CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 janvier 1994

.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. 21642/93                       by S. G.P.                       against Spain         The European Commission of Human Rights (Second Chamber) sitting in private on 12 January 1994, 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                  J. MUCHA                  D. SVÁBY              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 1 February 1993 by S. G.P. against Spain and registered on 8 April 1993 under file No. 21642/93;         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   Particular circumstances of the case         The applicant is a Spanish national born in 1946. He is an official of the merchant Navy. Before the Commission he is represented by M. Francisco Javier Carbonell Rodriguez, a lawyer practising in Madrid.         The facts of the case, as submitted by the applicant, may be summarised as follows.         On 22 November 1990, the applicant's spouse introduced simultaneously two actions for legal separation and interim measures before the Judge of first instance of Alcala de Henares, complaining of violent behaviour of her husband towards her and their sons. She invoked Article 82 para. 1 of the Civil Code, which refers to "offensive and harmful behaviour and any other serious and repeated violations of conjugal duties". By decision of 18 January 1991, the first instance Judge of Alcala de Henares granted the interim measures applied for by the applicant's spouse, namely the custody over their sons, the use of the conjugal domicile and a monthly maintenance allowance.         The applicant opposed both petitions of his spouse.         By decision of 9 April 1991, the first instance Judge dismissed the plea of the applicant's spouse in the main proceedings and suspended the interim measures adopted, considering that the allegations of ill- treatment and vexatious behaviour had not been proven. Consequently, on 30 April 1991, the interim measures were declared without effect.         The applicant's spouse lodged an appeal with the Audiencia Provincial of Madrid against the decision given in the main proceedings. By decision (providencia) of 8 May 1991, the Audiencia Provincial suspended the effects of the decision appealed.   Consequently, the interim measures were applied again.   As the applicant's appeals against the former decision were dismissed, be sought relief before the Constitutional Court and lodged a "de amparo" appeal, alleging a violation of Article 24 of the Spanish Constitution, in that he did not have the right to an effective remedy against the decision of the Audiencia Provincial concerning interim measures. The Constitutional Court declared the appeal inadmissible on 9 March 1992 as being manifestly ill-founded.         By decision of 29 May 1992, the Audiencia Provincial of Madrid granted the legal separation and confirmed the interim measures with slight modifications taking into account the applicant's profession, especially concerning the regime of visits to his sons. The Audiencia Provincial based its decision on the loss of "affectio conjugalis" which had not as such been invoked by the applicant's spouse before the First Instance Court and interpreted Article 82 of the Civil Code as not requiring proof of any vexatious or humiliating behaviour.         The applicant lodged again an appeal of "amparo" with the Constitutional Court alleging another violation of Article 24 of the Spanish Constitution. On 14 December 1992, the Constitutional Court declared the appeal inadmissible as being manifestly ill-founded.         The applicant is at present involved in proceedings before the Supreme Court, complaining of a judicial error.   Relevant domestic law   (Original)   Código Civil, artículo 82         "Son causas de separación:         1° El abandono injustificado del hogar, la infidelidad conyugal,       la conducta injuriosa o vejatoria y cualquier otra violación grave       o reiterada de los deberes conyugales"...   (Translation)   Civil Code, Article 82         "The following constitute reasons for legal separation:         1st. The unjustified abandoning of the marital domicile, the       conjugal infidelity in marriage, the humilliating or vexatious       behaviour, or any other serious and repeated violation of the       conjugal duties".   COMPLAINTS   1.     The applicant complains under Article 8 of the Convention that the legal separation and the interim measures adopted in the legal separation proceedings wrongly interfered with the exercise of his right to respect for his family life.   2.     The applicant further complains that he has not had the right to an effective remedy in order to suspend the execution of the interim measures in question, taking into account that those measures were confirmed on the basis of a judicial interpretation of the legal provisions, and not on the basis of the texts themselves. He states that this also amounts to a violation of his right to respect for his family life and invokes Article 13, combined with Article 8 of the Convention.   3.     The applicant finally complains that he did not have the right to an independent tribunal insofar as the Audiencia Provincial of   Madrid, after having recognised that the loss of the "affectio conjugalis" is not expressly provided for in the law, granted the legal separation and confirmed the interim measures. In the applicant's opinion, this also constitutes an interference with his right to respect for his family life. He invokes Articles 6 para. 1 and 8 of the Convention.   THE LAW   1.     The applicant considers that the legal separation and the interim measures adopted in the legal separation proceedings in which he is involved wrongly interfered with the exercise of his right to respect for his private and family life under Article 8 (Art. 8) of the Convention, which provides 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."         With regard to the judicial decisions of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its task is to ensure the observance of the obligations undertaken by the parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see e.g. No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).         Assuming that the decisions complained of interfered with the applicant's right to respect for his family life, the Commission has examined whether they were "in accordance with the law" and "necessary in a democratic society" for any of the purposes set out in para. 2 of Article 8 (Art. 8).         It first observes that the Audiencia Provincial based its decision of 29 May 1992 on an interpretation of Article 82 of the Civil Code which does not appear to be arbitrary, given that Article 82 of the Civil Code refers in a general way to "any ... serious and repeated violation of the conjugal duties". The Commission is therefore satisfied that the interference complained of was lawful. It also finds that it could reasonably be considered as necessary in a democratic society for the rights and freadoms of others, i.e. the applicant's spouse and sons.         It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     As regards the alleged lack of an effective remedy against the execution of the interim measures concerned, the Commission notes that the applicant has used the remedies available under Spanish law. The fact that he did not succeed does not amount to a violation of his right, under Article 13 (Art. 13) of the Convention, to an effective remedy before a national authority.         It follows that this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.      The applicant finally complains under Articles 6 para. 1 and 8 (Art. 6-1, 8) of the Convention that he did not have the right to an independent tribunal in that the Audiencia Provincial of Madrid granted the legal separation on the basis of a reason which had not as such been invoked by the applicant's spouse before the Court of first instance, namely the lack of "affectio conjugalis".   In the applicant's opinion, this also constitutes an interference with his right to respect for his family life.         The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention states :         "In the determination of his civil rights and obligations...,       everyone is entitled to a fair and public hearing ... by an       independent and impartial tribunal established by law". ...         In this respect, the Commission considers that the Audiencia Provincial was simply appreciating the factual situation and the law, in a way which was different from the applicant's point of view.   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 unanimously         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)