AS TO THE ADMISSIBILITY OF

                      Application No. 19823/92

                      by T. and S.H.

                      against Finland

      The European Commission of Human Rights sitting in private on

9 February 1993, the following members being present:

                 MM.  C.A. NØRGAARD, President

                      J.A. FROWEIN

                      S. TRECHSEL

                      E. BUSUTTIL

                      A.S. GÖZÜBÜYÜK

                      A. WEITZEL

                      J.-C. SOYER

                      H.G. SCHERMERS

                      H. DANELIUS

                 Mrs. G.H. THUNE

                 Sir  Basil HALL

                 MM.  F. MARTINEZ

                      C.L. ROZAKIS

                 Mrs. J. LIDDY

                 MM.  J.-C. GEUS

                      M.P. PELLONPÄÄ

                      B. MARXER

                      G.B. REFFI

                 Mr. H.C. KRÜGER, Secretary to the Commission.

      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 April 1992 by

T. and S.H. against Finland and registered on 13 April 1992 under file

No. 19823/92;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having regard to the observations submitted by the respondent

Government on 1 October 1992 and the observations in reply submitted

by the applicant on 10 November 1992;

      Having deliberated;

      Decides as follows:

THE FACTS

      The first applicant is a farmer born in 1953 and resident at J.

The second applicant is a schoolgirl born in 1983 and resident at X.

They are father and daughter and both Finnish citizens. Before the

Commission they are represented by Mr. Heikki Salo, a lawyer practising

in Helsinki.

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

summarised as follows.

Particular circumstances of the case

      On 30 April 1985 the first applicant's wife and the mother of the

second applicant committed suicide. The first applicant then agreed

with the second applicant's maternal grand-parents (hereinafter "R.N."

and "S.N.") that they would provisionally take care of the second

applicant 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 the second applicant. During this period the

applicants met regularly.

      In November 1985, when the second applicant was staying with the

first applicant, R.N. and his son demanded that the second applicant

come and stay with R.N. and S.N., or otherwise S.N. would commit

suicide. The first applicant complied, allegedly reluctantly, in order

to prevent S.N. from committing suicide.

      Subsequently the first applicant was informed that R.N. and S.N.

would not return the second applicant to him. Conciliation efforts

involving the Social Welfare Board (sosiaalilautakunta, socialnämnden)

of X. were unsuccessful, R.N. and S.N. refusing to return the second

applicant.

      On 9 December 1985 the first applicant reported the grandparents

to the Chief (nimismies, länsman) of the Rural Police District of

Tuusula who, in his function as Bailiff (ulosottomies, utmätningsman),

refused executive assistance and directed him to institute proceedings

before the County Administrative Board (lääninhallitus, länsstyrelsen)

of Uusimaa in its function as Executor in Chief (ulosotonhaltija,

överexekutor).

      R.N. and S.N. subsequently brought an action against the first

applicant before the District Court (kihlakunnanoikeus, häradsrätten)

of Tuusula, requesting that the care and control of the second

applicant be transferred to them.

      On 28 January 1986 the action was dismissed, as R.N. and S.N.

were considered to lack locus standi.

      In February 1986 the first applicant requested the County

Administrative Board to take measures in order to have the second

applicant returned to him. In an opinion submitted by the conciliator

appointed by the Social Welfare Board the first applicant's

circumstances were not found to prevent such a return.

      On 2 May 1986 the County Administrative Board rejected the

request, noting that the second applicant had been staying with R.N.

and S.N. with the first applicant's consent. Having regard to, inter

alia, the time which had elapsed from the moment when the second

applicant had been moved to live with R.N. and S.N., as well as to the

interaction between the second applicant and her father, her return

could have been contrary to her interests.  The Board directed both

parties to institute care proceedings before the District Court.

      On 5 July 1986 the District Court dismissed R.N. as the second

applicant's guardian ad litem.

      Care proceedings were instituted by both parties. Following a

hearing on 16 July 1986 the District Court decided to obtain the Social

Welfare Board's opinion. It further provisionally ordered that the

second applicant was to stay with R.N. and S.N. and granted the first

applicant certain visiting rights.

      R.N. and S.N. refused to comply with the order.

      On 30 September 1986 the County Administrative Board ordered

them, under penalty of an administrative fine (uhkasakko, vite) of

2.000 FIM each, to comply with the order.

      In a preliminary opinion of 28 October 1986 to the District Court

the Social Welfare Board considered it to be in the second applicant's

interests to have a relationship with both R.N. and S.N. as well as her

father. It noted, however, that the second applicant's right to see her

father had not been enforced, but found nothing to prevent the second

applicant from continuing, for the time being, to live with R.N. and

S.N.

      On 31 October 1986 the District Court held a further hearing and

again adjourned the case. The first applicant was again granted

provisional visiting rights.

      R.N. and S.N. refused to comply with the order.

      In an opinion of 12 January 1987 to the District Court

Mr. Erkki Rutanen, a psychologist, supported the proposal that the

second applicant be returned to her father.

      On 21 January 1987 the County Administrative Board rejected the

first applicant's request for execution of the District Court's order

of 16 July 1986. It further found that, as his visiting rights had been

amended by the District Court on 31 October 1986, the administrative

fine imposed on R.N. and S.N. had ceased to be valid.

      In an opinion of 22 January 1987 to the District Court the Child

Guidance Centre (kasvatusneuvola, uppfostringsrådgivningen) of Central

Uusimaa supported the proposal that the care and control of the second

applicant should remain with her father. The opinion stated, inter

alia:

      "...

      The grand-parents' negative attitude towards [the second

      applicant's] father as well as their frightening picture of

      the way in which their daughter died prevent the

      development of a normal relationship between [the second

      applicant] and her father and make the second applicant

      fear [him]. The father can accept that [the second

      applicant] is fond of [her] grandparents. These, however,

      treat [the second applicant] in a possessive way and view

      any attachment of [the second applicant] to her father as

      a loss of [her]. For example, in one situation subject to

      [our] investigation, where apart from both parties three

      officials were present and no danger could have been caused

      by [the first applicant] [R.N.] 'ties' [the second

      applicant] to herself by preventing her from moving around

      freely in the room and even from having eye-to-eye contact

      with [the first applicant]".

      On the basis of our investigations and our knowledge of

      child and family psychology we conclude that [the second

      applicant's] father is better suited than her grandparents

      to provide an environment supporting her healthy mental

      development and that it is in her interests to live

      permanently in her father's family..."

      In a final opinion of 23 January 1987 the Social Welfare Board

considered that the care and control of the second applicant should

remain with her father and that she should live with him.

      On 26 January 1987 the District Court confirmed that the first

applicant had the care and control of the second applicant and ordered

that she be handed over to him.

      On 10 March 1987 the County Administrative Board ordered R.N. and

S.N., under penalty of a fine of 8.000 FIM each, to comply with the

District Court's decision of 26 January 1987.

      R.N. and S.N. persisted in their refusal.

      On 6 May 1987 R.N.'s and S.N.'s appeal against the District

Court's decision was rejected by the Court of Appeal (hovioikeus,

hovrätten) of Helsinki.

      On 7 May 1987  the County Administrative Board ordered R.N. and

S.N. to return the second applicant to the first applicant and to pay

2.000 FIM each of the previously imposed fine.

      On 13 May 1987 the first applicant requested the Chief of the

Rural Police District of X. to execute the County Administrative

Board's decision.

      On 20 May 1987 it was discovered that the second applicant had

been moved to an unknown place.

      On 29 May 1987 the first applicant lodged a complaint with the

Chancellor of Justice (oikeuskansleri, justitiekanslern), alleging that

the authorities were neglecting to take sufficient measures in order

to find and return the second applicant to him.

      On 23 June 1987 the Court of Appeal rejected R.N.'s and S.N.'s

appeal against the County Administrative Board's decision of

10 March 1987.

      On 30 July 1987 the Supreme Court (korkein oikeus, högsta

domstolen) granted R.N. and S.N. leave to appeal against the decision

of the Court of Appeal of 6 May 1987. It further ordered a stay of

execution of that decision, or, alternatively, that execution be

suspended.

      On 17 May 1988 the Supreme Court rejected R.N.'s and S.N.'s

appeal and quashed the order for a stay of execution.

      On 18 May 1988 the first applicant requested the Chief of the

Rural Police District of X. to take measures in order to have the

second applicant returned to him.

      In the meantime, R.N. and S.N. requested a stay of execution and

an annulment of the Supreme Court's decisions.

      On 10 June 1988 the first applicant renewed his request of

18 May 1988, this time to the Chief of the Rural Police District of

Mäntyharju, where the second applicant had been found to have been

moved.

      On the same day R.N. and S.N. requested the Social Welfare Board

to investigate whether the execution of the Supreme Court's decision

would be in the second applicant's interests. The matter was

subsequently transferred to the National Board for Social Welfare

(sosiaalihallitus, socialstyrelsen).

      On 6 July 1988 the Chancellor of Justice found no reason to take

measures with regard to the first applicant's complaint, finding that

following the County Administrative Board's decision of 7 May 1987

measures had immediately been taken in order to have it executed. He

noted, however, the subsequent order by the Supreme Court for a stay

of execution of the decisions of the Court of Appeal of 6 May and

23 June 1987, and R.N.'s and S.N.'s request for a stay of execution of

the Supreme Court's decisions of 17 May 1988.

      On 13 September 1988 the Supreme Court rejected R.N.'s and S.N.'s

request for a stay of execution, as well as their request for an

annulment of the Supreme Court's decisions.

      In the spring of 1989 the National Board for Social Welfare

ordered R.N. and S.N. to allow the second applicant's mental state and

her attitude towards her father to be investigated.

      On 30 May 1990 it recommended the Social Welfare Board to take

measures to have the care and control of the second applicant

transferred to R.N. and S.N., to have the first applicant granted

visiting rights, and that another person be appointed the second

applicant's guardian.

      On 13 August 1990 the Social Welfare Board requested that the

District Court transfer the care and control of the second applicant

to R.N. and S.N., but that the first applicant remain her guardian and

be granted visiting rights. The Board found, however, that the first

applicant was suitable to be responsible for the second applicant's

upbringing, that he could offer her a good home environment, and that

the second applicant's right to see him had not been enforced during

her stay with R.N. and S.N.

      The case was first before the District Court on 19 September

1990, but was adjourned, the Court having decided to obtain an opinion

from the Guardianship Board (holhouslautakunta, förmynderskapsnämnden)

of Tuusula.

      In an opinion of 31 October 1990 to the District Court the

Guardianship Board proposed, by a majority, that the first applicant

be dismissed as the second applicant's legal and accountable guardian.

      On 14 November 1990 the District Court decided to obtain  a

further report and opinion from the Child Guidance Centre (kasvatus-

neuvola, uppfostringsrådgivningen) of Central Uusimaa. The second

applicant was provisionally ordered to stay with R.N. and S.N. and the

first applicant was granted certain visiting rights.

      R.N. and S.N. refused to comply with the court order.

      On 20 December 1990 the first applicant requested the County

Administrative Board to take measures to execute the court order.

      On 1 January 1991 the Child Guidance Centre of Central Uusimaa

ceased to exist. Its functions were taken over by the Child and Family

Guidance Centre (perhe- ja kasvatusneuvola, familje- och uppfostrings-

rådgivningen) of Tuusula.

      On 31 January 1991 the first applicant renewed his request of

20 December 1990 to the County Administrative Board.

      On 28 March 1991 the County Administrative Board ordered R.N. and

S.N., under penalty of an administrative fine of 5.000 FIM each, to

comply with the order.

      R.N. and S.N., however, persisted in their refusal.

      In an opinion of 7 May 1991 to the District Court the Child and

Family Guidance Centre of Tuusula confirmed the views submitted by the

Child Guidance Centre of Central Uusimaa in its opinion to the District

Court on 22 January 1987. It noted that R.N. and S.N. had refused to

participate in interviews for the purpose of carrying out a further

investigation, and that they had also refused to submit the second

applicant to such an investigation. It further referred to a statement

by the working group behind an opinion of 13 December 1989 by the

Lastenlinna children's hospital, according to which, although the

second applicant related to R.N. and S.N. as her psychological parents,

there were no mental obstacles for her to meet her father, and that,

on the contrary, such meetings were in her interests.

      On 8 May 1991 the District Court rejected the Social Welfare

Board's request.

      Following separate appeals by R.N. and S.N. as well as the Social

Welfare Board, the Court of Appeal on 24 July 1991 ordered a stay of

execution of the District Court's decision.

      On 25 September 1991 the Court of Appeal, by a majority, partly

quashed the District Court's decision and transferred the care and

control of the second applicant to R.N. and S.N.. The first applicant

was granted certain visiting rights. The Court found that there were

particularly weighty reasons for maintaining the actual care situation

and for transferring the care and control of the second applicant to

R.N. and S.N. It noted, in particular, that the second applicant had

been living with R.N. and S.N. since 30 April 1985, that according to

the opinion by the children's hospital the second applicant's most

important relationship was that with R.N. and S.N., that she conceived

their home as her own, that it was important that this relationship and

home environment should not be greatly changed, but that she should be

able to meet her father and create a realistic relationship with him.

The Court considered, however, that the first applicant should remain

the second applicant's guardian.

      The Court further had regard to the opinion of 7 May 1991 by the

Child and Family Guidance Centre of Tuusula. The Court finally noted

that references had been made to the second applicant's own wish not

to see her father. However, having regard to her age and the fact that

she clearly had not been able to form such an opinion without being

affected by others, it found that no significant importance could be

attached to it.

      On 21 January 1992 the Supreme Court rejected the first

applicant's request for a hearing and refused him leave to appeal. The

decision contained no reasons.

      Subsequently the first applicant lodged a request for enforcement

of the Court of Appeal's decision of 25 September 1991.

      On 10 November 1992 the first applicant renewed his request.

      To date R.N. and S.N. have not once complied with the Court of

Appeal's decision granting the first applicant visiting rights, nor

does their lawyer reply to letters from the applicants' lawyer before

the Commission.

      At present the first applicant cohabits with a woman, with whom

he has two children.

Relevant domestic law and practice

      The Act on the Enforcement of Decisions Regarding Custody of and

Access to Children (laki 523/75 lapsen huollosta ja tapaamisoikeudesta

annetun päätöksen täytäntöönpanosta, lag 523/75 om verkställighet av

beslut som gäller vårdnad om barn och umgängesrätt; hereinafter "the

1975 Act") concerns interim and final court decisions as well as

agreements confirmed by a Social Welfare Board (Section 1, as amended

by Act no. 366/83).

      Before deciding a request for enforcement of a decision granting

custody of, or visiting rights to, a child, the Executor in Chief shall

assign a mediator who shall try to convince the person keeping the

child to agree to fulfil his or her obligations under the decision. No

mediator shall be appointed, if it is clear that a mediation would be

unsuccessful or if it is in the child's interest that the execution

should, for weighty reasons, be immediately enforced (Section 4, as

amended by Act no. 366/83).

      The Executor in Chief may order that a decision shall be enforced

under penalty of an administrative fine or order the Bailiff to fetch

the child (Section 5).

      If the child is twelve years old, or older, a decision shall not

be enforced contrary to his or her will. The same applies if a child

under twelve years of age is so developed that regard can be had to his

or her own will. (Section 6, as amended by Act no. 366/86).

      A decision refusing the enforcement of a decision shall state the

circumstances warranting the refusal. The Social Welfare Board of the

municipality where the child is residing shall be informed (Section 7,

para. 2).

      If the child is being cared for by someone other than the person

who has been granted custody, visiting rights or any other lawful right

to keep the child, the Executor in Chief shall, if requested, take

measures to have the child handed over to its legal custodian despite

the absence of a decision referred to in Section 1, paras. 1 or 2

(Section 8, para. 1, as amended by Act no. 366/86).

      The Executor in Chief shall reject a request for enforcement made

under Section 8, para. 1 and direct the parties to institute custody

proceedings before a court of law, if, inter alia, the child has been,

with the custodian's consent, handed over to be cared for by somebody

else, and provided there is reason to believe that a return of the

child to his or her custodian would be contrary to the child's

interests, having regard to the length of stay with the carer, the

interaction and relation between the child and the carer, as well as

to the nature of that relationship (Section 8, para. 2).

      A decision made by the Executor in Chief in pursuance of the 1975

Act is immediately enforceable provided it is not stated otherwise in

the decision. It may be appealed in pursuance of the 1895 Execution Act

(ulosottolaki 37/1895, utsökningslag 37/1895), that is to a court of

appeal and from there, with leave to appeal, to the Supreme Co

However, decisions made under Section 7 and Section 8, para. 2, are not

subject to appeal (Section 13).

      Decisions regarding custody of and access to a child shall be

based primarily on the interests of the child. Particular regard shall

be had to the optimal implementation of the custody and access in the

future (Section 10 of the 1983 Act on Custody of and Access to Children

(laki 361/83 lapsen huollosta ja tapaamisoikeudesta, lag 361/83 ang.

vårdnad om barn och umgängesrätt; hereinafter "the 1983 Act").

      In cases such as the present one the child's own wishes and

opinion shall, if possible, be obtained, having regard to the child's

age and maturity (Section 11).

      When a custody or access matter is pending before a court of law,

the court may issue an interim order as to where the child should live,

the right of access and the conditions attached thereto. For special

reasons the court may also issue an interim order as regards the

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

paras. 1-2).

      A decision pertaining to the custody of, or access to, a child,

or ordering a child to live with someone, is immediately enforceable

without having acquired legal force, provided it is not stated

otherwise in the decision (Section 19 of the 1983 Act).

      Under Chapter 3, Section 12, para. 2 of the Execution Act a court

of appeal or the Supreme Court may stay or suspend execution of a

decision which has not yet acquired legal force.

      Courts of appeal may in civil matters hold oral hearings, if

considered necessary (Chapter 26, Section 7 of the Code of Judicial

Procedure (Oikeudenkäymiskaari, Rättegångs Balk)). The same applies to

the Supreme Court (Chapter 30, Section 20).

      The Supreme Court may grant leave to appeal only if this is of

importance, having regard to the application of the law in other

similar cases, or to the uniformity of that application, or if, because

of a procedural or other fault, there is a particular reason to annul

or nullify a decision, or there is another weighty reason warranting

the granting of leave to appeal (Chapter 30, Section 3, para. 1).

COMPLAINTS

1.    The applicants complain of a violation of their right to respect

for their family life. By allowing R.N. and S.N. to keep the second

applicant despite court decisions to the contrary, the authorities

failed to promote the re-unification of the applicants speedily. Whilst

an interference with the right at issue may be justified, for instance

for the protection of a child's health, no such circumstances were at

hand in the applicants' case. On the contrary, all authorities involved

found the first applicant suited to be responsible for the second

applicant's upbringing and that he could give her a good home

environment. Thus, the authorities' negligence to promote the re-

unification of the applicants contravened the second applicant's

interests. The applicants have not met since 1986.

      The applicants object to the reasoning of the Court of Appeal in

its decision of 25 September 1991 according to which an arbitrary

keeping of a child, if long enough, amounts to a particularly weighty

reason for depriving a parent of legal custody of his child. Such

reasoning clearly jeopardises the principle of legality.

      The applicants invoke Article 8 of the Convention and Article 5

of Protocol No. 7 to the Convention.

2.    The applicants, invoking Article 6 para. 1 of the Convention,

also complain that the proceedings before the Court of Appeal and the

Supreme Court from 1991 to 1992 were unfair in that no oral hearing

took place.

      They further complain of the length of the custody proceedings

and of the absence of reasoning in the Supreme Court's decision of

21 January 1992 refusing leave to appeal.

3.    The applicants finally complain that they have been and continue

to be deprived of an effective remedy as guaranteed under Article 13

of the Convention, having regard to the authorities' failure to take

measures in order to have them re-united, the excessive length of the

proceedings, and the fact that, in view of R.N.'s and S.N.'s financial

situation, the administrative fines imposed on them had no effect and

were, in any case, not executed.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 10 April 1992 and registered

on 13 April 1992.

      On 29 June 1992 the Commission decided to invite the respondent

Government to submit written observations on the admissibility and

merits of the application.

      The Commission rejected the applicants' request for an interim

measure under Rule 36, but decided to give the application precedence.

      The Government's observations were submitted on 10 October 1992

and the applicant's observations in reply on 10 November 1992.

      On 23 October 1992 the Commission granted the applicants legal

aid.

THE LAW

1.    The Commission first observes that the first applicant has

brought the application in his own name and in the name of his

daughter, but that he is no longer the second applicant's custodian.

Although remaining her guardian he is not competent under Finnish law

to act on his daughter's behalf except in matters mainly relating to

the administration of her possessions. As the application does not

concern any such matter, the Commission concludes that the first

applicant cannot in the present case represent his daughter before the

Commission, but can only pursue the application in his personal

capacity. The Commission therefore limits its examination of the case

to the complaints of the first applicant, hereinafter referred to as

"the applicant". The second applicant will hereinafter be referred to

as "S.".

2.    The applicant complains of a violation of his right to respect

for his family life. By allowing R.N. and S.N. to keep S. despite court

decisions to the contrary, the authorities failed to act speedily to

promote the re-unification of the applicant with his daughter. In

particular, the applicant objects to the reasoning of the Court of

Appeal in its decision of 25 September 1991, according to which an

arbitrary keeping of a child, if long enough, amounts to a particularly

weighty reason for depriving a parent of the legal custody of his

child. Such reasoning clearly jeopardises the principle of legality.

      The applicant invokes Article 8 (Art. 8) of the Convention and

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

      Article 8 (Art. 8) of the Convention 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."

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

      As regards the lack of enforcement of the District Court's

interim decision of 14 November 1990 granting the first applicant

visiting rights to S., the Government argue that the complaint is

inadmissible for non-exhaustion of domestic remedies. Although R.N. and

S.N. refused to comply with the interim decision, the first applicant

failed to renew, as prescribed under domestic law, his request that the

fines imposed on R.N. and S.N. be ordered to be paid.

      As regards the lack of enforcement of the District Court's final

decision of 8 May 1991 upholding the first applicant's status as S.'s

custodian, the Government submit that the complaint in this respect is

manifestly ill-founded, as a stay of execution of that decision may

have been ordered in the interests of S.

      The subsequent transfer of S.'s custody from the first applicant

to R.N. and S.N. was, in the Government's view, justified under para. 2

of Article 8 (Art. 8), as it was based on S.'s lengthy stay with R.N.

and S.N., which had led to the establishment of a family life between

them. In these circumstances the right of a child to enjoy respect for

her family life must prevail over the rights of her father despite his

status as guardian. Whether or not R.N.'s and S.N.'s keeping of S. was

legal was not necessarily decisive for the transfer of custody.

      As regards the lack of enforcement of the District Court's

interim decision of 14 November 1990, the applicant refutes the

Government's non-exhaustion objection and refers to the Rieme judgment

(Eur. Court H.R., judgment of 22 April 1992, paras. 49-50, to be

published in Series A no. 226-B). In any case, the District Court's

final decision was rendered before the fines imposed on R.N. and S.N.

had been ordered to be paid. Thus, his enforcement request could not

be pursued.

      As regards the lack of enforcement of the District Court's final

decision upholding the applicant's status as S.'s custodian, the

applicant recalls that, when staying execution of that decision in

July 1991, the Court of Appeal was aware of the opinion of the Child

and Family Guidance Centre of Tuusula of May 1991 finding the first

applicant to be more suitable as S.'s custodian than R.N. and S.N. and

noting that, due to R.N.'s and S.N.'s lack of co-operation, none of the

meetings planned between the first applicant and S. had taken place,

thus preventing S. from developing a realistic picture of her father.

      As regards the transfer of S.'s custody to R.N. and S.N., the

applicant points out that, had the previous court decisions been

enforced, R.N. and S.N. would have been unable to refer to any "de

facto care" of S. Allowing this arbitrary retention of a child for the

purpose of establishing a relationship which can then be exploited to

have the child's custody transferred, impairs the principle of

legality. Moreover, the Government have not substantiated the alleged

grounds for justification under Article 8 para. 2 (Art. 8-2) of the

Convention.

      The applicant finally recalls that not even subsequent to the

transfer of S.'s custody have R.N. and S.N. allowed him to meet S., a

right granted in connection with that transfer and considered to be in

S.'s interests.

      The Commission must ascertain whether, and to what extent, it is

competent ratione temporis to examine the complaint. It recalls that,

in accordance with the generally recognised rules of international law,

the Convention only governs, for each Contracting Party, facts

subsequent to the entry into force of the Convention with regard to

that Party (e.g. No. 9453/81, Dec. 13.12.82, D.R. 31 pp. 204, 208).

Where the facts consist of a series of proceedings the entry into force

of the Convention divides that series in two parts, the earlier one

being outside the Commission's competence. On the other hand, where a

court decision has been made subsequent to the entry into force of the

Convention in the respondent State, the Commission is competent to

examine the proceedings leading up to that decision (e.g. No. 17925/91,

Kaunisto v. Finland, Dec. 8.10.91, unpublished; No. 11306/84, Dec.

16.10.86, D.R. 50 p. 162). Where the complaint concerns a continuing

situation it falls within the Commission's competence ratione temporis,

notwithstanding the fact that the situation complained of is a

consequence of a decision which was made or an occurrence which took

place prior to the entry into force of the Convention with regard to

the Contracting Party. The Convention entered into force with regard

to Finland on 10 May 1990.

      In the present case the Commission observes that the applicant

has been refused access to S. as from the end of 1985, irrespective of

his then status as her custodian and guardian, and, following the

transfer of custody to R.N. and S.N., irrespective of the visiting

rights granted to him. The refusal of access must, thus, be considered

a continuing situation falling within the Commission's competence

ratione temporis (No. 214/56, Dec. 9.6.58, Yearbook 2 p. 214 (234)).

      The Commission must next examine whether the applicant has

exhausted domestic remedies as required by Article 26 (Art. 26) of the

Convention. It observes that the Government have not substantiated

their objection that effective domestic remedies have not been

exhausted, nor does the Commission itself find that any further

remedies should have been exhausted. It follows that the objection must

be rejected.

      The Commission has carried out a preliminary examination of the

applicant's complaints under Article 8 (Art. 8) of the Convention and

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

the parties' submissions. It considers that they raise questions of

fact and law of such a complex nature that their determination requires

an examination of the merits. This part of the application cannot

therefore be declared inadmissible as being manifestly ill-founded

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

No other reason for declaring the complaints inadmissible has been

established.

3.    The applicant also complains that the proceedings before the

Court of Appeal of Helsinki and the Supreme Court from 1991 to 1992

were unfair in that he was refused an oral hearing. He further

complains of the length of the custody proceedings and of the lack of

reasoning in the Supreme Court's decision of 21 January 1992 refusing

leave to appeal. He invokes Article 6 para. 1 (Art. 6-1) of the

Convention, which reads, insofar as it is relevant:

      "In the determination of his civil rights..., everyone is

      entitled to a fair and public hearing within a reasonable

      time..."

      As regards the complaint relating to the fairness of the

proceedings before the Court of Appeal and the Supreme Court from 1991

to 1992, the Government submit that it is incompatible ratione materiae

with the provisions of the Convention in view of their reservation

under Article 64 (Art. 64) of the Convention, according to which

Finland cannot at present guarantee a right to an oral hearing in

proceedings before the courts of appeal and the Supreme Court. In any

case, the applicant waived his right to request an oral hearing before

the Court of Appeal of Helsinki. Reference is made to the HÃ¥kansson and

Sturesson judgment (Eur. Court H.R., judgment of 21 February 1990,

Series A no. 171-A).

      As regards the complaint concerning the length of the

proceedings, the Government argue that it is incompatible ratione

temporis with the provisions of the Convention insofar as it relates

to events prior to 10 May 1990. The re-opened custody proceedings

starting on 13 August 1990 were terminated on 21 January 1992. In view

of the fact that they included proceedings before courts at three

levels their length must be considered reasonable.

      The applicant submits that Finland's reservation only applies

insofar as the current Finnish legislation does not provide a right to

an oral hearing. However, the International Covenant on Civil and

Political Rights (hereinafter "the Covenant"), to which Finland has

made no reservation, has been incorporated into Finnish legislation in

the form of an Act of Parliament.  The reservation at issue must

therefore be interpreted in the light of Article 14 para. 1 of the

Covenant. The applicant further refers to the Supreme Court's decision

of 13 May 1992 (no. 1992:107).

      The applicant refutes the Government's assertion that he waived

any right to an oral hearing before the Court of Appeal. He had no

reason to lodge an appeal against the decision of the District Court.

However, in his request for leave to appeal to the Supreme Court he did

request an oral hearing. The Court of Appeal transferred the custody

of S. merely on the basis of written submissions. In any case, the

absence of reasoning in the Supreme Court's refusal of leave to appeal

rendered the proceedings unfair.

(i)   The Commission will first deal with the reservation question. The

reservation made by the respondent Government in accordance with

Article 64 (Art. 64) of the Convention reads, insofar as it is

relevant, as follows:

      "For the time being, Finland cannot guarantee a right to an

      oral hearing insofar as the current Finnish laws do not

      provide such a right. This applies to:

      1. proceedings before the Courts of Appeal [and] the

      Supreme Court...in accordance with Chapter 26 [Section]

      7..., as well as Chapter 30 Section 20, of the Code of

      Judicial Procedure..."

      Article 14 para. 1 of the Covenant reads, in its relevant part,

as follows:

      "...In the determination of...his rights...in a suit at

      law, everyone shall be entitled to a fair and public

      hearing..."

      The Commission observes that the Covenant, having been

incorporated into Finnish law by means of Act no. 107/75, entered into

force with regard to Finland on 23 March 1976 and that no reservation

has been made in respect of the right enshrined in Article 14 para. 1

of the Covenant. The question therefore arises whether its reservation

to Article 6 para. 1 (Art. 6-1) of the Convention also covers any right

to an oral hearing which the Covenant may guarantee.

      It appears from the interpretation of Article 14 para. 1 of the

Covenant that the right to an oral hearing before appellate courts is

not guaranteed in that provision to the same extent as by Article 6

para. 1 (Art. 6-1) of the Convention. Thus, in a published decision

rendered in 1989 regarding the absence of an oral hearing in criminal

proceedings before a Finnish court of appeal, the Human Rights

Committee "believe[d] that the absence of oral hearings in the

appellate proceedings raises no issue under Article

14..."(Communication No. 301/1988, 1989 Annual Report, Doc. A/44/40,

p. 300, para. 6.4.).

      It is true that in certain particular circumstances the Covenant

has been interpreted to require an oral hearing before an appellate

court (Communication No. 387/1989, CCPR/C/46/D/387/1989, 5.11.92; the

case concerned the absence of an oral hearing on appeal in Finnish

criminal proceedings). The Commission cannot, however, speculate

whether the present case belongs to that category of exceptional cases,

but rather has to proceed from the main principle that "the absence of

oral hearings in the appellate proceedings raises no issue under

Article 14 [of the Covenant]". Therefore, no right to an oral hearing

under Finnish law, circumventing Finland's reservation to the

Convention, can be derived from the Covenant. The Commission concludes

that the Finnish reservation covers the applicant's complaint of the

absence of an oral hearing before the Court of Appeal and the Supreme

Court. It follows that this aspect of the complaint under Article 6

para. 1 (Art. 6-1) of the Convention must be rejected under Article 27

para. 2 (Art. 27-2) as being incompatible ratione materiae with the

provisions of the Convention.

(ii)  Insofar as the applicant's complaint under Article 6 para. 1

(Art. 6-1) of the Convention relates to the absence of reasoning in the

Supreme Court's decision refusing leave to appeal, the Commission

considers that an examination under Finnish law as to whether leave to

appeal to the Supreme Court shall be granted only amounts to an

examination as to whether the conditions under Chapter 30, Section 3,

para. 1 of the Code of the Judicial Procdeure are at hand. It does not

amount to an examination of the merits of the appeal. The role of the

Finnish Supreme Court is, in this respect, similar to that of the

Swedish Supreme Court (see, regarding the latter, No. 11855/85, Dec.

15.7.87, D.R. 53 p. 190, at pp. 199-200). The Commission finds,

therefore, that the leave to appeal examination by the Finnish Supreme

Court did not involve a determination of the applicant's civil rights

within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.  It follows

that this aspect of the complaint under Article 6 para. 1 (Art. 6-1)

must also be rejected pursuant to Article 27 para. 2 (Art. 27-2) as

being incompatible ratione materiae with the provisions of the

Convention.

(iii) Insofar as the applicant's complaint under Article 6 para. 1

(Art. 6-1) of the Convention relates to the length of the custody

proceedings, the Commission first has to ascertain whether and to what

extent it is competent ratione temporis to examine it.

      The first set of custody proceedings terminated on 13 September

1988, that is prior to 10 May 1990, when the Convention entered into

force with regard to Finland. The second set of the proceedings

commenced subsequent to that date. Consequently, for the reasons set

out above (pp. 12-13), the Commission is not competent to include the

first set of those proceedings in its examination of the complaint

about the length of the custody proceedings. It follows that this

aspect of the case must be rejected under Article 27 para. 2

(Art. 27-2) of the Convention as being incompatible ratione temporis

with the provisions of the Convention.

(iv) The Commission has, in the light of the parties' submissions,

carried out a preliminary examination of the complaint under Article 6

para. 1 (Art. 6-1) of the Convention insofar as it relates to the

length of the second set of proceedings commencing on 13 August 1990

and terminating on 21 January 1992. It considers that it raises

questions of fact and law of such a complex nature that their

determination requires an examination of the merits. This part of the

complaint cannot therefore be declared inadmissible as being manifestly

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

Convention. No other ground for declaring it inadmissible has been

established.

4.    The applicant finally complains that he has been, and continues

to be, deprived of an effective remedy as guaranteed by Article 13

(Art. 13) of the Convention. He refers to the authorities' failure to

take measures in order to have him re-united with his daughter, the

excessive length of the proceedings and the fact that, in view of

R.N.'s and S.N.'s financial situation, the administrative fines imposed

on them had no effect and were, in any case, not ordered to be paid.

      Article 13 (Art. 13) of the Convention 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 Government maintain their non-exhaustion objection and argue

that the first applicant has not used the procedure for

administratively fining R.N. and S.N. to the full extent possible and

necessary in order to obtain enforcement of his visiting rights.

      The applicant contends that it is impossible to make use of the

system compelling somebody to comply with a court decision to any

further extent than has been done in the present case. To date not a

single fine has been enforced against R.N. and S.N.

      The Commission considers this complaint to be closely connected

to the complaints under Article 8 (Art. 8) of the Convention and

Article 5 of Protocol No. 7 (P7-5) admitted above. It also raises

questions of fact and law of such a complex nature that their

determination requires an examination of the merits. The complaint

under Article 13 (Art. 13) cannot therefore be declared inadmissible

as being manifestly ill-founded. No other ground for declaring the

complaint inadmissible has been established.

      For these reasons, the Commission, by a majority,

      AS REGARDS THE COMPLAINTS AS LODGED BY THE FIRST APPLICANT

      DECLARES ADMISSIBLE, without prejudging the merits of the case,

      the complaints under Article 8 (Art. 8) of the Convention and

      Article 5 of Protocol No. 7 to (P7-5) the Convention, Article 6

      para. 1 (Art. 6-1) of the Convention (length of the second set

      of custody proceedings) and Article 13 (Art. 13) of the

      Convention;

      DECLARES INADMISSIBLE the remainder of his complaints; and

      AS REGARDS THE COMPLAINTS AS LODGED ON BEHALF OF S.

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission            President of the Commission

       (H.C. KRÜGER)                         (C.A. NORGAARD)