AS TO THE ADMISSIBILITY OF
Application no. 12148/03
by Josè Santo SANCHEZ CARDENAS
The European Court of Human Rights (First Section), sitting on 1 June 2006 as a Chamber composed of:
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 5 April 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Josè Santo Sanchez Cardenas, is a Chilean national who was born in 1968 and lives in Bergen, Norway. He has worked inter alia as a kindergarten assistant for about 8 years.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
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.
Since around 1997 he has cohabited with Ms G.A.D. and her adolescent son.
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. 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.
In the year 2000 the applicant brought judicial proceedings before the Bergen City Court (byrett), claiming a right of access to his two sons. On 7 December 2000 the City Court refused a request by H.T. to have an expert witness appointed. 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.
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.
H.T. also appealed against the City Court’s judgment and interlocutory injunction to Gulating High Court (lagmannsrett).
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.
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 explain the reasons but his statements seemed founded on actual experience. Any contacts should be established gradually. Forcing the boy to have contact would be psychologically damaging.
The High Court further observed that the court-appointed expert had not attempted to establish whether sexual abuse had occurred but had nevertheless highlighted certain points on the subject. L. had, in view of his age, given quite concrete descriptions of situations of abuse and had clearly identified his father with this; the descriptions were primarily connected to conversations between L. and his mother; he had shown reactions which were compatible with his having been exposed to abuse; he still showed strong emotional reactions to the idea of his father even though he did not himself link this to abuse.
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 understanding 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. It then went on to consider two grounds submitted by H.T. for refusing access; firstly, the allegations of sexual abuse and secondly L.’s strong objection to and anxiety about access; he had said that he would kill himself rather than see his father.
On the first point the High Court described the criminal complaint brought by the mother and the subsequent criminal proceedings that were discontinued in 1998. It then went on to state that the fact that there was insufficient evidence for criminal conviction was not decisive in this case and recalled that no risk could be taken in the case of access to minors. To this, the High Court added the following statement which gave rise to the applicant’s complaints under the Convention:
“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.”
On the second point the High Court considered in detail the pros and cons of three different options reviewed by the court appointed expert in his report of 2 September 2002, namely (1) access at an ordinary level to be increased gradually; (2) more limited access under supervision that could eventually be increased and (3) terminating access altogether. It found that option (1) would cause a strain and burden on L. and his mother, would jeopardise his development and was unlikely to succeed; option (2) would also be stressful for L., would require considerable human and financial resources and there was a risk of failure. It concluded that option (3) was the one that was the most favourable to the children’s development and was on balance justified by their best interest.
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 above-cited passage, which in his view was “curious”. He 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 “[t]he High Court ha[d] nevertheless not found it necessary to go 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 option 2, 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.
On 20 December 2002, the Appeals Selection Committee of the Supreme Court refused the applicant leave to appeal.
The applicant has submitted a medical certificate dated 7 June 2003 by Dr R. Kada, 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 deemed 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.”
Referring in particular to the statement by the High Court quoted above, the applicant complains that he has been deprived of the right to a fair trial and the right to be presumed innocent until proven guilty according to law. He also complains that the impugned statement has violated his right to private and family life.
A. Complaint under Article 6 § 1 of the Convention
1. 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...”
Relying, in particular, 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.
The Government maintained that, in his appeal to the Supreme Court, the applicant had failed to put forward his complaint under Article 6 § 1 of the Convention as a ground for appeal. His appeal had challenged the High Court’s assessment of the evidence, in particular the expert’s report, its interpretation of the Children Act and the procedure relating to its omission to deal with the City Court’s interim order. He did not claim that the High Court had failed to assess the evidence before it or that its reasoning had been insufficient. It was clear from the context that the applicant’s criticism against the impugned passage of the High Court’s reasoning was related to the latter’s assessment of the evidence. In the light of the foregoing, the Government invited the Court to declare the applicant’s complaint under Article 6 § 1 inadmissible under Article 35 §§ 1 and 4 on grounds of failure to exhaust domestic remedies.
The Government further argued that the disputed passage was merely an obiter dictum and did not constitute a “determination” of a civil right within the meaning of Article 6 § 1, which provision was therefore not applicable. In any event, it could not be said that the High Court’s judgment, considered on the whole, had failed to give sufficiently detailed reasons for the purposes of Article 6 § 1 as interpreted in the Court’s case-law. No violation of this provision had occurred in the instant case.
The Court observes that, in challenging the High Court’s assessment of the evidence in his appeal to the Supreme Court, the applicant clearly disputed the adequacy of its reasoning with specific reference to the impugned passage of the judgment. As referred to above, the applicant argued in his appeal to the Supreme Court that the High Court’s reasoning as to the question of sexual abuse was “curious”. It follows from the applicant’s arguments in the appeal that he felt that the High Court’s statements as to this question were contradictory and placed him unnecessarily in an uncomfortable position. The Court is therefore satisfied that he, in substance at least, complained about the matter that he subsequently pursued under Article 6 § 1 of the Convention. The Government’ request to declare this complaint inadmissible for failure to exhaust domestic remedies must therefore be rejected.
The Court, having regard to the parties’ submissions, considers that the complaint under Article 6 § 1 about the High Court’s reasoning raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 1 of the Convention. No other grounds for declaring the said complaint inadmissible have been established.
B. Complaint under Article 6 § 2 of the Convention
2. Article 6 § 2 of the Convention reads:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The applicant maintained that there also had been a violation of his right under Article 6 § 2 to be presumed innocent. The relevant passage of the High Court’s judgment amounted to an affirmation of suspicion that the applicant had committed sexual abuse. Despite the High Court’s statement to the effect that this matter had not been decisive for the outcome, it was hard to believe that this was not the case.
The Government argued that the applicant had failed to raise the matter in his appeal to the Supreme Court and that his complaint under Article 6 § 2 should therefore be declared inadmissible for failure to exhaust domestic remedies. In any event, the provision was inapplicable and had not been violated.
The Court reiterates its observations above regarding the applicant’s complaint in his appeal to the Supreme Court about the inadequacy of the High Court’s reasoning. It further observes that he submitted in this connection that if a judge were to 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 the decision regarding access for the parent found to be a probable abuser. However, the Court is not satisfied that the applicant raised either expressly or, even in substance, his complaint that the High Court’s reasoning violated the right to presumption of innocence under Article 6 § 2 of the Convention. Accordingly, on this point the applicant has not exhausted domestic remedies. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.
C. Complaint under Article 3 of the Convention
3. The applicant, by a letter of 15 July 2003, in addition complained that the reasoning in the High Court’s judgment amounted to degrading treatment contrary to Article 3 of the Convention. Referring to a medical statement of 7 June 2003, he submitted that, having been labelled a sexual abuser, he had suffered serious psychological and social problems.
However, the Court, in so far as the matter falls within its competence, does not find any indication that the treatment in issue attained the minimum level of severity required by Article 3 of the Convention. Accordingly, this complaint must be declared inadmissible as being manifestly ill-founded under Article 35 §§ 2 and 4 of the Convention.
D. Complaint under Article 8 of the Convention
4. 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.”
The Court notes from the outset that in his initial application the applicant did not refer to Article 8 of the Convention. He only relied on this provision subsequently, after the Court had given notice of the application to the respondent Government with a question whether the High Court’s reasoning amounted to an interference with the applicant’s rights under Article 8.
The Government stressed that in the application lodged under the Convention the applicant had made no complaint under Article 8 either with regard to the substance of the national decision regarding his access to the children nor with regard to the disputed passage of the High Court’s judgment. Even in relation to the latter, any complaint made under Article 8 should be declared inadmissible, on ground of failure to observe the six months rule or as being manifestly ill-founded.
The Court refers to its assessment above regarding the admissibility of the complaint under Article 6 § 1. It observes that the contested passage in the High Court’s reasoning directly concerned aspects of the applicant’s private and family life that were at issue in the relevant proceedings, namely his right of access with respect to his two children. In the view of the Court, even though the grievances articulated under Article 8 had not been expressly set out in the application, those grounds were so closely connected with the ones pleaded under Article 6 § 1 that they must bee deemed to fall within the scope of the case as initially lodged with the Court (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, pp. 223-224, §§ 43-46).
The Court, having regard to the parties’ submissions, considers that the complaint that the High Court’s reasoning entailed a violation of Article 8 of the Convention raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 1 of the Convention. No other grounds for declaring the said complaint inadmissible have been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 6 § 1 and 8 of the Convention concerning the impugned reasoning in the High Court’s judgment of 27 September 2002;
Declares inadmissible the remainder of the application.
Søren Nielsen Christos Rozakis
SANCHEZ CARDENAS v. NORWAY DECISION
SANCHEZ CARDENAS v. NORWAY DECISION