CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 16586/90                       by   Elizabeth Lauren McCALLISTER and                           Stephanie Michelle LORANCE                       against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 1 December 1993, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO              Mr.    K. ROGGE, 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 24 April 1990 by Elizabeth Lauren McCALLISTER and Stephanie Michelle LORANCE against the Netherlands and registered on 30 April 1990 under file No. 16586/90;        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 applicants, both nationals of the United States of America, are a mother and her daughter.   They were born in 1949 and 1982 respectively.   The mother, who was a judge in the USA, resides in the Netherlands and the daughter in the USA.   Before the Commission the first applicant is represented by Mr. A.P.L. Pinkster, a lawyer practising in Amsterdam.   The second applicant is represented by the first applicant.        The facts of the case, as submitted by the parties, may be summarised as follows.        On 3 October 1985 the District Court of Logan County, Oklahoma, pronounced the divorce between the first applicant and her husband. The Court awarded the custody of their daughter to the first applicant and determined the father's visiting rights.        The first applicant states that after a while she became aware that her ex-husband sexually abused their daughter and reported this to the competent authorities.   The American authorities instituted inquiries but found no reason to terminate the father's visiting rights.   In March 1986, at the first applicant's and her mother's request, the daughter was examined by a psychologist in Oklahoma who reported to the first applicant's lawyer that sexual abuse by her father was likely to have occurred and he advised that the father, for the safety of his daughter, should only visit her in the presence of "a reasonable adult".   As the abuse continued according to the first applicant, mother and daughter moved in October 1987 to Hawaii.   Since the first applicant's ex-husband would not leave them in peace, the applicants subsequently left the United States for Europe.        On 10 November 1987 the District Court of Logan County appointed the father as the second applicant's provisional guardian.        By judicial order of 28 January 1988 the District Court, without having heard the first applicant, granted the ex-husband's request to transfer the custody over the second applicant to him in view of the first applicant's sudden departure from Oklahoma and her failure to respect his visiting rights.   According to the respondent Government, the Court had carried out an investigation into the charges of incest prior to this decision.   This is contested by the applicants.        On 1 November 1989 the applicants were apprehended by the Amsterdam Municipal Police (gemeentepolitie) as they were driving in a rented car which had been reported missing by its owner, a Swiss car rental company.        The first applicant was immediately brought before the Assistant Public Prosecutor (Hulpofficier van Justitie), who on the same day remanded her into police custody (inverzekeringstelling) as it had also appeared that she carried two different passports bearing different names and a forged driving licence and that she was in possession of a stolen credit card.        The second applicant was handed over to staff of the Amsterdam municipal Youth and Vice Squad (Jeugd- en Zedenpolitie), who brought her to a foster home on 1 November 1989.   The address of this place was not disclosed to the first applicant.   On the same day the first applicant was allowed to contact her daughter and her mother by telephone.        Also on 1 November 1989 the Amsterdam Police contacted the Swiss authorities in respect of the rented car and the United States Consulate in respect of the different passports the first applicant carried and in order to verify her identity.        On 2 November 1989 the United States Consulate informed the police that the passports had all been withdrawn.   On the same day the United States authorities requested the first applicant's provisional arrest (voorlopige aanhouding) pending a formal request for extradition on the basis of a warrant for her arrest on the suspicion of having violated the Uniform Child Custody Act.        The first applicant's ex-husband was informed by an unknown source that his ex-wife and their daughter had been apprehended in Amsterdam.   Thereupon he travelled to Amsterdam.        On 2 November 1989 the Public Prosecutor in charge of the case had several telephone conversations with the then lawyer of the first applicant and informed him that the first applicant's ex-husband was expected to arrive in the Netherlands during the weekend of 4 and 5 November 1989.   The Public Prosecutor also informed the first applicant's lawyer that he saw no reason not to entrust the second applicant to her legal guardian, unless the lawyer could advance convincing arguments to the effect that this could be damaging to the child.   He further mentioned the possibility of injunction proceedings (kort geding) and a provisional supervision order (voorlopige ondertoezichtstelling) as a means for the first applicant to prevent the second applicant from being handed over to her father.        On 3 November 1989 a further telephone conversation between the Public Prosecutor and the first applicant's lawyer revealed that the first applicant had not availed herself of the above remedies and that it was unlikely that she would do so in the near future.        On 3 November 1989 the Investigating Judge (Rechter-Commissaris) heard the first applicant, in the presence of her lawyer, in respect of her detention pending extradition proceedings.   On that occasion, the Public Prosecutor informed the first applicant that he would have no alternative but to hand the child over to her father if no documents shedding a different light on the case were submitted or if she would not take any steps such as instituting injunction proceedings.   In the course of this hearing it became known that the first applicant's ex- husband was on his way to Amsterdam.   The first applicant stated that she was worried about her daughter and that she objected to her daughter being handed over to her ex-husband who had been "convicted" for having sexually abused her.   The first applicant was informed that her lawyer and the Public Prosecutor had agreed that the Public Prosecutor would not hand the second applicant over to her father without prior consultation with the first applicant's lawyer.        The ex-husband arrived in the Netherlands on or about 4 November 1989.   On 6 November 1989, following contacts between the judicial authorities and the Child Welfare Council (Raad voor de Kinderbescherming), the second applicant was handed over to her father after the Youth and Vice Squad and the Public Prosecutor had ascertained that the child's reaction when meeting her father was normal.   The father took her immediately back with him to the United States.   The first applicant's lawyer was informed about this when they had already boarded the airplane bound for the United States.        On 27 December 1989 the United States authorities submitted a formal request for the first applicant's extradition.        By judicial order of 27 February 1990 the Regional Court (Arrondissementsrechtbank) of Amsterdam refused to authorise the first applicant's extradition in respect of the charge that she had deliberately not respected her ex-husband's lawful visiting and custody rights in an illegal, unlawful and criminal way and authorised her extradition in respect of the remainder of the charges.        By decision of 26 March 1990 the Deputy Minister of Justice (Staatssecretaris van Justitie) refused the extradition on humanitarian grounds, considering that the first applicant had committed the acts she was charged with in order to protect her daughter against a danger to her well-being, which she had reasons to believe existed.        On 26 February 1992 the Dutch authorities granted the first applicant a residence permit on compelling humanitarian grounds.        Meanwhile, the first applicant has instituted civil proceedings against the State of the Netherlands in order to obtain compensation for the fact that her daughter was handed over to the father.   These proceedings are still pending.   COMPLAINTS   1.    The first applicant complains under Article 8 of the Convention that her right to respect for her family life with her daughter has unjustly been interfered with by handing her daughter over to her ex- husband and by placing her daughter at an address unknown to the first applicant without allowing contacts between them, whereas the authorities knew or could know that for more than two years she had raised and cared for her daughter.   2.    The first applicant complains under Article 6 para. 1 of the Convention that she did not receive a fair hearing in respect of the decision by the Dutch authorities to hand her daughter over to her ex- husband, of which she was only informed when her ex-husband and her daughter were already on their way to the United States.   She further complains that the relevant documents and information concerning this decision have not been brought to her attention and that, as far as she knows, no procès-verbal or report has been drawn up on the factual handing over of her daughter to her ex-husband.   3.    The second applicant complains under Article 5 of the Convention that her right to security of person has been violated by the Dutch authorities by handing her over to her father, knowing that there were strong indications that he had sexually abused her in the past.   4.    The second applicant complains under Article 6 para. 1 of the Convention that the Dutch authorities ignored her mother's request that the second applicant be assisted by a lawyer in order to defend herself properly against the intention to hand her over to her father.   She further complains that she has not been enabled to take notice of any documents in relation to this transfer.   5.    The second applicant complains under Article 8 of the Convention that, in view of the fact that she lived for two years only with her mother, the Dutch authorities unjustly interfered with her right to respect for her family life, in particular having regard to the fact that there was no legal basis for the Dutch authorities' interference with her rights under Article 8 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 24 April 1990 and registered on 14 May 1990.        On 8 January 1993 the Commission (Second Chamber) decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.        The Government's observations were received by letter dated 2 April 1993 and the applicants' observations were dated 6 June 1993.        On 8 September 1993 the applicants were granted legal aid.   THE LAW   1.    The first applicant alleges violations of Articles 6 and 8 (Art. 6, 8) of the Convention in respect of the Dutch authorities' decision to hand the second applicant over to her father.        However, the Commission is not required to decide whether or not the facts alleged by the first applicant disclose any appearance of a violation of the invoked provisions as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.        The respondent Government submit that the first applicant has not exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention since she failed to institute injunction proceedings to prevent her daughter from being handed over to her father, despite the fact that the Public Prosecutor had mentioned this remedy to her lawyer.        The first applicant submits that no time-limit had been fixed for her lawyer to explicitly state whether he would be taking any steps. She was informed about the agreement that the second applicant would not be handed over to her father without prior consultation with the first applicant's lawyer on 3 November 1989, i.e. a Friday.   During the weekend of 4/5 November 1989 her lawyer made "every effort to induce the authorities to take some form of action" but the Juvenile Judge referred the matter to the Child Welfare Council which did not see any merit in the case.        The Commission notes that the Public Prosecutor mentioned to the first applicant's lawyer on 2 November 1989 the possibility of injunction proceedings and a provisional supervision order as a means for preventing the second applicant from being handed over to her father.   It notes that the first applicant has failed to use the domestic remedies available to her to prevent the situation she now complains of before the Commission.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the first applicant, according to the generally recognised rules of international law, from having recourse to these remedies.   In particular, the first applicant has not shown that the above remedies would have been ineffective nor did she present any evidence in support of the allegation that her lawyer tried, without success, to contact a judge over the weekend with a view to introducing injunction proceedings.        It follows that the first applicant has not complied with the condition as to the exhaustion of domestic remedies and her application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The first applicant complains on behalf of the second applicant that the latter's right to security of person has been violated by the Dutch authorities by handing her over to her father, that the Dutch authorities ignored her mother's explicit request that the second applicant be assisted by a lawyer and that the Dutch authorities unjustly interfered with her right to respect for her family life.   She relies on Articles 5, 6 and 8 (Art. 5, 6, 8) of the Convention.        However, the Commission notes that on 28 January 1988, i.e. before the introduction of the present application, the District Court of Logan granted the request of the second applicant's father to transfer the custody over the second applicant to him.   It follows that the first applicant cannot as custodian represent the second applicant in the present proceedings.   Moreover, she has not shown that she is otherwise authorised to represent her daughter with respect to this application.        In these circumstances the Commission concludes that the first applicant was not, on 24 April 1990, in such a position of authority vis-à-vis the second applicant as to be able to introduce an application on her daughter's behalf.   It follows that this part of the application cannot be regarded as being brought on behalf of the second applicant, and is incompatible ratione personae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber          (K. ROGGE)                                    (S. TRECHSEL)