Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17865/91

by Pirkko TASKINEN

against Finland

The European Commission of Human Rights sitting in private on

14 October 1992, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 June 1990 by

Pirkko TASKINEN against Finland and registered on 1 March 1991 under

file No. 17865/91;

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 Finnish citizen born in 1941 and resident at

Savonlinna. She is a cleaning-lady by profession.

The facts of the case, as they appear from the applicant's

submissions and the information submitted by the Government, may be

summarised as follows.

Particular circumstances of the case

I.

On 1 October 1984 the applicant was ordered to undergo treatment

in a psychiatric hospital due to serious paranoia.

On 14 December 1984 she was discharged.

By a decision of 29 January 1985 of the City Court (raastuvan-

oikeus, rådstuvurätten) of Savonlinna the applicant, represented by a

guardian ad litem, obtained judicial separation from her then husband,

O.N. The custody of their children Hannu, born in 1976, and Heikki,

born in 1981, was given to O.N. The applicant was given a right to

visit them on the first and the third Saturday of the month.

In 1986 and 1988 the applicant reported O.N. to the police,

alleging that he had been sexually abusing the children. In the first-

mentioned case the Public Prosecutor decided not to bring charges,

having regard to the lack of evidence. In the latter-mentioned case the

investigation was closed by the police, finding that no new evidence

had been submitted by the applicant.

From 22 June to 8 July 1988 Hannu was, pursuant to the 1983 Child

Welfare Act (lastensuojelulaki 683/83, barnskyddslag 683/83) taken into

institutional care at the child psychiatric clinic of the University

Hospital of Kuopio. Thereafter he stayed for a month in the children's

home of Mäntyharju. From 8 August 1988 to 31 May 1989 he again stayed

in the University Hospital. From 10 June 1989 to 31 May 1990 he again

stayed in the children's home. During these periods Hannu spent certain

shorter periods with O.N., with whom he has been living since

1 June 1990.

In October 1988 the applicant and O.N. divorced.

On 9 May 1989 the City Court rejected the applicant's claim that

the custody of the children be transferred to her or, alternatively,

that her visiting-rights be extended.

The City Court had regard to the fact that the children had

mostly been living with their father. The specialist doctor of the

clinic where Hannu was staying had submitted an opinion to the Court

according to which there were no grounds for transferring the custody.

In its opinion to the Court the Social Welfare Board

(sosiaalilautakunta, socialnämnden) of Savonlinna had reached the same

conclusion and objected to the requested extension of visiting-rights.

According to the opinion Hannu was to be placed in a children's home

in accordance with the consent obtained from O.N.

The City Court furthermore found it appropriate that the custody

of the children remain with one of the parents. The Court concluded

that it had not been shown that there had been a change in the

circumstances following the decision of 29 January 1985 as regards the

custody matter, nor had any grounds been shown for extending the

applicant's visiting-rights.

The decision was upheld upon the applicant's appeal on

1 September 1989 by the Court of Appeal (hovioikeus, hovrätten) of

Eastern Finland.

In the proceedings regarding the transfer of custody the

applicant was represented by the Public Legal Adviser (yleinen

oikeusavustaja, allmänna rättsbiträdet) of the City of Savonlinna.

By a decision of 2 August 1990 the National Medical Board

(lääkintöhallitus, medicinalstyrelsen) found no reasons for taking any

measures in respect of the applicant's allegation that she had not been

allowed to visit Hannu or to write to him at the psychiatric clinic,

nor did the Board find any indication of ill-treatment of Hannu at that

clinic.

II.

On 7 April 1986 the City Council (kaupunginvaltuusto, stads-

fullmäktige) of Savonlinna approved a town plan affecting the

applicant's property.

On 9 December 1986 the County Administrative Board (läänin-

hallitus, länsstyrelsen) of Mikkeli rejected the applicant's appeal.

No further appeal was lodged by the applicant.

III.

On 17 April 1990 the City Council approved a land acquisition

plan for the period from 1989 to 2000.

On 5 July 1990 the County Administrative Court (lääninoikeus,

länsrätten) of Mikkeli partly dismissed the appeal for lack of

competence and partly referred it to the County Administrative Board.

No further appeal was lodged by the applicant.

IV.

On 31 March 1989 the Unemployment Fund for State Workers and

Officials (valtion työntekijäin ja viranhaltijain työttömyyskassa,

arbetslöshetskassan för statligt anställda arbetare och tjänstemän)

rejected the applicant's request for a daily unemployment allowance for

certain periods of time.

On 4 January 1990 the Board for the Protection of the Unemployed

(työttömyysturvalautakunta, arbetslöshetsnämnden) upheld the decision

upon the applicant's appeal.

The applicant's further appeal was rejected by the Insurance

Court (vakuutusoikeus, försäkringsdomstolen) on 13 September 1990. No

appeal lay against that decision.

Relevant domestic law

Under Sections 2 and 3 of the 1983 Act on the Execution of

Decisions on Custody and Visiting-Rights (laki 366/83 lapsen huollosta

ja tapaamisoikeudesta annetun päätöksen täytäntöönpanosta, lag 366/83

om verkställighet av beslut rörande vårdnad om barn; hereinafter "the

1983 Act") execution of visiting-rights shall be requested by an

application to be lodged with the Chief Executory Officer

(ulosotonhaltija, överexekutor) at the child's residence. Should the

application be imperfect the applicant shall be given an opportunity

to supplement it within a reasonable period of time.

Under Section 13, para. 2 an appeal against the decision of the

Chief Executory Officer lies to the competent Court of Appeal and from

there, with leave to appeal, to the Supreme Court (korkein oikeus,

högsta domstolen). There is no appeal against certain decisions. Those

exceptions are, however, not of relevance in the present case.

Under Section 13 of the 1973 Act on Public Legal Assistance (laki

88/73 yleisestä oikeusaputoiminnasta, lag 88/73 om allmän

rättshjälpsverksamhet; hereinafter "the 1973 Act") free or partially

free assistance may be granted, depending on the financial situation

of the person applying for it.

COMPLAINTS

1. The applicant alleges that for three years she has been refused

access to her children. She submits that in her contacts with the

Enforcement Office (ulosottoviranomainen, utsökningsmyndigheten) and

the Social Welfare Board she has referred to the City Court's decisions

allowing her to visit her children, but in vain. She furthermore

alleges that she was refused public legal assistance before the

Enforcement Office.

2. She further alleges ill-treatment of Hannu at the hospital, and

of Heikki while he has been staying with O.N.

3. She also alleges that as a result of the City Council's decisions

of 7 April 1986 and 17 April 1990 she has been deprived of certain real

property.

4. She finally complains of the refusal to grant her daily

unemployment allowance.

She invokes no particular provision of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 June 1990 and registered on

1 March 1991.

On 9 April 1992 the Rapporteur pursuant to Article 47, paragraph

2 (a) of the Rules of Procedure requested the respondent Government to

submit certain information. The information was submitted on

26 May 1992.

THE LAW

1. The applicant complains of refused access to her children. She

refers to unsuccessful contacts with, inter alia, the Enforcement

Office. She further alleges that she has been refused public legal

assistance before the Enforcement Office. The Commission has considered

this complaint under Article 8 (Art. 8) of the Convention, which reads:

"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."

(a) As regards the applicant's alleged lack of access to her children

the Commission first recalls that, in accordance with the generally

recognised rules of international law, the Convention only governs, for

each Contracting Party, facts subsequent to its entry force with

respect to that Party. The Convention entered into force with respect

to Finland on 10 May 1990.

It follows that insofar as the complaint relates to a period

prior to that date it is incompatible ratione temporis with the

provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

Insofar as the complaint relates to facts subsequent to that date

the Commission further recalls that it is not required to decide

whether or not the facts alleged by the applicant disclose any

appearance of a violation of this provision as, under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law. In the present case, it has not

been shown that the applicant has requested the Chief Executory Officer

to execute the decision of the City Court of Savonlinna of 29 January

1985 granting her visiting-rights with regard to Hannu and Heikki. This

possibility is still open to the applicant. She has, therefore, not

exhausted the remedies available to her under Finnish law. Moreover,

an examination of the case does not disclose the existence of any

special circumstance which might have absolved the applicant, according

to the generally recognised rules of international law, from exhausting

the domestic remedies at her disposal.

It follows that this part of the complaint must be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

(b) As regards the alleged refusal of public legal assistance the

Commission observes that in the court proceedings regarding the

transfer of custody requested by the applicant she was represented by

the Public Legal Adviser of Savonlinna. However, as regards the

question of enforcement of her visiting-rights there is no indication

that she applied for public legal assistance.

It follows that this part of the complaint is manifestly ill-

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

Convention.

2. The applicant further alleges that her children have been ill-

treated, Hannu at the hospital and Heikki by O.N.

(a) As regards the alleged ill-treatment of Hannu the Commission

observes that the applicant's complaint to the National Medical Board

in 1990 was rejected. However, assuming that she has exhausted domestic

remedies the complaint does not disclose any indication of a violation

of the Convention or any of its Protocols.

It follows that this part of the complaint is also manifestly

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

(Art. 27-2) of the Convention.

(b) As regards the alleged ill-treatment of Heikki the Commission

recalls that under Article 25 para. 1 (Art. 25-1) of the Convention it

may only receive an application from a person, non-governmental

organisation or group of individuals where the applicant alleges a

violation by one of the Contracting Parties of the rights and freedoms

set out in the Convention and where that Party has recognised this

competence of the Commission. The Commission may not, therefore,

receive applications directed against private individuals.

In the present case the alleged ill-treatment of Heikki is not

attributable to the respondent Government.

It follows that this part of the complaint is incompatible

ratione personae with the provisions of the Convention within the

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

3. The applicant further alleges that two decisions by the City

Council of Savonlinna has deprived her of certain real property.

(a) As regards the City Council's decision of 7 April 1986 the

Commission recalls that the decision was made prior to 10 May 1990,

which is the date of the entry into force of the Convention with

respect to Finland. However, in accordance wit the generally recognised

rules of international law, the Convention only governs, for each

Contracting Party, facts subsequent to its entry into force with

respect to that Party.

It follows that this part of the complaint is incompatible

ratione temporis with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

(b) As regards the City Council's decision of 17 April 1990 the

appeal against which was dealt with by the County Administrative Board

of Mikkeli following the entry into force of the Convention with regard

to Finland the applicant has not shown that she has exhausted domestic

remedies.

It follows that this part of the complaint must also be rejected

for non-exhaustion of domestic remedies in accordance with Article 27

para. 3 (Art. 27-3) of the Convention.

4. The applicant finally complains of the refusal to grant her daily

unemployment allowance.

The Commission recalls that the Convention or any of its

Protocols does not guarantee any right to a benefit such as

unemployment allowance.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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TASKINEN v. FINLAND

TASKINEN v. FINLAND

LEXI