Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12797/87

by J.D.N.

against France

The European Commission of Human Rights sitting in private on

6 February 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRESCHEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 12 December 1983

by J.D.N. against France and registered on 1 January 1987 under file

No. 12797/87;

Having regard to the report provided for in Rule 40 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1934 and presently

resides in Lochem, the Netherlands. He is an artist. Before the

Commission he is represented by Mr. G.P. Hamer, a lawyer, practising

in Amsterdam.

For several years the applicant lived in France together with his

wife and three children.

On 22 October 1982 the Regional Court (tribunal de grande

instance) of Bergerac decided on the applicant's divorce and gave the

custody over his three children to the mother. The Court also provided

for an arrangement concerning the applicant's right to visit his

children.

He appealed against this decision to the Court of Appeal (cour

d'appel) of Bordeaux on 19 November 1982. Pending the appeal, the

Judge Rapporteur (conseiller de la mise en état) decided, on request

of both parties, on the modalities of the right to visit the children.

Because the applicant had taken the children to the Netherlands - in

violation of the applicable provisions of the judgment of the Regional

Court - the Judge Rapporteur ordered that the visits should take place

in France and that the applicant should give the children's passports

to his ex-wife.

In its decision of 20 December 1984 the Court of Appeal rejected

the applicant's request and upheld both the decision of the Regional

Court and the decision of the Judge Rapporteur.

In order to lodge an appeal with the Court of Cassation (Cour de

cassation) the applicant, on 4 February 1985, filed a request for free

legal aid with the Legal Aid Bureau (bureau d'aide judiciaire) of the

Court of Cassation. On 13 June 1985 his request was rejected, although

his financial resources were not adequate to pay for legal aid himself,

on the ground that the judgment of the Court of Appeal appeared to be

legally justified and not admissible for cassation.

COMPLAINTS

1. The applicant complains of a violation of Article 6 of the

Convention because proceedings before Regional Court, Court of Appeal

and Legal Aid Bureau were conducted in French which he alleges not to

understand.

2. He also complains of the procedure before the Legal Aid Bureau

which was not public and in which the decision was not rendered

publicly.

3. He furthermore complains of the denial of access to the Court of

Cassation because of the decision of the Legal Aid Bureau.

4. Finally, he invokes Article 8 concerning the restricted right to

visit his children in France which constitutes an interference with his

family life.

THE LAW

1. Concerning the applicant's complaint under Article 6 (Art. 6) of

the Convention regarding the proceedings which were all conducted in

French only, the Commission notes that the applicant did not raise this

issue in the national proceedings. Consequently, he did not exhaust

the remedies available to him under French law, as required under

Article 26 (Art. 26) of the Convention.

It follows that the applicant has not complied with the condition

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

application must therefore be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

2. As regards the procedure before the Legal Aid Bureau the

Commission considers that Article 6 (Art. 6) is not applicable since

there is neither a determination of a criminal charge nor of civil

rights and obligations when the Legal Aid Bureau determines whether or

not the conditions required for granting free legal aid have been

fulfilled.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention and must be

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

3. As regards the applicant's complaint concerning the access to the

Court of Cassation, the Commission recalls that the Convention does not

impose an obligations on the States Parties to provide free legal aid

for every dispute relating to a civil right (see Airey judgment of

9 October 1979 Eur. Court H.R., Series A no. 32, p. 15).

In the present case, the Commission notes that the request for

free legal aid was rejected on the ground that the judgment of the

Court of Appeal appeared to be legally justified and inadmissible for

cassation.

The Commission considers that a legal aid system can only operate

effectively, given the limited resources available, by establishing

machinery to select which cases should be legally aided (cf.

No. 8158/79, Dec. 10.7.80, D.R. 21, p. 95).

In these circumstances, the Commission does not find that the

rejection of the request for free legal aid amounts to a breach of

Article 6 (Art. 6) of the Convention.

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

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

2 (Art. 27-2) of the Convention.

4. The applicant also complains of his restricted right to visit his

children and invokes in this respect Article 8 (Art. 8) of the

Convention. The Commission considers that although he did not appeal

to the Court of Cassation the decision of the Bureau clearly shows that

an appeal to the Court of Cassation would have no prospects of success.

Therefore, this complaint cannot be rejected for non-exhaustion of

domestic remedies.

However, the Commission is of the opinion that even assuming that

there is an interference with the applicant's right to respect for his

family life, the limitation on the modalities of the applicant's right

to visit his children could be regarded as necessary in a democratic

society for the protection of the rights of others. It was therefore

justified under Article 8 para. 2 (Art. 8-2) of the Convention. In

this respect the Commission notes that the applicant has not been

denied the rights to visit his children, but that the way in which he

could exercise this right has only been modified as a consequence of

the fact that the applicant illegally took his children to the

Netherlands.

Therefore, this part of the application is manifestly ill-founded

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President to the Commission

(H.C. KRÜGER) (C.A. NØRGGARD)

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J.D.N. v. FRANCE

J.D.N. v. FRANCE

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