraten) of Turku rejected K.'s request for enforcement of his

visiting rights, considering that enforcement against Maria's will

could contravene her interests.

      On 5 March 1992 the City Court held a hearing concerning the

first applicant's action of December 1991 and fixed a further hearing

at 13 May 1992.

      On 19 March 1992 the Deputy Parliamentary Ombudsman (eduskunnan

apulaisoikeusasiamies, riksdagens biträdande justitieombudsman)

considered, in response to a complaint lodged by the first applicant,

that social authorities responsible for investigating custody and

access matters have a discretion in the procedure relating to their

investigations. It had not been shown that the social welfare officials

in the applicants' case had abused their discretion or otherwise acted

contrary to the interests of Maria when refusing, in 1990, to accept

the evidence proposed to them by the first applicant. In any case, the

first applicant had been given the opportunity to present the evidence

in the court proceedings pending at the time.  The Deputy Ombudsman

further considered that the disclosure of the opinion of the Child and

Family Guidance Centre to K. without him having requested it had been

in breach of the applicable instructions issued by the National Social

Welfare Board (sosiaalihallitus, social-styrelsen) and that the Centre

had furthermore behaved incorrectly in refusing to communicate the

opinion to the first applicant.

      In regard to the length of the proceedings the Deputy Ombudsman

noted that the first applicant and K. had been interviewed separately

by social welfare officials in January 1990. A joint interview

scheduled for 27 February 1990 had had to be cancelled due to the first

applicant's refusal to attend it. Moreover, in view of her subsequent

complaint to the Social Welfare Board concerning the investigation and

her report to the police concerning certain social welfare officials

the Social Welfare Centre had considered it appropriate to refer the

investigation to the Child and Family Guidance Centre. The Deputy

Ombudsman concluded therefore that there had been a justified reason

for the delay in the submission of the investigation requested by the

City Court.

      In regard to alleged deficiencies in the Social Welfare Centre's

opinion of 5 July 1990 the Deputy Ombudsman criticised the procedure

on the basis that the parties had not been heard prior to the drawing

up of the opinion and that it had not contained any reasoning in

support of the conclusion reached.

      The Deputy Ombudsman finally noted, however, that the outcome of

the proceedings before the City Court had been favourable to the first

applicant, since she had been granted sole custody of Maria and since

K.'s request for visiting rights had been rejected.

      In its judgment following a hearing on 13 May 1992 concerning the

first applicant's action of December 1991 the City Court decided to

maintain the shared custody of Maria, but found it to be in her

interests that K.'s visiting rights be revoked. Regard was, in

particular, had to a witness statement by Ms. Maija-Liisa Koski, a

psychiatrist, according to whom the enforcement of the visiting rights,

as ordered by the Court of Appeal on 14 May 1991, would contravene

Maria's interests. According to Mrs. Koski, Maria considered K. as a

stranger and did not wish to meet him. Due to Maria's negative reaction

to meetings with K. the first applicant had refused to comply with the

visiting rights ordered by the Court of Appeal.

      In its judgment of 3 February 1993 the Court of Appeal partly

quashed the City Court's judgment of 13 May 1992 by revoking the joint

custody of Maria. Regard was had to her minor possessions and the

related disagreements between the first applicant and K. which they had

been unable to solve without assistance from the authorities. The Court

of Appeal further upheld the City Court's finding that no visiting

rights should be granted to K.

      On 17 May 1993 the Supreme Court granted K. leave to appeal

against the Court of Appeal's judgment of 3 February 1993 in so far as

it concerned his visiting rights. On 2 March 1994 the Supreme Court

rejected his appeal.

Relevant domestic law

1.    The 1983 Act on Custody and Visiting Rights with Regard to

      Children

      According to the 1983 Act (laki 361/83 lapsen huollosta ja

tapaamisoikeudesta, lag 361/83 ang. vårdnad om barn och umgängesrätt;

"the 1983 Act"), decisions concerning custody and visiting rights with

regard to a child shall be based primarily on the interests of the

child. Particular regard shall be had to the optimal implementation of

custody and visiting rights in the future (section 10, subsection 1).

In a matter concerning custody and visiting rights with regard to a

child the child's own wishes and opinion shall, if possible, be

obtained, having regard to the child's age and maturity and provided,

inter alia, that the parents are unable to reach an agreement on the

matter or if, for some other reason, consultation shall be regarded as

being necessary in the interests of the child. The child's opinion

shall be obtained tactfully, having regard to its stage of maturity and

without causing harm to the relations between the child and its parents

(section 11).

      The court shall, when deciding a matter concerning custody and

rights to visit a child, consider the interests and wishes of the child

according to what is prescribed in sections 10 and 11 (section 9,

subsection 4). The court may issue an interim order as to where the

child should live, the rights to visit it and the conditions attached

thereto. For special reasons it may also issue an interim order as

regards custody. No appeal lies against an interim order (section 17,

subsections 1 and 2).

2.    The 1975 Act on the Enforcement of Decisions Concerning Custody

      and Visiting Rights with Regard to Children

      According to the 1975 Act (laki 523/75 lapsen huollosta ja

tapaamisoikeudesta annetun päätöksen täytäntöönpanosta, lag 523/75 om

verkställighet av beslut som gäller vårdnad om barn och umgängesrätt),

enforcement of a decision or an interim order shall not take place

contrary to the child's will if the child is twelve years of age. The

same applies if a child under twelve years of age is so mature that

regard can be had to its own will (section 1 and section 6, as amended

by Act 366/83).

3.    Remedy against unnecessary suspension of court proceedings

      The Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs

Balk) affords a party, who is of the opinion that the proceedings

before the court of the first instance have been unnecessarily

suspended, the possibility to lodge a complaint with the Court of

Appeal within thirty days from the suspension (chapter 16,

section 4).

4.    The 1951 Act on Publicity of Public Documents

      Under the 1951 Act (laki 83/51 yleisten asiakirjain

julkisuudesta; lag 83/51 om allmänna handlingars offentlighet; "the

1951 Act") documents drawn up and issued by an authority, or which have

been submitted to an authority and are still in that authority's

possession, are public (section 2, subsection 1).  If an official

refuses access to such a document, that decision may be submitted for

reconsideration by the same authority, following which there lies an

appeal under the general rules for appeals against a decision of that

authority. If no right of appeal exists, an appeal may be lodged with

the authority to which the first-mentioned authority is subordinated.

If no such authority exists, an appeal against a state authority's

decision may be lodged with the Supreme Administrative Court (korkein

hallinto-oikeus, högsta förvaltningsdomstolen). An appeal against a

decision by another authority may be lodged with a County

Administrative Court (lääninoikeus, länsrätt) (section 8, subsection.

1, as amended by Act no. 472/87).

COMPLAINTS

1.    The applicants complain that there has been a lack of respect for

their family life. Due to the "legal uncertainty" pertaining to the

custody of, and the rights to visit Maria the applicants' situation has

been, and continues to be, precarious. They consider there to be no

family life between Maria and K. and emphasise that, even after having

been granted visiting rights in respect of Maria, K. has not exercised

them. Because of the negligent behaviour of the authorities in

investigating her interests Maria has been subjected to considerable

mental distress. Reference is also made to the lack of equality of arms

between the first applicant and K., since the possibility for the first

applicant to obtain documents drawn up by the investigating authorities

was limited. The applicants invoke Articles 3 and 8 of the Convention

and Article 5 of Protocol No. 7 to the Convention.

2.    Under Article 6 of the Convention the applicants consider the

length of the overall proceedings to be excessive, in particular in

view of Maria's age.

3.    The applicants further complain that they did not receive a fair

trial, since the Court of Appeal allegedly only based its judgment of

14 May 1991 on presumptions and not on evidence. They again invoke

Article 6 of the Convention.

4.    Under Article 6 of the Convention the applicants also complain

that they were refused access to the Supreme Court.

5.    In their letter of 22 September 1993 the applicants also complain

of the lack of an effective remedy against the alleged lack of respect

for their family life.

THE LAW

1.    The applicants complain that there has been a lack of respect for

their family life due to the "legal uncertainty" pertaining to the

custody of, and the rights to visit Maria, the deficient investigations

of Maria's interests and the alleged lack of equality of arms in the

proceedings. They invoke Articles 3 and 8 (Art. 3, 8) of the Convention

and Article 5 of Protocol No. 7 (P7-5) to the Convention.

      The Commission has examined the complaint under 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 initially recalls that the Convention entered into

force with regard to Finland on 10 May 1990. The Commission will

therefore limit its examination to whether the facts occurring after

that date disclosed a breach of Article 8 (Art. 8). Events prior to

10 May 1990 will be taken into account merely as a background to the

issues before the Commission (Eur. Court H.R., Hokkanen v. Finland

judgment of 23 September 1994, Series A no. 299-A, para. 53).

      The Commission observes that as from February 1993 the first

applicant is Maria's sole custodian and that as from May 1992 K. has

had no visiting rights with regard to Maria. Leaving aside the question

whether the applicants can under these circumstances claim to be

"victims" under Article 25 (Art. 25) of the Convention, the Commission

considers that the complaint is inadmissible for the following reasons.

      The Commission considers that the complaint raises the question

whether there has been a lack of respect for the applicants' right to

respect for their family life. It recalls that the notion of 'respect'

enshrined in Article 8 (Art. 8) is not clear-cut. This is the case

especially where the positive obligations implicit in that concept are

concerned. Its requirements will vary considerably from case to case

according to the practices followed and the situations obtaining in the

Contracting States. In determining whether or not such an obligation

exists, regard must be had to the fair balance that has to be struck

between the general interest and the interests of the individual as

well as to the margin of appreciation afforded to the Contracting

States (Eur. Court H.R., B. v. France judgment of 25 March 1992,

Series A no. 232-C, pp. 47 et seq., paras. 44 et seq.).

      At the time of the entry into force of the Convention with regard

to Finland the first set of proceedings for the determination of the

custody of, and rights to visit Maria, were pending before the City

Court of Turku. This part of the proceedings terminated, in substance,

in the Court of Appeal's finding that custody of Maria should be shared

and that K. should be granted visiting rights. The Commission considers

that the suffering allegedly inflicted on the applicants due to K.'s

unwillingness to exercise his visiting rights is not as such imputable

to the respondent State. In any case, the City Court revoked K.'s

provisional visiting-rights at an early stage of the proceedings and

prior to 10 May 1990. The Commission observes that in May 1991 K. was

again granted visiting rights, but these were apparently never enforced

in view of Maria's interests. The "legal uncertainty" which could

arguably be said to have been caused by the first set of court

proceedings before three court instances lasted about two years out

which a period of one and a half years took place subsequent to

10 May 1990.  The Commission notes that the second set of proceedings,

also before three court instances, was instituted by the first

applicant soon after the termination of the first set of proceedings

and also lasted about two years and three months. The legal uncertainty

caused by these proceedings may be considered to have lasted an even

shorter period, since enforcement of K.'s visiting rights was refused

already in February 1992 in consideration of Maria's interests. The

second set of proceedings ended in the appointment of the first

applicant as Maria's sole custodian and the refusal to grant K. any

rights to visit Maria.

      In so far as certain procedural safeguards are implicit in

Article 8 (Art. 8) (cf. e.g. Eur. Court H.R., W. v. the United Kingdom

judgment of 8 July 1987, Series A no. 121-A, p. 28, para. 63), the

Commission observes the Deputy Ombudsman's findings in regard to the

procedural flaws in the investigation by the Social Welfare Centre in

the course of the first set of court proceedings. However, as also

pointed out by Deputy Ombudsman, the first applicant was given an

opportunity to present her evidence in the actual court proceedings.

She therefore had ample possibilities to present her own views to the

courts. As regards the refused access to certain documents in the case

and the communication of part of the documents only to K., the

Commission observes that the first applicant did not exhaust the

domestic remedies provided by the 1951 Act.

      In conclusion, the Commission cannot find that the courts'

consideration of the question of the custody of, and rights to visit

Maria in any way contravened the interests of the applicants. On the

contrary, it notes that the first applicant's objections to shared

custody of Maria and the granting of visiting rights to K. were

successful.

      Having regard to the above-mentioned various elements, the

Commission concludes, that a fair balance was struck between the

conflicting interests at stake in the present case (cf., a contrario,

T.H. (Hokkanen) v. Finland, Comm. Report 22.10.93, para. 146,

Eur. Court H.R., Series A no. 299-A; see also the above-mentioned

Hokkanen judgment, para. 55 et seq.). Accordingly, there has been no

lack of respect for the applicants' family life.

      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.    Under Article 6 (Art. 6) of the Convention the applicants

consider the length of the proceedings to be excessive, in particular

in view of Maria's age.

      The Commission has examined this complaint under Article 6

para. 1 (Art. 6-1) which reads, as far as relevant in the present case:

      "1.  In the determination of his civil rights and

      obligations  ..., everyone is entitled to a fair ...

      hearing within a reasonable time by [a] ... tribunal

      established by law."       The Commission observes that

      under the Code of Judicial Procedure a party who considers

      that the proceedings before a court of the first instance

      have been unnecessarily suspended may lodge a complaint

      with the Court of Appeal. There is no indication that the

      applicants have availed themselves of this remedy. The

      Commission will, however, leave aside the question whether

      domestic remedies have been exhausted, as required by

      Article 26 (Art. 26) of the Convention, since the complaint

      is, in any event, inadmissible for the reasons stated

      below.

      The Commission reiterates that the reasonableness of the length

of proceedings must be assessed in the light of the circumstances of

each case and having regard to the following criteria: the complexity

of the case, the conduct of the parties and that of the authorities

dealing with the case (e.g., Eur. Court H.R., Vernillo judgment of

20 February 1991, Series A no. 198, p. 12, para. 30). The Commission

will furthermore limit its examination to whether the facts occurring

after 10 May 1990 disclosed a breach of Article 6 para. 1 (Art. 6-1),

taking, however, account of the state of the proceedings and the

applicant's situation on that day (e.g., Eur. Court H.R., Martins

Moreira judgment of 26 October 1988, Series A no. 143, p. 16,

para. 43).

      In the present case the first set of custody and access

proceedings were instituted in July 1989. At the time of the entry into

force of the Convention with regard to Finland, the case had been

pending before the City Court for about ten months and three hearings

had been held. A further three hearings were held prior to the judgment

rendered in August 1990. The subsequent proceedings before the Court

of Appeal lasted about eight months and the proceedings before the

Supreme Court less than four months. The total length of the first set

of proceedings, as conducted on and subsequent to 10 May 1990, thus

amounted to fifteen months.

      The Commission observes that enforcement proceedings commenced

soon after the termination of the first set of proceedings. These were

interrupted, however, by the further proceedings instituted by the

first applicant in December 1991. The proceedings before the City Court

lasted about six months, before the Court of Appeal about nine months

and before the Supreme Court about one year. As found above, the total

length of the second set of proceedings thus amounts to about two years

and three months.

      In the light of the criteria laid down in the Court's case-law

and having regard to the particular circumstances of the case the

Commission cannot find that the length of the proceedings complained

of exceeded a "reasonable time". Accordingly, there is no appearance

of a violation of Article 6 para. 1 (Art. 6-1) 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 applicants further complain that they did not receive a fair

trial, since the Court of Appeal allegedly only based its judgment of

14 May 1991 on presumptions and not on evidence. They again invoke

Article 6 (Art. 6) of the Convention.  The Commission has considered

also this complaint under the above-cited Article 6 para. 1 (Art. 6-1).

It recalls, however, that it 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

judgment has no legal justification and thereby violates a party's

right to receive a fair trial (cf. Eur. Court H.R., De Moor judgment

of 23 June 1994, Series A no. 292-A, para. 55; No. 7987/77,

Dec. 13.12.79, D.R. 18 pp. 31, 45). As a general rule, however, it is

for the domestic courts to assess the evidence before them, in

particular since they have the benefit of hearing witnesses and

assessing their credibility (Eur. Court H.R., Klaas judgment of

22 September 1993, Series A no. 269-A, pp. 17-18, paras. 29-30).

      In the present case the Commission observes that the judgment of

the Court of Appeal of 14 May 1991 in the proceedings in which the

first applicant was, in one respect, the plaintiff and, in the other

respect, the defendant, was based on an assessment of the interests of

Maria in pursuance of the 1983 Act. The material submitted to the

Commission does not call the findings of the Court of Appeal into

question. There is thus no indication that the first applicant was

denied a fair trial. Accordingly, there is no appearance of a violation

of Article 6 para. 1 (Art. 6-1) in this respect either.

      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.    Under Article 6 (Art. 6) of the Convention the applicants also

complain that they were refused access to the Supreme Court.

      The Commission has considered also this complaint under the

above-cited Article 6 para. 1 (Art. 6-1). It observes that, although

the applicants were refused leave to appeal to the Supreme Court, they

had already had access to courts in two instances. Thus, there is no

appearance of a violation of Article 6 para. 1 (Art. 6-1) on this point

either.

      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.    In their letter of 22 September 1993 the applicants also complain

of the lack of an effective remedy against the alleged lack of respect

for their family life.

      The Commission has considered this complaint under Article 13

(Art. 13) of the Convention, which 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."

      Leaving aside the question whether the applicants have complied

with the six months' rule prescribed by Article 26 (Art. 26) of the

Convention, the Commission considers that the applicants have no

"arguable claim" of a breach of a violation of a substantive Convention

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). The Commission refers to its above

conclusion with regard to the complaint examined under Article 8

(Art. 8) 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.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

     (M.F. BUQUICCHIO)                       (A. WEITZEL)