AS TO THE ADMISSIBILITY OF
Application No. 34621/97
by Chiara CONSTANTINI
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 April 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
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 2 April 1996 by
Chiara COSTANTINI against Sweden and registered on 28 January 1997
under file No. 34621/97;
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, an Italian citizen born in 1913, resides in
Maglie, Italy. Before the Commission she is represented by her son,
Mr Antonio Meleleo, Göteborg.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
a. The particular circumstances of the case
The applicant's son is the father of a boy, A, born in 1987, of
whom the mother, L.E., has custody. For several years, the applicant's
son and L.E. were unable to agree on the question of the former's
access to A. Consequently, the applicant's son instituted access
proceedings in the ordinary courts. By judgment of 21 December 1995,
the Court of Appeal (hovrätten) for Western Sweden decided that the
applicant's son's access to A should be limited to eight hours every
second week in the presence of a so-called contact person
(kontaktperson) appointed by the social authorities. In so deciding,
the court had regard to, inter alia, A's statement that he wished that
some other person be present when he met his father but that he would
rather not have any meetings at all before he had grown up.
Apparently, as from the end of May 1996 the applicant's son has
had access to A in accordance with the appellate court's judgment.
By letter of 29 September 1996, claiming that L.E. refused her
access to A - her grandson - the applicant requested the Social
District Council (stadsdelsnämnden) of Tuve-Säve, Göteborg, to
institute court proceedings in order that she be awarded such access.
She invoked Chapter 6, Section 15, subsection 3 of the Parental Code
(Föräldrabalken).
The Council replied on 19 November 1996, saying that, according
to L.E., the applicant was welcome to visit A in Sweden. Following a
further letter from the applicant, the Council, on 11 February 1997,
reiterated its position that L.E. did not refuse the applicant access
to A and that the Council therefore, at that point in time, found no
reason to institute any access proceedings. Represented by her son,
the applicant, by letter of 19 February 1997, stated that she was too
old and ill to travel to Sweden. Instead, she should be allowed to
meet A in Italy. The applicant's son would accompany A to Italy and
access should be given for a period long enough to make the trip
meaningful, in the beginning at least two weeks on each occasion. The
applicant requested the Council to take a formal decision whether to
institute proceedings regarding her access and - should that decision
be negative - give her directions on how to appeal. On 19 March 1997
the Council informed the applicant that it would investigate the
matter.
The applicant's son lodged an application with the Commission
(No. 31050/96), complaining, inter alia, that the access awarded to him
by the Court of Appeal on 21 December 1995 was insufficient and
constituted a violation of his right to respect for his family life
under Article 8 of the Convention. By decision of 21 May 1997, the
Commission declared the application inadmissible, finding that, in the
circumstances of the case, the access restrictions were in accordance
with the law and were justified as being necessary in a democratic
society for the protection of the rights and freedoms of A.
b. Relevant domestic law
Swedish law does not afford grandparents any rights over their
grandchildren. The rights over a child are normally vested in its
parents or custodians who, according to Chapter 6, Section 15,
subsection 1 of the Parental Code, shall see to it that the child's
need of access to a person who is particularly close to the child is
satisfied to the utmost possible extent. As concerns the possibility
of instituting court proceedings, subsection 3 provides that such
proceedings may be brought by the Social Council, if access requested
by somebody else than the natural parents is denied by the child's
custodians. The court shall determine the question of access in
keeping with the child's best interests.
COMPLAINTS
1. The applicant claims that she has been denied access to A and,
consequently, that her right to respect for her family life under
Article 8 of the Convention has been violated.
2. The applicant complains further that she cannot bring this issue
before a court. In this respect, she invokes Article 6 of the
Convention.
THE LAW
1. The applicant claims that she has been denied access to A and,
consequently, that her right to respect for her family life has been
violated. She invokes Article 8 (Art. 8) of the Convention which
provides the following:
"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."
As has been stated by the European Court of Human Rights (Eur.
Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A no. 31,
p. 21, para. 45), "family life" within the meaning of Article 8
(Art. 8) of the Convention includes at least the ties between close
relatives, since such relatives may play a considerable part in family
life. By way of example, the Court mentioned the relationship between
grandparents and grandchildren. The Commission recalls, however, that
the existence or not of family ties falling within the scope of Article
8 (Art. 8) will depend on a number of factors and on the particular
circumstances of each case (cf., e.g., No. 12763/87, Dec. 14.7.88, D.R.
57, p. 216).
In the present case, the Commission finds that it can be left
open whether the relationship between the applicant and A concerns
"family life" which has been interfered with within the meaning of
Article 8 para. 1 (Art. 8-1) because, even assuming this to be the
case, the Commission considers that the interference was permissible
under para. 2 of that provision. In reaching this conclusion, the
Commission notes that the applicant may meet A in Sweden on those
occasions when her son - A's father - has access to A. In this
connection, it is recalled that the applicant's son's access to A was
restricted mainly due to the wishes expressed by A himself. In its
decision of 21 May 1997, the Commission found that, in the
circumstances of the case, these restrictions were justified under
Article 8 para. 2 (Art. 8-2). A's attitude towards meetings with the
applicant is unknown. However, according to the applicant's statements
to the Social District Council, the applicant's son would be present
at the proposed meetings which would last for at least two weeks on
each occasion. The Commission finds that this arrangement clearly runs
counter to A's wishes. Thus, the failure to award the applicant a
separate right of access to A does not entail a violation of the
applicant's rights under Article 8 (Art. 8) 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.
2. The applicant complains further that she cannot bring the access
issue before a court. In this respect, she invokes Article 6 (Art. 6)
of the Convention which, in so far as relevant, provides as follows:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing by
[a] ... tribunal ..."
The Commission recalls that in order for Article 6 para. 1
(Art. 6-1) to apply to the proceedings in question it must be
ascertained whether there was a dispute over a "right" which can be
said, at least on arguable grounds, to be recognised under domestic law
(cf., e.g., Eur. Court HR, W. v. the United Kingdom judgment of 8 July
1987, Series A no. 121-A, p. 32-33, para. 73). Under Swedish law the
applicant has no right of access to A, her grandson. Thus, she cannot
claim on any arguable ground that she has a right under domestic law.
Consequently, Article 6 para. 1 (Art. 6-1) does not apply in the
present case (cf. No. 12763/87, referred to above).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy