Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12223/86

by IB ROMOES

against Denmark

The European Commission of Human Rights sitting in private

on 6 October 1987, the following members being present:

MM. J.A. FROWEIN, Acting President

C.A. NØRGAARD

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 7 January 1986

by Ib Romoes against Denmark and registered on 11 June 1986 under file

N° 12223/86;

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 Danish citizen, born in 1936. He is the

proprietor of a taxi business and lives at Lynge, Denmark.

I. The applicant has previously lodged an application with the

Commission (No. 10326/83). The basis for the applicant's case before

the Commission was a custody dispute between himself and his ex-wife

following their divorce in 1976. The custody of their two children

was awarded to the mother and due to continuing difficulties between

the parties the applicant's access rights to his children were

withdrawn on 8 December 1977 and 23 August 1978 respectively.

As a consequence the applicant abducted the youngest child to

Spain in November 1978. He was arrested by the Spanish police and

brought back to Denmark. He was charged with violations of several

Articles of the Danish Penal Code and by judgment of 26 November 1980

the City Court of Brøndbyerne (retten i Brøndbyerne) sentenced him to

ten months' imprisonment. The judgment was upheld by the High Court

(Landsretten) on 13 November 1981, and leave to appeal to the

Supreme Court (Højesteret) was refused by the Ministry of Justice on

4 January 1982.

Finally the applicant submitted a petition to the Special

Court of Revision (Den særlige Klageret) for the reopening of the

proceedings. However, this petition was rejected by the Court on

6 April 1982. Before the Commission the applicant invoked Articles 6

and 13 of the Convention alleging that he did not get a fair trial and

that he did not have a remedy at his disposal which could rectify this

error.

Having found that the applicant's petition to the Special

Court of Revision did not constitute a remedy under the generally

recognised rules of international law the Commission rejected the

applicant's complaints under Article 6 on 6 October 1983 as having

been introduced out of time. As regards the alleged violation of

Article 13 of the Convention the Commission found no appearance of a

violation (Dec. 6.10.83, D.R. 35 p. 218).

II. The facts of the present case, as submitted by the applicant,

may be summarised as follows:

The applicant's two children were born on 12 October 1964 and

12 May 1970 respectively. As mentioned above the applicant and his

wife divorced in 1976. Custody of their two children was given to the

mother.

In 1980 the applicant instituted proceedings in order to have

the custody of his two sons transferred to him; however in vain.

In 1983 the applicant attempted to have the custody rights of

his youngest son transferred to him. The applicant's oldest son, born

in 1964, was no longer subject to parental custody, having reached the

age of 18. The proceedings were instituted on 20 August 1983 in the

City Court of Brøndbyerne. During the proceedings in the City Court

the parties contacted the Social and Health Authorities of Brøndby

County (Brøndby kommunes social- og sundhedsforvaltning) and they

submitted, on 24 June 1984, certain information as to the child's

situation. Furthermore the Court as well as the parties' lawyers had

separate discussions with the child.

The City Court pronounced judgment in the case on 10 May

1985. Having regard to the information which had been obtained and

after an evaluation of the parties' oral submissions in court, the

City Court did not find it established that such circumstances were

present which, in the interest of the child, would necessitate a

transfer of custody to the applicant.

On 28 May 1985 the applicant appealed against this judgment to

the High Court. The parties had the opportunity to present the case

orally in the High Court which furthermore heard the applicant's

oldest son as a witness. On the basis of the evidence so obtained the

High Court found no reason to alter the City Court judgment which

was upheld accordingly on 5 November 1985.

On 1 December 1985 the applicant applied to the Ministry of

Justice for leave to appeal to the Supreme Court. However, on

19 December 1985 the Ministry refused to grant leave to appeal.

COMPLAINTS

The applicant invokes Articles 3, 6, 8, 13 and 14 of the

Convention.

Under Article 3 of the Convention the applicant maintains that

the authorities have subjected him to inhuman and degrading treatment

and punishment during his attempts to have the custody rights

transferred to him.

Under Article 6 the applicant complains of the length of

proceedings in his most recent attempt to have the custody of his son

transferred to him. In particular he complains about the length of

the proceedings in the City Court. Furthermore he maintains that his

case was not decided upon by an impartial and independent tribunal

either in the City Court or in the High Court.

He also maintains that the authorities have not shown the

necessary respect for his right to respect for his family life and

refers in this respect to Article 8 of the Convention.

Regarding Article 14 of the Convention the applicant alleges

that the outcome of this case was based on sex discrimination.

Finally, under Article 13, the applicant maintains that he has

not had any effective remedy at his disposal since the courts have not

rectified his present situation.

THE LAW

1. The applicant has complained that he has been subjected to treatment

which is contrary to Article 3 (Art. 3) of the Convention during his attempts

to have the custody rights transferred to him. Article 3 of the Convention

reads as follows:

"No one shall be subjected to torture or to

inhuman or degrading treatment or punishment."

The Commission recalls the jurisprudence of the European Court

of Human Rights and that of the Commission according to which

treatment will be considered inhuman only if this treatment reaches a

certain stage of gravity, causing considerable mental or physical

suffering. Furthermore, as for the criteria concerning the notion of

"degrading treatment", the treatment itself will not be degrading

unless the person concerned has undergone humiliation or debasement

attaining a minimum level of severity and this level has to be

assessed with regard to the circumstances of any given case (cf. Eur.

Court H.R., Ireland v. the United Kingdom judgment of 18 January

1978, Series A No. 25).

In the present case, however, the Commission has found no

indication in the information submitted by the applicant which could

lead to the conclusion that the treatment the applicant has received

from the public authorities could be considered to be of such severity

as that envisaged by Article 3 (Art. 3) of the Convention. It follows

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

question of the length of the proceedings concerning his most recent

attempt to have the custody rights transferred to him.

Article 6 para. 1 (Art. 6-1) of the Convention inter alia provides for

a right to a hearing within a reasonable time. On this point the Commission

notes that the court proceedings commenced on 20 August 1983 and lasted until

19 December 1985 when the Ministry of Justice rejected the applicant's request

for leave to appeal to the Supreme Court. Consequently the total length of the

proceedings was approximately 2 years and 4 months.

As regards the proceedings in the City Court the Commission

recalls that they lasted from 20 August 1983 until 10 May 1985.

Having regard to the fact that the case concerned the question as to

whether or not the custody of a child should be transferred from one

parent to the other, a question which by its very nature requires to

be dealt with urgently, this period may at first sight seem too long.

However, the Commission also recalls that the custody question was

initially settled in favour of the children's mother in 1976 when the

applicant and his wife were divorced. Due to difficulties between the

parties the applicant's access rights were withdrawn and subsequently

the applicant was sentenced to ten months' imprisonment for abducting

his youngest son to Spain, without this giving rise to any questions

concerning a possible transfer of custody. Furthermore the question

of transfer of custody was again examined in 1980 but this examination

ended unsuccessfully from the applicant's point of view.

In these circumstances the Commission finds that the question

of custody of the applicant's children had been thoroughly examined on

previous occasions and an examination of the matter in the proceedings

with which the Commission is now concerned appears to be of less

urgence. The Commission also recalls that during these proceedings

the Social and Health Authorities were requested to submit certain

information which was provided on 24 June 1984.

As regards the proceedings before the High Court the Commission

notes that the applicant's appeal to the High Court was lodged on

28 May 1985 and that judgment was pronounced on 5 November 1985.

Finally the applicant's application for leave to appeal to the Supreme

Court was lodged on 1 December 1985 and the decision to refuse such

leave was taken on 19 December 1985.

When examining the length of the proceedings in the light of

the circumstances indicated above, the Commission finds no indication

of negligence or dilatoriness on the part of the courts and considers

therefore that in the special circumstances of this case the

applicant's right under Article 6 para. 1 (Art. 6-1) of the Convention to a

hearing within a reasonable time has not been violated.

Consequently this part of the application is manifestly ill-founded

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

3. The applicant has also complained under Article 6 (Art. 6) of the

Convention that his case was not heard by an independent and impartial

tribunal. The Commission finds, however, that the documents and

information submitted by the applicant do not disclose any

substantiated facts which could justify a further examination of this

complaint. It follows that this part of the application is likewise manifestly

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

Convention.

4. The applicant further complains that the judgments of the

courts regarding custody violate his right to respect for his family

life. The applicant invokes 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."

In the present case it appears that the Danish courts, when

deciding not to transfer the custody to the applicant, took into

account primarily the interests of the child. The Commission

recognises that, where parents are divorced, it is legitimate, or

even necessary, for the national law to provide rules covering the

relationship between parents and children which differ from the rules

which are applicable when the family unit is still maintained (cf.

No. 10271/83, Dec. 15.3.84, unpublished). In these circumstances the

Commission does not find it established that, as a result of the

courts' rulings, the applicant's family life has been interfered with

in a manner which was not justified under Article 8 para. 2 (Art. 8-2) of the

Convention by the interests of the child and it follows that this part

of the application should be rejected as being manifestly ill-founded

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

5. Finally, the applicant has complained that he had no effective

remedy at his disposal since the courts have not rectified his

situation but rather reached their conclusions in a discriminatory

manner. He relies in this respect on Articles 13 and 14 (Art. 13, 14) of the

Convention.

The Commission recalls, however, that the applicant could

bring his case before several courts in Denmark, and the fact that

these courts ruled against the applicant does not mean that the

remedies exercised by him were not effective remedies within the

meaning of Article 13 (Art. 13) of the Convention. The Commission furthermore

finds that the courts' judgments on the matter of custody were based on

an assessment of the circumstances of the particular case and no

discriminatory elements, which could have raised an issue under

Article 14 (Art. 14) of the Convention, have emerged from the documents or

information submitted by the applicant.

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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission Acting President of the Commission

(H. C. KRÜGER) (J. A. FROWEIN)

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ROMOES v. DENMARK

ROMOES v. DENMARK

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