14 March -1 April 2005
the Optional Protocol to the International Covenant
on Civil and Political Rights*
- Eighty-third session -
Communication No. 1092/2002
Alleged victim: The author
State party: Spain
Date of communication: 16 June 1999 (initial submission)
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 29 March 2005,
Adopts the following:
2.1 In July 1992 the author and her husband, who had two minor sons, separated. In the separation judgement, dated 15 July 1992, guardianship and custody of the older son was granted to the father and guardianship and custody of the younger son, Daniel, to the mother, both parents to continue to share parental authority. Following the separation, the author moved her residence to France and, with the authorization of the court, took her son Daniel with her. The judicial authorization imposed certain conditions as to visits, as a result of which the author had to travel 1,000 kilometres every fortnight so that her son could spend the weekend with his father.
2.2 On 12 July 1993, the father applied to the court for a change in the arrangements for guardianship and custody, asking for custody of Daniel to be withdrawn from the mother and custody of both sons entrusted to the father. To that end he presented to the court a written authorization which the author had granted a long time previously in favour of a particular attorney during the separation proceedings. The authorization was out of date as the author had ended her professional relationship with the attorney in question. The court, which had initially agreed to summon the author by means of an international letter of request, cancelled the letter and accepted the authorization despite the fact that it should have been submitted by the attorney in whose favour it had been granted, and not the opposing party. Consequently, the court's notifications were sent to the domicile of the former attorney instead of the author's domicile, so that she was not aware that the proceedings had been initiated.
2.3 On 2 April 1994 the boy's father, who was living in Lorca, Murcia, removed the boy from the mother's custody during a visit to France and took him to Spain, where he entrusted him to the care of his paternal grandparents. The author lodged a complaint of abduction and unlawful detention of her son, and it was in that context that her counsel learned by chance that proceedings had been initiated to remove custody of her son from the author.
2.4 On 18 April 1994, the author lodged an application through a solicitor and a barrister in the proceedings for change of custody, requesting the court, in accordance with article 240, paragraph 1, of the Organization of Justice Act, to quash and declare void the actions taken since the time when the summons should have been issued. This request was denied, and on 11 July 1994 the court granted custody of both children to their paternal grandparents as the solution most appropriate to the children's interests. The court's decision also established an alternative arrangement for custody over the two sons in favour of the mother in case the grandparents refused to take charge of their care and upbringing. According to the author, this decision is surprising bearing in mind that no application had been made for custody in favour of the grandparents, the father having sought custody for himself.
2.5 Meanwhile, on 2 July 1994, the author took Daniel away from a campsite he was visiting with his father, while the father's attention was briefly distracted, and travelled with him to France.
2.6 The author appealed against the court ruling of 11 July 1994. Oral proceedings were held in the Murcia provincial high court on 21 January 1997. As a result of confusion in his schedule, her counsel did not appear at the hearing, despite which the court examined the substance of the case. In its ruling of 22 January 1997 the court fully upheld the previous decision, stating that although the unjustified failure of counsel to appear had prevented the court from learning of the causes and grounds for his opposition to and disagreement with the decision of the court of first instance, that failure in no way prevented the court from considering all the evidence. The author states that the high court's decision led her to lodge a criminal complaint against the lower court judge, in view of the corporate spirit which prevailed among the judges. However, the author does not explain the grounds for the complaint.
2.7 On 24 February 1997 the author instituted amparo proceedings in the Constitutional Court, claiming that her right to an adversary procedure and her right to a defence had been breached. Firstly, a procedure had been followed to deprive her of the custody of her son despite the fact that she had not been summoned to the court and had not become aware of the proceedings until April 1994, when the evidence had already been heard. Secondly, guardianship and custody had been granted to the grandparents although that solution had not been requested by the father or subjected to any opposing arguments. The author also claimed a breach of her right to respect for privacy in family life.
2.8 On 26 May 1997 the Constitutional Court rejected the application. The court considered that the counsel's failure to appear at the hearing as mentioned in the notice of appeal meant that available judicial remedies had not been exhausted, so that a condition laid down in article 44 of the Constitutional Court Act for the admissibility of an amparo application had not been met. The court also considered that certain grounds set out in the application clearly lacked any foundation in the Constitution which would justify a decision as to substance.
2.9 On 13 May 1996 the author lodged a complaint with the European Commission of Human Rights, which was subsequently withdrawn by letter of 4 October 1996. The author attaches a copy of a letter from the secretariat of the Commission dated 11 October 1996 taking note of the request that the complaint should be withdrawn. The letter states that, as the complaint had been registered, the Commission would rule on it.
3.1 The author states that, as she was not informed by the judge of the proceedings that had been initiated against her, there was a violation of article 14, paragraph 1, of the Covenant, which protects the right to a hearing. Since she was not informed, she was unable to contest the allegations contained in the application and refute them. Nor was she able to apply for a rehearing, as provided for in article 773 of the Civil Procedure Act, since such rehearings are limited to cases where the defendant remains in default throughout the proceedings. She, however, made a submission in writing on 18 April 1994, when almost all the evidence had been heard and no new allegations could be made. Furthermore, her right to a competent judge, set out in the same provision of the Covenant, was breached, since the judge who heard the case lacked the sensitivity required to adopt reasonable solutions.
3.2 The Murcia provincial high court denied the author justice, in violation of article 14, paragraph 1, of the Covenant, by holding that the unjustified failure of counsel to appear at the hearing had prevented the court from learning of the causes and grounds for the opposition to and disagreement with the ruling of the court of first instance. Those causes and grounds were set out in the notice of appeal itself. In addition, the decision of the high court committed the same breaches of fundamental rights as the decision of the lower court.
3.3 Article 14, paragraph 1, was violated on two other grounds. Firstly, because the decision of the court of first instance did not correspond to the request made, since the father had sought custody of the two children for himself, whereas the court granted custody to the paternal grandparents. Secondly, because the ruling of the Constitutional Court distorted the facts of the case and was arbitrary.
3.4 The author also claims that the decision to deprive her arbitrarily of the custody of her younger son constitutes a violation of her right to freedom from unlawful interference with her privacy, set out in article 17 of the Covenant. There were no grounds for transferring custody of the child to the paternal grandparents and thereby depriving him of the company of his mother, the person with whom he normally lived and who took perfect care of him.
State party's observations on admissibility and on the merits
4.1 On 27 September 2002 the State party challenged the admissibility of the complaint. Firstly, it points out that the author failed to provide the Committee with the letter dated 4 October 1996 in which she informed the European Commission of Human Rights of her decision to withdraw her complaint. She also failed to forward the decision taken by the Commission on 28 November 1996 to close the case, which indicated that, in accordance with article 30, paragraph 1, of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Commission considered that there were no particular circumstances in relation to the rights guaranteed under the Convention which might justify continued examination of the application. Hence the same matter was brought before another international body, which, contrary to the author's assertions, did examine it and closed the case, no human rights having been violated. Consequently, the State party maintains that the complaint is inadmissible under article 5, paragraph 2 (a), of the Optional Protocol.
4.2 The State party also claims that the complaint should be considered inadmissible under article 5, paragraph 2 (b), of the Protocol, on the grounds that domestic remedies have not been exhausted. In her very short notice of appeal against the court decision of 11 July 1994, the author cites fundamental rights she claims to have been violated but offers no grounds for the violation. The lack of grounds was not rectified during the oral proceedings owing to counsel's failure to appear. Hence the Constitutional Court considered that as a result of the counsel's failure to appear, it had not been possible, before the matter was brought before it, to exhaust the possibilities offered by the legal system to enable the organs of the judiciary to remedy the violation of the fundamental rights which is alleged to have occurred - an indispensable condition required by the nature of the remedy of amparo as a review mechanism. According to the State party, just as the review function of the Constitutional Court prevents it from taking a position on complaints which have not been sufficiently elucidated in the ordinary courts, the Committee cannot examine complaints which were not properly brought through domestic channels.
4.3 On 23 January 2003 the State party submitted its observations concerning the merits of the complaint, affirming that there had been no violation of the Covenant. The State party repeats that the complaint should be deemed inadmissible for the reasons set out above. It also states that disagreement with a court decision does not signify that it was handed down by an arbitrary judge lacking in sensitivity, unless the allegation is duly substantiated and justified. This was by no means so in the present case, in which the author confines herself to general condemnation without any objective argument.
5.1 In a letter dated 12 May 2003 the author responded to the State party's observations on the admissibility of the complaint. Concerning the argument that the same matter had been brought before the European Commission of Human Rights, the author holds that the Commission did not examine the merits of the case, but confined itself to stating that there were no particular circumstances which called for continued examination of the application notwithstanding its withdrawal.
5.2 Concerning the non-exhaustion of domestic remedies, the decision of the Provincial High Court acknowledged that the counsel's failure to appear in no way prevented the court, in the exercise of its review functions, from considering all the evidence supplied and then handing down an appropriate ruling. Furthermore, the notice of appeal complained of the violation of various fundamental rights. Consequently, the reasoning of the Constitutional Court to the effect that the counsel's failure to appear prevented domestic remedies from being exhausted lacks justification and contradicts the thrust of the high court's decision. Lastly, the author accuses the lower court judge of behaving in an arbitrary manner and displaying a hostile attitude towards her, without giving greater detail of this accusation.
Issues and proceedings before the Committee
6.1 In accordance with rule 93 of its rules of procedure, before considering any claims contained in a complaint, the Human Rights Committee must decide whether or not the complaint is admissible under the Optional Protocol to the Covenant.
6.2 The Committee takes note of the State party's argument that the same matter was examined by the European Commission of Human Rights and that the complaint is consequently inadmissible under article 5, paragraph 2 (a), of the Optional Protocol. The Committee notes that on 13 May 1996 the author lodged a complaint with the Commission, which was withdrawn by letter of 4 October the same year. In its ruling of 28 November 1996, the Commission took note of the withdrawal of the application and considered that there were no particular reasons in relation to the rights set out in the European Convention to examine the application further. The Committee therefore considers that the case was not examined under another procedure of international investigation or settlement.
6.3 Concerning the need to exhaust domestic remedies, the State party holds that the notice of appeal did not adequately substantiate the grounds for the appeal, and that this lack of grounds was not rectified during the oral hearing owing to counsel's failure to appear. However, the Committee notes that these facts did not prevent the Provincial High Court from ruling on the appeal, and that the author subsequently made an amparo application to the Constitutional Court, in which she described the events and the rights which had been violated. The Committee therefore considers that the author did exhaust all available domestic remedies, in accordance with article 5, paragraph 2 (b), of the Optional Protocol.
6.4 The author states that, not having been informed by the judge of the proceedings initiated against her, she was unable to appear in court until several months after the application had been lodged, when practically all the evidence had been presented and new allegations could not be made, resulting in a violation of article 14, paragraph 1, of the Covenant, which sets out the right to a hearing. However, the Committee notes that the author had an opportunity to submit new evidence and allegations as part of the appeal, and that the errors in her defence, in particular the counsel's failure to appear at the hearing, cannot be attributed to the State party. Consequently, the Committee considers that this part of the complaint has not been adequately substantiated, and must be declared inadmissible under article 2 of the Optional Protocol.
6.5 The author also claims violation of article 14, paragraph 1, of the Covenant because the judge in the case lacked competence and impartiality, and also because the decision of the court of first instance did not correspond to the request made, since the father had sought custody of the two children for himself, whereas the court granted custody to the grandparents. The Committee notes that the author wishes the Committee to examine the facts and evidence in the case, and reiterates its jurisprudence that their evaluation falls within the competence of domestic courts, unless it is obvious that such evaluation is arbitrary or tantamount to a denial of justice. The Committee considers that the author has not substantiated her complaint sufficiently to be able to claim such arbitrariness or denial of justice, and consequently considers that this part of the complaint should also be declared inadmissible under article 2 of the Optional Protocol.
6.6 With respect to the violation of article 17 claimed by the author, on the grounds that she was deprived of the custody of her younger son, the Committee also notes that it is not competent to examine the facts and evidence in the case, and that the author has not demonstrated that their evaluation by the domestic courts was arbitrary or tantamount to a denial of justice. Therefore, this part of the complaint should also be declared inadmissible under article 2 of the Optional Protocol.
7. The Committee therefore decides:
(a) That the complaint is inadmissible under article 2 of the Optional Protocol;
(b) That this decision shall be communicated to the author and the State party.
[Adopted in English, French and Spanish, the Spanish text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee's annual report to the General Assembly.]
** The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Ms. Christine Chanet, Mr. Maurice Glèlè Ahanhanzo, Mr. Edwin Johnson López, Mr. Walter Kälin, Mr. Ahmed Tawfik Khalil, Mr. Michael O'Flaherty, Ms. Elisabeth Palm, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Ivan Shearer, Mr. Hipólito Solari Yrigoyen, Ms. Ruth Wedgwood and Mr. Roman Wieruszewski.