Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16534/90

by H.O.

against Iceland

The European Commission of Human Rights sitting in private on

12 October 1992, 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

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

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 6 December 1989

by H.O. against Iceland and registered on 30 April 1990 under file No.

16534/90;

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 23 March and 28 July 1992 and the observations in reply

submitted by the applicant on 27 April and 3 September 1992;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is an Icelandic citizen, born in 1945. She resides

in Reykjavik. Before the Commission she is represented by Mr. Pétur

Gunnlaugsson, a lawyer practising in Reykjavik.

A. The particular facts of the case

The applicant and her husband, S, separated in August 1985. They

could not agree on the question of custody of their son A, born

in 1973, their son B, born in 1974, and their daughter C, born in 1981,

and they chose to refer the matter to the Ministry of Justice for

decision. After having obtained the opinion of the child welfare

committee and subsequently, in accordance with the applicant's request,

the opinion of the Child Welfare Council of Iceland, the Ministry of

Justice decided, on 19 August 1985, that S should have custody of the

children.

The applicant and S divorced in September 1986 and a dispute

arose again with regard to custody of the children. Opinions were

obtained from the respective child welfare committees of the

municipalities where the applicant and S lived. Their opinions were

received by the Ministry of Justice on 2 and 16 December 1986. Both

recommended that custody of the children remain with S. On 13 February

1987 the Ministry of Justice decided, inter alia on the basis of the

above opinions, that custody of the children remain with S.

On 26 June 1987 the Ministry of Justice received a request from

the applicant to review its custody decision of 13 February 1987. The

applicant emphasised in particular that custody of the youngest child,

the daughter C, should be transferred to her as the question of the

custody over the other children had been solved. The matter was again

referred to the child welfare committees and their opinions were

received by the Ministry on 2 November 1987 and 11 February 1988

respectively. The first opinion recommended that custody of the

daughter C be transferred to the applicant, mainly on the grounds that

the children's conditions at home had been disturbed by their moving

abroad, as in the autumn of 1987 S had moved to Spain with the three

children. It was also stated that the applicant's social circumstances

were much better than before. In the other opinion the social

circumstances of the applicant were described, without a stand being

taken as to how custody should be arranged.

In November 1987 the Ministry of Justice asked the Spanish social

welfare authorities to submit an opinion concerning S in respect of the

custody question. The opinion of the International Social Service in

Spain was received by the Ministry on 6 February 1989. The opinion

concluded that the circumstances of S and his family in Spain were

good, that C had adapted well to the new conditions, and that it was

in her best interests to continue to stay with her father.

In February of the same year the applicant requested that the

Ministry, before deciding on her request for a transfer of custody,

obtain a new opinion of the competent Icelandic child welfare

committee, as more than one year had passed since the committee

delivered its last opinion concerning her circumstances. The Ministry

granted this request and, in April 1989, requested an opinion from the

child welfare committee on the applicant's situation. The opinion was

received by the Ministry on 21 August 1989. It recommended that custody

of C be transferred to the applicant, as her situation was good.

On 28 August 1989 the Ministry of Justice decided to leave the

custody of C with her father. In its decision, the Ministry stated

inter alia:

(translation)

"According to Section 39, sub-section 2, of Act No. 9/1981 the

Ministry may, upon the request of either parent, change its

previous decision on custody, if such a change is considered

justifiable in the light of the circumstances of the case and

having regard to the child's interests and needs.

This provision must be interpreted in such a way as to justify

a transfer of custody if the parent who has custody neglects the

parental duties, is unable to fulfil them, or if there are other

special reasons. On the other hand, it cannot be considered

sufficient for a transfer of custody that the social situation

of the parent who does not have custody has changed for the

better, and it must be considered to be in the child's interest

to secure a stable upbringing.

Having regard to the above and taking into account the documents

submitted in this case, inter alia the report of the social

authorities in Spain, the Ministry considers that the conditions

set out in Section 39, sub-section 2, of the Act in respect of

children are not fulfilled and therefore rejects the applicant's

request."

The applicant did not approve of this conclusion and a meeting

with the Minister of Justice took place on 30 August 1989 during which

the applicant criticised the Ministry's handling of the case and

alleged that alien views had governed the decision taken. By letter of

1 September 1989 the Ministry pointed out to the applicant that it was

open to her to refer her complaints to the Parliamentary Ombudsman or

to the courts.

The applicant lodged her formal complaint with the Parliamentary

Ombudsman on 9 September 1989. On 12 January 1990 the Ministry of

Justice sent its report and the case-file to the Parliamentary

Ombudsman who concluded, on 4 May 1990, that there was no reason to

criticise the Ministry's treatment of the case.

On 2 August 1990 the applicant requested the Ministry of Justice

to change its decision of 28 August 1989. The applicant's request was

accompanied by a psychiatrist's report. However, the Ministry

considered that the applicant's request and the documents enclosed

provided no indication that the grounds on which the Ministry's custody

decision of 28 August 1989 was based had changed so as to justify, with

regard to the child's interests and needs, a new examination of the

matter. The applicant's request for a review of the Ministry's earlier

decision with regard to C's custody was accordingly refused on

9 August 1990.

On 21 August 1990 the applicant again requested the Ministry of

Justice to change its decision concerning the custody of C. On

8 July 1992 the Ministry of Justice informed the applicant that a new

Child Act had entered into force on 1 July 1992 which entitled her to

refer the matter of custody to the courts. The applicant was therefore

requested to inform the Ministry whether she intended to leave the case

with the Ministry or whether she intended to pursue the matter in

court. It appears that the custody issue is still pending in the

Ministry of Justice and that the applicant does not intend to bring it

before the courts in accordance with the provisions of the Child Act

which entered into force on 1 July 1992. Furthermore, it appears that

the daughter, C, has in fact been living with the applicant in Iceland

since July 1990.

B. Relevant domestic law

Section 2 of the Constitution of the Republic of Iceland of 17

June 1944 provides as follows:

(translation)

"The legislative power is jointly vested in the Althing and the

President of the Republic of Iceland. The executive power is

exercised by the President and other governmental authorities in

accordance with this Constitution and other laws of the land. The

judicial power is exercised by the judiciary."

Section 60 of the Constitution reads as follows:

(translation)

"The judges shall resolve all disputes over the extent of the

power of administrative officers. But no one seeking a judicial

ruling thereunto can evade obeying temporarily an order of the

administrative officer by submitting the matter to judicial

decision."

Section 66 of the Code of Civil Procedure of 23 June 1936

provides as follows:

(translation)

"The courts have jurisdiction to adjudicate any matter in

controversy to which the law of the land applies, provided it is

not exempt from their jurisdiction by statute or custom, or by

virtue of its nature."

Statute provisions on separation of married couples, separation

agreements and the power to resolve disputes are found in Act no. 60

of 29 May 1972 (hereinafter referred to as the Marriage Act) in respect

of contracting and terminating marriage. The concept of separation, as

relating to married couples, is twofold under Icelandic law. First, a

married couple can be granted a separation under Section 31 of the

Marriage Act. Secondly, when one year has passed since the separation

and the couple have not been living together during that period, each

of them can, as a general principle, claim divorce under Section 34 of

the Marriage Act. According to the provisions of the Marriag

married person may also, by reason of certain facts, be entitled to

divorce in the absence of previous separation.

By Section 9 of Act no. 39 of 26 May 1992, Section 47 of the

Marriage Act was amended. It now provides that, in the event of

separation or divorce, custody of the children shall be determined in

accordance with the provisions of the Child Act. The Marriage Act no

longer contains provisions relating to custody arrangements. The

amendment entered into force on 1 July 1992.

The previous Child Act of 15 April 1981 contained in its

Chapter 8 provisions on parental duties, custody and rights of access.

Section 38, subsection 1, provided that if married or cohabiting

parents separated they should decide who should have custody of their

child, provided this would not be contrary to the child's interests.

It furthermore provided that if a decision on custody was contrary to

the child's interests, or if the parents disagreed, the Ministry of

Justice, having obtained the opinion of a child welfare committee,

should decide on the matter in fairness, in the best interest of the

child and having regard to its circumstances and needs. Custody should

remain undivided with one parent.

According to Section 38, subsection 2, of the previous Child Act

custody should always be determined when the parents separated and when

a decision was made concerning divorce. The Ministry of Justice, or a

court of law, could decide provisionally on the custody of children

whose parents wanted separation or divorce.

Section 39, subsection 1, of the previous Child Act provided that

an agreement between parents, concluded in accordance with Section 38,

could be changed by a decision of the Ministry of Justice, if the

parties agreed to refer the matter to the Ministry, or else by

judgment. A change could only be made if it was justified by changed

circumstances and having regard to the child's interests and needs.

Finally, Section 39, subsection 2, of the previous Child Act

provided that if the Ministry of Justice decided how the custody of a

child should be arranged, it could change its decision at the request

of either parent, if a change was deemed justified in the light of

changed circumstances and having regard to the child's interests and

needs. The same applied where a court of law had awarded the custody

of a child to one parent.

On 1 July 1992 a new Child Act (Act No. 20 of 22 May 1992)

entered into force. The new Act provides for some changes in the

handling of custody cases. The Act's main principles relating to

custody disputes are found in its Sections 34, 35 and 36 which read as

follows:

(translation)

"Section 34

If parents disagree on custody of a child, their dispute

shall be resolved in a court of law. The Ministry of

Justice may resolve disputes concerning custody, provided

the parties agree to give power of resolution to the

Ministry. If separation has been applied for in court the

same court shall resolve disputes concerning custody,

unless the parties are in agreement to refer resolution in

the matter of custody to the Ministry of Justice. Even if

a magistrate decides on an application for separation, a

dispute relating to custody of a child may be referred to

judicial resolution. Such cases shall be proceeded with

expeditiously.

The court or the Ministry of Justice shall, in the

resolution passed, decide which parent shall have custody

depending on how the child's interests are best served.

Joint custody may only be ordered if the parents agree on

such arrangement. In case neither parent is deemed fit for

having custody, the child welfare committee shall have

custody as provided for in the Child Welfare Act.

The Ministry of Justice shall generally seek the opinion of

the child welfare committee before a matter involving

custody is brought to a conclusion. A court shall seek the

opinion of the child welfare committee if deemed advisable.

A child who has reached 12 years of age shall be provided

with an opportunity of expressing its views in the matter

of a custody dispute, except if this is deemed likely to

harm the child or irrelevant for the outcome of the matter.

A younger child may also be consulted, as the case may be,

having regard to its age and maturity. A court of law, or

the Ministry of Justice, may entrust examination of a

child's views, and the preparation of a report thereon, to

one or more specialists.

In cases of particular need a representative may be

appointed for a child in order to protect its interests

when the matter of custody is resolved; his fee shall be

paid by the State Treasury.

Further provisions relating to procedure in cases of this

nature are in Chapter VIII and IX of this Act.

Section 35

In case one parent requests that changes be made to an

agreement relating to custody, or to a resolution of a

court of law or the Ministry of Justice in that respect,

the matter shall be resolved by a court of law, or by the

Ministry of Justice if the parties agree on such procedure.

A request in accordance with this subsection shall only be

granted if the change is deemed justified on account of

changed circumstances and with a view to the child's

interests and needs. The following subsection shall,

however, apply to a parent's request for cancellation of an

agreement on joint custody of a child.

Parents having joint custody of a child under an agreement

may at any time ... request that such agreement be

cancelled. The magistrate may then validate a new agreement

between the parents, as the case may be, in accordance with

the provisions of Section 33, subsection 4, and any

disputes shall be referred to a court of law or the

Ministry of Justice for resolution, as provided for in

Sections 34 and 36.

If a mother has custody of a child according to Section 30,

subsection 2, the child's custody may be transferred to its

father on his request, if such custody arrangement is

deemed best to serve the interests of the child. When

resolving a matter in accordance with this subsection the

child's ties to its father shall be among the factors taken

into account. The provisions of the 1st and 2nd sentences

of Section 34, subsection 1, shall apply to cases to which

this subsection applies.

Section 36

In a case of dispute concerning the custody of a child a

court of law or the Ministry of Justice, dependent on where

the procedure is conducted, may decide provisionally how

the matter of the child's custody shall be arranged, as

best suits the interests of the child. Such decisions may

be altered by reason of significant changes in the

circumstances. A decision on provisional custody

arrangements is not binding on the authority which shall

pass the resolution concerning permanent custody

arrangements, and the legal competence of the authority

rendering a decision on custody provisionally, shall not be

affected as regards resolution of the custody dispute in

other respects."

Section 77 of the Act contains a special temporary provision

concerning the custody cases which were in progress at the Ministry of

Justice when the Act entered into force on 1 July 1992. Section 77,

subsection 1, reads as follows:

(translation)

"Parties to disputes involving custody subject to procedure

at the Ministry of Justice when this Act enters into force

shall be informed of their right to seek judicial

resolution thereof. A time-limit may be set for the parties

to decide whether to request cancellation of the procedure

at the Ministry of Justice."

COMPLAINTS

The applicant complains, under Article 6 para. 1 of the

Convention, that in the circumstances of the present case, only the

Ministry of Justice can decide on the question of the transfer of

custody rights whereas she cannot have this issue determined by a court

as she considers the existing possibilities in Iceland to be

ineffective and insufficient.

She furthermore complains that the Ministry's decisions to refuse

her request for a transfer of custody of her daughter C are incorrect.

She does not in this respect invoke any Articles of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 December 1989 and registered

on 30 April 1990.

On 6 January 1992 the Commission decided to bring the application

to the notice of the respondent Government and to invite them to submit

written observations on its admissibility and merits.

The Government's observations were submitted on 23 March 1992 and

the applicant's observations in reply were submitted on 27 April 1992.

The Government submitted supplementary observations on 28 July 1992 and

the applicant's supplementary observations in reply were submitted on

3 September 1992.

Legal aid was granted to the applicant on 10 July 1992.

THE LAW

1. The applicant complains that she does not have access to a

tribunal for the determination of the custody dispute between her and

her ex-husband. She invokes in this respect Article 6 para. 1

(Art. 6-1) of the Convention which in its relevant parts reads:

"1. In the determination of his civil rights and

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

by an independent and impartial tribunal established by

law."

It is not in dispute between the parties that the issue of a

transfer of custody concerns a "civil right" within the meaning of

Article 6 (Art. 6) of the Convention. The Commission must consequently

examine whether the applicant had access to a tribunal within the

meaning of the above provision.

The applicant submits that she had no access to a court with full

jurisdiction on questions of law and fact under the legislation which

was in force until 1 July 1992. As the initial decision on custody was

taken by the Ministry of Justice the only judicial control would be

under Section 60 of the Icelandic Constitution which, however, could

only lead to an invalidation of the administrative decision if the

procedure was formally unlawful, but the court would have no power to

change an allegedly unfair or unjust decision.

The applicant furthermore submits that the new Child Act of

22 May 1992 which entered into force on 1 July 1992 is not essentially

different from the old legislation. If parents decide to submit their

dispute to the Ministry of Justice a subsequent decision from the

Ministry cannot be referred to the court for a final decision except,

as in the old system, under Section 60 of the Constitution.

Furthermore, according to Section 35, subsection 1, of the new Act a

transfer of custody will only be granted if this is deemed justified

on account of changed circumstances. Accordingly, so the applicant

contends, the new legislation does not provide a system whereby the

administrative decision may be referred unconditionally to a court for

final decision.

The Government submit that although the previous Child Act did

in fact allow parents to bring a custody dispute directly before the

ordinary courts of law for final determination, a parent could not

obtain such a direct determination unless the initial decision on

custody had been taken by a court. Accordingly, the Government accept

that since the applicant initially chose to refer the matter to the

Ministry of Justice instead of to a court, she could not subsequently

bring it directly before a court under the Child Act of 1981.

However, the Government maintain that Section 60 of the

Constitution allows the applicant, according to established practice,

to refer her case to the ordinary courts of law requesting that the

disputed administrative decision be invalidated. The Government submit

that such litigation would result in a judicial examination of all

aspects of the case in order to ascertain whether the administrative

decision was reasonable in the light of the facts and the available

evidence, and whether correct procedures had in other respects been

observed.

Finally the Government refer to the new Child Act of 1 July 1992

from which it is clear that the applicant may bring her custody claims

before the courts for final determination.

As regards the applicant's objections to the involvement of an

administrative authority in custody disputes, the Commission recalls

that Article 6 para. 1 (Art. 6-1) of the Convention does not require

that the procedure which determines civil rights and obligations is

conducted at each of its stages before tribunals meeting the

requirements of this provision. An administrative procedure may thus

precede the determination of civil rights by the tribunal envisaged in

Article 6 para. 1 (Art. 6-1) (see Ettl and Others v. Austria, Comm.

Report 3.7.85, para. 77 et seq., Eur. Court H.R., Series A no. 117,

p. 23.) There must, however, be a subsequent control by a judicial body

which has full jurisdiction and provides the guarantees of Article 6

para. 1 (Art. 6-1) (see Eur. Court H.R., Albert and Le Compte judgment

of 10 February 1983, Series A no. 58, p. 16, para. 29).

In the present case the Commission recalls that the applicant

may, at any moment, challenge before the ordinary courts of law, the

administrative decisions taken in respect of the custody dispute in

accordance with Section 60 of the Icelandic Constitution and, after

1 July 1992, in accordance with the Child Act, but that she has chosen

not to avail herself of this opportunity although this has been pointed

out to her explicitly on at least two occasions by the respondent

Government.

Accordingly the Commission finds that the applicant had access

to a domestic court. It remains to be determined whether this court

fulfils the requirement of Article 6 (Art. 6) of the Convention in

respect of its jurisdiction.

As regards the judicial review open to the applicant before

1 July 1992 the Commission finds that the court would be able to review

also the facts of the case in that it can examine inter alia whether

they have been incorrectly or incompletely established by the Ministry

of Justice. While the purpose of such review is to determine any

procedural defects leading to the unlawfulness of the decision the

Commission has not found limits in respect of the assessment and

supplementation of the facts. Furthermore, the Commission notes that

the court can quash the contested decision as being unlawful if, after

its examination of the facts, it finds that they were incorrect or

incomplete. The Ministry of Justice would be bound by the court's

decision and thus the court can impose its own views as to the

assessment of the facts on the administrative authorities concerned.

Furthermore, as regards the review available as from 1 July 1992,

the Commission finds it established that this review goes even further

in that the court may decide directly on the question of custody or on

a transfer thereof. As it has not found any other grounds for the

available court review to be at variance with Article 6 para. 1

(Art. 6-1) of the Convention, the Commission is satisfied that the

applicant had, and has, at her disposal a tribunal within the meaning

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

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

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

Convention.

2. The applicant also complains that the decisions of the Ministry

of Justice to refuse her requests for a transfer of custody are

erroneous and unfair.

The Commission is not required, however, to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of the Convention as, under Article 26 (Art. 26), it may only

deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

As set out above, the applicant has not brought the case before

the ordinary courts of law and has not, therefore, exhausted the

remedies available to her under Icelandic law. Moreover, an examination

of the case does not disclose the existence of any special

circumstances 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 the applicant has not complied with the condition

as to the exhaustion of domestic remedies and this part of the

application must therefore be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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