AS TO THE ADMISSIBILITY OF
Application No. 12154/86
by Knell Ragnwald ABRAHAMSSON
against Sweden
The European Commission of Human rights sitting in private
on 5 October 1987, the following members being present:
MM. C.A. NØRGAARD, President
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 October 1985
BY Mr. Kjell Ragnwald Abrahamsson against Sweden and registered on
14 May 1986 under file No. 12154/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant is a Swedish citizen, born in 1947. He is a
teacher and resides at Gällivare, Sweden. In the proceedings before
the Commission, the applicant is represented by Mr. Åke Eklund.
On 28 April 1984 the applicant punished his son by striking
him three times on the bottom with a birch rod for ignoring previous
instructions not to give his younger brother a lift on the back of his
bicycle. Following this incident, the applicant's son lodged a
complaint with the police. The son later tried to withdraw the
complaint but the authorities refused to allow this and the matter was
pursued as a public prosecution.
On 14 August 1984 the applicant was convicted of assault and
battery under Chapter 3 Section 5 of the Swedish Penal Code and was
fined 100 Swedish crowns by the District Court (tingsrätt) of
Gällivare. Both the applicant and the prosecution appealed against
this judgment to the Court of Appeal (hovrätten).
On 26 March 1985 the Court of Appeal found the applicant
guilty of the charge brought against him and imposed a fine of 250
Swedish crowns. In its judgment, the Court of Appeal stated inter
alia:
"The following elements appear from the travaux
préparatoires relating to this provision (Chapter 6 Section
1 of the Code on Parenthood): an express prohibition
against physical punishment of children should be
introduced. By such a provision one will arrive at the
final point in a legal development to the effect that
society increasingly has repudiated corporal punishment as a
means of education. This development in turn reflects the
attitude nowadays prevailing that the child is an
independent individual who may demand full respect for its
person. With this provision in the Code on Parenthood,
there can be no doubt that punishment of children is a
criminal offence if the corresponding act against another
person would be considered as assault according to the Penal
Code. ... The legal importance of the statutory revision
(the introduction of a total prohibition against punishment
of children) will be that it is clearly stated that such
treatment which by itself should be considered to be against
the law can never to any extent be considered permissible as
being based on a right for the holders of parental custody
to punish their children. But the revision of the law goes
further than that. Assault, according to the Penal Code,
requires that the physical disturbance is not too slight or
transitory.
The ... amendment of the Code on Parenthood (...) means
however that every act involving corporal damage or pain to
the child is prohibited even if the disturbance is quite
slight or transitory. To the extent that the provision
exceeds the punishable area it would be of importance
primarily as a pedagogical support in the endeavours to
convince parents that no forms of violence should be used as
means of education of children.
As was found by the District Court, it has been established
that the applicant has given his son three lashes with a
birch rod on his bottom. It follows from the documents
submitted that the applicant's son suffered the damage
alleged by the prosecutor. The corporal punishment to which
the applicant has exposed his son is obviously to be
considered as assault, even if a minor one. Thus the
applicant is guilty of assault according to the indictment
and should be sentenced accordingly."
The applicant applied for leave to appeal against this
judgment to the Supreme Court (Högsta Domstolen). He referred inter
alia to Articles 8 and 9 of the European Convention on Human Rights as
well as Article 2 of Protocol No. 1 to the Convention. On 11 October
1985, however, the Supreme Court rejected the applicant's request for
leave to appeal.
COMPLAINTS
The applicant complains that the amendment to the Swedish law
relating to the corporal punishment of children violates his right to
respect for his family life, to freedom of religion, to respect for
his right to ensure that his children's education and teaching is in
conformity with his own religious and philosophical convictions. He
invokes Articles 8 and 9 of the Convention and Article 2 of Protocol
No. 1 to the Convention. Finally, he maintains that the prevailing
situation in Sweden also amounts to a violation of Article 17 of the
Convention.
THE LAW
1. The applicant has complained under Article 8 (Art. 8) of the Convention
that the fact that he has been found guilty of a minor assault and
that he has been fined for having punished his son with three lashes
of a birch rod violates his right to respect for his family life.
The Commission recalls that the applicant was prosecuted
pursuant to Chapter 3 Section 5 of the Penal Code for minor assault.
Furthermore, as regards the scope of the Swedish criminal law of
assault and molestation, the Commission recalls its decision of 13
May 1982 in Application No. 8811/79 where it stated the following:
"The Commission recognises that whilst the upbringing of
children remains essentially a parental duty encapsulated
within the concept of family life, it is inevitable that
certain aspects of criminal law will affect the relationship
between parents and children to a greater or lesser degree.
Hence the assault of children by their parents is treated as
criminal and although the applicants have drawn attention to
the wider prohibition of all corporal punishment of children
contained in the Code on Parenthood, they concede that it is
not every corporal rebuke which would infringe the Penal Code.
However, the applicants have not shown that the provisions
of Swedish law criminalising the assault of children are
unusual or in any way draconian. The fact that no
distinction is made between the treatment of children by
their parents and the same treatment applied to an adult
stranger cannot, in the Commission's opinion, constitute an
interference with respect for the applicant's private and
family life since the consequences of an assault are equated
in both cases.
Nor does the mere fact that legislation, or the state of the
law, intervenes to regulate something which pertains to
family life constitute a breach of Article 8 para. 1 (Art. 8-1) of the
Convention unless the intervention in question violates the
applicants' right to respect for their family life. The
Commission finds that the scope of the Swedish law of
assault and molestation is a normal measure for the control
of violence and that its extension to apply to the ordinary
physical chastisement of children by their parents is
intended to protect a potentially weak and vulnerable member
of society.
The Commission therefore concludes that the state of Swedish
criminal law does not interfere with their right to respect
for private and family life within the meaning of Article 8
para. 1 (Art. 8-1) of the Convention. It follows that this aspect of
their complaint is manifesly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention."
The Commission notes that in this case the applicant has been
found guilty of assault contrary to the Swedish Penal Code. Though
the changes made in the Code on Parenthood may in some respects have
affected the application of the provisions of the Penal Code relating
to assaults on children, the Commission considers that the reasoning
set out above applies also in the circumstances of the present
application. For the same reasons the Commission therefore concludes
that this part of the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. As regards the applicant's complaint that the legal position
in question fails to respect his rights to freedom of religion as
guaranteed by Article 9 (Art. 9) of the Convention, the Commission considers
that the same reasoning applies mutatis mutandis to the applicant's complaint
under this Article as to the complaint under Article 8 (Art. 8). It follows
that there has been no interference with the applicant's right as guaranteed by
Article 9 (Art. 9) and this aspect of the application is therefore also
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
3. Finally, the Commission has considered the applicant's
remaining complaints under Article 2 of Protocol No. 1 (P1-2) to the
Convention as well as Article 17 (Art. 17) of the Convention. However, the
documents and the information submitted by the applicant do not
disclose any substantiated facts which would justify a further
examination of these complaints. It follows that this part of the
application is manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)