CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 avril 1995

.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. 20592/92                       by Jan OLSSON                       against Norway         The European Commission of Human Rights (Second Chamber) sitting in private on 5 April 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  S. TRECHSEL                  J.-C. SOYER                  H.G. SCHERMERS                  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 3 July 1992 by Jan OLSSON against Norway and registered on 7 September 1992 under file No. 20592/92;         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 Swedish citizen born in 1944. He is currently residing at Jork, Germany. He is a physicist by profession.         The facts of the case, as submitted by the applicant or apparent from the documents submitted, may be summarised as follows.   Particular circumstances of the case         1.    Custody and access orders and Norway's refusal to have the            applicant's children returned         In 1975 the applicant married a Norwegian citizen, H. The applicant and his wife subsequently lived in Germany, where three children were born to them: Hadrian in 1976, Anita in 1978 and Lucas in 1979. All of them are Swedish citizens and their first language is German. In May 1989 the applicant and H. factually separated, the children remaining with the applicant.         On 15 May 1990 H. removed the children from Germany and settled with another man, A., in Norway, without informing the applicant of their whereabouts.         On 18 June 1990 the Central Office for Population Registration (Sentralkontoret for folkeregistrering) ordered, on H.'s and A.'s request, that their address be kept confidential. In the request H. had allegedly stated that she had sole custody of the children. The order was valid for one year.         In an interim decision of 27 July 1990 the District Court (Amtsgericht) of Buxtehude (Germany) granted H. sole custody of the children.         In August 1990 the applicant located H. and the children in Norway. He then instituted proceedings before the District Court (herredsretten) of Lier, Røyken and Hurum (Norway), requesting rights to visit the children. These proceedings ended in a court-approved settlement on 5 November 1990 granting the applicant such rights. The settlement did not affect the joint custody of the children under Norwegian law, nor did it imply that the applicant's visiting rights could only be exercised in Norway.         While exercising his visiting rights pursuant to the settlement the applicant brought the children back to Germany for the Christmas holidays in 1990. It had apparently been agreed that the children would return to Norway on 2 January 1991.         On 2 January 1991 the Court of Appeal (Oberlandesgericht) of Celle (Germany) quashed the interim decision of the District Court of Buxtehude, the applicant's and H.'s joint custody of the children thus being maintained. The applicant therefore kept the children in Germany.         On 4 January 1991, however, H. again removed the children from Germany and brought them to Norway. On 15 January 1991 she instituted divorce and custody proceedings before the City Court (byretten) of Drammen (Norway), alleging, inter alia, that the applicant had failed to comply with the settlement of 5 November 1990 by refusing to let the children return to Norway on 2 January 1991. When interviewed by a German social welfare officer on that day, the children had allegedly stated that they wished to return to Norway. It was further alleged that after the children's removal the applicant had declined to return their passports and personal belongings and that after their return the children had objected to seeing the applicant in Germany.         The applicant objected to H.'s action for divorce and custody, alleging, inter alia, that the children had twice been removed from Germany in breach of the 1980 Convention on the Civil Aspects of International Child Abduction (hereinafter "the 1980 Convention"). The proceedings were then adjourned pending the outcome of his request for a return of the children pursuant to the 1980 Convention.         In a petition to the Ministry of Justice (justisdepartementet) on 2 May 1991 the applicant requested the return of his children in accordance with the 1980 Convention. On 26 June 1991 the Enforcement Court (namsretten) of Drammen rejected the request, noting that the 1980 Convention had not entered into force with regard to Germany at the time of the children's removal from that country in May 1990. Accordingly, Norway was not required to return the children.         The applicant's appeal to the High Court (lagmannsretten) of Eidsivating was rejected on 19 September 1991. On 16 December 1991 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjaeremålsutvalg) rejected his further appeal. The applicant was notified of this judgment on 5 January 1992.         By a judgment of 4 March 1992 the Presiding Judge of the City Court of Drammen rejected the applicant's challenge of judge L. as being biased in the proceedings brought by H. The applicant's appeal against this decision was rejected by the High Court of Eidsivating on 11 June 1992. On 12 November 1992 the Appeals Selection Committee of the Supreme Court rejected his further appeal.         On 16 December 1992 the divorce and custody proceedings before the City Court of Drammen were resumed. The parties were heard on 14 and 15 April 1993. The applicant's renewed challenge of judge L. as being biased was again rejected. The applicant requested that the proceedings be further adjourned, inter alia pending the outcome of his criminal complaints concerning the children's removal from Germany. This request was also rejected.         On the merits H. objected to shared custody of the children. She also objected to visiting rights being granted to the applicant, and requested alternatively that the exercise of such rights take place in Norway. She referred to the deep conflicts between her and the applicant. The applicant had, for instance, objected to the children moving to Norway and to their attending school there. His correspondence with their Norwegian teachers and parents of other Norwegian children had become a heavy burden for two of the children. Moreover, the children preferred living with H. When Hadrian and Lucas had considered visiting the applicant in Germany, the applicant had allegedly told Hadrian that he would not be welcome in Germany unless he moved there permanently. Lucas had allegedly been told that the applicant would be unable to pay for his holidays in Germany.         The applicant objected to a divorce. He further requested sole custody of the children and that H. be granted visiting rights. He alleged, inter alia, that H. had obstructed reasonable schooling for the children and that she had arbitrarily removed the children from Germany. He objected to the statements by the children, alleging that they had been influenced by H. He emphasised that the children were Swedish citizens and had relatives in Sweden, for which reason he objected to the exercise of any visiting rights having to take place in Norway.         In its judgment of 28 April 1993 the City Court pronounced H.'s and the applicant's divorce and further granted H. sole custody of the children. The applicant was granted rights to visit Hadrian and Lucas according to the terms of the settlement of 5 November 1990. The custody and access decision was immediately enforceable. The City Court considered that both parents were fit to be custodians, but found that H. had been closer to the children in their everyday life. It further took account of statements made by the children on 15 April 1993 indicating that they all wished to continue living with H., with whom they apparently felt more secure. In view of the conflicts between H. and the applicant shared custody was excluded. Both Hadrian and Lucas had stated a wish that the applicant should have visiting rights. Anita had objected to such rights being granted. The City Court noted Anita's age and found that significant weight must be given to her own opinion.         The applicant lodged several requests for a revision and clarification of the District Court's judgment pursuant to section 157 of the Code of Civil Procedure (tvistemålsloven). These requests are allegedly still pending.         2.    The applicant's criminal and other complaints         On 10 October and 26 November 1990 the applicant filed criminal complaints with the police of Drammen, asserting that his children had been abducted by H. and A. and that he was being prevented from availing himself of his visiting rights. He alleged that these measures violated section 216 of the Penal Code (straffeloven) which makes child abduction a criminal offence.         On 19 September 1991 the police of Drammen formally decided to take no action in respect of the applicant's complaint of 10 October   1990, considering that the obstruction of the applicant's use of his visiting rights constituted no criminal offence.         On 25 April 1992 the applicant lodged a further complaint with the Public Prosecutor (statsadvokaten) of Eidsivating. This was formally left without action on 27 August 1992, the prosecutor considering that it did not show any reasonable grounds for investigating whether an offence under public prosecution had been committed.         On 30 November 1992 the Public Prosecutor also left the applicant's further complaint of 26 November 1990 without action.         On 21 January 1993 the Deputy Prosecutor-General (riksadvokaten) decided to take no action in respect of the applicant's complaints concerning the lack of a police investigation and the failure to bring criminal charges against H. and A. He stated, inter alia, the following:         (translation)         "... [At the time of the children's first removal from       Germany] [the applicant] and [H.] had shared custody of       them. This must be assumed to mean that one of the parents       cannot lawfully prevent the other from availing himself or       herself of his or her parental rights. In such       circumstances it is likely that [H.'s] behaviour could,       from a purely factual point of view, fall within the ambit       of section 216 of the Penal Code. There is no reason,       however, to pursue the matter by instituting an       investigation for the purpose of bringing criminal charges.         In addition to the fact that the events took place some two       years and nine months ago, the possible criminal behaviour       ended, in any case, already after a period of two months,       namely on 27 July 1990, when a German court granted [H.]       sole custody of the children. That judgment has also been       the basis for the subsequent court decisions made in       Norway.         The decisive factor for [my] assessment is, however, that       the fundamental dispute in the case ... cannot be resolved       by penal sanctions. The matter should be resolved by civil       courts.         In addition, possible criminal charges against [H.] would       undoubtedly affect the children negatively and cause a       further strain on them. In such a situation the use of the       limited resources available in the field of criminal       procedure would be questionable and in clear conflict with       the ... instructions concerning the priorities to be made.       ..."         In his letter of 21 December 1993 to the Prosecutor-General, the Parliamentary Ombudsman (stortingets ombudsman for forvaltningen) observed that the applicant's criminal complaints had not been subject to any investigations. He questioned the Deputy Prosecutor-General's decision of 21 January 1993, given that it had been based on the consideration that the principal matters at issue should be decided in civil proceedings as well as on a consideration of the children's interests. The Ombudsman underlined that under domestic law an investigation shall be carried out when a criminal complaint provides reasonable grounds for investigating whether an offence under public prosecution has been committed. Thus, a complaint could only be left without action if it was clear that the reported behaviour did not constitute such an offence. Finally, taking no action on a complaint which objectively concerns suspected criminal behaviour on the grounds that the matter is in reality a dispute under civil law could be seen as taking a stand on the question of criminal responsibility. The Ombudsman invited the Prosecutor-General to clarify his position on the matter. It is unclear whether any such reply has been submitted.         The applicant has also lodged numerous other unsuccessful complaints with Norwegian authorities for the purpose of having his children returned to Germany.         The applicant has allegedly been unable to see his children between 4 January 1991 and 14 April 1993 and as from that date onwards.   COMPLAINTS   1.     The applicant complains under Article 8 of the Convention about lack of respect for his family life essentially resulting from the following:         After his children's first removal from Germany in 1990 Norway refused his request to return them pursuant to the 1980 Convention. Although Germany was not a Party to the 1980 Convention at the time of that removal, this would not have prevented an agreement from being reached between the two countries for the purpose of having the children returned. However, no active steps were taken by Norway to this end in spite of the applicant's de facto care of the children at the time of their removal and in spite of their ties to Germany. On the contrary, their whereabouts were ordered to be kept secret from the applicant. Nor were the children returned after their second removal from Germany in 1991, although this occurred after the entry into force of the 1980 Convention in respect of that country and after shared custody of the children had been maintained by a German court. Finally, in spite of the applicant's numerous complaints the Norwegian authorities have failed to take legal action against the purported child abductors. The applicant claims that this prolonged the arbitrary keeping of the children in Norway which prevented him from exercising his custody and visiting   rights and which eventually resulted in custody being awarded solely to H. and visiting rights being awarded to himself only in respect of two of his children.   2.     The applicant further complains that he has been deprived of an effective remedy within the meaning of Article 13 of the Convention against the violations of his rights under Article 8.   THE LAW   1.     The applicant complains about lack of respect for his family life and invokes Article 8 (Art. 8) of the Convention which 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."         The Commission considers that in the assessment of whether the Norwegian authorities showed a lack of respect for the applicant's family life it has to examine separately the various acts of which he complains.         (a)   The refusal to return the applicant's children after their       first removal from Germany         The first question to be answered is whether the Norwegian authorities, in not returning the applicant's children to Germany in 1990, showed a lack of respect for the applicant's family life. The Commission is not required to decide whether or not the facts alleged by the applicant in this connection disclose any appearance of a violation of Article 8 (Art. 8) of the Convention. It follows from Article 26 (Art. 26) that the Commission may only deal with a matter which has been brought to its attention within six months from the end of the decision complained of, or from the end of the situation complained of (e.g., No. 11123/84, Dec. 9.12.87, D.R. 54 pp. 52 et seq.)         The Commission observes that the situation here complained of, namely that the Norwegian authorities refused, in 1990, to return the applicant's children to Germany, ended at the latest with the children's return to that country in December 1990. The present application was lodged on 3 July 1992, which is more than six months later. An examination of the complaint does not disclose the existence of any special circumstances which might have interrupted or suspended the running of the six months' period.         It follows that this aspect of the complaint has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         (b)   The secrecy order concerning the children's whereabouts         The next question to be answered is whether the Norwegian authorities, in ordering that the applicant's children's whereabouts in Norway as from May 1990 be kept secret from him, showed a lack of respect for his family life. However, recalling the above-mentioned six months' rule, the Commission again considers that it is not required to decide whether or not the facts alleged in this respect disclose any appearance of a violation of Article 8 (Art. 8) of the Convention.         The Commission observes that the secrecy order concerning the applicant's children's whereabouts was issued on 18 June 1990 and expired one year later. Even if the six months' period is considered to have started from the date of expiry of the order in June 1991 the present complaint was lodged more than six months later, namely on 3 July 1992. An examination of the complaint does not disclose the existence of any special circumstances which might have interrupted or suspended the running of the six months' period.         It follows that this aspect of the complaint has also been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         (c)   The refusal to return the applicant's children after their       second removal from Germany         The next question to be examined is whether the Norwegian authorities, in refusing the applicant's request for a return of his children to Germany in 1991, showed a lack of respect for his family life as guaranteed by Article 8 (Art. 8) of the Convention. The Commission recalls that there may be positive obligations inherent in such "respect", if it is to be effective (cf., e.g. Eur. Court H.R., Hokkanen judgment of 23 September 1994, Series A no. 299-A, para. 55). However, in a dispute concerning custody or visiting rights in respect of a child any obligation to apply coercion must be limited, since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and its rights under Article 8 (Art. 8). It is for the national authorities to strike a fair balance between the conflicting interests at stake. What is decisive is whether the authorities have taken all necessary steps as can reasonably demanded in the special circumstances of each case (cf. the above-mentioned Hokkanen judgment, loc.cit., para. 58).         The Commission further recalls that certain procedural requirements are also implicit in Article 8 (Art. 8), i.e. a parent must have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide him or her with the requisite protection of the interests at stake (cf. Eur Court H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, para. 64).         As regards the present aspect of the complaint under Article 8 (Art. 8), the Commission recalls that at the time of the children's second removal from Germany in January 1991 joint custody of them had been maintained by judgment of a German court. However, when interviewed by a German social welfare officer on 2 January 1991, the children, then   fourteen, twelve and eleven years old, appear to have expressed the wish to return to Norway. The applicant apparently had no intention of complying with this wish and two days later the children were removed to Norway by their mother. After the children's return to Norway the applicant had apparently declined to return their passports and personal belongings. Moreover, after their return the children had apparently objected to seeing the applicant in Germany.         The Commission considers that in these particular circumstances, and having regard notably to the children's age and their rights under Article 8 (Art. 8), it has not been shown that the Norwegian authorities failed to strike a fair balance between the various conflicting interests at stake. There is thus no appearance of any lack of respect for the applicant's family life in this respect.         Finally, in so far as certain procedural safeguards are implicit in Article 8 (Art. 8), the Commission observes that the applicant had ample opportunity to present his own views to the Norwegian courts and that he also made use of this opportunity. He was thus involved in the proceedings to a degree sufficient to provide him with the requisite protection of his interests. Accordingly, there is no appearance of a violation of Article 8 (Art. 8) in this respect either.         It follows that this aspect of the complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         (d)   The alleged failure to take other measures         The last question to be examined is whether the Norwegian authorities, in failing to take other measures demanded by the applicant, showed a lack of respect for his family life under Article 8 (Art. 8) of the Convention. However, recalling its considerations under para. 1 (c) above, the Commission cannot find that the Norwegian authorities, in dealing with the applicant's various complaints, failed to strike a fair balance between the various conflicting interests at stake. There is thus no appearance of any lack of respect for the applicant's family life in this respect either.         It follows that this aspect of the complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant further complains that he has been deprived of an effective remedy within the meaning of Article 13 (Art. 13) of the Convention against the violations of his rights under Article 8 (Art. 8). Article 13 (Art. 13) reads as follows:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy       before a national authority notwithstanding that the       violation has been committed by persons acting in an       official capacity."         In the light of its above conclusions in respect of the complaint under Article 8 (Art. 8) of the Convention the Commission considers that the applicant has no "arguable claim" of any violation of that provision which would warrant a remedy under Article 13 (Art. 13) (Eur. Court H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172, p. 20, para. 46).         It follows that this complaint must also be rejected as being 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)                            (H. DANELIUS)