Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14063/88

by Søren Erik JENSEN

against Denmark

The European Commission of Human Rights sitting in private

on 7 January 1991, the following members being present:

MM. S. TRECHSEL, Acting President

C. A. NØRGAARD

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J. C. SOYER

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 2 March 1988

by Søren Erik JENSEN against Denmark and registered on 26 July 1988

under file No. 14063/88;

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 25 January 1990 and the observations submitted in reply

by the applicant on 11 March 1990;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Danish citizen, born in 1936. He is an

engineer and resides at Ringsted, Denmark.

A. The particular facts of the case

By judgment of 7 September 1984 the applicant and his wife

separated on the condition inter alia that he paid her alimony until

further notice. On the basis of this judgment the competent

authorities decided, on 20 June 1985, that the applicant should pay

2,000 Danish crowns a month to his wife as from 3 April 1985.

The applicant refused, however, to pay alimony. He alleged

that his ex-wife lived with another man for which reason she was not

entitled to such alimony. Accordingly, he asked to be relieved from

his obligation to pay but his request was rejected by the competent

authorities of the County of Western Zealand (Vestsjællands Statsamt)

on 19 August 1985. Subsequent requests were rejected on

12 December 1985 and 12 May 1986 by the Directorate of Family Law

(Familieretsdirektoratet).

As the applicant nevertheless refused to pay the Municipality

of Ringsted (Ringsted Kommune) levied execution on a bank deposit of

8,000 Danish crowns belonging to the applicant and ordered the

applicant's employer to withhold 3,000 Danish crowns per month of the

applicant's salary in accordance with Section 5 of the Collection of

Alimony Act (Lov om inddrivelse af underholdsbidrag) until the

outstanding alimony had been paid.

The case was brought before the Bailiff's Court (fogedretten)

of Ringsted where, during a preliminary court session on 15 April

1986, the applicant maintained first that his ex-wife was not entitled

to alimony and in the alternative that the amount was too high. The

Municipality of Ringsted maintained first that the Bailiff's Court was

not competent to examine the merits of the case and in the alternative

that the facts, as submitted by the applicant, were incorrect.

The Bailiff's Court pronounced its decision (kendelse) on

17 June 1986, prior to which the parties had agreed that the Court was

competent also to consider the merits of the case. On the basis of

the statements of the parties and the witnesses heard and after an

evaluation of the written evidence submitted, the Court found that no

such economic interests existed between the applicant's ex-wife and

her new companion that the applicant could be relieved from his duty

to pay alimony. Having regard to the applicant's financial situation

the Court furthermore found that the sum to be paid was appropriate.

The Court considered the execution measures to be lawful and the

applicant's objections in this respect were accordingly rejected.

The applicant appealed against this decision to the High Court

of Eastern Denmark (Østre Landsret) where he maintained his views as

expressed by him in the Bailiff's Court. On 26 January 1987 a

preliminary court session was held in the High Court sitting with one

judge, P. The court transcript from this court session reads as

follows:

(Translation):

"The case was discussed. The judge declared that the court,

as the Bailiff's Court, in a case concerning the collection

of alimony already due, also had the competence to decide

upon the amount of alimony and the existence of such claims.

Having regard to the information now available, the

particularly strict case-law regarding the annulment of the

alimony already due and to the decisions of the County of

Western Zealand and the Directorate of Family Law, the judge

declared that an appeal in his opinion would be without prospects

of success from the applicant's point of view. The judge

therefore proposed that the applicant considered discontinuing

the case."

The applicant refused to do so, however, and the High Court

thus examined the case on 2 September 1987 sitting with three judges,

including P. It appears that the court session was public. However,

at the beginning of the proceedings counsel for the applicant's

ex-wife indicated that his client found it unpleasant if the applicant's

and her daughter, who was present, was to attend the court hearing.

She would therefore like the daughter to leave the court room. Counsel

for the applicant had no objections to this and, accordingly, the

daughter felt obliged to leave the room which she did. No formal

decision as to the closing of the doors was taken by the Court.

The High Court then proceeded to hear the parties as well as

one witness. The applicant submits that he wanted an additional four

witnesses heard. These witnesses were not heard. However, it does not

appear that the applicant requested the Court to take a formal

decision on the matter.

Judgment was pronounced on 7 September 1987. The relevant part

of this judgment reads as follows.

(Translation)

"For the reasons set out in (the Bailiff Court's)

decision and since what has been brought forward in the High

Court cannot lead to another result, the High Court upholds

the decision."

The applicant subsequently submitted to the Ministry of

Justice a request for leave to appeal to the Supreme Court

(Højesteret). He maintained that the judgment was contrary to

domestic case-law and that the High Court had committed procedural

errors in that, prior to the examination of the case, one of the High

Court judges (P) advised him to discontinue the case, that the court

session was not open to the public, that the judgment was without

sufficient foundation and reasoning and that the High Court refused to

hear four witnesses.

On 29 January 1988 the Ministry of Justice refused to grant

leave to appeal.

The competent administrative authorities decided on 24

February 1988 that the applicant, retroactively as from 3 November

1987, was no longer to pay alimony to his ex-wife.

B. Relevant domestic law and practice

a) As regards alimony obligations section 49 of the Matrimonial

Act (aegteskabsloven) provides that, in the event of judicial

separation or divorce, it shall be determined whether one spouse is

obliged to pay alimony to the other. According to section 50

subsection 1 the court shall, if the parties fail to come to an

agreement on the question of alimony, rule on the matter of the

obligation to pay alimony and the duration of such obligation while it

is up to the competent administrative authorities to determine the

amount. Section 53 subsection 1 of the Act provides that an alimony

obligation established by court ruling may be changed by a new court

ruling where materially altered circumstances or other special

considerations warrant it. According to section 53 subsection 2 the

competent administrative authorities may alter their decision on the

amount of alimony to be paid when circumstances call for it.

According to the Collection of Alimony Act municipal social

committees will upon request collect alimony, cf. section 2 of the

Act. Under section 5 of the Act, alimony for a spouse may be collected

for instance by deductions in the debtor's salary. If a debtor objects

to an order for deductions, the question shall be decided by the

Bailiff's Court, cf. section 5 subsection 3 of the Act.

b) As regards conciliation procedures chapter 26 of the

Administration of Justice Act (sections 268-270) contains provisions

obliging the court to seek conciliation in all civil law cases before

the first instance. A conciliation procedure may also take place before

the High Court. The provisions do not specify the stage of a lawsuit

at which conciliation must or should be attempted.

Civil lawsuits are dealt with in two stages: preparation and

oral proceedings. Normally, preliminary court sessions deal only with

the exchange of pleas, cf. section 351 of the Administration of

Justice Act, but the court may instead opt to summon the parties to a

special preliminary court session, cf. section 355 of the

Administration of Justice Act. Under section 355 subsection 4 this

meeting is supposed to produce maximum clarity concerning the parties'

position on the facts and legal aspects of the case. Part of the

effort is devoted to identifying the circumstances that will not be

contested and those that will require production of evidence. The

parties must also state how they intend to produce evidence.

In the "travaux préparatoires" to section 355 it is stated

inter alia:

(translation)

"The Court shall as a rule try to reach a conciliatory

agreement in all civil lawsuits. Conciliation procedure may

be undertaken already in the preparatory stage of the case,

cf. section 268 of the Administration of Justice Act.

According to section 6 subsection 1, second sentence, of the

proposal a single High Court judge may act on behalf of the

Court outside the oral proceedings. The preliminary court

session referred to in (section 355) will generally be held

before one judge who will often during this meeting become

so well acquainted with the case that he will be able to

propose a conciliatory arrangement, where possible, before

any production of evidence is launched. Where a case is

obviously without prospect of success the judge may also

advise the litigant to discontinue the case. The Council

finds it desirable that conciliatory procedure be attempted

at the earliest possible stage of the court proceedings."

c) The challenge of a judge is governed by sections 60 to 63 of

the Administration of Justice Act. According to section 62 of the Act

the parties may, in addition to the special circumstances set out in

section 60, also object to a judge hearing a case when other

circumstances are capable of raising doubt about his complete

impartiality. In such instances the judge, too, if he fears that the

parties cannot trust him fully, may withdraw from sitting even when no

objection is lodged against him. Where a case is heard by several

judges, any one of them may raise the question whether any of the

judges on the bench should step down on account of the circumstances

of the case.

According to section 63 of the Administration of Justice Act

the question whether or not a judge should remain on the bench, which

when raised by one of the parties in civil matters is treated as other

procedural objections, should as far as possible be raised before the

beginning of the oral hearing. This question may be decided without

the parties having been given the opportunity to submit comments.

d) As regards publicity in court proceedings matrimonial cases

involving, for instance, alteration or contestation of divorce terms

are heard in camera, cf. section 448 no. 6, compared with section 453,

of the Administration of Justice Act. This procedure is prompted by

the desirability of respecting the privacy of the parties.

However, if a lawsuit is instituted regarding divorce terms

either by or against a third party the case will be dealt with as an

ordinary civil case. In such cases court sessions are public, except

where specific provisions to the opposite effect are prescribed, cf.

section 29 subsection 1 of the Administration of Justice Act. In

exceptional circumstances the court may, however, either at the

request of one of the parties or ex officio decide to close a session

to the public, for instance when public proceedings would cause any

individual unnecessary embarrassment, cf. section 29 subsection 3 of

the Administration of Justice Act. This happens in practice in, e.g.,

family-law cases.

e) According to section 389 subsection 2 of the Administration of

Justice Act court orders and decisions taken by a High Court may be

appealed against to the Supreme Court unless otherwise provided by

law.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention that he did not get a fair and public hearing by an

impartial tribunal in the High Court of Eastern Denmark, in particular

in the light of the fact that one of the High Court judges had

declared prior to the main hearing that he considered the case without

prospects of success, and since his friends were not allowed to attend

the hearing although the court transcripts indicated that the court

session was public.

Under Article 6 of the Convention the applicant also complains

that the Court refused his request to have four witnesses heard.

The applicant furthermore invokes Articles 13 and 17 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 March 1988 and registered

on 26 July 1988.

The Commission decided on 8 November 1989 to bring the

application to the notice of the respondent Government, inviting them

to submit written observations on the admissibility and merits of the

case.

The Government's observations were submitted on 25 January

1990 and the applicant's observations in reply were submitted on 11

March 1990.

On 16 February 1990 the Commission refused the applicant's

request for legal aid.

THE LAW

1. The applicant has made a number of complaints under Article 6

para. 1 (Art. 6-1) of the Convention in regard to the proceedings in

the High Court of Eastern Denmark when this Court determined his

dispute with his ex-wife and the competent administrative authorities

concering his obligation to pay alimony.

Article 6 para. 1 (Art. 6-1) of the Convention reads as follows:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by

law. Judgment shall be pronounced publicly but the press

and public may be excluded from all or part of the trial in

the interests of morals, public order or national security

in a democratic society, where the interests of juveniles or

the protection of the private life of the parties so

require, or to the extent strictly necessary in the opinion

of the court in special circumstances where publicity would

prejudice the interests of justice."

The respondent Government do not dispute that this provision

applies in the present case. The Commission recalls that to a certain

extent the court proceedings concerned the enforcement of already

fixed claims of alimony and, according to the Commission's case-law

such proceedings do not necessarily involve a determination of civil

rights and obligations within the meaning of the above provision (cf.

No. 11258/84, Dec. 7.7.86, D.R. 48 p. 225). However, from the court

transcripts of the Bailiff's Court as well as the High Court it is

clear that the courts considered themselves competent not only to

determine such already fixed claims but also to rule on the merits,

i.e. the existence of an obligation to pay alimony. Accordingly the

Commission finds that such issues were determined in the proceedings

which call for the application of Article 6 (Art. 6) of the

Convention. The Commission shall therefore examine the applicant's

complaints under this provision.

2. The applicant has complained that the decision of the High

Court was wrong and based on an unacceptable interpretation of the

applicable legislation.

In this respect the Commission recalls that, in accordance

with Article 19 (Art. 19) of the Convention, its only 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. The Commission refers, on this point, to its

established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3

pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No.

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

It is true that the applicant has made a number of complaints

under Article 6 para. 1 (Art. 6-1) of the Convention concerning the

manner in which his case was dealt with in the High Court of Eastern

Denmark and the Commission will examine these separately below.

a) The applicant has complained that one of the High Court judges

had declared, prior to the main hearing, that he considered the case

to be without prospects of success from the applicant's point of view.

The Commission has examined this particular complaint under Article 6

para. 1 (Art. 6-1) of the Convention in so far as it guarantees a

right to an impartial tribunal.

The respondent Government have submitted that the applicant

failed to exhaust domestic remedies as he did not challenge the judge

in accordance with section 62 of the Administration of Justice Act.

The applicant has submitted that it was not until the

proceedings had come to an end that he realised the alleged bias of the

judge and subsequently he did, in his request for leave to appeal,

complain about this matter. Furthermore, he submits, the judge acted

in accordance with domestic law and practice when he tried to

negotiate a settlement between the parties for which reason a

challenge under section 62 of the Administration of Justice Act would

have been without prospects of success.

The Commission recalls that under Article 26 (Art. 26) of the

Convention it may only deal with a complaint after all domestic

remedies have been exhausted according to the generally recognised

rules of international law. However, if it can be established that

the remedies that may exist are ineffective or inadequate, either as a

result of an administrative practice or otherwise, the domestic

remedies rule does not apply (cf. No. 10486/83, Dec. 9.10.86, D.R. 49

p. 86).

In the present case it is undisputed that judge P carried out

his conciliation attempts in accordance with established practice

consistent with the Administration of Justice Act. The applicant could

not, therefore, have pointed at any breach of Danish law when

complaining about this situation. In these circumstances the

Commission finds that no effective remedies were available within the

meaning of Article 26 (Art. 26) of the Convention in regard to this

complaint. Accordingly, the Commission does not reject this complaint

for non-observance of the domestic remedies rule.

However, the Commission recalls that the preliminary court

session on 26 January 1987 was held in accordance with section 355 of

the Administration of Justice Act and aimed at producing maximum

clarity concerning the parties' position and at identifying the

factual and legal circumstances of the case. Having regard to this and

to what has otherwise been established as regards preparatory meetings

(see above: relevant domestic law and practice) the Commission does

not consider it as such contrary to Article 6 para. 1 (Art. 6-1) of the

Convention when a judge advises litigants on a possible outcome of a

case. Furthermore, there is no indication that the judge went beyond

his competence by for example putting undue pressure on the applicant.

Therefore no issue arises as to the impartiality of the hearing in

that the same judge subsequently took part in the examination of the

case.

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.

b) The applicant has also complained that the hearing in the High

Court was not public, as his daughter was forced to leave the court

room, and thus contrary to Article 6 para. 1 (Art. 6-1) of the Convention.

In this respect the Government have again submitted that the

applicant failed to exhaust domestic remedies whereas the applicant

submits that he was tricked into believing that he could not protest

when his daughter left the court room.

The Commission finds that it may be left open whether Article

26 (Art. 26) of the Convention has been complied with in regard to this

complaint. From the facts of the case it has been established that the

question of the participation of the applicant's daughter was

discussed and that the applicant's lawyer had no objections to her

leaving the court room. Furthermore the Commission recalls that where

a person is represented by a lawyer he must generally exercise his

procedural rights through this lawyer (cf. No. 7138/75, Dec. 5.7.77,

D.R. 9 p. 50). In these circumstances the Commission has not found any

facts which could lead to the conclusion that the applicant's right to

a public hearing was not respected.

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.

c) Under Article 6 (Art. 6) of the Convention the applicant has

furthermore complained that the four witnesses were not heard in the

High Court.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant in this respect disclose any

appearance of a violation of Article 6 (Art. 6) since, as already

indicated above, 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 the applicant failed to obtain a decision

on this issue from the High Court, a decision which, if necessary,

could have been appealed against to the Supreme Court. The applicant

has, therefore, not exhausted the remedies available to him under

Danish law.

It follows that this part of the application must be rejected

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

3. The Commission has finally examined the applicant's complaints

under Articles 13 (Art. 13) and 17 (Art. 17) of the Convention as submitted by him.

However, an examination of these complaints does not disclose any

appearance of a violation of the Convention. 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 by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission Acting President of the Commission

(H. C. KRUGER) (S. TRECHSEL)

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JENSEN v. DENMARK

JENSEN v. DENMARK

LEXI