AS TO THE ADMISSIBILITY OF
Application No. 21849/93
by Asta FÄLLGREN
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 February 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
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
Mr. K. ROGGE, 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 8 November 1991
by Asta FÄLLGREN against Sweden and registered on 13 May 1993 under
file No. 21849/93;
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 1937 and residing at
Umeå, Sweden, is an office employee. Before the Commission she is
represented by Mrs. Mari Ann Johansson, a lawyer practising in Umeå.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant has a daughter, D.F., born in 1961. In 1979 D.F.
gave birth to her first son, J. They lived with the applicant until
the summer of 1980. Because of D.F.'s psychological and social
problems, J was, at her request, placed with the applicant in February
1982. In June 1985, D.F. had a second son, H. He was, at D.F.'s
request, placed with foster-parents in September 1985. The placement
was preceded by an investigation by the Social Council (Socialnämnden)
of Umeå ("the Council"). The Council concluded that the applicant
could not take care of a second child, for which reason H was not
placed with her. In November 1988 the foster-parents got a divorce,
after which H has lived with the foster-mother.
By letter of 17 May 1989, D.F. requested the Council to place H
with the applicant instead of the foster-mother.
Under Section 25 of the Social Services Act (Socialtjänstlagen),
a minor may not, without the permission of the Council, be placed for
permanent care in a private home other than his parents' or custodians'
home. Before giving such permission, the Council must investigate the
conditions in the private home and the possibility of placing the minor
in that home.
The Council, accordingly, carried out an investigation of the
matter. In its report of 15 September 1989, it stated that the care
of J was very demanding for the applicant - from August 1987 she had
been assisted by a family appointed by the Council (kontaktfamilj) -
and that she was also assisting her daughter, D.F., which required a
lot of time and effort. According to the appointed family, it would
be impossible for the applicant to take care of H. Moreover, H had
been placed with the foster-parents almost from birth and his need of
continuity demanded that he was not removed from his home. In this
connection, the Council had regard to the opinion of the personnel at
H's day-care centre, according to which the foster-parents' divorce had
been trying for H and another separation would be disastrous for him.
The Council further noted the applicant's age and the fact that, due
to D.F.'s psychological status, H would probably have to be placed in
a foster-home for a long period of time. As regards access to H, the
Council stated in the report that D.F. had met H four times in 1986 and
about the same number of times in 1987. The last meeting had taken
place on 17 December 1987, after which date D.F. had declined further
meetings. The Council had, therefore, found it to be important for H
to meet the applicant and J, and had, accordingly, organised meetings
which had taken place in June and December 1988 and in March and June
1989.
At a meeting at the Council on 26 October 1989, the applicant,
assisted by a district medical officer, was given an opportunity to
express her views on the report and on the case in general. Later the
same day, the Council decided to refuse the requested permission.The
applicant appealed against the Council's decision to the County
Administrative Court (Länsrätten) of the County of Västerbotten. The
Court requested the opinion of the County Administrative Board
(Länsstyrelsen), which subsequently recommended to the Court to reject
the appeal. On 17 April 1990, after having held a hearing at which the
applicant and representatives of the Council were heard, the Court,
concurring with the Council's conclusions, rejected the appeal.
The applicant appealed to the Administrative Court of Appeal
(Kammarrätten) of Sundsvall, which held a hearing at which it heard the
applicant and a witness proposed by the applicant. In a statement to
the Court, the Council noted that meetings between the applicant, J and
H had taken place in December 1989, May 1990, the summer of 1990 and
October 1990. On 18 February 1991 the Court rejected the appeal.
On 1 July 1991 the Supreme Administrative Court (Regeringsrätten)
refused leave to appeal.
COMPLAINTS
1. The applicant complains that she has been refused permission to
take care of H and that both she and, as a consequence, J have
allegedly been denied the right to meet H. She further alleges that
the Council has forbidden her to talk about the matter at home and that
the family appointed by the Council has tried to influence J to develop
a negative attitude towards H. The applicant invokes in this respect
Article 8 of the Convention.
2. The applicant contends that, in violation of Article 10 of the
Convention, the Council has forbidden her to talk to the press.
3. The applicant finally alleges that the Council has influenced
D.F. and other persons during its investigation and that, for this
reason, she has not had an effective remedy under Article 13 of the
Convention against the Council's decision not to grant her the
requested permission.
THE LAW
1. The applicant complains that she has been refused permission to
take care of H and that both she and, as a consequence, J have been
denied the right to meet H. She further alleges that the Council has
forbidden her to talk about the matter at home and that the family
appointed by the Council has tried to influence J to develop a negative
attitude towards H. The applicant 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 or morals, or for the protection of the rights and
freedoms of others." As has been stated by the Court (Eur.
Court H.R., Marckx judgment of 13 June 1979, Series A no.
31, p. 21, para. 45), "family life" within the meaning of
Article 8 (Art. 8) 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, however, recalls 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).
With regard to the refusal of a permission for the applicant to
take care of H, the Commission finds that it can be left open whether
the relationship between the applicant and H concerns "family life"
within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention,
because, even assuming that the refusal complained of interfered with
the applicant's family life, the Commission considers that the
interference was permissible under para. 2 of this provision. In
reaching this conclusion, the Commission finds that the decision to
refuse the applicant permission to take care of H was in accordance
with the law and had a legitimate aim. In respect of the condition
that the interference be "necessary in a democratic society", the
Commission recalls the conclusions of the Council that the care of J
was very demanding for the applicant, that H had been placed with
foster-parents almost from birth and that his need of continuity
demanded that he was not removed from the foster-home. The Commission,
therefore, finds that the decision to refuse the applicant the
requested permission 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 the refusal was
necessary. Accordingly, the Commission concludes that the 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.
In respect of the complaint concerning access to H, the
Commission notes that the applicant and J have met H eight times
between June 1988 and October 1990. The Commission, therefore, finds
that the applicant has not established that she, or J, has been denied
a right to meet H.
With regard to the other complaints submitted under Article 8
(Art. 8) of the Convention, the Commission finds that the applicants'
submissions are not substantiated and therefore do not disclose any
appearance of a violation of Article 8 (Art. 8).
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 contends that, in violation of Article 10
(Art. 10) of the Convention, the Council has forbidden her to talk to
the press. Article 10 (Art. 10) reads as follows:
"1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority
and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with
it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for
preventing the disclosure of information received in
confidence, or for maintaining the authority and
impartiality of the judiciary."
The Commission finds that the applicants' submissions are not
substantiated and therefore do not disclose any appearance of a
violation of Article 10 (Art. 10) of the Convention.
It follows that also 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 alleges that the Council has influenced D.F. and
other persons during its investigation and that, for this reason, she
has not had an effective remedy under Article 13 (Art. 13) of the
Convention against the Council's decision not to grant her the
requested permission. Article 13 (Art. 13) reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Commission recalls that this provision has been interpreted
by the European Court of Human Rights as requiring a remedy in domestic
law only in respect of grievances which can be regarded as "arguable"
in terms of the Convention (cf., e.g., Boyle and Rice judgment of
27 April 1988, Series A no. 131, p. 23, para. 52). The Commission,
having regard to its above conclusions in respect of the Convention
complaints submitted, considers that the applicant does not have any
"arguable claims" of a violation of the provisions invoked for these
complaints. The Commission further recalls that the applicant's
request for a permission to take care of H was heard by courts at three
levels. The Commission finds nothing in the case file to suggest that
the conduct of the Council in any way hindered her effective use of
these remedies.
It follows that also 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber Acting President of the Second Chamber
(K. ROGGE) (G.H. THUNE)
Full & Egal Universal Law Academy