FOURTH SECTION

DECISION

Application no . 56693/09 A.A.S. against Finland

The European Court of Human Rights (Fourth Section), sitting on 3 July 2012 as a Chamber composed of:

Lech Garlicki , President, David Thór Björgvinsson , Päivi Hirvelä , George Nicolaou , Ledi Bianku , Nebojša Vučinić , Vincent A. D e Gaetano , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 26 October 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr A.A.S., is a Finnish national, who was born in 1972. The President of the Section decided of his own motion to grant the applicant anonymity (Rule 47 § 3 of the Rules of Court) and confidentiality of the case file documents (Rule 33 of the Rules of Court). He was represented before the Court by Ms Heini Kotamäki , a lawyer practising in Vantaa .

2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. In 1999 the applicant started dating the future mother of his child. They were engaged and moved in together. Their cohabitation broke down in November 2000 , before the child was born in April 2001. The mother did not allow the applicant to visit his daughter.

5. On 24 February 2004 the applicant ’ s paternity was confirmed by the District Court ( käräjäoikeus , tingsrätten ). The applicant contacted the child welfare authorities in order to have contact with the mother and the child , but in vain.

6. On 26 April 2004 the applicant requested the District Court to grant him visiting rights to his daughter.

7. On 27 April and 7 May 2004 the child ’ s mother and her current husband requested that a restraining order be issued against the applicant.

8. On 17 May 2004 the applicant attempted to murder the husband of the child ’ s mother.

9. On 24 June 2004 the District Court issued a restraining order against the applicant. He was not allowed to approach the child, the mother of the child or her husband. This judgment was final.

10. On 16 May 2005 the District Court refused the applicant ’ s application for visiting rights. It found that the applicant had never met his daughter, who was by then four years old. However, the applicant had had his paternity confirmed and had also tried to establish contact with his daughter. On the basis of these circumstances, visiting rights could be granted to the applicant. As the daughter did not know her father, the meetings needed to be conducted in the presence of the mother. The applicant being detained, these meetings would have to take place in prison, which could not be regarded as a suitable place for initiating the meetings. Considering the existence of the restraining order, the mother could not be obliged to take the child to prison to meet the father. There were thus no grounds for granting visiting rights to the applicant at that moment. Such rights could be granted later when the applicant was released from prison.

11. The applicant did not appeal against this decision.

12. On 14 November 2007 the applicant requested the District Court to change the previous decision so that the daughter would have the right to visit and to maintain contact with her father first under supervision and later unsupervised. The mother opposed such visiting rights.

13. On 17 January 2008 the District Court refused the applicant ’ s application. It noted that the applicant had been found guilty of the attempted murder of the current husband of his child ’ s mother. Although a prison sentence as such did not prevent visits from taking place , the applicant had committed the criminal act in a state of diminished responsibility and , while in prison , he had seriously threatened the life of the child ’ s mother. It was not in the best interest of the child to meet her father , even under supervision.

14. By letter dated 18 February 2008 the applicant appealed against the decision of 17 January 2008 to the Court of Appeal ( hovioikeus , hovrätten ), reiterating the grounds already presented before the District Court.

15. On 25 February 2008 the applicant was released from prison.

16. On 16 October 2008 the Court of Appeal, after having held an oral hearing on 16 September 2008, rejected his appeal. It found that the child was at the time seven years old. Even though the applicant ’ s circumstances had improved since his release from prison, the child ’ s mother still had grounds to fear for her life and the life of the child. Moreover, the applicant had been diagnosed as suffering from mental problems which also gave an additional reason to fear for the child ’ s safety. In such a situation, the best interest of the child required that the applicant was not granted visiting rights.

17. By letter dated 15 December 2008 the applicant further appealed to the Supreme Court ( korkein oikeus , högsta domstolen ), reiterating the grounds of appeal already presented before the Court of Appeal.

18. On 27 April 2009 the Supreme Court refused the applicant leave to appeal.

B. Relevant domestic law

19. According to sections 9 and 10 of the Child Custody and Right of Access Act ( laki lapsen huollosta ja tapaamisoikeudesta , lagen angående vårdnad om barn och umgängesrätt , Act no. 361/1983), a child has a right to maintain contact with and visit the parent with whom he or she does not live. Custody and right of access must be decided in the best interest of the child.

COMPLAINT

20. The applicant complained under Article 8 of the Convention that his right to respect for private and family life had been violated as he had not been allowed to visit his daughter, even under supervision. There had been no such circumstances in which the best interest of the child would have required that she could not meet her biological father even under supervision. He claimed that he had never seen his daughter.

THE LAW

21. The applicant complained under Article 8 of the Convention that his right to respect for private and family life had been violated as he had not been allowed to visit his daughter, even under supervision.

22. Article 8 of the Convention reads as follows:

“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.”

23. The Government agreed that there had been an interference with the applicant ’ s respect for his family life as guaranteed by Article 8 of the Convention. However , this interference had a legal basis in the Child Custody and Right of Access Act and it pursued the legitimate aim of protecting health and morals as well as the rights and freedoms of others. It was made in the best interest of the child.

24. The Government maintained that the interference was also necessary in a democratic society. The right of access of the applicant had not been denied solely due to the fact that he had committed a serious crime but also due to the fact that there had been a risk of recurrence of violent behaviour on his part which could have had an impact on the child. The existence of such risk had been based on the psy chological evaluation of the applicant which had revealed a personality disorder as well as on witness statements indicating that the applicant had made very serious death threats while in prison. On the basis of this information the domestic courts had concluded that the applicant had posed a threat to his daughter even after his release from the prison and that it had not been in the child ’ s best interest to allow the meetings to take place , even if supervised. The daughter would have had to assume responsibility for not revealing , for security reasons , her place of residence , which would have had an impact on a 7-year-old child. The Government pointed out that the applicant had never met his daughter and that they were complete strangers to each other.

25. The applicant did not comment on the merits of the case.

26. The Court reiterates that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life , and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention. An interference with that right constitutes a violation of this provision unless it is “in accordance with the law” , pursues an aim or aims that are legitimate under Article 8 § 2 of the Convention and can be regarded as “necessary in a democratic society” (see K.A. v. Finland , no. 27751/95 , § 92, 14 January 2003).

27. In determining whether such a “necessity” existed in the given circumstances at the given time the Court will consider whether the reasons adduced to justify these measures were relevant and sufficient for the purpose of Article 8 § 2 of the Convention. The Court will have regard to the fact that perceptions of the appropriateness of intervention by public authorities vary from one Contracting State to another , depending on such factors as , inter alia , traditions relating to the role of the family and to State intervention in family affairs. However , a fair balance must be struck between the interests of the child and those of the parent (see , for example , Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000 ‑ VIII ) and in doing so particular importance must be attached to the best interests of the child which , depending on their nature and seriousness , may override those of the parent. In particular , the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child ’ s health and development (see Elsholz v. Germany [GC], cited above, § 50; see also Nuutinen v. Finland , no. 32842/96, § 128, ECHR 2000-VIII ). Moreover , it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned (see Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003 ‑ VIII (extracts); and Elsholz v. Germany [GC], cited above, § 48).

28. It follows from the aforementioned considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of contact rights between children and their parents but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see Sommerfeld v. Germany [GC], cited above, § 62) . The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake (see Sommerfeld v. Germany [GC], cited above , § 63; and Hokkanen v. Finland , 23 September 1994 , § 55 , Series A no. 299 ‑ A ).

29. Turning to the present case, the Court agrees with the parties that there has been an interference with the applicant ’ s respect for his family life as guaranteed by Article 8 of the Convention. The Court also agrees with the Government that this interference had a legal basis in the Child Custody and Right of Access Act and that it pursued the legitimate aim of protecting health and morals as well as the rights and freedoms of others. It is clear that the impugned measures were taken in the best interest of the child. Moreover, the procedural safeguards were sufficient in the present case, given that the applicant was at all times able to contest the negative decisions, which were fully reasoned, on his applications for visiting rights.

30. As to the necessity in a democratic society , the Court notes that the applicant has never met his daughter. When the applicant first applied for visiting rights , the District Court found in 2005 that he could be granted visiting rights after his release from prison. When the applicant applied for visiting rights the second time , a few months before his release from the prison , the domestic courts refused to grant access on the ground that the applicant had meanwhile been diagnosed as suffering from mental problems causing violent behaviour. The applicant has apparently not made any further application for visiting rights.

31. The Court considers that the domestic authorities ’ attitude towards granting the applicant visiting rights was not completely negative as the District Court considered it possible in 2005 to grant him such rights once he was released from prison. However , when the applicant made his second application , the situation had changed. The Court finds that the domestic courts could reasonably consider in 2008 that the applicant posed , due to his mental problems , a threat to his daughter even after his release from the prison and that it was not in her best interest to allow the meetings to take place , even if supervised. Such meetings would have also been difficult for the child , who had never met her father , who was thus a complete stranger to her. The Court considers that this interference was proportionate to the legitimate aim pursued.

32. Moreover, the Court is mindful of the fact that the domestic courts had no competence to review the applicant ’ s situation unless he made a new application to that effect, which he has apparently not done.

33. In conclusion, the Court considers that the reasons relied on by the domestic courts, especially by the Court of Appeal which in its judgment referred in particular to the Court ’ s case-law, were both relevant and sufficient to show that the interference complained of was “necessary in a democratic society”. Having regard to all the foregoing factors, and in particular the margin of appreciation afforded to the State in this area, the Court considers that the domestic courts struck a fair balance between the competing interests involved.

34. Accordingly, the applicant ’ s application is manifestly ill-founded and must thus be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Lech Garlicki Deputy Registrar President