A.A.S. v. FINLAND
Inadmissible
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
1. The applicant, Mr A.A.S., is a Finnish national, who was born in 1972. The President of the Section decided of his own motion to grant the applicant anonymity (Rule 47 § 3 of the Rules of Court) and confidentiality of the case file documents (Rule 33 of the Rules of Court). He was represented before the Court by Ms Heini Kotamäki, a lawyer practising in Vantaa. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1999 the applicant started dating the future mother of his child. They were engaged and moved in together. Their cohabitation broke down in November 2000, before the child was born in April 2001. The mother did not allow the applicant to visit his daughter. 5. On 24 February 2004 the applicant’s paternity was confirmed by the District Court (käräjäoikeus, tingsrätten). The applicant contacted the child welfare authorities in order to have contact with the mother and the child, but in vain. 6. On 26 April 2004 the applicant requested the District Court to grant him visiting rights to his daughter. 7. On 27 April and 7 May 2004 the child’s mother and her current husband requested that a restraining order be issued against the applicant. 8. On 17 May 2004 the applicant attempted to murder the husband of the child’s mother. 9. On 24 June 2004 the District Court issued a restraining order against the applicant. He was not allowed to approach the child, the mother of the child or her husband. This judgment was final. 10. On 16 May 2005 the District Court refused the applicant’s application for visiting rights. It found that the applicant had never met his daughter, who was by then four years old. However, the applicant had had his paternity confirmed and had also tried to establish contact with his daughter. On the basis of these circumstances, visiting rights could be granted to the applicant. As the daughter did not know her father, the meetings needed to be conducted in the presence of the mother. The applicant being detained, these meetings would have to take place in prison, which could not be regarded as a suitable place for initiating the meetings. Considering the existence of the restraining order, the mother could not be obliged to take the child to prison to meet the father. There were thus no grounds for granting visiting rights to the applicant at that moment. Such rights could be granted later when the applicant was released from prison. 11. The applicant did not appeal against this decision. 12. On 14 November 2007 the applicant requested the District Court to change the previous decision so that the daughter would have the right to visit and to maintain contact with her father first under supervision and later unsupervised. The mother opposed such visiting rights. 13. On 17 January 2008 the District Court refused the applicant’s application. It noted that the applicant had been found guilty of the attempted murder of the current husband of his child’s mother. Although a prison sentence as such did not prevent visits from taking place, the applicant had committed the criminal act in a state of diminished responsibility and, while in prison, he had seriously threatened the life of the child’s mother. It was not in the best interest of the child to meet her father, even under supervision. 14. By letter dated 18 February 2008 the applicant appealed against the decision of 17 January 2008 to the Court of Appeal (hovioikeus, hovrätten), reiterating the grounds already presented before the District Court. 15. On 25 February 2008 the applicant was released from prison. 16. On 16 October 2008 the Court of Appeal, after having held an oral hearing on 16 September 2008, rejected his appeal. It found that the child was at the time seven years old. Even though the applicant’s circumstances had improved since his release from prison, the child’s mother still had grounds to fear for her life and the life of the child. Moreover, the applicant had been diagnosed as suffering from mental problems which also gave an additional reason to fear for the child’s safety. In such a situation, the best interest of the child required that the applicant was not granted visiting rights. 17. By letter dated 15 December 2008 the applicant further appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Court of Appeal. 18. On 27 April 2009 the Supreme Court refused the applicant leave to appeal. 19. According to sections 9 and 10 of the Child Custody and Right of Access Act (laki lapsen huollosta ja tapaamisoikeudesta, lagen angående vårdnad om barn och umgängesrätt, Act no. 361/1983), a child has a right to maintain contact with and visit the parent with whom he or she does not live. Custody and right of access must be decided in the best interest of the child.