FIRST
SECTION
CASE OF SANCHEZ CARDENAS NORWAY
(Application no. 12148/03)
JUDGMENT
This judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be subject to editorial
revision.
In the case of Sanchez Cardenas v. Norway
The European Court of Human Rights (First
Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Mr L. Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 13 September 2007 ,
Delivers the following judgment, which was
adopted on the last‑mentioned date:
PROCEDURE
1. The case originated in an application (no. 12148/03)
against the Kingdom
of Norway 5 April 2003 . Having originally been designated by the
initials J.S.C., the applicant subsequently agreed to the disclosure of his
name.
2. The applicant was represented, as from 1 September 2005 , by
Mr S. Klomsæt, a lawyer practising in Oslo
3. The applicant complained in particular of violations of
Articles 6 § 1 and 8 of the Convention on account of the reasoning in a
judgment of 27 September 2002 of Gulating High Court rejecting his
claim for a right of access in respect of his children, L. and A.
4. By a decision of 1 June 2006 , the Court declared the application admissible
in part.
5. The Chamber having decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing
to each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant is a Chilean national who was born in
1968 and lives in Bergen , Norway
7. The applicant has two sons L. and A. (born respectively
on 11 June 1994
and 24 February 1996 )
with Ms H.T., a Norwegian national, with whom he entered into a relationship in
1992/1993 and cohabited from mid 1994 until the end of that year. In 1995
(before A. was born) the applicant and H.T. reached an agreement whereby he had
certain access rights to L.
8. Since around 1997 he has cohabited with Ms G.A.D. and
her adolescent son.
9. A dispute arose as to the applicant's access to L. and
A. On 9 June 1997
H.T. reported him to the police for allegedly having sexually abused L. She
based her allegations on statements made by L. The mother gave statements to
the police and L. was interviewed by a judge without anything significant
emerging in the case. In July 1998 the State Prosecutor discontinued the
investigation, which decision the Director of Public Prosecutions confirmed on
appeal in October 1998.
10. In the year 2000 the applicant brought judicial
proceedings before the Bergen City Court (byrett),
claiming a right of access to his two sons (sections 44 and 44A of the Children
Act 1981). On 7 December
2000 the City Court refused a request by H.T. to have an expert
witness appointed.
11. By a
judgment of 18 April 2001 the City Court granted the applicant access every
other week-end and for approximately half of the holiday periods and devised a
plan for stepping up access. To give the above immediate effect, the City Court
issued an interlocutory order.
In reaching the above conclusions, the City
Court rejected the accusations made by the boys' mother that the applicant had
sexually abused L. It observed that according to H.T. there were only 10
occasions on which the applicant had been on his own with his son, namely in
that they had been in a room with the door shut in H.T.'s apartment. In her
view it was most probable that the abuse had occurred on these occasions,
though she did not have concrete evidence to this effect. The City Court found
it excluded on the evidence before it that the applicant had sexually abused L.
It attached decisive weight to the fact that the applicant's access to his son
had taken place each time under the supervision of at least one other person
and that on the 10 occasions on which he and the son had been on their own in
the latter's room, it was for a very short time and in a situation where the
child's mother could have entered the room at any moment. The visits in
question took place more than a year and a half ago - a very long period for a
small child - before April 1997 when the son had made the statements that
aroused the mother's suspicions that the applicant had sexually abused L.
Finally, the City Court had regard to the fact that the physiological and psychiatric
examinations carried out did not support the allegation that abuse had
occurred. It found that the allegation had been the result of manipulation and
fabrication by the mother as part of a strategy to obstruct the applicant's
access. There was reason to assume that this had already had damaging effects
on L., who had stated that he did not wish to live or to be with his father.
The boy had become a go-between in a conflict between adults. The City Court
stated that the applicant was more suitable than the mother to assume the daily
care.
12. On 10
October 2001 H.T.'s lawyer lodged a disciplinary complaint against
the judge who had heard the case before the City Court for having acted with
prejudice against his client in expressing distrust and treating her with
disrespect during her testimony. The judge was imposed a mild reprimand by the
Ministry of Justice, which found that there were grounds for criticising his
conduct of the proceedings.
13. H.T. appealed against the City Court's judgment and
interlocutory injunction to Gulating High Court (lagmannsrett), requesting in the main that the applicant be refused
a right of access to the children. She referred inter alia to the fact that the
court appointed expert considered that L's strong negative attitude to his
father was consistent with abuse having taken place. The applicant, denying
that any abuse had occurred, requested the High Court to reject her appeal.
14. By a judgment of 27 September 2002 , the High Court overturned the
City Court's judgment and refused the applicant access to his two sons, inter alia after obtaining an expert
report from a court appointed psychologist, dated 2 September 2002 , and hearing evidence from the
latter. It also had regard to a report of 11 September 2001 by a psychologist who had been
counselling the boy at the mother's initiative and the psychologist's oral
evidence to the court.
15. The High Court noted that from the psychologist's
report of 2 September 2002
it emerged that the boy had felt great anxiety about the idea of meeting his
father (he would kill himself rather than see his father); L. was unable to describe
the reasons but his statements seemed founded on actual experience. Any access
should be established gradually. Forcing the boy to have contact would be
psychologically damaging.
16. The High Court observed that the applicant and L. met
23 times in 1996, 8 times in both 1997 and 1998, 3 times in 1999 and that no
access had taken place during the last three years (since 11 August 1999 ). It did not consider
that the mother had sabotaged access although it understood that the fact that
access had to take place under supervision by her sister or her father had made
it difficult for the applicant to exercise access.
17. The High Court's judgment included the following
reasoning:
“Two arguments have been made against the
father being granted a right of access.
Firstly, it is argued that the father has subjected
[L.] to sexual assault. There is a complaint to the police dated 9 June 1997 from which it
appears that an investigation of the case was initiated. The mother made
statements to the police on 17 June and 18 December 1997 , and there was also an
interview of [L.] by a judge without anything of significance for the case
coming to light. According to information presented, the case was dropped by
the public prosecutor. This decision was appealed to the Director of Public
Prosecutions on 22 October
1998 but the public prosecutor's decision was not reversed. The
fact that there was insufficient evidence in the criminal case is, however, not
decisive in this case, see Rt ([Norsk Retstidende (Supreme Court Reports)]-1989-320.
It is further assumed that in a case involving minor children, no risk
whatsoever may be taken in such circumstances, also concerning the issue of
access rights, see Rt – 1994-940. In
view of the information available in the case, where quite detailed
descriptions have been provided of the abuse, together with [L.]'s strong
objections to seeing his father, the High Court finds that there are many
elements that may indicate that abuse has occurred. The High Court has
nevertheless not found it necessary for its decision to go further into or take a stance on this.
Secondly, it is contended that the
implementation of access rights vis-à-vis the father is impossible in view of
the fact that [L.] is opposed to this. In light of the information available,
the High Court assumes that [L.] is opposed to having access to his father,
which is to be accorded weight pursuant to section 31 of the Children Act.
Nevertheless, the implementation of access may not, in principle, be made
dependent on the child not being opposed to being with his father. This
question will depend on the concrete circumstances.
...
According to the report, the boy is unable to describe
why he has such great anxiety about meeting his father. [Psychologist O.]
considers the information he has obtained to be an expression of the boy's
actual experiences. The report further states that if contact between the
father and the boy is to be established, this must take place gradually over a
longer period of time and in such a manner that [the child welfare services]
can constantly monitor how this develops. If [L.] 's strong anxiety is
maintained, forced contact is at present deemed to consitute a psychological
assault on the boy, according to the report. [Psychologist O.] has given
testimony before the High Court, which in its essentials concords with the
aforementioned report. According to [Psychologist O.], [L.] has stated that he
would not visit his father even in the presence of a third party, his mother or
someone else.
In his report, the expert states inter alia
the following:
'On the whole [L.] has a good level of functioning,
though everything having to do with his father is an obviously vulnerable and
difficult point for him. My own impression from an interview with [L.] accords
well with what [Psychologist O.] has described. [L.] indicates with his entire
being both in the interview and afterwards that this is a very uncomfortable
and difficult topic.'
The expert evaluated three alternative
resolutions for the access issue. The first alternative is an ordinary access
arrangement between the father and the boys. The expert concluded that it is
both impossible and indefensible to go straight to such an arrangement. He
refers to the fact that [L.] 's aversion and emotional reactions to contact
with his father are so strong that such an arrangement could not be started
without strong physical coercive measures. Furthermore, he refers to the fact
that [L.] has made serious threats about what he would do, namely take his own
life. The expert also pointed to the strain this would inflict on [L.] and that
this may jeopardise his further development. This would, in addition, inflict
substantial strains on the mother. As the second alternative the expert
considered a limited access arrangement, with supervision, possibly with the
aim of increasing it to ordinary access. The expert pointed out that such a
process may involve relatively high human (and financial) costs and that it
would be a stressful process for [L.] and the rest of the family. Furthermore,
it was noted that the outcome may be uncertain, since neither the mother nor [L.]
will, at the outset, be very motivated to attaining concrete results in the
form of contact with the father. The expert concluded that this is a
possibility, but that it would require support by both parties and having
sufficient resources in and around the family at their disposal. He also
pointed out that the chances of failing abysmally would be present. The third
alternative considered is no access at all between the father and the boys. To
justify such a solution, the expert referred to the necessity of safeguarding
the good progress the boys are making and of sparing them, especially [L.],
from further uncertainty and conflicts connected with the issue of access.
The expert did not reach any unambiguous
conclusion in his report, except from finding that an ordinary access
arrangement appears to be quite impossible to implement. As far as the other
alternatives are concerned, he has kept the options more open. In his testimony
before the court and after having been present during the appeal hearing, the
expert expressed the view that he strongly favours that there should be no access
between the father and the boys. In addition to [L.]'s clearly expressed
unwillingness to have access to his father, the expert referred to the
difficult situation that the family and [L.] in particular have been in over
several years. He further referred to the fact that the mother was the sole
provider for the children, and that she and the family had reached their 'limit
of tolerance'. It is also the understanding of the High Court that the expert deems
the costs of a supervised arrangement to be too high and the benefits to be too
uncertain for the expert to have been able to recommend access under
supervision as an alternative.
The High Court agrees that an ordinary access
arrangement would not be an acceptable alternative, but has evaluated in
particular whether an arrangement with supervised access would be possible. Like
the expert, the High Court has concluded that such an arrangement would be
disproportionately demanding and that it presumably may be difficult to find
persons with the necessary competence who are willing to subject themselves to
such a time consuming process as is in question here. The High Court also
agrees with the expert that the strain that such a process will necessarily
inflict on the family must also be considered, especially since the mother has
sole care of the children. On the basis of its impressions during the hearing,
the High Court agrees with the expert that the 'tolerance limit' for whatever
additional strains that can be inflicted appears to have been reached. Even if
neither the [Psychologist O.] nor the expert appears to have been able to
clarify the reasons for [L.] 's strong objections to having contact with his
father, this must, on the basis of the circumstances of the case, be accorded
substantial weight in the decision. In view of this, there would in the view of
the High Court be an not unappreciable risk that the boy's development may be
directly jeopardised by having to go through such a process that is under
discussion here. In addition, considerable flexibility would be required of
both parties, which, on the basis of the High Court's impressions from the
hearing, is uncertain, on the part of the mother, but especially on the part of
the father.
Despite the fact that ..., a refusal to grant
access may be justified only in very special circumstances, the High Court has
concluded that there should be no access in this case since, on the basis of an
overall assessment, this would not be in the best interest of the children.
Even though the issue of access is at the outset to be considered separately
with regard to each of the boys and even though it is assumed that [A.] does not
have the same antagonistic relationship to his father as [L.], the High Court
finds no reason to grant access with regard to [A.] as well. As the High Court
understands the expert, it would cause unpleasant tensions within the family if
only one of the children were to have access and that such an arrangement was
not advisable, something with which the High Court agrees. Given the strains
that the family has been under over several years, in the High Court's view, it
is now important that peace prevails in this matter.
Having reached this conclusion, the High Court
does not find it necessary to establish a provisional arrangement in respect of
the access issue.”
18. The High Court Judgment contained the following
unanimous conclusion regarding the substantive questions:
“[The applicant] is not granted a right of
access to [L.], born on *,*, 1994, and [A.], born on *,*, 1996. “
19. The applicant appealed against the High Court's
judgment as a whole, asking primarily that it be quashed and in the alternative
that he be granted a right of access to his children. He challenged the High
Court's procedure, namely its omission to deal with the interim order by the
City Court.
He moreover appealed against the High Court's
assessment of the evidence, notably its reasoning regarding the allegations on
sexual abuse, including the following passage, which in his view was “curious”.
“In view of the information available in the
case, where quite detailed descriptions have been provided of the abuse, together
with [L.'s] strong objections to seeing his father, the High Court finds that
there are many elements that may indicate that abuse has occurred. The High
Court has nevertheless not found it necessary for its decision to go further into or take a stance on this.”
The applicant submitted that in the light of
the evidence it was hard to understand the High Court's conclusion on sexual
abuse, even more so when it was stated in the judgment that it “has not found
it necessary for its decision to go further into or take a stance on this”. In
the applicant's view, this was obviously an error; should a judge find that
there were many elements to indicate that sexual abuse had occurred, it was
evident that this conviction would also have an effect on a decision regarding
access for the parent found to be a probable abuser. The applicant further
disputed the lawfulness of the High Court's rejection of any access rights,
which decision could not be reconciled with the rule that the best interests of
the child should prevail. In the applicant's view, L's horror picture of his
father should be removed by arranging for access. This was a clear case of the
so-called Parental Alienation Syndrome, with clear hatred, fear and anxiety,
unlike the ambivalence shown by children who have been exposed to actual abuse.
20. On 20
December 2002 , the Appeals Selection Committee of the Supreme Court
refused the applicant leave to appeal.
21. The applicant has submitted a medical certificate dated
7 June 2003
by Dr R.K., which stated:
“I the undersigned have known [the applicant]
since December 2000.
He has had a very tough time psychologically
during the period since the judgment. He feels that he has been unjustifiably
held liable of sexual abuse against his son and feels powerless in the system.
He has been very depressed lately. He is struggling with problems of
sleeplessness, bad appetite and loss of weight. He is isolating himself. At
times he has had suicidal thoughts. This has adversely affected his family life
and members of his family have had a particularly difficult time during the
past six months.”
22. The applicant has moreover filed a statement by Dr
H.V., Psychiatrist, of 4
September 2006 , which concludes:
“It is highly probable that [the applicant]
has developed symptoms that are compatible with Post Traumatic Stress Disorder
after what he had experienced in Chile
He presents a relatively high level of
pressure from suffering but which he nevertheless manages to master
satisfactorily. He receives regular treatment by a psychologist and medical
treatment.”
II. RELEVANT DOMESTIC LAW
23. At the time of the national courts' consideration of
the present case, the right of access between a parent and a child was governed
by sections 44 and 44A of the Children Act 1981 (Lov om barn og foreldre (barnelova)).
Under section 44 the child had a right of
access to both parents, even if they lived apart, and the parents had mutual
responsibility for implementing the right of access. Under section 44A the
parent with whom the child did not live had a right of access to the child
unless otherwise agreed or determined. The provision contained more detailed
rules on the extent of access, its implementation and the procedure. It
provided that decisions should first and foremost be based on what was best for
the child.
24. Provisions governing the contents of judgments in civil
proceedings may be found in Chapter 12 of the 1912 Code of Civil Procedure (tvistemålsloven). In so far as relevant
Article 144 provides:
“A judgment shall contain:
...
3. A brief presentation of the object of the case and
of the parties' submissions; when appropriate, reference may be made to written
pleadings filed in the case, or to entries in the court record; if so, the
material referred to shall be included in transcripts of the judgment;
4. Reasoning for the decision; they shall decisively
and exhaustively indicate the facts of the case on which the court bases its
decision
5. An operative part.
....”
THE LAW
I. THE SCOPE OF THE ISSUES
BEFORE THE COURT
25. In his observations at the merits stage, the applicant
firstly reverted to his complaint under Article 6 § 2 of the Convention and
requested the Court to reconsider its decision of 1 June 2006 declaring this part of the
application inadmissible on grounds of non-exhaustion. It was the fault of the
lawyer who had represented him before the national courts that this complaint
had not been pursued before the Supreme Court.
26. However, the above decision is final and the Court
finds that no reasons have been brought forward for it to examine whether it
should be re-opened.
27. Secondly the applicant complained about lack of
impartiality of the High Court on account of the participation of a judge who
had been divorced from a brother of the judge who had dealt with the case in
the City Court.
28. However, the Court observes that this is a new
complaint, which is not covered by its decision on admissibility and therefore
falls outside the ambit of the case.
29. In the light of the above, the Court will confine its
examination to the applicant's complaints under Articles 6 § 1 and 8 of the
Convention, declared admissible on 1 June 2006 , concerning the impugned reasoning in the High
Court's judgment of 27
September 2002 .
II. ALLEGED VIOLATION OF ARTICLE
8 OF THE CONVENTION
30. Article 8 of the Convention reads:
“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.”
A. Arguments of the parties
1. The applicant
31. The applicant maintained that the relevant passage of
the High Court's judgment amounted to an affirmation of suspicion that he had
committed sexual abuse. Referring to a medical statement of 7 June 2003 (see
paragraph 21 above) the applicant submitted that, having been labelled a sexual
abuser, he had suffered serious psychological and social problems. He also
invoked a psychiatrist's statement of 4 September 2006 (see paragraph 22 above). The impugned
passage entailed an unjustified interference with his right to respect for private
and family life in violation of Article 8 of the Convention.
2. The Government
32. The Government pointed out that that reference to the
allegation and the evidence adduced in this respect was due to the fact that
this was the main argument presented by the mother. They emphasised that the
disputed passage did not determine the applicant's civil rights or determine
the question of criminal guilt. The High Court's decision that it was not
necessary to explore whether he had assaulted his son did therefore not in any
respect affect the applicant's rights under Article 8. The question of abuse
did not affect the outcome of the proceedings in question. Any such assessment
would have been superfluous, since the other circumstances in the case were
more than sufficient for the Court to determine that access should not be
granted. Article 8 was therefore not applicable to the obiter dictum at issue.
B. Assessment by the Court
33. The Court does not find that the issue under Article 8
of the Convention can, as suggested by the Government, be analysed solely with
reference to the outcome of the case before the High Court. Even though the
impugned passage in the High Court's judgment of 27 September 2002 had no bearing
on its conclusion with regard to the applicant's claim of access rights in
respect of his sons, it nonetheless conveyed information to the effect that the
High Court, having regard to the state of the evidence, held a suspicion that
the applicant had sexually abused L. It not only related to the most intimate
aspects of the applicant's private life but it also suggested that he might
have engaged in highly reprehensible conduct vis-à-vis a person to whom he had
family ties, his son. The information was moreover capable of adversely
affecting his enjoyment of private and family life, in the ordinary sense of
these terms. Therefore, in the Court's view, the facts underlying the applicant's
complaint fell within the scope of Article 8 of the Convention which provision
is therefore applicable to the matter at hand.
34. Furthermore, the Court finds that the inclusion by the
High Court of the disputed statement as a part of its own reasoning in the
judgment constituted an interference with the applicant's right to respect for
his private and family life as guaranteed by Article 8 § 1 of the Convention.
It will therefore have to consider whether the interference was justified under
Article 8 § 2.
35. In this regard the Court notes that it is undisputed
that the interference was “in accordance with the law” and the Court finds no
reason to hold otherwise.
36. As to the question of whether the inclusion of the
statement pursued any of the legitimate aims enumerated in Article 8 § 2, the
Court has taken note of the Government's explanation, made in the context of
Article 6 § 1, that it was included because the abuse argument had been the
mother's principal submission, though it had not affected the High Court's
decision. The Court has further noted the applicant's submission, in connection
with his complaint under Article 6 § 2 (declared inadmissible on 1 June 2006),
that the relevant passage amounted to an affirmation of suspicion that he had
committed sexual abuse and that, despite the High Court's statement that this
matter had not been decisive for the outcome, it was hard to believe that this
was not the case.
The Court for its part finds no reason to
doubt that the impugned statement had been prompted by H.T.'s principal
submission and the applicant's objection thereto, that he had sexually abused
L. The Court is prepared to accept that when the High Court touched upon this
matter in its reasoning concerning the applicant's request to be granted a
right of access to the children, it was in the pursuit of one or more of the
legitimate aims enumerated in Article 8 § 2, notably for the protection of the
rights and freedoms of others.
37. However, turning to the next criterion in Article 8 §
2, the one of necessity, it is not
apparent to the Court why the High Court, in the first part of the impugned
statement, held:
“In view of the information available in the
case, where quite detailed descriptions have been provided of the abuse, together
with [L.]'s strong objections to seeing his father, the High Court finds that
there are many elements that may indicate that abuse has occurred.”
when in the second part it went on to say:
“The High Court has nevertheless not found it
necessary for its decision to go further
into or take a stance on this.”
It thus appears that, without it serving any
purpose for its resolution of the case, the High Court took judicial notice of
the evidence before it and affirmed on this basis a suspicion of its own that
the applicant had committed a serious crime, sexual abuse against one of his
sons. No cogent reasons have come to light as to why the High Court in part
dealt with, in part omitted to deal with the issue of sexual abuse. In the Court's
opinion, the national court should either have disposed of the issue, with all
that means in terms of evidentiary assessment and reasoning, or have left it on
the side.
38. Furthermore, the Court observes that the above portrayal
of the applicant's conduct in an authoritative judicial ruling was likely to
carry great significance by the way it stigmatised him and was capable of
having a major impact on his personal situation as well as his honour and
reputation. Indeed, as it appears from the medical certificate of 3 June 2003 , the statement
had harmed him both psychologically and physically, had had a stifling effect
on his social life and had prejudiced his family life. Despite its character
and potentially damaging effects on his enjoyment of private and family life,
the inclusion of the said passage in the High Court's judgment was not supported
by any cogent reasons.
39. In the light of the above, the Court finds that the interference
with the applicant's right to respect for his private and family occasioned by
the impugned passage in the High Court's judgment, was not sufficiently
justified in the circumstances and, notwithstanding the national court's margin
of appreciation in such matters, was disproportionate to the legitimate aims
pursued. Accordingly, the contested part of the High Court's judgment gave rise
to a violation of Article 8 of the Convention.
III. ALLEGED VIOLATION OF
ARTICLE 6 § 1 OF THE CONVENTION
40. Article 6 § 1 of the Convention, in so far as is
relevant, reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by [a] ...
tribunal...”
A. Arguments of the parties
1. The applicant
41. Relying on the above provision, the applicant complained
about the way in which he had been portrayed in the High Court's judgment and
its assessment of the evidence in this respect. He accepted that, in deciding
on parental access to a child, a court should be able to consider the validity
of an accusation that the parent concerned had sexually abused the child.
However, he submitted that the High Court had pointed to sexual abuse whilst at
the same time refraining from making a real assessment of the evidence and
taking a stance on this matter. The impugned statement had caused him
considerable moral injury and suffering and prejudice to his private and family
life.
2. The Government
42. The Government argued that the disputed passage in the
High Court's judgment did not involve the determination of a civil right within
the meaning of Article 6 § 1 of the Convention. As clearly stated in the
judgment, the High Court did not find it necessary to determine whether abuse
had occurred. The outcome of the case depended solely on other elements and it
was therefore not necessary to assess the question of abuse. The disputed
passage was merely an obiter dictum.
Article 6 § 1 was therefore not applicable to the said passage alone.
43. The sole civil right determined by the High Court
concerned the applicant's right to access to his children. To assess whether
the reasoning was adequate for the purposes of Article 6 § 1 in this respect,
the Court ought to consider the judgment as a whole. The reasons given for not
granting the applicant access were highly detailed, both with regard to fact
and law. Although the mother had claimed before the High Court that the
applicant had assaulted the oldest child, the sole question before the High
Court was whether the applicant should be granted access to the children. Based
on the evidence presented, the testimonies of the two parties and five
witnesses and the statements from the court appointed expert, it was clear to
the High Court that the applicant should not be granted access to the children
irrespective of whether he had abused the oldest child.
The High Court was therefore in no respect
obliged to address the issue of abuse. Its reference to the allegation and the
evidence adduced in this respect was due to the fact that this was the main
argument presented by the mother. However, it was nonetheless explicitly clear
from the judgment that the allegations of abuse did not affect the High Court's
decision not to grant the applicant access to the children. Thus, there was no
need to give reasons with regard to this factual accusation by the mother.
44. In substance, the applicant argued that the High Court
should have determined whether he had abused the child or should not have
commented on the issue at all. If such an argument were to prevail, this would
entail that national courts in the Member States could not give obiter dicta without also in this
respect giving full reasons according to Article 6 § 1. This would be a severe
break with the traditional view of the right to give obiter dicta, and even more so in this case since the disputed
passage did not determine a civil right according to Article 6 § 1.
45. In the view of the Government, the rationale for the
requirement in Article 6 § 1 that lower courts give reasons, namely to enable
the parties to make effective use of any existing right of appeal (see Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001 ), did not apply
to obiter dicta. All in all, under
existing case-law, the national courts could only be obliged to indicate the
grounds on which they based their decision (see, inter alia, Hadjianastassiou v. Greece, judgment of 16 December 1992,
Series A no. 252, p. 16, § 33). An
explicit statement in a judgment that the court did not find it necessary to conclude on a factual
argument presented by one of the parties could thus not violate the obligation
to give adequate reasons.
B. Assessment by the Court
1. Applicability of Article 6 § 1
46. The Court notes that the Government do not seem to
contest the applicability of Article 6 § 1 to the proceedings in which the
national courts determined the applicant's claim for a right of access to his
two sons. The Court for its part is satisfied that the relevant proceedings
concerned a “right” that was arguably recognised under national law, namely under
sections 44 and 44A of the Children Act 1981, in their respective versions as
in force at the material time. Moreover, the dispute was genuine and serious;
it related not only to the actual existence of a right but also to its scope
and the manner of its exercise. The result of the proceedings was directly decisive
for the right in question which, moreover, was “civil” in character. Thus,
having regard to its own case-law (see, for instance, W. v. the United Kingdom, judgment of 8 July 1987, Series A
no. 121, pp. 32-35, §§ 72-79; Zander v. Sweden, judgment
of 25 November 1993, Series A no. 279-B, and Kerojärvi v. Finland, judgment of 19 July 1995, Series A no. 322; see also more recent judgments, where the applicability of
Article 6 § 1 was undisputed: Olsson v. Sweden Sweden
47. Meanwhile, the Government argued that, because the
impugned passage in the High Court's judgment of 27 September 2002 was an obiter dictum, the latter did not
involve the determination of a dispute attracting the applicability of Article
6 § 1 to the matter at hand. However, the Court is unable to accept this
argument. Although the statement in question may not have had a bearing on the
outcome, it was nonetheless closely related to the issue to be determined by
the High Court. The Court is of the view that Article 6 § 1 was applicable to
the proceedings as a whole, including to the reasons stated by the High Court
in its judgment.
48. In sum, Article 6 § 1 was applicable to the
subject-matter of the applicant's complaint.
2. Compliance with Article 6 § 1
49. Turning to the question of compliance the Court
reiterates that, according to its established case-law reflecting a principle
linked to the proper administration of justice, judgments of courts and
tribunals should adequately state the reasons on which they are based. The
extent to which this duty to give reasons applies may vary according to the
nature of the decision and must be determined in the light of the circumstances
of the case. Although Article 6 § 1 obliges courts to give reasons for their
decisions, it cannot be understood as requiring a detailed answer to every
argument. Thus, in dismissing an appeal an appellate court may, in principle,
simply endorse the reasons for the lower court's decision (see García Ruiz v. Spain [GC], no. 30544/96, § 26,
ECHR 1999‑I; and Helle v. Finland, judgment of 19 December 1997, Reports of Judgments and Decisions 1997‑VIII,
p. 2930, §§ 59 and 60). A lower court or
authority in turn must give such reasons as to enable the parties to make
effective use of any existing right of appeal (see Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001 ).
50. The Court sees no reason to doubt that the High Court's
judgment provided reasons that must be deemed sufficiently detailed for its
conclusion that the deprivation of access was on balance justified by the
children's best interest.
51. However, the problem in the present instance is rather one
of excess of reasoning on a matter that was of a particularly sensitive nature
and of paramount importance for all the persons concerned. The Court, having
regard to its findings above in respect of Article 8 of the Convention, does
not find it necessary to carry out a separate examination in relation to Article
6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41
OF THE CONVENTION
52. Article 41 of the Convention provides:
“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
53. The applicant sought no compensation for pecuniary
damage but claimed an amount, not exceeding 1,000,000 Norwegian kroner (“NOK”, approximately 123,650
euros – “EUR”), to be determined by the Court according to its own discretion.
54. The Government did not offer any comments on the above
claim.
55. The Court, having regard to the medical evidence
adduced (see paragraphs 21-22 above), accepts that the applicant must have
suffered some non-pecuniary damage as a result of the matter found to
constitute violations of the Convention. Making an assessment on an equitable
basis it awards the applicant EUR 7,000.
B. Costs and expenses
56. The applicant further sought the reimbursement of legal
costs and expenses, totalling NOK 148,107.75, in respect of the following
items:
(a) NOK 125,781.25 (approximately
EUR 15,500 ) for his lawyer's work (125 hours at a rate of NOK 805 per hour,
plus 25% value added tax- “VAT”) in the proceedings before the Court;
(b) NOK 18,489 (approximately EUR
2,300) which he had reimbursed to the Norwegian legal aid authorities in
respect of legal aid received in the national proceedings;
(c) NOK 3,475 for medical expenses;
(d) NOK 3,622.50 for a psychiatric
opinion in connection with his application to the Court.
57. As regards item (a) the Government were of the view
that the number of hours claimed was excessive and should be reduced by 50%. As
to items (b), (c) and (d) they did not make any comments.
58. According to the Court's case-law, an applicant is
entitled to reimbursement of his or her costs and expenses only in so far as it
has been shown that these have been actually and necessarily incurred and were
reasonable as to quantum. As regards item (a) the Court notes that only parts
of the pleadings of the applicant's lawyer related to the complaints in respect
of which the Court has found violations of the Convention. It finds it reasonable
to award EUR 7,500 in respect of this item. As to item (b), the Court is
satisfied that parts of these costs were necessarily incurred in order to
prevent or obtain redress for the matter found to constitute violations of the
Convention and awards EUR 1,000. As to items (c) and (d) (altogether around EUR
865), the Court notes that the former item was substantiated in part whereas
the latter item was substantiated in full; it finds it reasonable to award EUR
700 for these two items.
C. Default interest
59. The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European Central
Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 8 of the
Convention;
2. Holds that it is not necessary to examine the applicant's complaint
under Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is
to pay the applicant, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, the following amounts:
(i) EUR 7,000 (seven thousand
euros) in respect of non-pecuniary damage;
(ii) EUR 9,200 (nine thousand, two
hundred euros) in respect of costs and expenses;
(iii) any tax that may be chargeable
on the above amounts;
(b) that these sums are to be
converted into the national currency of the respondent State at the rate
applicable at the date of settlement;
(c) that from the expiry of the
above-mentioned three months until settlement simple interest shall be payable
on the above amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing
on 4 October 2007 ,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos
Rozakis
Registrar President
Registrar President
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