| |
1. The author of the
communication is Manuel Balaguer Santacana, a Spanish citizen born in 1940
and residing in Barcelona, Spain. He submits the communication on his behalf
and on behalf of his daughter, María del Carmen Balaguer Montalvo, born in
1985, claiming that they are victims of violations by Spain of articles 23,
paragraphs 1 and 4, and 24, paragraph 1, of the International Covenant on
Civil and Political Rights. The Optional Protocol entered into force for
Spain on 25 April 1985.
THE FACTS AS SUBMITTED BY THE AUTHOR:
2.1 The author states that in November 1983 he and María del Carmen Montalvo
Quiñones decided to live together. On 15 October 1985, Ms. Montalvo gave
birth to a girl, who was recognized by both parents and registered on the "Registro
Civil" of Barcelona under the name of María del Carmen Balaguer Montalvo.
The author further states that after the birth of the child, their
relationship deteriorated irremediably; on 7 October 1986 Ms. Montalvo left
the common household, taking the child with her. After several weeks the
author learned that she had moved to Badalona, a town near Barcelona.
2.2 On 10 November 1986, the author filed with the Third Chamber of the
Badalona Court (Juzgado Tres de Instrucción y Primera Instancia de Badalona)
case No. 18/86 under the regime of "voluntary jurisdiction" (jurisdicción
voluntaria), with a view to obtaining the recognition of his paternal
authority (patria potestad) and visiting rights to his child. On 28 January
1987, the judge decided that provisional measures should be taken until a
final decision was issued in the matter. The author was authorized to spend
every Saturday or Sunday from 11 a.m. to 8 p.m. with his daughter, who by
then was one year old. In February 1987 he saw his daughter, believed her to
be in ill-health and took her to a doctor, keeping her for four days.
Subsequent to this visit, the mother refused to let him see the child for a
period of 19 months until November 1988.
2.3 On 23 June 1988, the Badalona Court issued an enforcement order ("Auto
de obligado cumplimiento") against Ms. Montalvo, which she appealed to the
Superior Court of Barcelona (Tribunal Superior) while continuing to deny the
author access to his daughter. One year later, on 23 June 1989, the Superior
Court affirmed the order of 23 June 1988.
2.4 On 19 July 1989, the mother started a contentious action (Demanda de
Menor Cuantía) before the Badalona Court (case No. 406/89) aimed at
modifying the provisional decisions of 28 January 1987 and 23 June 1988. On
16 March 1990, the Court decided to suspend the proceedings of voluntary
jurisdiction pending decision on the contentious matter. The author appealed
against this decision on 22 March 1990. Nearly two years later, on 31
January 1992, the Superior Court (Tribunal Superior) rejected the author's
appeal.
2.5 The author also applied to the "Dirección General de atención a la
infancia de la Conselleria de Benestar Social de la Generalitat de Catalunya",
requesting that his daughter's case be further investigated and protective
measures adopted. The department seized of the matter carried out a summary
investigation and accepted to consider it in more detail. In April 1990,
however, the same department informed the author that it had received an
explicit order from the court of first instance to refrain from further
examining the case, since the court considered that it alone was competent.
2.6 The author emphasizes the urgency of the matter since these are his
daughter's formative years. He claims that irreparable harm is being done to
her by depriving her of the opportunity of having contact with her father.
In this connection he refers to pertinent psychological and sociological
studies that conclude that the separation of a child from any one parent may
have serious psychological consequences. He finally invokes the Convention
on the Rights of the Child, in particular article 9, paragraph 3, of which
provides:
"States parties shall respect the right of the child who is separated from
one or both parents to maintain personal relations and direct contact with
both parents on a regular basis, except if it is contrary to the child's
best interests".
THE COMPLAINT:
3. The author claims that he is a victim of a violation of article 23,
paragraphs 1 and 4, of the Covenant, because he has been denied family
rights and equality of treatment by the Spanish courts in the award of child
custody and because of the failure of the courts to act promptly in
enforcing a regime of reasonable parental visits. He also claims a violation
of his daughter's rights under article 24, paragraph 1, of the Covenant,
since a child should be afforded access to both parents, especially during
her formative years, except in very specific circumstances. He further
claims that Spanish legislation does not sufficiently guarantee the right of
access and that the practice of Spanish courts, as illustrated by his own
and many other cases, reveals a bias in favour of mothers and against
fathers. Although he does not specifically invoke article 26 of the
Covenant, the author's allegations also pertain to this provision.
THE STATE PARTY'S OBSERVATIONS AND THE AUTHOR'S COMMENTS THEREON:
4.1 The State party, in submissions dated 14 January, 15 February, 10 April,
10 September 1991 and 20 and 26 February 1992 objects to the admissibility
of the communication as an abuse of the right of submission under article 3
of the Optional Protocol and further argues that the author has failed to
exhaust domestic remedies, as required by article 5, paragraph 2(b), of the
Optional Protocol.
4.2 The State party summarizes recent developments in the pending
proceedings as follows:
A. PROCEEDINGS UNDER "NON-CONTENTIOUS JURISDICTION"
1. Order of 16 March 1990 of the Badalona Court which suspended the
proceedings under non-contentious jurisdiction.
2. Mr. Balaguer, having been notified of this order, filed an application
for reconsideration (recurso de reposición) of the order, which was
dismissed on 30 April 1990.3. On 25 June 1990 Mr. Balaguer submitted a
further request for review, with a subsidiary appeal (recurso de reforma y
subsidiario de apelación).
4. Procedural order of 25 June 1990, declaring the request for review
inadmissible subsequent to the application for reconsideration having been
lodged and a decision given, and ordering the application for leave to
appeal (recurso de apelación) to be processed.
5. Procedural order by the judge, dated 18 December 1990, ordering the
parties to be summoned to appear before the Superior Court.
6. Receipt of the orders made under non-contentious jurisdiction by Section
Fifteen of the Superior Court of Barcelona, to which the appeal lodged by
Mr. Balaguer was transmitted.
7. Procedural order, dated 31 January 1991, by Section Fifteen of the
Superior Court, by which the Barcelona Bar was requested to appoint a court
lawyer for Mr. Balaguer.
8. Procedural order, dated 23 May 1991, relating to the appointment of the
representative for Mr. Balaguer.
9. Procedural order, dated 21 June 1991, authorizing the file to be made
available to Mr. Balaguer's lawyer.
10. On 31 January 1992, Section Fifteen of the Superior Court of Barcelona
dismissed Mr. Balaguer's appeal because the contentious action of Ms.
Montalvo before the Badalona Court was deemed to take precedence.
B. CONTENTIOUS PROCEEDINGS OF MINOR JURISDICTION
1. On 10 January 1991, in the contentious proceedings instituted by Ms.
Montalvo in respect of parental authority and custody of the child, Mr.
Balaguer challenged the competence of the Badalona Court by entering a
written plea to the jurisdiction on the grounds that he was domiciled in
Barcelona.
2. Procedural order of 17 January 1991 acknowledging the plea and recording
that the issue of competence had been raised.
3. Answer by the Government Attorney to the objection on the issue of
competence, dated 4 March 1991, proposing that it should be dismissed as
being untimely, since it should have been raised within a period of six days
following the summons to answer the case.
4. Procedural order of 6 May 1991 calling for evidence on the contested
issue.
5. Procedural order of 10 July 1991 stating that the issue is awaiting
decision.
6. On 12 September 1991 Mr. Balaguer submits to the Court information about
his journalistic activities in Barcelona.
7. On 16 September 1991 the Court requests clarification from the Barcelona
City Hall.
8. On 19 September 1991, the Administrative Division of the High Court of
Justice of Catalonia requests information from the Court concerning the
complaint made by Mr. Balaguer seeking to establish judicial liability on
the part of members of the Badalona Third Chamber.
9. On 24 September 1991 the Administrative Division of the High Court of
Justice of Catalonia receives information from the Court concerning the
accusation made by Mr. Balaguer.
10. On 1 October 1991 it is agreed to schedule hearings for the 16th of that
month.
11. On 15 October 1991 the General Council of the Judiciary is informed of
the steps being taken in the case, in view of its interest following the
complaint by Mr. Balaguer.
12. On 16 October 1991 the parties' counsel and advocates do not appear for
the hearings.
13. On 18 October 1991 the attorney for Ms. Carmen Montalvo Quiñones
requests acceptance of his withdrawal from the case.
14. On 28 October 1991 the Association of Attorneys is requested to appoint
a new attorney for Ms. Montalvo Quiñones.
15. On 31 January 1992 the new attorney is appointed.
16. On 21 February 1992 the court decides to make a further request to the
Barcelona City Hall for clarification of Mr. Balaguer's residential status,
such clarification being required in order to resolve the interlocutory
matter regarding competence raised by Mr. Balaguer.
4.3 As to the duration of the proceedings, the State party affirms that the
author himself is to blame, because he has engaged various procedures that
have delayed final adjudication of his case. Moreover, if he claims that the
proceedings are too slow, he should have filed and still could file a
complaint under article 24 of the Spanish Constitution.
4.4 The State party concludes that since the issues raised by Mr. Balaguer
are being dealt with by the Spanish courts in the exercise of Spanish
sovereignty, domestic remedies have not been exhausted, and that the
communication should be declared inadmissible.
4.5 With regard to the merits, the State party indicates that on two
occasions the author misused his visiting rights by keeping his daughter
longer than permitted. It denies any discrimination in the pertinent Spanish
law and indicates, inter alia, that the competent judge acted pursuant to
the law applicable in 1986 (article 159 of the Civil Code), which provided
as follows: "if the parents are separated and do not decide by mutual
agreement, male and female children less than seven years of age shall
remain in the custody of the mother, unless the judge for special reasons
rules otherwise". Article 160 provides that: "the father and the mother,
even if not exercising parental authority, shall have the right of access to
their minor children". The State party contends that these provisions are
fully compatible with the Covenant and refers in this connection to the
Committee's Views on communication No. 201/1985, Hendriks v. The Netherlands
[FN1]
-------------------------------------------------------------------------------------------------------------------------------[FN1]
Views adopted on 27 July 1988.
-------------------------------------------------------------------------------------------------------------------------------
5.1 As to the delays in the proceedings, the author informed the Committee
on 21 August 1991 that:
(a) From the date of his initial petition for visiting rights (relación
paterno-filial) there has been an interval of 1,747 days (5½ years as of the
time of the present decision by the Committee);
(b) The interval between the Badalona Court's order and the Superior Court's
confirmatory order was 360 days;
(c) The interval between the Superior Court's order and the Badalona Court's
order of suspension was 238 days.
5.2 He further adds that following the order by the court of first instance
suspending an order from a superior court, proceedings have been delayed for
no apparent reason:
(a) The interval between the submission of the appeal against the suspension
order (22 March 1990) and the transfer of the case to the Superior Court was
300 days;
(b) The time elapsed from the submission of the appeal (22 March 1990) to
date (August 1991) has been 517 days.
5.3 The author thus complains that as of August 1991 the court had not
decided on his application for visiting arrangements and had not made a
ruling, although 1,747 days had elapsed.
5.4 By letter of 24 February 1992 the author challenges the rationale of the
decision of the Superior Court of Barcelona of 31 January 1992, suspending
his previously recognized right to access, which he had been unable to
exercise in view of "the mother's intransigence and opposition in attitude
of revenge". He adds that this last decision under the regime of voluntary
jurisdiction is not subject to appeal.
5.5 The author claims that the application of domestic remedies in his case
has been unreasonably prolonged, within the meaning of article 5, paragraph
2, of the Optional Protocol. In this context he refers to the Committee's
admissibility decision in communication No. 238/1987. [FN2]
-------------------------------------------------------------------------------------------------------------------------------[FN2]
Floresmilo Bola ñ os v. Ecuador , Views adopted on 26 July 1989.
-------------------------------------------------------------------------------------------------------------------------------
The Committee's admissibility decision:
6.1 During its 44th session in March 1992, the Committee considered the
admissibility of the communication. The Committee first considered whether
the author had standing to act on his daughter's behalf, as he was not the
custodial parent. It noted that it was evident that the author's daughter
could not herself submit a communication to the Committee, and further
observed that the bond between a father and his daughter, as well as the
nature of the allegations in the case, were sufficient to justify
representation of the author's daughter by her father.
6.2 The Committee ascertained that the same matter was not being considered
under another procedure of international investigation or settlement.
6.3 As to the requirement of exhaustion of domestic remedies, the Committee
noted the State party's indication that proceedings in the case remained
pending. It observed that Mr. Balaguer's attempts to vindicate a right of
access to his daughter had begun in 1986 and that he had not seen his
daughter for several years. Taking into account the proviso in article 5,
paragraph 2(b), about undue prolongation of remedies, coupled with the fact
that the situation (in 1992) prevented both the author and his daughter from
having contact with each other, the Committee deemed it unreasonable to
expect the author to continue awaiting a final decision on custody and
visiting rights and considered a delay of over five years in the
determination, at first instance, of a right of access in custodial disputes
to be excessive. It concluded that article 5, paragraph 2(b), did not
preclude it from considering the merits of the case.
6.4 On 25 March 1992, the Committee declared the communication admissible in
so far as it appeared to raise issues under articles 23, paragraphs 1 and 4,
24, paragraph 1, and 26 of the Covenant.
THE STATE PARTY'S SUBMISSION ON THE MERITS AND THE AUTHOR'S COMMENTS
THEREON:
7.1 In its submission under article 4, paragraph 2, of the Optional
Protocol, dated 16 November 1992, the State party challenges the Committee's
conclusion that the author has standing to act on his daughter's behalf. In
this context, it noted that it ascertained that
- the author never complied with his obligations, agreed to in January 1987
with the child's mother, to contribute financially to the girl's upbringing;
- his allegations relating to the poor physical health of his daughter have
proven false;
- his allegations relating to the presumed disorderly lifestyle of the
mother have been proven wholly false; and
- the author never purported to act as representative of his daughter in the
domestic judicial proceedings.
7.2 As to whether the same matter is under examination by another instance
of international investigation or settlement, the State party questions the
veracity of the author's initial submissions to the Committee, given that
- he has written twice to the office of examining magistrate of Badalona
with indications that his case is pending before the "international court of
justice" (tribunal internacional de justicia) so as to vindicate his rights;
- he has indicated to the same office that he has presented his case to
UNESCO in Paris, in his function as "secretary-general" of a
non-governmental organization.
In the circumstances, the State party requests the Committee's confirmation
that the requirements of article 5, paragraph 2(a), of the Protocol have
been met.
7.3 As to the issue of exhaustion of domestic remedies, the State party
reiterates that both in respect of non-contentious jurisdiction and
contentious proceedings of minor jurisdiction (see paragraph 4.2 above),
available and effective domestic remedies have not been exhausted. With
respect to the purported "undue prolongation" of domestic remedies, the
State party emphasizes that this rule is inapplicable in the author's case,
as all the delays in the proceedings (both non-contentious and contentious)
are solely attributable to Mr. Balaguer. Thus, the author's own behaviour
and his repeated refusal to comply with the terms of access initially agreed
upon led to the decision of the Badalona Court of 16 March 1990 to suspend
proceedings under non-contentious jurisdiction. As to the contentious
jurisdiction, the State party recalls that the author himself is the
defendant in these proceedings - as a result, he has seen fit to delay these
proceedings as much as possible, either by challenging the jurisdiction of
the Court of Badalona or by changing legal representatives. The State party
notes that all legal representatives assigned to or chosen by the author
have, after varying periods of time, refused to represent him any further.
7.4 The State party explains that the custody of children (patria potestad)
is governed by articles 154, 156 and 159 of the Civil Code. Article 159 was
amended in October 1990 by Law 11/1990, out of concern that the previous
provision, which as a rule gave custody to the mother save under exceptional
circumstances, discriminated on the basis of sex. Under the provision as
amended, the judge must decide, in the best interest of the children, which
of the parents will be awarded custody and, to the extent that this is
possible and reasonable, hear the children; it is mandatory to hear children
over the age of 12. The State party points out that at no point, before the
change in legislation of afterwards, did the author seek custody of his
daughter, either before the local courts or before the Committee. By
contrast, it was the girl's mother who, since the end of 1989, has sought to
obtain a ruling on the exclusive custody of the child.7.5 The State party
recalls that the right of access of parents to their children is governed by
article 160 of the Civil Code. Under article 159, paragraph 3, the judge
decides on the modalities of access and on the special conditions of access,
with a view to avoiding that any harm be done to the children. The State
party rejects as "totally unjustified" and unsubstantiated the author's
claim that his right of access has been violated ("Es una ... denuncia
radicalmente falsa").
7.6 The State party affirms that article 23, paragraph 1, does not apply in
the author's case. It argues that the cohabitation, of limited duration,
from April 1985 until shortly after the birth of Maria del Carmen, between
the author, a 44-year old married man, and Carmen Montalvo, a 17-year old
minor, does not qualify as a "family" within the meaning of article 23,
paragraph 1. Furthermore, the relationship between the author and Ms.
Montalvo, highly problematic while it lasted and never placed on firm legal
grounds, cannot, in the State party's opinion, be deemed a "fundamental
[element] of society" which is entitled to "protection by society and the
State". Rather, the State party qualifies the author's behaviour as bigamy.
7.7 In the State party's opinion, article 23, paragraph 4, cannot apply in
the author's case either, as the author never formalized his relationship
with Ms. Montalvo, either through marriage or other legal arrangements. As a
result, there cannot be any question of a "dissolution" of a marriage within
the meaning of article 23, paragraph 4, first sentence, which would trigger
the State party's obligation to guarantee the equality of rights and
responsibilities of spouses. The State emphasizes that the author was
married when a child was born out of his relationship with Ms. Montalvo.
7.8 As to the alleged violation of article 24, paragraph 1, the State party
affirms that the author's daughter has not suffered discrimination of any
type, and that, as a minor, she is given the requisite measures of
protection, both by her mother and by the State.
7.9 The State party dismisses as absolutely unfounded ("radicalmente falsa")
the author's allegations under article 26, namely that he is discriminated
against in relation to his right of access to his daughter. It explains that
under Spanish legislation, no distinction is made between legitimate and
illegitimate children; for both, the parents have the same rights and
responsibilities, which are guaranteed by law. In particular, any parent has
the right of access to his or her child; in conflictual situations, it is
incumbent upon the (family) judge to take the necessary measures to avoid
any harm to the children. The procedure, the State party submits, was
strictly followed in the author's case.
7.10 In this context, the State party recalls that the author and Ms.
Montalvo agreed, in January 1987 and with the approval of a judge, upon a
visiting rights regime, under which the girl could spend several days during
every second weekend ("unos dias") with the author. The first time the
author made use of this right, he disappeared with the child for four days,
and the mother had to travel to Paris, where she found the child, according
to the State party, in disgraceful circumstances ("en lamentables
condiciones"). The second time, the author once again took off with his
daughter, this time for four months, during which he did not maintain a
fixed domicile, taking refuge, at one point, in a religious institution.
Those incidents, the State party affirms, did not deprive the author of his
right of access.7.11 After appropriate psychological tests, the parents,
again with the judge's approval, agreed that the author could visit his
daughter in an appropriate public institution or public place. This form of
contact between father and daughter produced unsatisfactory results, as the
child displayed signs of anguish and discomfort during the visits.
Thereafter, the mother proposed, and the judge agreed to, that contacts
between the author and his daughter take place at her home; under the terms
of this agreement, the author would be allowed to see his daughter alone, in
the mother's absence but with the assistance of the police (Mossos
d'esquadra).
7.12 According to the State party, the author rejected this form of contact
with his daughter. Rather, he requested that the child be brought to an
orphanage ("un establecimiento de acogida, es decir un orfanato"), where he
would then visit her. Faced with this attitude of the author, and given that
the mother had, in the meantime, initiated judicial proceedings, the judge
suspended non-contentious proceedings by decision of 14 March 1990. The
State party underlines that this decision did not deny the author his right
of access to his daughter.
7.13 The author, rather than accepting the visiting rights regime negotiated
earlier, proceeded to file recourse upon recourse, requesting that the
initial visiting rights regime of January 1987 be reinstated. The State
party notes that, significantly, the author has never filed similar requests
in the context of the contentious proceedings. The State party concludes
that no one, be it the mother, the authorities or the judge, has denied the
author the right of access to his daughter; rather, the latter has simply
refused to avail himself of the formula deemed by all to be the one that is
in the child's best interest, namely contacts between child and father in
the mother's home but in her absence.
7.14 In the light of all of the above, and given that the author has at
times chosen to misrepresent his situation and deliberately to distort his
claims both before the local courts and before the Human Rights Committee,
the State party requests that the Committee dismiss Mr. Balaguer's complaint
as an abuse of the right of submission.
8.1 In his comments, dated June and 6 September 1993, the author dismisses
the State party's submission as untruthful, distorting the facts, devious
and reflecting the outdated societal and family concepts of the Spanish
authorities and/or the law. The Committee, after carefully examining the
author's comments, however, feels obliged to note that they frequently
amount to critical comments directed against the government official
responsible for the State party's submission in the instant case. To the
extent that this is the case, the Committee will not consider the author's
comments.
8.2 Mr. Balaguer reaffirms that he is entitled to represent his daughter
before the Committee, not however by refuting the State party's observations
but by reference to paragraph 6.2 of the Committee's decision on
admissibility. He confirms that his case has not been presented to another
instance of international investigation or settlement and contends that the
State party's doubts in this respect are designed to discredit him.
8.3 To the State party's reaffirmation that domestic remedies have not been
exhausted and that delays in the adjudication of the matter must be
attributed to the author himself, Mr. Balaguer replies that the judge of the
Badalona Court has never seen fit to handle the requests to determine the
issue of custody and visiting rights properly and in accordance with the
applicable law. No indication is, however, given as to which laws and
regulations have not been observed by the State party's judicial
authorities. The author adds that he cannot exhaust domestic available
remedies, by way of appeal or amparo, since the court of first instance had
not handed down a decision at first instance more than seven years after his
initial petition.
8.4 The author reaffirms that he is a victim of violations of articles 23,
paragraphs 1 and 4, 24, paragraph 1, and 26; he does so by reference to his
earlier submissions, which in his opinion clearly demonstrate that his
allegations are well-founded. In particular, he submits that the
relationship with his daughter must be subsumed under the term "family"
within the meaning of article 23, paragraph 1, and that the family unit has
not benefitted from the requisite protection of the State.
8.5 Apart from violations of the Covenant, the author contends that the
Spanish authorities have violated article 9 of the Convention on the Rights
of the Child (CRC) in his case, and in particular of paragraph 3 of this
provision, which he claims guarantees the contact with both mother and
father for children whose parents are separated. It is submitted that the
attitude of the judicial authorities in the case constitute a violation of
article 9 CRC, notwithstanding the Government's assurance that the CRC would
be incorporated into domestic law.
8.6 The author accuses the State party of not citing, or citing incorrectly,
the applicable domestic laws and regulations, the relevant jurisprudence of
domestic tribunals, or relevant international instruments. A careful
analysis of his comments reveals, however, that he does not himself cite any
provisions of the Spanish Civil Code, the Code of Civil Procedure,
regulations governing family relations, or the jurisprudence of the domestic
courts, save for unidentified excerpts of Supreme Court or Constitutional
Court decisions.
REVIEW OF ADMISSIBILITY ISSUES AND EXAMINATION OF THE MERITS:
9.1 The Committee has considered the present communication in the light of
all the information provided by the parties. It takes note of the State
party's reiterated request that the complaint be dismissed as an abuse of
the right of submission, as well as the author's rebuttal.
9.2 The Committee has taken note of the State party's observations
questioning the decision on admissibility of 25 March 1992. Having duly
considered the arguments summarized in paragraphs 7.1 to 7.3 above, the
Committee concludes that there is no reasonto revise its decision on
admissibility. [FN3] Firstly, in respect of the question of the author's
standing to represent his daughter, it reiterates that standing under the
Optional Protocol may be determined independently of national regulations
and legislation governing an individual's standing before a court of law.
This means that regardless of what Mr. Balaguer did to represent his
daughter's interests before the Spanish courts, the considerations in
paragraph 6.2 above apply. Secondly, the Committee has ascertained that the
author's case is not pending before another instance of international
investigation or settlement. Finally, while it is true that many delays in
the proceedings must be attributed to the author himself, it nonetheless
remains that after several years of contentious proceedings, there is no
evidence of a judicial decision at first instance. In a dispute about
custody rights and access to children, the Committee considers this delay to
be unreasonable.
-------------------------------------------------------------------------------------------------------------------------------[FN3]
The Committee regrets that subsequent to the decision on admissibility, the
parties have become locked in disputes that are of little relevance to the
content of the initial communication. It notes that the file reveals that
the author used his demarches before the Human Rights Committee for purposes
of the proceedings, to which he is party, before the Court of Badalona.
Thus, it transpires that he used United Nations stationery in correspondence
with the Court of Badalona, although he was not authorized to do so. While
these occurrences do not have a direct bearing on the examination of
communication No. 417/1990, they may discredit the procedure under the
Optional Protocol.
-------------------------------------------------------------------------------------------------------------------------------
10.1 On the merits, the questions before the Committee concern the scope of
articles 23, paragraphs 1 and 4, and 24, paragraph 1, i.e. whether these
provisions guarantee an unqualified right of access for a divorced or
separated parent, or not, and a child's right to have contact with both
parents. Another issue is whether decisions on custody and access rights in
the case have been based on distinctions made between fathers and mothers
and, if so, whether these distinctions are based on objective and reasonable
criteria, as follows from the application of article 26 of the Covenant.
10.2 The State party has argued that article 23, paragraphs 1 and 4, do not
apply to the case, as the author's unstable relationship with Ms. Montalvo
cannot be subsumed under the term "family", and no marital ties between the
author and Ms. Montalvo ever existed. The Committee begins by noting that
the term "family" must be understood broadly; it reaffirms that the concept
refers not solely to the family home during marriage or cohabitation, but
also to the relations in general between parents and child FN4. Some minimal
requirements for the existence of a family are however necessary, such as
life together, economic ties, a regular and intense relationship, etc.
-------------------------------------------------------------------------------------------------------------------------------[FN4]
See Views on communication No. 201/1985 ( Hendriks v. The Netherlands ),
adopted on 27 July 1988, paragraph 10.3.
---------------------------------------------------------------------------------------------------------------------
10.3 In the instant case, irrespective of the nature of the author's
relationship with Ms. Montalvo, the Committee observes that the State party
has always acknowledged that the relations between the author and his
daughter were protected by the law, and that the mother, between 1986 and
1990, never objected to the author's contacts with his daughter. It was only
after Mr. Balaguer continuously failed to observe, and objected to, the
modalities of his rightof access, that she sought exclusive custody and
non-contentious proceedings were suspended. The Committee concludes that
there has been no violation of article 23, paragraph 1.
10.4 The Committee further notes that article 23, paragraph 4, does not
apply in the instant case, as Mr. Balaguer was never married to Ms.
Montalvo. If paragraph 4 is placed into the overall context of article 23,
it becomes clear that the protection of the second sentence refers only to
children of the marriage which is being dissolved. In any event, the
material before the Committee justifies the conclusion that the State
party's authorities, when determining custody or access issues in the case,
always took the child's best interests into consideration. This is true also
for the decisions of the Third Chamber of the Court of Badalona, which the
author has singled out in particular.
10.5 The author has claimed a violation of article 24, paragraph 1, since
his daughter, as a minor, has not benefitted from the appropriate measures
of protection, by law or otherwise, on the part of her family and the State.
The Committee cannot share this conclusion. On the one hand, the girl's
mother has, on the basis of the available documentation, fulfilled her
obligations as custodian of the child; secondly, there is no indication that
the applicable Spanish law, in particular Sections 154, 156, 159 and 160 of
the Civil Code, do not provide for appropriate protection of children upon
dissolution of a marriage or the separation of unmarried parents.
10.6 Finally, having examined the material before it, the Committee
concludes that no issues arise under article 26 in the circumstances of the
case. There is no indication that the author was treated arbitrarily and on
the basis of unreasonable criteria by the Spanish authorities, or that he
was treated differently from others in a similar situation.
11. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it do not reveal a breach by
the State party of any of the provisions of the Covenant.
Made public by decision of the Human Rights Committee.
A concurring individual opinion by Committee member Elizabeth Evatt is
appended to the text of the Views.
APPENDIX
INDIVIDUAL OPINION (CONCURRING) BY MRS. ELIZABETH EVATT UNDER RULE 94,
PARAGRAPH 3, OF THE COMMITTEE'S RULES OF PROCEDURE, CONCERNING COMMUNICATION
NO. 417/1990
(MANUEL BALAGUER SANTACANA V. SPAIN)
I agree with the Committee's conclusion that there has been no violation of
the author's rights under the Covenant. I agree also that, in the
circumstances of the case, it is not necessary to apply article 23,
paragraph 4, since the measures of protection required for a minor under
article 24, paragraph 1, also require that decisions about custody and
access (visiting rights) be decided on the basis of the child's best
interests.
I do not agree, however, with an interpretation of the concept of "marriage"
in article 23, paragraph 4, which would automatically exclude its
application to relationships which, while not "formal" marriages, are in the
nature of marriage and share many of its attributes including joint
responsibility for the care and upbringing of children. Legal regimes
applying to such relationships should, in my view, be in conformity with
article 23, paragraph 4.
Elizabeth Evatt |
|
