AS TO THE ADMISSIBILITY OF
Application No. 25622/94
by Johnny FUNCH
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 January 1996, 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
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 July 1993 by
Johnny Funch against Sweden and registered on 9 November 1994 under
file No. 25622/94;
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 1952, is a student. He
resides at Malmö.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Between 1982 and 1991, the applicant cohabited with M.T. They had
two sons, J, born in 1984, and A, born in 1987, of whom they had joint
custody. After the applicant and M.T. had separated in March 1991, M.T.
filed an application for custody of the children.
The District Court (Tingsrätten) of Trelleborg held a preparatory
hearing in the case on 26 June 1991. The applicant claimed, in the
first place, that he should be awarded custody and, in the second
place, that he should have access to the children every second week.
On 26 June 1991 the District Court decided provisionally to award
M.T. custody and the applicant access every second weekend. It further
ordered the social authorities at Trelleborg and Svedala to investigate
the questions of custody and access. The Court held a second
preparatory hearing on 10 December 1991 and granted the applicant
further provisional access to the children.
Apparently, however, the applicant did not meet the children
after the decision in December 1991, as, allegedly, M.T. refused him
access. At the end of December, M.T. moved with the children to Molde,
Norway.
At a further preparatory hearing on 3 June 1992, at which M.T.
and her representative did not appear, the District Court decided
provisionally to transfer custody of the children to the applicant in
view of M.T.'s conduct. On 21 August the decision was, however,
reversed on appeal by the Court of Appeal (Hovrätten) of Skåne and
Blekinge.
On 11 September 1992 the District Court requested a custody
investigation from the social authorities at Molde. On 8 February 1993
it held the main hearing in the case, during which it heard the parties
and several witnesses. It further had at its disposal reports from the
above-mentioned social authorities and written statements concerning
J by school teachers and a psychologist.
By judgment of 2 March 1993, the District Court awarded M.T.
custody of the children and granted the applicant access to them every
fourth weekend, every second major holiday and five weeks during the
summer. The Court found that both parents were suitable as custodians.
Noting that M.T. had had the main responsibility for the children at
the time when the parties were living together and that she had custody
of the children's half-brothers, the Court considered that M.T. was
more suitable to take care of the children than the applicant. It
further took into account that J, who was slightly retarded, should not
be removed from his home in Norway where he had been living for
fourteen months. The Court finally stated that it could not be ruled
out that the previous problems as regards the applicant's access, to
some extent, were due to the applicant's own behaviour.
The applicant appealed to the Court of Appeal. It held an oral
hearing, during which it heard the parties and some of the witnesses
heard by the District Court.
On 14 September 1993 the Court of Appeal, with some slight
alterations as to the dates of the applicant's access, upheld the
District Court's judgment. The Court of Appeal considered, with some
hesitation due to further access problems created by M.T., that custody
should remain with her. The main reasons for this conclusion were the
children's long stay in Norway and their need of stability.
On 7 July 1994 the Supreme Court (Högsta domstolen) refused the
applicant leave to appeal.
The applicant maintains that he has met his children on only 6-7
occasions since he and M.T. separated. Further access has allegedly
been refused by M.T. In the beginning of 1992, the applicant applied
to the County Administrative Court (Länsrätten) of the County of
Malmöhus for an enforcement order regarding his right of access. The
Court dismissed his request on 2 March 1992, finding that it lacked
jurisdiction as M.T. and the children, at the time, were living in
Norway. The applicant later requested the Romsdal Court of Enforcement
(Romsdal namsrett) at Molde to enforce his right of access during the
Christmas and New Year holidays of 1993/94 and during the summer of
1994. The applications were granted and the applicant, apparently, had
access to his children during these periods.
COMPLAINTS
1. The applicant contends that the authorities have not given him
sufficient assistance in arranging meetings between him and the
children. He claims that this constitutes inhuman and degrading
treatment in violation of Article 3 of the Convention.
2. He further alleges that his right to respect for his family life
has been violated. In this respect, he invokes Article 8 of the
Convention.
THE LAW
1. The applicant complains that he has been subjected to treatment
contrary to Article 3 (Art. 3) of the Convention, which reads as
follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission, however, considers that the applicant's
submissions fail to disclose any appearance of treatment attaining the
minimum level of severity required for the application of Article 3
(Art. 3).
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 further complains of a violation of his right to
respect for family life as guaranteed by 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."
In so far as the applicant complains of the fact that custody was
awarded to the mother, the Commission recalls that the national courts
are always faced with the problem of making a choice between the
parents. Their decisions in this respect will not as such disclose any
lack of respect for the family life of the parent who is not awarded
custody. In the circumstances of the present case, the Commission has
not found any elements which could lead to another conclusion.
As regards the question of access, the Commission recalls that
the courts granted the applicant access every fourth weekend, every
second major holiday and five weeks during the summer. In view of this,
the Commission considers that the access decisions do not disclose any
disrespect for the applicant's family life.
The applicant states that he has met his children on only a few
occasions and claims that the authorities have not given him sufficient
assistance in arranging meetings. Noting that the present application
is directed against Sweden, the Commission, however, finds that the
applicant's submissions fail to disclose any failure of the Swedish
authorities in this respect.
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