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1. The author of the complaint is Ms. Josefa
Guillén Martínez, a Spanish national resident in France, who claims that she
is the victim of a violation by Spain of articles 14, paragraph 1, and 17 of
the Covenant. She is represented by counsel J.L. Mazón Costa.
FACTUAL BACKGROUND
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be withdrawn from the mother and custody of both sons entrusted to the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 The authorization was out of
date as the author had ended her professional relationship with the attorney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.
THE COMPLAINT
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.
AUTHOR'S COMMENTS
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.
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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. |
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