Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21642/93

by S. G.P.

against Spain

The European Commission of Human Rights (Second Chamber) sitting in

private on 12 January 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. 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 1 February 1993 by

S. G.P. against Spain and registered on 8 April 1993 under file No.

21642/93;

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

Particular circumstances of the case

The applicant is a Spanish national born in 1946. He is an official

of the merchant Navy. Before the Commission he is represented by M.

Francisco Javier Carbonell Rodriguez, a lawyer practising in Madrid.

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

summarised as follows.

On 22 November 1990, the applicant's spouse introduced

simultaneously two actions for legal separation and interim measures

before the Judge of first instance of Alcala de Henares, complaining of

violent behaviour of her husband towards her and their sons. She invoked

Article 82 para. 1 of the Civil Code, which refers to "offensive and

harmful behaviour and any other serious and repeated violations of

conjugal duties". By decision of 18 January 1991, the first instance

Judge of Alcala de Henares granted the interim measures applied for by

the applicant's spouse, namely the custody over their sons, the use of

the conjugal domicile and a monthly maintenance allowance.

The applicant opposed both petitions of his spouse.

By decision of 9 April 1991, the first instance Judge dismissed the

plea of the applicant's spouse in the main proceedings and suspended the

interim measures adopted, considering that the allegations of ill-

treatment and vexatious behaviour had not been proven. Consequently, on

30 April 1991, the interim measures were declared without effect.

The applicant's spouse lodged an appeal with the Audiencia

Provincial of Madrid against the decision given in the main proceedings.

By decision (providencia) of 8 May 1991, the Audiencia Provincial

suspended the effects of the decision appealed. Consequently, the

interim measures were applied again. As the applicant's appeals against

the former decision were dismissed, be sought relief before the

Constitutional Court and lodged a "de amparo" appeal, alleging a

violation of Article 24 of the Spanish Constitution, in that he did not

have the right to an effective remedy against the decision of the

Audiencia Provincial concerning interim measures. The Constitutional

Court declared the appeal inadmissible on 9 March 1992 as being

manifestly ill-founded.

By decision of 29 May 1992, the Audiencia Provincial of Madrid

granted the legal separation and confirmed the interim measures with

slight modifications taking into account the applicant's profession,

especially concerning the regime of visits to his sons. The Audiencia

Provincial based its decision on the loss of "affectio conjugalis" which

had not as such been invoked by the applicant's spouse before the First

Instance Court and interpreted Article 82 of the Civil Code as not

requiring proof of any vexatious or humiliating behaviour.

The applicant lodged again an appeal of "amparo" with the

Constitutional Court alleging another violation of Article 24 of the

Spanish Constitution. On 14 December 1992, the Constitutional Court

declared the appeal inadmissible as being manifestly ill-founded.

The applicant is at present involved in proceedings before the

Supreme Court, complaining of a judicial error.

Relevant domestic law

(Original)

Código Civil, artículo 82

"Son causas de separación:

1° El abandono injustificado del hogar, la infidelidad conyugal,

la conducta injuriosa o vejatoria y cualquier otra violación grave

o reiterada de los deberes conyugales"...

(Translation)

Civil Code, Article 82

"The following constitute reasons for legal separation:

1st. The unjustified abandoning of the marital domicile, the

conjugal infidelity in marriage, the humilliating or vexatious

behaviour, or any other serious and repeated violation of the

conjugal duties".

COMPLAINTS

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

legal separation and the interim measures adopted in the legal separation

proceedings wrongly interfered with the exercise of his right to respect

for his family life.

2. The applicant further complains that he has not had the right to an

effective remedy in order to suspend the execution of the interim

measures in question, taking into account that those measures were

confirmed on the basis of a judicial interpretation of the legal

provisions, and not on the basis of the texts themselves. He states that

this also amounts to a violation of his right to respect for his family

life and invokes Article 13, combined with Article 8 of the Convention.

3. The applicant finally complains that he did not have the right to

an independent tribunal insofar as the Audiencia Provincial of Madrid,

after having recognised that the loss of the "affectio conjugalis" is not

expressly provided for in the law, granted the legal separation and

confirmed the interim measures. In the applicant's opinion, this also

constitutes an interference with his right to respect for his family

life. He invokes Articles 6 para. 1 and 8 of the Convention.

THE LAW

1. The applicant considers that the legal separation and the interim

measures adopted in the legal separation proceedings in which he is

involved wrongly interfered with the exercise of his right to respect for

his private and family life under Article 8 (Art. 8) of the Convention,

which provides 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."

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 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 (see e.g. No.

7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

Assuming that the decisions complained of interfered with the

applicant's right to respect for his family life, the Commission has

examined whether they were "in accordance with the law" and "necessary

in a democratic society" for any of the purposes set out in para. 2 of

Article 8 (Art. 8).

It first observes that the Audiencia Provincial based its decision

of 29 May 1992 on an interpretation of Article 82 of the Civil Code which

does not appear to be arbitrary, given that Article 82 of the Civil Code

refers in a general way to "any ... serious and repeated violation of the

conjugal duties". The Commission is therefore satisfied that the

interference complained of was lawful. It also finds that it could

reasonably be considered as necessary in a democratic society for the

rights and freadoms of others, i.e. the applicant's spouse and sons.

It follows that this part of the application must be rejected as

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

(Art. 27-2) of the Convention.

2. As regards the alleged lack of an effective remedy against the

execution of the interim measures concerned, the Commission notes that

the applicant has used the remedies available under Spanish law. The fact

that he did not succeed does not amount to a violation of his right,

under Article 13 (Art. 13) of the Convention, to an effective remedy

before a national authority.

It follows that this part of the application 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 finally complains under Articles 6 para. 1 and 8

(Art. 6-1, 8) of the Convention that he did not have the right to an

independent tribunal in that the Audiencia Provincial of Madrid granted

the legal separation on the basis of a reason which had not as such been

invoked by the applicant's spouse before the Court of first instance,

namely the lack of "affectio conjugalis". In the applicant's opinion,

this also constitutes an interference with his right to respect for his

family life.

The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention

states :

"In the determination of his civil rights and obligations...,

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law". ...

In this respect, the Commission considers that the Audiencia

Provincial was simply appreciating the factual situation and the law, in

a way which was different from the applicant's point of view. 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

(K. ROGGE) (S. TRECHSEL)

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S. G.P. v. SPAIN

S. G.P. v. SPAIN