AS TO THE ADMISSIBILITY OF
Application No. 24482/94
by Jan BOGDANSKI
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 29 November 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 April 1994 by
Jan Bogdanski against Sweden and registered on 28 June 1994 under file
No. 24482/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swedish citizen born in 1946, is a researcher.
He resides at Skogås.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In May 1984 the applicant got a divorce from his wife, Z.B. By
a decision of the District Court (Tingsrätten) of Huddinge, she was
awarded custody of their son, A, born on 21 June 1982. Also in May 1984
the applicant was convicted of having threatened and assaulted Z.B. He
was sentenced to pay a fine.
In 1985 the applicant left Sweden. He first moved to Norway and
then, in 1986, he settled in the United States. In October 1990 he
moved back to Sweden with his cohabitee and her daughter. While abroad,
the applicant did not have any contact with A. At the time of his
return to Sweden, the applicant had not seen his son since
28 October 1983.
On 17 December 1990 the applicant contacted the Social Council
(Sociala enheten - "the Council") at Vårby and requested it to help him
in securing access to A. When visiting the social welfare office a
month later, he explained that he wanted a social worker to deliver his
son for the meetings, as he feared that Z.B. again would accuse him of
assault should he contact her. At a visit to the social welfare office
a few days thereafter, the applicant's ex-wife, however, objected to
this arrangement, finding it more appropriate that the applicant first
contacted his son in the latter's home.
On 11 February 1991 the applicant instituted access proceedings
against Z.B. in the District Court. He also requested the Court to
issue a provisional access order. The Court held a preparatory hearing
with the parties on 18 April. They agreed that the applicant should
meet A on four Saturdays in May and June. However, the first meeting,
scheduled for 4 May at the son's home, did not take place, as nobody
was at home when the applicant arrived. As a consequence, the
applicant, by application dated 7 May, requested the Court to transfer
custody of A to him. He claimed that Z.B. was unfit as A's custodian,
as she allegedly hindered meetings between father and son.
Thereafter, the Council arranged meetings between the applicant
and A at the latter's home on 29 May and 6 June 1991 in the presence
of a contact person (kontaktperson) appointed by the Council. However,
the meetings went off badly. According to the Council, A asked the
applicant to leave as he had not heard from him for such a long time.
He then refused to talk to his father.
On 17 June 1991 the Court held a further preparatory hearing,
during which the parties reached an agreement on certain access dates
between June and September and the particular arrangements for these
meetings. The Court decided that the question of access should be
investigated by the Council and that the next preparatory hearing
should be held on 3 October. The parties agreed that the proceedings
should be stayed until that date.
At a third meeting between the applicant and A on 19 June 1991,
A again had a very negative attitude towards his father and was very
upset. The following meetings, which were to take place on 6 July and
17 August, had to be abandoned due to A's reactions. On 25 June, a
contact between A and a psychiatrist at the Children's Psychiatric
Centre (Psykiatriska barn- och ungdomsmottagningen) at Skärholmen was
initiated by Z.B. as a consequence of A's reactions to the meetings
with his father.
On 17 July 1991 the Council, at the applicant's request,
appointed another contact person to assist in the access attempts.
After having talked to the parents in September and October, the
contact person concluded that there was no basis for an agreement
between them. The Council then advised the Court to await the result
of its investigation before deciding on future access.
After a postponement, the Court held its third preparatory
hearing on 5 November 1991. By decision of 8 November, it requested the
Council and the Psychiatric Centre to give, before 29 November, its
opinions on the advisability of further provisional access. The
decision was upheld on appeal.
In reply to the Court's request, the Psychiatric Centre stated
that while A was undergoing treatment at the Centre it refrained from
commenting on the question of further access. The Council, in its reply
to the Court, found it advisable to await the outcome of the on-going
co-operation talks (samarbetssamtal) between the parents. These talks
were lead by the person appointed by the Council, in
mid-September 1991, to carry out the investigation of the question of
access as requested by the Court on 17 June. The investigator met the
applicant on 25 October, the mother on 7 November and both parents
together on 27 November and 3 December.
By decision of 3 December 1991, the Court rejected the
applicant's request for provisional access. It found it advisable to
await the outcome of the co-operation talks, the treatment of A at the
Psychiatric Centre and the Council's investigation. It further ordered
that the investigation should be concluded by 31 March 1992. The
decision was upheld on appeal.
On 4 December 1991, after having been refused to record the
co-operation talks on audio tape, the applicant informed the Council
that he did not want to continue with the talks. He later requested a
meeting with A at the Psychiatric Centre. At this meeting, which took
place on 17 January 1992, A refused to sit in the same room as the
applicant, for which reason they sat in different rooms and talked via
microphone. At the end of the meeting, A expressed that he never wanted
to see his father again.
The Council later asked for an extension of the time-limit for
submission of its investigation report to the Court. As a consequence,
the applicant lodged a further request for provisional access. By
decision of 7 May 1992, the Court rejected the applicant's request and
ordered the Council to submit its report by 1 June. The decision was
upheld on appeal.
On 2 June 1992 the Council's investigation was concluded and a
report was submitted to the Court. In the report, it was noted that the
applicant had refused to talk about his feelings for A or his wish to
establish a relationship with him and that he preferred to submit
information in writing. It was further noted that the attempts at
establishing access had been unsuccessful and that A, both to the
Psychiatric Centre and the Council's investigator, had expressed that
he did not want to see his father again, an attitude which, according
to the Centre, could not be expected to change in the foreseeable
future. Having regard to this and to A's age, maturity and clear
attitude towards his father, the investigator concluded that access
would not be beneficial to either A or the applicant. The investigator,
however, expressed that it was to be hoped that future meetings would
take place on A's initiative.
A further request by the applicant for provisional access to A
was rejected by the Court on 16 July 1992. The decision was upheld on
appeal.
The Court's main hearing in the case, originally scheduled for
25 August 1992 was, at the applicant's request, postponed until
4 September. During the hearing, the Court heard the parties.
Having regard to the parties' statements and the Council's
report, the Court, by judgment of 25 September 1992, rejected the
applicant's claim for transfer of custody, finding such a measure not
to be in the best interests of A. In this connection, the Court
considered as unfounded the applicant's allegation that Z.B. was
obstructing the contacts between him and A. As regards access, the
Court, however, found that it was in A's best interests to have contact
with his father. The Court stated that the applicant should have access
to A initially once a month, starting on 3 October, and after the turn
of the year every second weekend, four weeks during summer and every
second Easter, Christmas and New Year. The Court's decisions were taken
in accordance with Chapter 6, Sections 6 (custody) and 15 (access) of
the Parental Code (Föräldrabalken), which state that the child's best
interests are decisive. The decision concerning access was put into
effect immediately.
On 3 October the applicant came to fetch A at the latter's home.
A, however, refused to leave the apartment and got very upset. After
some discussion the meeting ended. The applicant claimed that Z.B. had
failed in her responsibility to prepare A for the meeting.
The parties appealed against the judgment of the District Court
to the Svea Court of Appeal (Svea hovrätt). The applicant requested
that custody be transferred to him and Z.B. claimed that the applicant
should not be granted any access to A. Z.B. further requested the Court
of Appeal to stop further access, as it was harmful to A.
By decision of 30 October 1992, the Court of Appeal annulled the
District Court's decision that the applicant's right of access was
immediately enforceable. The Court of Appeal found, under the
circumstances, no reason to order meetings between the applicant and
A. No appeal was available against this decision.
On 4 December 1992 the Court of Appeal requested the Children's
Psychiatric Centre at Huddinge to give, before 2 March 1993, its
opinion on the advisability of access between the applicant and A. In
its reply of 2 March, the Centre suggested that an observation study
of A should be made at a children's psychiatric clinic. After having
rejected, by decision of 26 March, the applicant's renewed request for
a provisional access order, the Court of Appeal, however, decided, on
2 April, not to order the suggested study, as both parents were against
it. Instead, the Centre was asked to give its opinion as previously
requested. The Centre replied on 3 May, stating that it had no basis
for an assessment of the relationship between the applicant and A and
that it was thus impossible to appraise the value for A to have contact
with his father. The Centre, however, considered that in the prevailing
situation forced access would be traumatic for A and, for this reason,
inappropriate.
The Court of Appeal held hearings in the case on 24 and
31 August 1993, during which it heard the parties, the psychiatrist
treating A at the Psychiatric Centre at Skärholmen and the applicant's
cohabitee.
By judgment of 14 September 1993, the Court of Appeal ruled in
favour of Z.B. The applicant's claim for access to A was thus rejected.
The Court of Appeal shared the District Court's view on the question
of custody. As regards access, the Court of Appeal stated, inter alia,
the following:
(translation)
"The circumstances of the case are, in the Court of
Appeal's opinion, exceptional. The Court of Appeal refers,
in this respect, to the total lack of contact between [A]
and [the applicant] from the time when [A] was just over a
year old (the autumn of 1983) until [the applicant]
returned to Sweden in the autumn of 1990 and the question
of access arose. The subsequent attempts at establishing
access - which, as far as meetings between [the applicant]
and [A] are concerned, have been limited to four meetings
during the period May-August 1991 and the meeting on
3 October 1992 - have been unsuccessful. Moreover, the
[Council's] investigation shows that [A], who is now
11 years old, has a negative attitude, which has grown
stronger and stronger, towards meeting the father.
[A] and [Z.B.] have since June 1991 had a regular contact
with [the Children's Psychiatric Centre] at Skärholmen.
[The psychiatrist] has, when heard in the Court of Appeal,
stated that she has met [A] on about 30 occasions. In her
view, [A] has already been affected in a very negative way
by the dispute between the parents. She has, furthermore,
expressed the opinion that forced contacts will involve
such an emergency situation for [A] that he will suffer
mentally.
The Court of Appeal considers that a decision to grant [the
applicant] a right of access to [A], at present, would pose
such risks to [A's] mental health that it would not be in
his best interests."
On 26 October 1993 the Supreme Court (Högsta domstolen) refused the
applicant leave to appeal.
COMPLAINTS
1. The applicant claims that he was subjected to inhuman and
degrading treatment in violation of Article 3 of the Convention at the
meeting between him and A at the Children's Psychiatric Centre at
Skärholmen on 17 January 1992.
2. Invoking Article 6 of the Convention, the applicant further
complains of the length of the proceedings in the case concerning
custody and access.
3. The applicant also asserts that he has been hindered from
establishing access to his son. In this respect, he invokes Article 8
of the Convention.
4. Finally, the applicant claims that the courts and the social
authorities, in their handling of his requests for custody and access,
are guilty of sexual discrimination in violation of Article 14 of the
Convention and Article 5 of Protocol No. 7 to the Convention.
THE LAW
1. The applicant complains that he was subjected to treatment
contrary to Article 3 (Art. 3) of the Convention at the meeting on
17 January 1992.
The Commission, however, is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of the Articles invoked as, under Article 26 (Art. 26) of the
Convention, it "may only deal with the matter ... within a period of
six months from the date on which the final decision was taken". Where
no domestic remedy is available, the six months period runs from the
date of the act which is itself alleged to be in violation of the
Convention (cf., e.g., No. 10389/83, Johnson v. the United Kingdom,
Dec. 17.7.86, D.R. 47 p. 72).
In the present case, the Commission observes that the alleged
violation occurred at a meeting on 17 January 1992. Whether or not the
applicant could have instituted proceedings against the persons
responsible for the meeting, he apparently did not do so. In these
circumstances, the Commission finds that the six months period under
Article 26 (Art. 26) began to run from the date of the said meeting.
The present application was introduced on 7 April 1994, which is more
than six months later.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
2. The applicant complains of the length of the proceedings in the
case concerning custody and access. He invokes Article 6 (Art. 6) of
the Convention which, in so far as relevant, provides the following:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing
within a reasonable time by an independent and impartial
tribunal ..."
The applicant claims that the courts intentionally, unfairly and
discriminatory delayed the proceedings of the case. He maintains, in
this respect, that the courts left the determination of the case in the
hands of the social authorities.
The reasonableness of the length of proceedings is to be
considered in the light of the criteria laid down in the case-law of
the European Court of Human Rights, in particular the complexity of the
case, the conduct of the applicant and that of the relevant
authorities. On the latter point, the importance of what is at stake
for the applicant in the litigation has to be taken into account (cf.,
e.g., Vallée v. France judgment of 26 April 1994, Series A no. 289-A,
p. 17, para. 34).
The Commission finds that the relevant period to be taken into
consideration started on 11 February 1991, when the applicant requested
the District Court to grant him access to A, and ended on 26 October
1993, when the Supreme Court refused leave to appeal. The proceedings
thus lasted two years and eight and a half months.
The Commission considers that it is essential that a case
concerning custody and access is not unduly prolonged. It recognises
on the other hand that the decision to be taken requires careful
examination of the circumstances of the case, not least in the
interests of the child. The courts must ensure that they have
sufficient information for this examination.
In the present case, the Commission recalls that the applicant
had not had any contact with A for more than seven years when he
instituted proceedings in the District Court. When they met on 29 May
and 6 June 1991, A stated that he did not want to see his father. The
son's negative attitude apparently grew stronger and stronger for each
meeting with the father. At the meeting at the Children's Psychiatric
Centre at Huddinge on 17 January 1992, A expressed that he never wanted
to see his father again, a statement he later reiterated to the
Council's investigator.
The Commission further recalls that the District Court ordered
an investigation by the Council on the question of access and that the
Court of Appeal requested the opinion of the Children's Psychiatric
Centre at Huddinge. It is true that the Council's investigation lasted
for almost a year and that the Psychiatric Centre's opinion was
delivered five months after the Court of Appeal's request. The
Commission, however, recalls that, while the Council investigation was
carried out, the contact person and the investigator appointed by the
Council tried, through talks between the parents, to come to an
agreement on access. The Commission further notes that the applicant
refused to discuss certain matters with the investigator and that he,
after a few meetings, discontinued the co-operation talks. Thus, in the
Commission's opinion, the investigations and thus the courts'
examination of the case were made more difficult partly due to the
applicant's own conduct.
The Commission also recalls that meetings between the applicant
and his son took place with the help of the social authorities during
the initial stages of the court examination of the case and that the
courts regularly assessed the case when deciding on the applicant's
requests for provisional access orders.
Having regard to the particular circumstances of the case,
especially A's attitude towards his father and the consequent need for
investigations regarding the advisability and possible effects on A of
any access arrangements, the Commission finds that the length of the
court proceedings did not exceed a "reasonable time" within the meaning
of Article 6 (Art. 6) of the Convention.
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.
3. The applicant also asserts that he has been hindered from
establishing access to his son. In this respect, he invokes Article 8
(Art. 8) of the Convention, which reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health and morals, or for the protection of the rights and
freedoms of others."
The Commission recalls that, in accordance with its constant
case-law, the right to respect for family life within the meaning of
Article 8 (Art. 8) of the Convention includes the right for a divorced
parent, who has not been granted custody of the child after the
dissolution of the marriage, to visit his child or have contacts with
it; the state may not interfere with the exercise of this right except
in accordance with the conditions laid down in para. 2 of this Article
(Art. 8-2) (cf., e.g., No. 7911/77, X. v. Sweden, Dec. 12.12.77,
D.R. 12 p. 192, and No. 9018/80, K. v. the Netherlands, Dec. 4.7.83,
D.R. 33 p. 9).
The Commission finds that the Court of Appeal's judgment of
14 September 1993, which rejected the applicant's claim for access to
his son, interfered with the applicant's right to respect for his
family life under Article 8 para. 1 (Art. 8-1) of the Convention. It
must therefore be examined whether this interference was justified
under the terms of Article 8 para. 2 (Art. 8-2).
The Commission finds that the relevant decisions were in
conformity with Swedish law, namely Chapter 6, Section 15 of the
Parental Code. The Commission further finds that the interference had
a legitimate aim under Article 8 para. 2 (Art. 8-2), namely the
interests of the child, which in this case fall under the expressions
"for the protection of health or morals" and "for the protection of the
rights and freedoms of others".
It thus remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the child.
According to the established case-law of the Commission and the
European Court of Human Rights, the notion of necessity implies that
the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued. In
determining whether an interference is "necessary in a democratic
society", the Commission furthermore has to take into account that a
margin of appreciation is left to the Contracting States. That does not
mean, however, that the Commission's review is limited to ascertaining
whether the respondent State has exercised its discretion reasonably,
carefully and in good faith. Furthermore, it cannot confine itself to
considering the relevant decisions in isolation but must look at them
in the light of the case as a whole. It must determine whether the
reasons adduced to justify the interference at issue are "relevant and
sufficient" (cf. Eur. Court H.R., Olsson judgment of 24 March 1988,
Series A no. 130, pp. 31-32, paras. 67-68).
In the present case, the Commission recalls that the applicant
and A had not met for more than seven years when the applicant
requested access. On several occasions thereafter, A clearly expressed
that he did not want to see his father. The meetings between the
applicant and A in 1991 and 1992 were all unsuccessful and A's negative
attitude appears to have grown stronger and stronger for each meeting
with the applicant. Moreover, the Council concluded, in its report of
2 June 1992, that access, under the circumstances, would not be
beneficial to A. In its opinion of 3 May 1993, the Children's
Psychiatric Centre at Huddinge considered that in the prevailing
situation forced access would be traumatic for A and, for this reason,
inappropriate. The Commission further recalls that the Court of Appeal,
before giving its judgment, held a hearing, at which A's parents and
two witnesses were present and heard. The Court further had at its
disposal the report of the Council and the opinion of the Centre at
Huddinge. Thus, the Court cannot be said to have intervened without
adequate knowledge of the case.
In the light of the foregoing the Commission finds that the Court
of Appeal's decision to reject the applicant's claim for access to A
was supported by relevant and sufficient reasons and that, having
regard to their margin of appreciation, the Swedish authorities were
reasonably entitled to think that it was necessary to reject the access
claim. Accordingly, the Commission concludes that the relevant decision
can reasonably be regarded as "necessary in a democratic society"
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. Finally, the applicant claims that the courts and the social
authorities, in their handling of his requests for custody and access,
are guilty of sexual discrimination in violation of Article 14
(Art. 14) of the Convention and Article 5 of Protocol No. 7 (P7-5) to
the Convention.
The Commission, however, finds that an examination of this
complaint as it has been submitted does not disclose any appearance of
a violation of the rights and freedoms of the Convention and in
particular the Articles invoked.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary Acting President
to the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy