CCPR/C/51/D/417/1990, Balaguer Santacana v. Spain

Decision on merits; Substantive issues: children rights discrimination on other grounds family rights marriage rights; Articles: 23 (1) 23 (4) 24 (1) 26; Procedural issues: abuse of the right of submission exhaustion of domestic remedies same matter - another procedure of international investigation or settlement victim status; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]

Volltext (verifizierbarer Originaltext)

UNITED CCPR

NATIONS

¢/ \) International Covenant Distr.

Ni Yy on Civil and Political Rights RESTRICTED */

Ses

CCPR/C/51/D/417/1990

29 July 1904

Original: ENGLISH

HUMAN RIGHTS COMMITTEE

Fifty-first session

VIEWS

Communication No. 417/1990

Submitted by: Manuel Balaguer Santacana

Alleged victims: The author and his daughter,

Maria del Carmen Balaguer Montalvo

State party: Spain

Date of communication: 9 July 1990 (initial submission)

Documentation references: Prior decisions:

- Special Rapporteur's rule 91 decision, transmitted

on 21 September 1990 (not issued in document form)

- CCPR/C/WG/42/D/417/1990

(Working Group rule 91 decision, dated 12 July 1991)

- CCPR/C/44/D/417/1990 /Rev.1

(Decision on admissibility, dated 25 March 1992)

Date of adoption of Views: 15 July 1994

On 15 July 1994, the Human Rights Committee adopted its Views under article 5,

paragraph 4, of the Optional Protocol, in respect of communication No. 417/1990. The text of

the Views is appended to the present document.

[Annex]

*/ Made public by decision of the Human Rights Committee.

VWS417.51e cb

GB.94-18017

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ANNEX

Views of the Human Rights Committee under article 5, paragraph 4,

of the Optional Protocol to the International Covenant

on Civil and Political Rights

- Fifty-first session -

concerning

Communication No. 417/1990 */

Submitted by: Manuel Balaguer Santacana

Alleged victims: The author and his daughter,

Maria del Carmen Balaguer Montalvo

State party: . Spain

Date of communication: 9 July 1990 (initial submission)

Date of decision on admissibility: 25 March 1992

The Human Rights Committee, established under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 15 July 1994,

‘Having concluded its consideration of communication No. 417/1990 submitted to the |

Human Rights Committee by Mr. Manuel Balaguer Santacana on behalf of himself and his

daughter, Maria del Carmen Balaguer Montalvo under the Optional Protocol to the

International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author

of the communication and the State party,

Adopts its Views under article 5, paragraph 4, of the Optional Protocol.

*/ A concurring individual opinion by Committee member Elizabeth Evatt is

appended to the text of the Views.

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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, Maria 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 Maria del Carmen Montalvo

Quifiones 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 Maria 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 Instruccion y Primera Instancia de Badalona) case No. 18/86 under the

regime of “voluntary jurisdiction” (jurisdiccion 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

Cuantia) 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 "Direccién General de atenci6én 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.

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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 reposicién) of the order, which was dismissed on 30 April

1990. .

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3. On 25 June 1990 Mr. Balaguer submitted a further request for review, with a

subsidiary appeal (recurso de reforma y subsidiario de apelacién).

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 apelaci6n) 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.

Contentious proceedings of minor jurisdiction

1. On 10 January 19971, in the contentious proceedings instituted by Ms. Montalvo

in respect of parenta! 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.

4.3

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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 compiaint 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 Quifhones 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 Quifiones.

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.

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.

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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.

2041/1985, Hendriks v. The Netherlands’.

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 (relacién paterno-filial) there

has been an interval of 1,747 days (5% 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;

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.

Views adopted on 27 July 1988.

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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.”

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;

2 Floresmilo Bolafios v. Ecuador, Views adopted on 26 July 1989.

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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.

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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.

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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 reason