FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61558/00 by Abdeslam BGHIAL EL HACH HOUCH against Finland

The European Court of Human Rights (Fourth Section) , sitting on 21 May 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mr J. Makarczyk , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application lodged on 13 June 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Moroccan and Finnish citizen of Moroccan origin who was born in 1961 and lives in Oslo, Norway.

A. The circumstances of the case

In 1990 the applicant married a Finnish citizen, M., with whom he had two children in 1992 and 1994. The children also have dual nationality. In 1995 the parents divorced and the District Court ( käräjäoikeus , tingsrätten ) of Oulu awarded the mother sole custody of the children, whereas they were entitled to receive unsupervised visits by the applicant every other weekend and during certain holidays. In 1996 the Court of Appeal ( hovioikeus , hovrätten ) of Rovaniemi ordered that the meetings should take place on specific premises outside the home of the children. The applicant was refused leave to appeal to the Supreme Court ( korkein oikeus , högsta domstolen ).

In 1998 the applicant sought to be awarded joint custody of his children as well as to have the visiting arrangements modified. With the mother’s agreement, he had been caring for the children in his home despite the terms of the Court of Appeal’s judgment . In the summer of 1998, however, the mother had refused to comply even with those terms, instead insisting on supervised visits. The applicant requested that the children be allowed to stay with him in his new family (his new wife and their mutual child) during most of their school holidays. At any rate, the applicant requested to obtain information from the authorities on matters relating to his children.

During the family advice centre’s investigation into the best interests of the children the parents agreed to the children being interviewed in March 2000. Shortly before the date in question the mother telephoned the applicant from Norway, where she gone with the children. In its recommendation of May 2000 to the District Court the family advice centre favoured the applicant’s request to have the children stay with him during holidays.

Before the District Court both parents were assisted by members of the Bar. The court took oral evidence from the parties and the mother’s sister. The mother opposed the applicant’s requests to the District Court and could only agree to supervised visits twice a month in Norway. She stressed the dual nationality of the children and their inclusion in the applicant’s passport, which would facilitate their abduction to Morocco. She also pointed out that his new wife was also Moroccan.

On 30 June 1999 the District Court maintained the sole custody of the children. Agreeing with the local family advice centre, the District Court nevertheless entitled them to spend most of their school holidays with the applicant in Finland. The District Court had particular regard to the distance between their current home in Norway and that of the applicant in Finland, which would have rendered the access arrangement proposed by the mother impracticable and expensive. The District Court further entitled the applicant to obtain information from the authorities on matters relating to his children.

On the mother’s appeal the Court of Appeal, in August 1999, stayed enforcement of the District Court’s judgment . In its judgment of 12 January 2000 the Court of Appeal ordered that the meetings between the children and the applicant could only take place where the children were living in Norway. The meetings were further to be supervised and could only take place on premises which the applicant had located in advance. The Court of Appeal noted the applicant’s declared intention to bring the children to his parents in Morocco, which had raised fear in M. that the children could be abducted. In the absence of a bilateral treaty preventing child abduction from Finland to Morocco and given the age of the children and their current place of residence, the Court of Appeal concluded that it was not appropriate for meetings between them and the applicant to take place in Finland.

The Court of Appeal reached its judgment after a re-hearing, where the parents were again assisted by counsel and which included the taking of testimony from one additional witness on behalf of M. and from two further witnesses proposed by the applicant. The Court of Appeal also had regard to information from the Norwegian authorities as well as to the applicant’s solemn undertaking at the Moroccan Embassy to return to Finland with the children after any visit to his parents.

In seeking leave to appeal to the Supreme Court, again with the assistance of counsel, the applicant argued that he had been discriminated against on the basis of his origin in that the Court of Appeal had suspected him of planning to abduct his children to Morocco. The Court of Appeal had furthermore wrongly assumed that the Norwegian authorities would be assisting in locating premises for the visiting arrangements. The applicant further argued that had he wanted to abduct the children he would have had ample opportunity to do so at an earlier stage, when he was occasionally caring for the children in their mother’s absence, even after the Court of Appeal’s judgment of 1996. Leave to appeal to the Supreme Court  was refused on 31 May 2000.

Meanwhile, in April 2000 the District Court of Hammerfest in Norway dismissed the applicant’s request for enforcement of the visiting arrangements, noting that according to the mother she had not been obstructing the preparation of visits. On the contrary, the applicant had not been in contact with her to agree on the dates of the visits. It is not known whether the applicant appealed against this decision. In the autumn of 2001 the applicant moved to Norway.

B. Relevant domestic law

According to the 1983 Act on Child Custody and Right of Access ( laki lapsen huollosta ja tapaamisoikeudesta , lag angående vårdnad om barn och umgängesrätt 361/1983), a matter relating to child custody and right of access shall be resolved by keeping the interests of the child foremost in mind. To this end, special attention shall be paid to the manner in which custody and right of access may best be realised in the future (section 10).

COMPLAINT

The applicant complains that in maintaining his ex-wife’s sole custody of their children and in ordering that the applicant could meet them only in  Norway the Finnish Court of Appeal discriminated against him on the basis of his origin and because of his wish to convey his culture to his children despite their mother’s opposition. He had never kept secret his intention to take the children to see their grandparents in Morocco but effectively lost all contact with them for that very reason. He invokes Articles 6 and 14 of the Convention.

THE LAW

The applicant complains that in the Finnish custody and access proceedings he was discriminated against on the basis of his Moroccan origin. He invokes Articles 6 and 14 of the Convention. The Court will also examine this grievance under Article 8 of the Convention which, as far as relevant, reads as follows:

“1. Everyone has the right to respect for his ... family life, ...

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.”

Article 6 reads, in its relevant parts, as follows:

“1. In the determination of his civil rights and obligations ... , everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ...“

Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court recalls that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (see, amongst others, Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII). An interference with a right guaranteed by Article 8 constitutes a violation of this provision unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”. The Court must also determine whether, having regard to the particular circumstances of the case and notably the importance of the decisions to be taken, the applicant was involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests (see, for example, the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 55, § 87). Consideration of what lies in the best interest of the child is of crucial importance in every case involving custody or access arrangements. It must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. The Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see, for example, the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55).

As for Article 6 § 1, the Court’s task is to assess whether or not the proceedings taken as a whole were fair within the meaning of that provision, having regard to all the relevant circumstances, including the nature of the dispute and the character of the proceedings in issue, the way in which the evidence was dealt with and whether the proceedings afforded the applicant an opportunity to state his case under conditions which did not place him at a substantial disadvantage vis-à-vis his adversary (see, for example, the Helle v. Finland judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2928, § 53).

The right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification - or when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different. A difference in treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Thlimennos v. Greece [GC], no. 25735/94, § 44, ECHR 2000-IV, and, for example, Camp and Bourimi v. the Netherlands , no. 28369/95, § 37, ECHR 2000-X).

The Court finds no indication of a violation of the applicant’s rights under Article 6 § 1 in the proceedings before the Finnish courts. It notes, in particular, that the applicant was assisted by counsel throughout the proceedings and availed himself of his right to have witnesses examined on his behalf. Nor do the reasons given by the Court of Appeal disclose any discriminatory attitude towards the applicant.

The Court of Appeal’s decision to maintain sole custody with the mother and to limit meetings between the applicant and their children to premises in Norway were based on the Act on Child Custody and Right of Access and thus “in accordance with the law”. Moreover, they sought to pursue the legitimate aim of protecting the rights and interests of the children and the grounds on which the Court of Appeal relied appear to have been based on relevant and sufficient reasons. Accordingly, the Court of Appeal did not exceed the margin of appreciation afforded to it under paragraph 2 of Article 8. The applicant was also sufficiently involved in the decision-making.

The Court finally notes that the applicant moved to Norway in the autumn of 2001, which should have facilitated the implementation of the access arrangements.

In sum, the Court finds no appearance of a breach of Article 14 of the Convention, neither taken together with Article 6 nor with Article 8. Neither is there any indication of a violation of either Article 6 or Article 8 taken separately.

It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

T.L. Early Nicolas Bratza Deputy Registrar President