Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25159/94

by Teuvo HOKKANEN

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the 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 5 August 1994 by

Teuvo Hokkanen against Finland and registered on 15 September 1994

under file No. 25159/94;

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 1953 and resident at

Jäniksenlinna. He is a farmer. Before the Commission he is represented

by Mr. Heikki Salo, a lawyer practising in Helsinki.

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

summarised as follows.

From 1985 to 1994 the applicant was involved in a dispute with

his parents-in-law principally concerning custody and access in respect

of his daughter Sini. Following his wife's death he had provisionally

accepted that Sini's maternal grandparents care for her, but these had

subsequently refused to restore her to him. In 1987 the Supreme Court

confirmed the applicant's custody of Sini and ordered her return. The

grandparents refused to comply with the order which was not enforced.

The further underlying facts are summarised in the Hokkanen v.

Finland judgment of the European Court of Human Rights which was

rendered on 23 September 1994 in respect of Application No. 19823/93

(Series A no. 299-A).

The present application concerns the proceedings which the

applicant instituted on 22 June 1992 by requesting enforcement of a

judgment of 25 September 1991 rendered by the Helsinki Court of Appeal

(hovioikeus, hovrätten) insofar as it had prescribed certain access

arrangements between him and Sini (Hokkanen judgment, loc.cit.,

pp. 13-14, para. 29 and pp. 14-16, paras. 33-37).

The Court of Appeal's judgment was given in a second round of

proceedings instituted by the Social Welfare Board (sosiaalilautakunta,

socialnämnden) of Tuusula in 1990 with a view to having custody of Sini

transferred to her grandparents. This request was granted by the Court

of Appeal on 25 September 1991 and leave to appeal was subsequently

refused by the Supreme Court (korkein oikeus, högsta domstolen) on

21 January 1992 (ibid., p. 14, para. 31).

In the ensuing enforcement proceedings the County Administrative

Board (lääninhallitus, länsstyrelsen) of Uusimaa on 31 December 1992

ordered the grandparents to comply with the access arrangements ordered

by the Court of Appeal on 25 September 1991 on pain on having to pay

an administrative fine (ibid., p. 15, para. 35). Despite the

grandparents' refusal to comply with those arrangements no such fines

were ordered to be paid. On 21 October 1993 the Court of Appeal upheld

an appeal lodged by the grandparents against the County Administrative

Board's decision. On 4 February 1994 the Supreme Court refused the

applicant leave to appeal (ibid., pp. 15-16, para. 37).

In the present application the applicant refers to a confidential

memorandum of 5 March 1987 drawn up by a lawyer of the National Board

for Social Welfare (sosiaalihallitus, socialstyrelsen). This memorandum

allegedly suggested that an "unofficial procedure" could be followed

when the authorities were to apply domestic law concerning the possible

return of children to their custodians in "difficult cases". The

memorandum explained that, although domestic law required strict

enforcement of court orders in this field, the "unofficial practice"

in "difficult cases" could be "less strict". The applicant allegedly

gained access to a copy of this memorandum only on 10 March 1994 but

he has not submitted any copy thereof to the Commission.

COMPLAINTS

1. The applicant complains that the Court of Appeal was biased when

examining the grandparents' appeal against the County Administrative

Board's decision of 31 December 1992, since it took into account a

certain medical report submitted at the grandparents' request. This

report was not based on any real psychological examination of Sini nor

did it take into account her complete personal background. The

applicant invokes Articles 6 and 8 of the Convention separately as well

as Article 14 in conjunction with those provisions.

2. The applicant complains that he was denied a fair trial in the

proceedings concerning the enforcement of the access arrangements

ordered by the Court of Appeal on 25 September 1991. The authorities

failed to ensure effective enforcement of the Court of Appeal's

judgment in this respect and thus favoured the defiance shown by Sini's

grandparents in obstructing the court-ordered access arrangements. The

enforcement proceedings instituted by the applicant were also

unnecessarily delayed by the Court of Appeal, if compared with the

preceding ordinary court proceedings resulting in the transfer of

custody of Sini to her grandparents. Moreover, the authorities' failure

to order that the grandparents should pay administrative fines for not

complying with the access arrangements was not in accordance with

domestic law, since it followed the "unofficial procedure" suggested

in the memorandum of the National Board for Social Welfare dated

5 March 1987. The failure on the part of the authorities effectively

to enforce the prescribed access arrangements also discriminated

against the applicant, particularly since it favoured the life style

and home environment of Sini's grandparents rather than that of the

applicant. The applicant again invokes Articles 6 and 8 of the

Convention separately as well as Article 14 in conjunction with those

provisions.

THE LAW

1. The applicant complains that the Court of Appeal was biased when

examining the grandparents' appeal against the County Administrative

Board's decision of 31 December 1992. He invokes Articles 6 and 8

(Art. 6, 8) of the Convention separately as well as Article 14

(Art. 14+6+8) in conjunction with those provisions.

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

Convention it may only deal with the matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law, and within a period of six months from the date on

which the final decision was taken. An applicant must make normal use

of remedies likely to be effective and adequate in respect of the

matters of which he complains (see, e.g., No. 13251/87, Dec. 6.3.91,

D.R. 68 pp. 137 et seq., at pp. 163-164).

The proceedings of relevance to the present complaint ended with

the Supreme Court's decision of 4 February 1994 to refuse the applicant

leave to appeal, while the application was lodged on 4 August 1994. The

Commission recalls that the day on which the final national judgment

was rendered forms no part of the six months' period prescribed by

Article 26 (Art. 26) of the Convention. The period starts to run on the

day after and expires six calendar months later (No. 21034/92, Dec.

9.1.95, D.R. 80-A p. 87). Accordingly, the present complaint has been

lodged within the time-limit contained in Article 26 (Art. 26),

regardless of whether or not the applicant received the Supreme Court's

decision on 4 February 1994 or later (cf. No. 22714/93, Dec. 27.11.95,

D.R. 83-A p. 17).

The applicant has not shown, however, that he brought his present

grievance at least in substance to the attention of the Supreme Court.

The Commission cannot therefore find that he exhausted the remedies

available to him under Finnish law (cf., e.g., Eur. Court H.R., Cardot

judgment of 19 March 1991, Series A no. 200, pp. 18-19, paras. 34-36;

No. 11244/87, Dec. 2.3.87, D.R. 55 pp. 98; No. 11921/86, Dec. 12.10.88,

D.R. 57 p. 81). Moreover, an examination of the application does not

disclose the existence of any special circumstance which might have

absolved him, according to the generally recognised rules of

international law, from exhausting the remedy available to him.

It follows that this complaint must be rejected for

non-exhaustion of domestic remedies under Article 27 para. 3

(Art. 27-3) of the Convention.

2. The applicant also complains that he was denied a fair trial in

the proceedings concerning the enforcement of the access arrangements

ordered by the Court of Appeal on 25 September 1991; that the

proceedings were unnecessarily delayed by the Court of Appeal; that the

authorities' refusal to order that the grandparents should pay

administrative fines for not complying with the access arrangements was

not in accordance with domestic law, since it followed the "unofficial

procedure" suggested in the memorandum of the National Board for Social

Welfare dated 5 March 1987; and that the failure on the part of the

authorities effectively to enforce the court-ordered access

arrangements also discriminated against the applicant on account of his

life style and home environment as compared with that of Sini's

grandparents. The applicant again invokes Articles 6 and 8

(Art. 6, 8) of the Convention separately as well as Article 14

(Art. 14+6+8) in conjunction with those provisions.

The Commission recalls that under Article 27 (Art. 27) of the

Convention it shall not deal with any application submitted under

Article 25 (Art. 25) which is substantially the same as a matter which

has already been examined by it and if the fresh application contains

no relevant new information. In its decision of 9 February 1993 on the

admissibility of Application No. 19823/93 which was brought by the

present applicant and his daughter Sini (T. and S. H. v. Finland, Comm.

Report 22.10.93, Appendix II, p. 45) the Commission summarised two of

the applicants' complaints as follows:

"1. The applicants complain of a violation of their right

to respect for their family life. By allowing [the

grandparents] to keep [Sini] despite court decisions to the

contrary, the authorities failed to promote the

re-unification of the applicants speedily. Whilst an

interference with the right at issue may be justified, for

instance for the protection of a child's health, no such

circumstances were at hand in the applicants' case. On the

contrary, all authorities involved found the first

applicant suited to be responsible for the second

applicant's upbringing and that he could give her a good

home environment. ... The applicants object to the

reasoning of the Court of Appeal in its decision of

25 September 1991 according to which an arbitrary keeping

of a child, if long enough, amounts to a particularly

weighty reason for depriving a parent of legal custody of

his child. Such reasoning clearly jeopardises the principle

of legality. The applicants invoke Article 8 (Art. 8) of

the Convention and Article 5 of Protocol No. 7 (P7-5) to

the Convention.

...

3. The applicants ... complain that they have been and

continue to be deprived of an effective remedy as

guaranteed under Article 13 (Art. 13) of the Convention,

having regard to the authorities' failure to take measures

in order to have them re-united, the excessive length of

the proceedings, and the fact that, in view of [the

grandparents'] financial situation, the administrative

fines imposed on them had no effect and were, in any case,

not executed."

The Commission declared the above complaints admissible insofar

as they had been lodged by the present applicant. They were finally

examined by the Court in its judgment of 23 September 1994 (see above).

The Commission considers that the applicant's present complaints

are in substance essentially the same as the above complaints lodged

by him in Application No. 19823/92, i.e. a matter which has already

been examined by the Commission partly in its decision on the

admissibility of that application and partly in its Report of

22 October 1993 (see, in particular, paras. 144-151, Eur. Court H.R.,

Series A no. 299-A, pp. 37-38). Moreover, no "relevant new information"

within the meaning of Article 27 para. 1 (b) (Art. 27-1-b) of the

Convention has been adduced which would enable the Commission to deal

with any aspect of these fresh complaints.

It follows that this part of the application must be rejected

pursuant to Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

Menu

HOKKANEN v. FINLAND

HOKKANEN v. FINLAND