AS TO THE ADMISSIBILITY OF
Application No. 21009/92
by Ove, Bengt, Bertil and Inkeri GUSTAVSSON
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 April 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. G. JÖRUNDSSON
S. TRECHSEL
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 16 November 1992
by Ove, Bengt, Bertil and Inkeri GUSTAVSSON against Sweden and
registered on 30 November 1992 under file No. 21009/92;
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 first applicant, Mr. Ove Gustavsson, is a technician born in
1960 and resident at Partille. He is the father and sole guardian of
the second applicant, Bengt Gustavsson, born in 1984 and also resident
at Partille. The third and the fourth applicant, Mr. and Mrs. Bertil
and Inkeri Gustavsson, are the first applicant's parents, born in 1933
and 1932, respectively. The third applicant is an industrial supervisor
and the fourth applicant is a child nurse. They are both resident at
Landvetter. All applicants are Swedish citizens, but the fourth
applicant is of Finnish origin. They are all represented by Mrs. Siv
Westerberg, a lawyer in Gothenburg.
The facts of the case, as submitted by the applicants or apparent
from the documents, may be summarised as follows.
I. Particular circumstances of the case
1. Background
In September 1986 S., the wife of the first applicant and the
mother of the second applicant, died of cancer. Prior to S.'s death and
also subsequently the second applicant was to a significant extent
cared for by the third and the fourth applicant.
In August 1989 the second applicant was enrolled at a day
nursery. It appears that towards the end of 1990 he was observed
playing sexually explicit games with other children in his day nursery.
It further appears that he stated in an interview in private with the
nursery manager that he had played similar "games" also with his
father. On 20 December 1990 the nursery manager informed the Social
Office (socialkontoret) of Partille of her suspicions that the second
applicant had been sexually abused by the first applicant.
According to the applicants, the second applicant had been led
by the nursery manager to state that "games" had taken place together
with the first applicant. Allegedly, the second applicant subsequently
asserted that he had only played the "games" with his friend at school
and never with the first applicant. Certain allegations made by the
nursery manager concerning the second applicant's behaviour in the
nursery were said to be based on second-hand or third-hand information
from other children in the nursery.
2. The criminal proceedings against the first applicant
On 9 January 1991 the Social Office lodged a complaint with the
police suspecting the first applicant of having sexually abused the
second applicant. On 21 January 1991 the first applicant was
interrogated by the police on this suspicion. He was arrested and on
22 January 1991 detained, but was released on 28 January 1991. He was
further ordered to refrain from contacting his son during the pre-trial
investigation.
On 21 January 1991 a police officer interviewed the second
applicant on videotape. Meanwhile, during a search carried out in the
first applicant's home some pornographic magazines and video cassettes
were seized. On 21 January 1991 the fourth applicant was informed
by social welfare officials of the suspicions against the first
applicant. She was prohibited from taking the second applicant to her
home. Instead he was taken to the home of the nursery manager. On
28 January 1991 he was placed in public care in a so-called "family
home" (familjehem). During this period he was not allowed to see any
of the other applicants.
On 4 February 1991 the District Court (tingsrätten) of Mölndal
ordered that the second applicant should undergo a psychiatric
examination by Ms. Monica Ekberg, a psychologist and psychotherapist
specialised in child and witness psychology and whom the Court itself
had called as an expert. On 23 February and 2 March 1991 Ms. Ekberg
interviewed him in the "family home". In her report of 4 April 1991
Ms. Ekberg considered the boy to be credible and his account of sexual
acts together with his father to be trustworthy, although with a
certain reservation.
In a report of 15 May 1991 Dr. Mats Pihlgren, a psychologist of
the Child and Youth Psychiatric Centre (barn- och ungdomspsykiatriska
mottagningen) of Partille recommended that the second applicant should
undergo individual therapy. In a report of 19 June 1991 Mr. Robert S.
Jerdén, a psychologist and psychotherapist, refuted the conclusions of
Ms. Ekberg of 4 April 1991 on the ground that her investigation
material had been insufficient. For instance, no interviews had been
carried out with part of the nursery staff and the second applicant's
day carer at the time of the suspected offences. Mr. Jerdén concluded
that the first applicant could not have - and had not - committed the
offences with which he had been charged.
On 19 July 1991 the District Court held an oral hearing. In the
prosecution's written indictment the first applicant had been charged
with having sexually abused the second applicant "on several occasions
during 1990, [the second applicant] being 5-6 years old". At the main
hearing before the District Court the indictment was amended, the first
applicant now being charged with having sexually abused the second
applicant "on several occasions during the years 1987-90, [the second
applicant] being 3-6 years old".
Before the District Court the prosecution invoked the videotape
of the interview with the second applicant on 21 January 1991 which was
apparently shown to the Court. On the prosecution's request the nursery
manager was heard as a witness. Ms. Ekberg was heard as an expert. The
prosecution further invoked the report of 4 April 1991 by Ms. Ekberg,
a report by Mr. Pihlgren as well as a report by Dr. Margit Möller, a
physician specialised in child and youth psychiatry, of the Child and
Youth Psychiatric Centre. Finally, the prosecution invoked photographs
of the material seized in the first applicant's home.
On the first applicant's request Mr. Jerdén was heard as an
expert. The first applicant also invoked a written report submitted by
Mr. Jerdén. Three staff members of the nursery, a nurse at the Child
and Youth Psychiatric Clinic as well as the fourth applicant were heard
as witnesses. The first applicant's request that the second applicant's
day carer be heard as a witness was apparently rejected.
The District Court, by a majority, convicted the first applicant
of, inter alia, sexual abuse of a minor and sentenced him to one year's
imprisonment. It noted that the indictment had been exclusively based
on information given by the second applicant and considered, inter
alia, that the evidential value of the police interview with the second
applicant on 21 January 1991 was diminished by leading questions. The
District Court had not listened to the tape from Ms. Ekberg's first
interview with the second applicant. It found no reason, however, to
question Ms. Ekberg's report and further noted that in a further
interview on 29 April 1991 conducted by Mr. Pihlgren the second
applicant had again referred to sexual contacts between him and the
first applicant. For the Court, it was beyond reasonable doubt that the
first applicant had "at least on some occasions" abused the second
applicant sexually. One lay judge dissented.
In his appeal the applicant challenged the accuracy of
Ms. Ekberg's report from which the District Court had allegedly drawn
incorrect conclusions. He further complained that Ms. Ekberg had failed
to record her interviews with the second applicant and repeated his
request that the second applicant's day carer at the time of the
suspected offences be heard as witness.
On 22 October 1991 a report on a psychiatric examination of the
first applicant was received by the Court of Appeal (hovrätten) of
Western Sweden. On 30 January 1992 the Court of Appeal heard experts
Ekberg and Jerdén as well as all witnesses heard by the District Court
except the nurse at the Child and Youth Psychiatric Centre. The Court
of Appeal also viewed the videotape of the police interview with the
applicant on 21 January 1991. As further evidence the prosecution
invoked a report of 11 December 1991 by Mr. Pihlgren, whom the second
applicant had visited once a week as from June 1991 for therapy. Mr.
Pihlgren concluded that the second applicant was entirely fixated on
sexual acts, in particular between a child and its father. On the first
applicant's request the second applicant's day carer at the time of the
suspected offences was heard as a new witness before the Court of
Appeal. She had not noticed any disturbances in the second applicant's
behaviour until the middle of 1991.
In its judgment of 30 January 1992 the Court of Appeal confirmed
the first applicant's conviction. It found Mr. Pihlgren's report of
December 1991 not decisive, since it was impossible to distinguish
between acts experienced by the second applicant and imaginative acts
provoked by his therapy.
In his request for leave to appeal to the Supreme Court (Högsta
domstolen) the applicant complained that his conviction was mainly
based on Ms. Ekberg's expert report, although this report had been
challenged by the other expert Mr. Jerdén. Moreover, as pressure had
been put on the second applicant during the interviews conducted by the
nursery manager and the police officer, these interviews could not be
decisive either. The first applicant further referred to the testimony
by the second applicant's day carer and finally recalled the Court of
Appeal's disregard of Mr. Pihlgren's report of December 1991.
On 2 June 1992 the Supreme Court refused the first applicant
leave to appeal.
On 15 September 1994 the first applicant requested a re-opening
of the criminal proceedings, arguing that he had not been provided with
an opportunity to challenge the videotaped police interview with the
second applicant by questioning him at the hearings before the District
Court and the Court of Appeal. On 14 November 1994 the Supreme Court
refused to re-open the case.
Before the Commission the applicants invoke a report and appendix
of 5 and 21 January 1993, respectively, by Dr. Rudolf Schlaug, a
specialist in general psychiatry, finding it unlikely that the second
applicant has been sexually abused.
3. The second applicant's placement in public care and the
conditions in the "family homes"
On 21 January 1991 the Chairman of the Social Council
(socialnämnden) of Partille decided in pursuance of Section 6 of the
1990 Act with Special Provisions on the Care of Young Persons (lag
1990:52 med särskilda bestämmelser om vård av unga; hereinafter "the
1990 Act") to place the second applicant in provisional public care.
This order was revoked on 25 January 1991, when the second applicant
was placed in a "family home" at Hällingsjö with the first applicant's
consent in pursuance of Section 6 and 22 of the 1980 Social Services
Act (socialtjänstlag 1980:620). It appears that he subsequently
withdrew his consent, objecting to the manner in which the public care
was being implemented.
On 14 May 1991 Dr. Möller requested the Social Council to
urgently investigate whether it would be preferable to implement the
public care in the third and the fourth applicant's home rather than
in a "family home".
On 16 May 1991 the Social Council decided in pursuance of Section
1, subsection 2, Section 2 and Section 11 of the 1990 Act to request
the second applicant's placement in compulsory public care and to
maintain his placement in the "family home" at Hällingsjö.
On 20 June 1991 the County Administrative Court (länsrätten) of
Gothenburg and Bohus held an oral hearing and granted the request with
immediate effect. The Court took account of, inter alia, the indictment
against the first applicant. The first applicant appealed to the
Administrative Court of Appeal (kammarrätten) of Gothenburg.
On 25 July 1991 the Social Council decided to transfer the second
applicant to another "family home" at Partille.
On 20 September 1991 the Administrative Court of Appeal struck
the first applicant's appeal off its list of cases after he had
withdrawn it. According to the applicants, the appeal was withdrawn
after counsel had stated that it lacked any prospect of success.
On 17 October 1991 the Care Subcommittee (vårdutskottet) of the
Social Council rejected the third and the fourth applicant's request
under Section 25 of the Social Services Act that they be allowed to
permanently care for the second applicant in their home. One member
dissented, noting that the third and the fourth applicant had cared for
the second applicant to up to 70 per cent of his time after he had
reached the age of eight months. The investigating official of the
Committee had not visited the third and the fourth applicant in their
home. The third and the fourth applicant did not appeal against this
decision.
On 30 December 1991 the Social Council considered that the second
applicant was still in need of public care and approved a care plan for
the period from 1 January to 30 June 1992. On 21 May 1992 the Social
Council maintained his public care and approved a care plan for the
period 1 July to 31 December 1992.
On 5 October 1992 the first applicant requested that the second
applicant's care be terminated and that he be cared for by the third
and the fourth applicant in their home, alternatively that the public
care be implemented in the third and the fourth applicant's home. On
7 October 1992 the Social Council adjourned its decision until it had
reviewed the second applicant's care need ex officio in pursuance of
Section 13 of the 1990 Act.
On 17 December 1992 the Social Council maintained the second
applicant's public care. The first applicant's appeal to the County
Administrative Court was rejected on 13 May 1993 following an oral
hearing at which the third and the fourth applicant as well as the
first applicant's two sisters were heard as witnesses. The witnesses
stated that following his taking into public care the second
applicant's development had slowed down and he had become introvert.
Furthermore he had not been properly washed and dressed by his
substitute parents. On one occasion his substitute father had lost him
in a crowd.
In its judgment the County Administrative Court noted a report
by Mr. Pihlgren of 26 November 1992, according to which the second
applicant was still in need of therapy. The other applicants opposed
the therapy provided by Mr. Pihlgren. The Court considered that, while
the third and the fourth applicant were generally suitable as carers,
the implementation of the second applicant's public care in their home
could lead to a conflict of interests, given their objections to the
therapy provided as well as their belief that the first applicant had
not committed the offences of which he had been convicted. The Court
further found that the criticism of the conditions in the second
applicant's "family home" was not corroborated by the witness
statements nor by the investigation by the Social Council.
In his appeal to the Administrative Court of Appeal (kammar-
rätten) of Gothenburg the first applicant criticised, inter alia, the
second applicant's hygiene and clothing in the "family home".
The appeal was rejected on 15 September 1993. The Administrative
Court of Appeal noted a report by Mr. Pihlgren of 23 August 1993,
according to which the second applicant was still in need of therapy.
The criticism of the conditions in the "family home" had been refuted
by the Social Council and the second applicant's official counsel.
Leave to appeal was refused to the first applicant on 26 May 1994
by the Supreme Administrative Court (Regeringsrätten).
Throughout the care proceedings the second applicant was
represented by his official counsel, who supported the Social Council's
view that public care away from the second applicant's biological
family was still needed. According to the applicants, however, it has
been the second applicant's consistent wish to live either with the
first applicant or with the third and the fourth applicant.
4. Access to the second applicant
Having been released from detention on 28 January 1991, the first
applicant was prohibited by a social welfare official from taking the
second applicant home. His request that the second applicant be allowed
to stay with the third and the fourth applicant was also refused.
It appears from a report by officials of the Social Council of
11 April 1991 that during the first two months following the second
applicant's placement in public care in the first "family home" the
third and the fourth applicant visited him there at least every
weekend. As from 18 March 1991 they were allowed to bring him to their
home to spend the weekends there. On 18 March 1991 the first applicant
visited the second applicant in the "family home" for the first time
after his release. Subsequently the two met in the third and the fourth
applicant's home. They were not allowed, however, to meet in private
either there or elsewhere.
According to the care plan approved by the Social Council on
21 May 1992, the first applicant was to spend one weekend a month with
the third and the fourth applicant and another weekend with his
maternal grandparents. The first applicant and other relatives of the
second applicant were allowed to visit the second applicant during
those weekends. The first applicant was not allowed to see the second
applicant in private on those occasions. He was, however, allowed to
visit the second applicant in the "family home" for two hours every
second week or a maximum of two to three visits a month. The third and
the fourth applicant could further see the second applicant outside the
"family home" one afternoon a month. If the second applicant's other
relatives would be unable to see him during the above weekends, they
could arrange other meetings either in or outside the "family home" in
agreement with the substitute parents. On special holidays the second
applicant was allowed to see the first applicant and other relatives
subject to consultation with the social welfare officer in charge. The
second applicant was to continue his weekly therapy for another year.
The care plan was to be revised in six months. The first applicant was
notified of his right of appeal to the County Administrative Court
against the restrictions on his access to the second applicant as
indicated in the care plan. He did not avail himself of this
possibility. Nor has he challenged the subsequent care plans, allegedly
fearing retaliation measures by the Social Council such as further
access restrictions. The third and the fourth applicant have no legal
standing for the purpose of requesting access.
It appears that presently the second applicant is allowed to see
the first applicant for two hours every second week in the "family
home". The second applicant is allowed to spend one weekend a month in
the third and the fourth applicant's home and another weekend in the
home of his maternal grandparents.
5. The first and the second applicant's obligation to
participate in the costs incurred by the public care of the
second applicant
On 23 August 1991 the Guardianship Board (överförmyndarnämnden)
of Partille requested that the first applicant generally authorise, in
his capacity as the second applicant's guardian, the substitute parents
to withdraw money from an account opened by the Board for the purpose
of collecting the second applicant's national supplementary insurance
(allmän tilläggspension). Subject to the Board's approval, such
withdrawals could be made for purchases for the second applicant. The
first applicant signed such an authority, allegedly fearing further
access restrictions.
According to the applicants, the furniture in the second
applicant's room in the present "family home" has de facto been paid
for by the second applicant himself by virtue of the collection of his
various pension benefits. The same is allegedly true for clothing and
other necessities, although such expenses are to be covered by a
monthly compensatory lump sum paid by the Social Council to the
substitute parents.
6. The education provided to the second applicant
At the time of his placement in public care the second applicant
was entitled to attend so-called preschool (förskola) for three hours
a day. After the placement the first applicant requested that the
second applicant be allowed to attend such classes, but this was
allegedly refused by the social authorities and the substitute parents.
As from the autumn of 1991 the second applicant is attending elementary
school.
7. The courts' refusals to communicate documents to the first
applicant
On 24 September 1992 the first applicant requested access to the
District Court's confidential documents in the criminal proceedings
against him, including the videotape and the audiotape from the
hearing. The request was granted on 16 October 1992 on condition that
the material only be used in domestic proceedings. The first applicant
appealed, invoking his intention to use the requested documents and
material before the Convention organs. The District Court's decision
was upheld by the Court of Appeal on 11 December 1992. On 29 October
1993, however, the Supreme Court granted the first applicant's further
appeal.
8. The courts' refusals to accept the applicants' present
counsel as the first applicant's official counsel
On 20 October 1992 the County Administrative Court refused the
first applicant's request that his counsel before the Commission be
appointed official counsel in proceedings with a view to having the
second applicant's public care terminated. The Court considered that
she did not fulfil the requirements of suitability in Section 44 of the
1972 Legal Aid Act (rättshjälpslag 1972:429). The first applicant
appealed, invoking, inter alia, Article 25 para. 1 of the Convention
and stated his unwillingness to be represented by any other counsel.
The appeal was rejected on 2 December 1992. Leave to appeal was refused
by the Supreme Administrative Court on 26 May 1994.
II. Relevant domestic law
A young person may be placed in public care inter alia if, due
to physical abuse, exploitation, deficiencies of care or some other
circumstances in his or her home, there is a clear risk of the young
person's health and development being impaired (Section 1, subsection
2 as well as Section 2 of the 1990 Act). In certain situations a
provisional care order may be issued (Section 6). The care order does
not imply a transfer of custody or guardianship to the Social Council,
such a transfer requiring specific court decisions (see Chapters 6 and
10 of the Parental Code (föräldrabalken)).
The Social Council decides how the public care of the young
person is to be implemented and where he or she is to reside during the
care period. The Council may consent to the young person residing in
his or her own home, if this may be presumed to be the most appropriate
way of arranging public care, but such care is always to commence away
from home (Section 11). An appeal may be lodged against a decision of
the Social Council if it has, inter alia, decided where the care of the
young person is to commence, if it has transferred him or her to
another home or if it has decided a question relating to continued care
(Section 41). A decision not to transfer a child from a "family home"
is also appealable (Government Bill 1989/90:28, p. 125).
Under the 1980 Social Services Act the Social Council may also
consent to a child's placement in a private home other than that of one
or both of its parents or another custodian. A refusal of such consent
may be appealed to the administrative courts (Sections 25 and 73).
According to the 1981 Social Services Ordinance (social-
tjänstförordning 1981:750), the Social Council shall carefully monitor
the young person's development in the "family home" where it has been
placed (Section 39). This monitoring shall be carried out through
regular visits in the "family home" and by hearing the child. Telephone
calls to the substitute parents are deemed unsatisfactory in order to
comply with this responsibility (Government Bill 1989/90:28, p. 113).
If care has been provided under Section 2, the Council must at least
every six months review whether care is still necessary (Section 13 of
the 1990 Act).
It is primarily for the parents to ensure that their child's
need of access to a person who is particularly close to it is satisfied
to the utmost possible extent (Chapter 6, Section 15, subsection 1 of
the Parental Code). If a young person is placed in public care the
Social Council shall ensure, as far as possible, his or her access to
parents or other custodians. If necessary in view of the purpose of the
public care the Council may decide, inter alia, how access may be
exercised (Section 14 of the 1990 Act). The contacts between the child
and its parents should not be completely cut off and the public care
should not continue for any longer than necessary. The Council shall
promote contacts between the child and others who are close to it. The
Council may not restrict access between the child and its parents
without there being strong reasons therefor, e.g., when the parents
interfere with the care or when their personal conditions are such that
they should not have access. Restrictions on access shall be lifted
immediately when they are no longer needed and shall be re-examined by
the Council every three months (cf. Government Bill 1989/90:28, pp. 72
et seq.). Under Swedish law grandparents have no right of access to
a grandchild.
The individual concerned shall be informed of the notes
concerning him or her kept by the Social Council (Section 52 of the
Social Services Act). In proceedings before the administrative courts
the parties shall normally be heard in regard to submissions by another
party (Section 18 of the 1971 Code of Administrative Procedure
(förvaltningsprocesslag 1971:291)).
COMPLAINTS
1. The first applicant complains under Article 6 of the Convention
that the criminal proceedings leading to his conviction were not
conducted before an impartial District Court and Court of Appeal and
that the proceedings were unfair and contrary to the presumption of
innocence. The following is alleged:
(a) the nursery manager's interview with the second applicant was
not conducted by professionals especially trained to handle incest
suspicions;
(b) the interview was carried out in the absence of the first
applicant;
(c) the second applicant should have been assisted by a legal
representative during the interview;
(d) the police interview with the second applicant was not
attended by the first applicant himself or his lawyer;
(e) at this interview the police officer used terms which the
second applicant was unfamiliar with and, moreover, asked him leading
questions;
(f) following the interview the second applicant was kept by the
nursery manager for seven days during which period he was not allowed
to see any of the other applicants, this being likely to influence his
account of the suspected sexual abuse;
(g) the audio tape from Ms. Ekberg's interview with the second
applicant on 23 February 1991 was destroyed before the first applicant
found out about its existence, thus preventing him from challenging its
contents;
(h) Ms. Ekberg's interviews were conducted long after the second
applicant had been separated from the other applicants and thus had
been subjected to influence by the nursery manager;
(i) the District Court's acceptance of the amendment of the
indictment at the main hearing did not afford the first applicant
adequate time and facilities for the preparation of his defence;
(j) the first applicant remained unaware of a significant number
of relevant documents submitted to the District Court by the
prosecution (i.e. records from interrogations with nursery staff
refuting the incest suspicions, interrogation records showing
discrepancies in some of the witness statements, a medical report
finding no physical injuries on the second applicant, etc.);
(k) the District Court did not ex officio communicate the above
documents to the first applicant for comments;
(l) the videotape from the police interview with the second
applicant was viewed at the District Court's and the Court of Appeal's
hearings, but the first applicant had not been provided with a copy in
advance and was thus denied adequate time and facilities for the
preparation of his defence;
(m) the second applicant was not heard by the District Court;
(n) Mr. Pihlgren was partial in the criminal proceedings, since
it was in his pecuniary interests to secure the first applicant's
conviction in order to be able to pursue his therapy sessions with the
second applicant;
(o) the first applicant's conviction was not based on any
forensic or "impartial" evidence; and
(p) the first applicant was not informed about the report on his
psychiatric examination until the Court of Appeal's hearing.
2. The first applicant further complains that his conviction also
violated Article 3 of the Convention in that it led to the maintaining
of the second applicant's placement in public care.
3. The first and the second applicant complain that the first
applicant was prohibited from taking the second applicant home on his
release from his pre-trial detention, this prohibition violating the
first applicant's rights under Article 6 para. 2 of the Convention as
well both applicants' rights under Article 8.
4. The third and the fourth applicant complain under Articles 6 and
13 of the Convention about lack of a court remedy enabling them to
challenge the refusal to allow them to care for the second applicant
during the pre-trial investigation. The second applicant also complains
that the refusal violated his rights under Article 10 of the Convention
to receive information, while the third and the fourth applicant
complain that the refusal violated their rights under Article 10 of the
Convention to freedom of expression.
5. The third and the fourth applicant complain under Article 6 of
the Convention that they were unable to refute the suspicions expressed
by an official of the Social Council that they might sexually abuse the
second applicant.
6. The second applicant complains under Article 7 of the Convention
that his placement in public care amounts to a punishment without any
legal basis.
7. All applicants complain under Article 8 of the Convention that
the second applicant's public care, in particular in a "family home",
has not been and is not justified, given the ability of the third and
the fourth applicant to care for the second applicant, should his
public care be terminated or implemented in their home. They invoke
Article 8 of the Convention. In their submission of 15 March 1994 the
third and the fourth applicant also complain under Article 9 of the
Convention that the decisions complained of were taken in view of their
opinion that the first applicant is innocent.8. The second applicant
complains under Article 3 of the Convention of the conditions in the
first "family home". Moreover, contrary to Articles 6 and 13 of the
Convention, he had no court remedy whereby he could have challenged
these conditions.
9. The second applicant further complains under Article 5 of the
Convention of his placement in public care in the second "family home",
given the restrictions on his right to see the other applicants.
10. The first applicant complains under Article 6 of the Convention
that his request of 5 October 1992 for a termination of the second
applicant's public care, alternatively that the care be implemented in
the third and the fourth applicant's home, was not examined by a court
within a reasonable time because the Social Council adjourned its
examination of this request.
11. The third and the fourth applicant complain under Article 13 of
the Convention about lack of a court remedy against the refusal to
allow them to become the second applicant's foster parents pursuant to
the Social Services Act.
12. In the submissions of 15 March 1994 the first applicant complains
under Articles 6 and 13 of the Convention that he has no court remedy
at his disposal against the implementation of the second applicant's
public care.
13. The first and the second applicant complain under Article 8 of
the Convention that the access restrictions concerning them have no
basis in domestic law and are not necessary.
14. The second, the third and the fourth applicant complain that
their rights under Article 8 of the Convention have been violated in
that the access restrictions concerning them have no basis in domestic
law and are not necessary.
15. The second, the third and the fourth applicant complain under
Article 6 para. 1 of the Convention.that they had no court remedy
against the access restrictions concerning them.
16. The second applicant complains under Article 8 of the Convention
that the restrictions on his other relatives' access to him have no
basis in domestic law and are not necessary. He claims unrestricted
contact with his maternal grandparents.
17. The second applicant complains that the withdrawals from his
national supplementary insurance account with a view to covering
running expenses incurred on account of his placement in the "family
home" violate his property rights under Article 1 of Protocol No. 1 to
the Convention. He submits that the withdrawals constituted a de facto
deprivation of his possessions to which the first applicant has been
forced to consent under threat of having his access rights further
restricted.
18. The first and the second applicant complain under Article 6
para. 1 of the Convention that they had no court remedy at their
disposal against the above-mentioned withdrawals.
19. The second applicant complains that he was denied his right to
attend preschool. He invokes Article 2 of Protocol No. 1.
20. The first applicant complains under Article 25 of the Convention
about the refusal to accept his counsel before the Commission as his
official counsel in the proceedings under the 1990 Act which he
initiated in October 1992. He considers that the refusal limits his
possibilities effectively to pursue his complaint with the Commission
in respect of the second applicant's placement in public care.
21. The first and the fourth applicant complain that they have been
discriminated against, the first one on account of being a single
parent and the fourth one on account of her Finnish origin.
22. In the submission of 22 December 1994 the first applicant
complains that except on one occasion he has not been informed by the
Social Council of its notes concerning the second applicant's "family
home", although this is required by Section 52 of the Social Services
Act. No express Convention provision is invoked.
THE LAW
1. The first applicant complains under Article 6 (Art. 6) of the
Convention that the criminal proceedings leading to his conviction were
not conducted before an impartial District Court and Court of Appeal.
They were, moreover, unfair and contrary to the presumption of
innocence.
Article 6 (Art. 6) reads, as far as it is relevant to the present
case, as follows:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair ... hearing within a reasonable time
by an independent and impartial tribunal established by
law. ...
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights:
...
b. to have adequate time and facilities for the
preparation of his defence;
c. to defend himself in person or through legal
assistance of his own choosing ...;
d. to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on
his behalf under the same conditions as witnesses against
him; ..."
The Commission first recalls that the guarantees in paras. 2 and
3 (Art. 6-2, 6-3)are specific aspects of the right to a fair trial set
forth in para. 1 (Art. 6-1) (cf. e.g., Eur. Court H.R., Unterpertinger
judgment of 24 November 1986, Series A no. 110, p. 14, para. 29).
Accordingly, the Commission will have regard to them when examining the
facts under Article 6 para. 1 (Art. 6-1). The Commission's task is to
ascertain whether the proceedings in their entirety were fair (cf.,
e.g., Eur. Court H.R., Stanford judgment of 23 February 1994, Series
A no. 280-A, para. 24). As a general rule, however, it is for the
domestic courts to assess the evidence before them, in particular since
they have the benefit of hearing witnesses and assessing their
credibility (Eur. Court H.R., Klaas judgment of 22 September 1993,
Series A no. 269-A, pp. 17-18, paras. 29-30). The Commission is
normally not competent to deal with a complaint alleging that errors
of law and fact have been committed by domestic courts, except where
it considers that such errors might have involved a possible violation
of any of the rights and freedoms set out in the Convention or one of
its Protocols, for instance in that a judgment has no legal
justification and thereby violates a party's right to receive a fair
trial (cf. No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45). It follows
that it cannot examine whether or not the first applicant was guilty
or innocent.
The Commission also recalls that under Article 26 (Art. 26) of
the Convention it may only deal with a complaint after all domestic
remedies have been exhausted, according to the generally recognised
rules under international law. A complaint to the Commission must
therefore have been made at least in substance in the proceedings
before the competent domestic organs (e.g., Eur. Court H.R., Cardot
judgment of 19 March 1991, Series A no. 200, p. 18, para. 34).
In the present case that the Commission finds that the first
applicant has not shown that complaints 1(a) to (g), (i) to (n) and (p)
were raised at least in substance before the domestic courts. He has
not therefore exhausted the remedies available to him under Swedish law
in respect of these complaints. Moreover, the Commission finds no
special circumstance which might have absolved this applicant,
according to the generally recognised rules of international law, from
exhausting the domestic remedies at his disposal. It follows that these
complaints must be rejected for non-exhaustion of domestic remedies
under Article 27 para. 3 (Art. 27-3) of the Convention.
Limiting its examination of the fairness of the proceedings to
the first applicant's complaints 1 (h) and (o), the Commission observes
that he availed himself of his right to challenge Ms. Ekberg's report
by making a request to hear another expert. There is thus no indication
that there was in this respect a lack of "equality of arms" between the
first applicant and the prosecution. The material submitted to the
Commission does not call the findings of the domestic courts into
question. In conclusion, there is no indication that the first
applicant was denied a fair trial in this respect. Accordingly, as
there is no appearance of a violation of Article 6 para. 1
(Art. 6-1), these complaints must be rejected as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The first applicant complains that his conviction violated
Article 3 (Art. 3) of the Convention in that, as a result, the second
applicant was kept in public care. The Commission finds no appearance
of such a violation. It follows that this complaint must be rejected
as being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
3. The first and the second applicant complain that the first
applicant was prohibited from taking the second applicant home on his
release from his pre-trial detention, this prohibition violating the
first applicant's rights under Article 6 para. 2 (Art. 6-2) of the
Convention as well as both applicants' rights under Article 8 (Art. 8).
The Commission recalls that under Article 26 (Art. 26) of the
Convention it may only deal with a complaint within a period of six
months from the date on which the final decision was taken. It observes
that the prohibition complained of was issued on 28 January 1991 and
became obsolete at the latest on 20 June 1991, when the County
Administrative Court ordered the second applicant's placement in public
care. The present application, however, was lodged on 16 November 1992,
that is more than six months later. Furthermore, an examination of the
case does not disclose the existence of any special circumstances which
might have interrupted or suspended the running of that period. It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 27 para. 3 (Art. 27-3) of the
Convention.
4. The third and the fourth applicant complain under Articles 6 and
13 (Art. 6, 13) of the Convention about lack of a court remedy against
the refusal to allow them to care for the second applicant during the
investigation of the suspicions against the first applicant. The second
applicant also complains that the refusal violated his rights under
Article 10 (Art. 10) of the Convention to receive information, while
the third and the fourth applicant complain that the refusal violated
their rights under Article 10 (Art. 10) of the Convention to freedom
of expression.
The Commission observes that the refusal at issue dates back to
28 January 1991. Reiterating its conclusion with regard to complaint
no. 3, the Commission considers that these complaints have also been
introduced out of time and must be rejected in accordance with Article
27 para. 3 (Art. 27-3)of the Convention.
5. The third and the fourth applicant complain under Article 6
(Art. 6) of the Convention that they have been unable to refute the
suspicions expressed by a social welfare official that they might
sexually abuse the second applicant.
Examining the complaint under Article 6 para. 2 (Art. 6-2) of the
Convention, the Commission finds no appearance of a violation of these
applicants' rights. It follows that this complaint must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
6. The second applicant complains under Article 7 (Art. 7) of the
Convention that his placement in public care amounts to a punishment
without any legal basis. The Commission finds this complaint
unsubstantiated. It follows that it must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
7. All applicants complain under Article 8 (Art. 8) of the
Convention that the second applicant's placement in public care, in
particular in a "family home", has not been and is not justified, given
the ability of the third and the fourth applicant to care for the
second applicant, should his public care be terminated or implemented
in their home. They invoke Article 8 (Art. 8) of the Convention. In
their submission of 15 March 1994 the third and the fourth applicant
also complain under Article 9 (Art. 9) of the Convention that the
decisions complained of were made in view of their opinion that the
first applicant is innocent.
Article 8 (Art. 8) of the Convention reads, as far as relevant,
as follows:
"1. Everyone has the right to respect for his private and
family life [and] his home ...
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."
The Commission recalls that "family life" within the meaning of
Article 8 (Art. 8) may include at least the ties between near relatives
such as grandparents and grandchildren (e.g., Eur. Court H.R., Marckx
judgment of 13 June 1979, Series A no. 31, p. 21, para. 45). However,
the existence of "family life" 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).
The second applicant is the child of the first applicant in his
marriage to S. The first and the second applicant therefore constitute
a "family" ipso jure (e.g., Eur. Court H.R., Hokkanen judgment of
23 September 1994, Series A no. 299-A, para. 54). Moreover, up to his
placement in public care the third and the fourth applicant were
significantly involved in the everyday upbringing of the second
applicant. In these circumstances the decision to place him in public
care constituted an interference with the applicants' right to respect
for their family life as ensured by Article 8 para. 1 (Art. 8-1) of the
Convention.
In order to be justified under the terms of Article 8 para. 2
(Art. 8-2) such an interference must satisfy three conditions: it must
be "in accordance with the law", it must pursue one or more of the
legitimate aims enumerated in Article 8 para. 2 (Art. 8-2) and it must
be "necessary in a democratic society" for that or those legitimate
aims.
The Commission recalls that the placement order was based on the
1990 Act and was, accordingly, made in accordance with the law. The
interference furthermore had the legitimate aims of protecting the
second applicant's "health or morals" as well as his "rights and
freedoms" in general.
It remains hereafter to determine whether the interference was
"necessary in a democratic society" in the interests of the second
applicant. The notion of necessity implies that the interference
corresponds to a pressing social need and, in particular, requires that
it be proportionate to the legitimate aim pursued. Regard must also be
had to the margin of appreciation left to the Contracting States (cf.
Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130,
pp. 31-32, para. 67). The Commission's review is not limited to
ascertaining whether the State has exercised its discretion reasonably,
carefully and in good faith. 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. the above-mentioned Olsson judgment, p. 32, para. 68). In the
present case the Commission notes, in particular, the expert evidence
submitted by the second applicant's present therapist, recommending
that the therapy should continue. However, before the County
Administrative Court the other applicants gave reason to believe that
they would discontinue this therapy if the second applicant's public
care were to be revoked. The Court took this into account when
maintaining public care. It further considered that implementation of
the public care in the third and the fourth applicant's home could lead
to a conflict of interests jeopardising the care, given the other
applicants' objections to the therapy provided as well as the third and
the fourth applicant's belief that the first applicant was innocent.
In the light of the above and having regard to the State's margin
of appreciation the Commission finds that the public care of the second
applicant has been based on relevant and sufficient reasons and that
the Swedish courts could reasonably find it necessary to maintain his
care. Accordingly, the Commission concludes that the interference with
the applicants' rights under Article 8 para. 1 (Art. 8-1) can
reasonably be regarded as "necessary in a democratic society" within
the meaning of para. 2 (Art. 8-2) of that provision in the interests
of the second applicant.
The Commission finds no further issue under Article 9 (Art. 9)
of the Convention.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
8. The second applicant complains under Article 3 (Art. 3) of the
Convention of the conditions in the first "family home". Moreover,
contrary to Articles 6 and 13 (Art. 6, 13) of the Convention, he had
no court remedy whereby he could have challenged these conditions.
The Commission recalls that 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. If the
object of a complaint is not a decision, but an ongoing situation, the
six months' period starts at the time when the situation ceases to
exist (see, e.g., No. 11123/84, Dec. 9.12.87, D.R. 54 p. 52).
The Commission observes that the second applicant was transferred
from the first "family home" to his present "family home" on 25 July
1991, whereas the present application was lodged on 16 November 1992,
i.e. more than six months later. Furthermore, an examination of the
case does not disclose the existence of any special circumstances which
might have interrupted or suspended the running of that period. It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 27 para. 3 (Art. 27-3) of the
Convention.
9. The second applicant complains under Article 5 (Art. 5) of the
Convention of his placement in public care in his present "family
home", given the restrictions on his right to see the other applicants.
The Commission cannot find that the second applicant's placement
in the "family home" and the related access restrictions amount to a
deprivation of his liberty within the meaning of Article 5 (Art. 5) of
the Convention. It follows that this complaint must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
10. The first applicant complains under Article 6 (Art. 6) of the
Convention that his request of October 1992 for a termination of the
second applicant's public care was not examined by a court within a
reasonable time because the Social Council adjourned its examination
of this request.
The Commission has examined this complaint under the above-cited
Article 6 para. 1 (Art. 6-1) of the Convention. It reiterates that the
reasonableness of the length of proceedings must be assessed in the
light of the circumstances of each case and having regard to the
following criteria: the complexity of the case, the conduct of the
parties and that of the authorities dealing with the case (e.g., Eur.
Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198,
p. 12, para. 30).
The applicant's request was examined by the Social Council in
December 1992. The applicant's appeal to the County Administrative
Court was decided upon in May 1993 following an oral hearing. His
further appeal to the Administrative Court of Appeal was decided upon
in September 1993, also after an oral hearing. Leave to appeal was
refused by decision of the Supreme Administrative Court on 26 May 1994.
The court proceedings involving three courts and two oral
hearings thus lasted less than one and a half year. In the light of the
above criteria and having regard to the particular circumstances of the
case the Commission cannot find that this length exceeded a "reasonable
time". Accordingly, there is no appearance of a violation of Article 6
para. 1 (Art. 6-1). It follows that this complaint must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
11. The third and the fourth applicant complain under Article 13
(Art. 13) of the Convention about lack of a court remedy against the
Social Council's refusal to allow them to become the second applicant's
foster parents pursuant to the Social Services Act.
The Commission has considered this complaint under the
above-cited Article 6 para. 1 (Art. 6-1) of the Convention. Assuming
that this provision applies, the Commission observes that under Section
73 of the Social Services Act the third and the fourth applicant had
a right to challenge the Social Council's refusal before the
administrative courts. They did not, however, avail themselves of this
opportunity. No further issue arises under Article 13 (Art. 13) of the
Convention.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
12. In the submissions of 15 March 1994 the first applicant complains
under Articles 6 and 13 (Art. 6, 13) of the Convention that he has no
court remedy at his disposal against the implementation of the second
applicant's public care.
The Commission observes that according to the travaux
préparatoires to the 1990 Act a decision not to transfer a child from
a "family home" is appealable in administrative court proceedings. It
notes, in particular, that in its judgment of 15 September 1993 the
Administrative Court of Appeal examined the first applicant's criticism
of the conditions in the second applicant's "family home" in order to
assess whether his public care should be implemented somewhere else.
In these circumstances the first applicant had access to a court and
there is no appearance of a violation of Article 6 (Art. 6) of the
Convention. No separate issue arises under Article 13 (Art. 13). It
follows that this complaint is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
13. The first and the second applicant complain that their rights
under Article 8 (Art. 8) of the Convention have been violated in that
the access restrictions concerning them have no basis in domestic law
and are not necessary.
The Commission finds no indication that the first applicant has
challenged the access restrictions at issue by appealing against the
Social Council's care plan to the administrative courts. The applicants
have not therefore exhausted the remedies available to them under
Swedish law. Moreover, an examination of this complaint does not
disclose the existence of any special circumstance which might have
absolved the applicants, according to the generally recognised rules
of international law, from exhausting the domestic remedies at their
disposal. It follows that this complaint must be rejected for
non-exhaustion of domestic remedies under Article 27 para. 3
(Art. 27-3) of the Convention.
14. The second, the third and the fourth applicant complain under
Article 8 (Art. 8) of the Convention that the access restrictions
concerning them have no basis in domestic law and are not necessary.
(a) In so far as the complaint has been lodged by the second
applicant the Commission, recalling its reasoning with regard to
complaint no. 13 above, considers that domestic remedies have not been
exhausted. It follows that this complaint must be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
(b) In so far as the complaint has been lodged by the third and the
fourth applicant the Commission has found above (in para. 7) that also
these applicants' relationship with the second applicant constituted -
and constitutes - "family life" within the meaning of Article 8
(Art. 8). The Commission considers that the access restrictions now at
issue amounted - and amount - to an interference with the third and the
fourth applicant's "family life".
In examining whether this interference is justified under para. 2
of Article 8 (Art. 8-2)) the Commission first recalls that the
requirement that the interference be "in accordance with the law"
relates to the quality of the law in question and implies, inter alia,
that the law should be accessible to the person concerned, who must
moreover be able to foresee its consequences for him. In a sphere
covered by written law, the "law" is the enactment in force as the
competent courts have interpreted it (cf., e.g., Eur. Court H.R.,
Kruslin judgment of 24 April 1990, Series A no. 176-A, pp. 21-22, para.
29). The Commission notes that under Section 11 of the 1990 Act the
Social Council may decide how the public care is to be implemented. The
Commission is further aware that this provision has been considered by
Swedish courts as constituting the legal basis for access restrictions
concerning, for instance, grandparents (see No. 21608/93, Dec. 22.2.95,
not published). It therefore concludes that the restrictions were
sufficiently foreseeable and thus "in accordance with the law" within
the meaning of Article 8 para. 2 (Art. 8-2).
The Commission accepts that the access restrictions had the same
legitimate aims as the public care of the second applicant as
implemented in a "family home" (see para. 7 above). As for the question
whether the interference was "necessary in a democratic society" in
pursuance of the above aims, the Commission observes that the second
applicant has been allowed to spend one weekend a month in the home of
the third and the fourth applicant, his paternal grandparents, while
being allowed to spend another weekend a month in the home of his
maternal grandparents. Special arrangements have apparently been made
for public holidays. Recalling its considerations in para. 7 above as
regards the necessity of the public care as implemented in a "family
home" and having regard to the State's margin of appreciation, the
Commission considers that also the access restrictions now complained
of have been based on relevant and sufficient reasons and that the
Social Council could reasonably find it necessary to order and maintain
them. Accordingly, the Commission concludes that the interference with
the third and the fourth applicant's rights under Article 8 para. 1
(Art. 8-1) can reasonably be regarded as "necessary in a democratic
society" within the meaning of para. 2 (Art. 8-2)of that provision in
the interests of the second applicant. It follows that this aspect of
the complaint is manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
15. The second, the third and the fourth applicant complain under
Article 6 para. 1 (Art. 6-1) of the Convention that they had no court
remedy at their disposal against the access restrictions concerning
them.
In so far as the complaint has been lodged by the second
applicant the Commission, recalling its reasoning with regard to
complaint no. 13 above, considers it to be manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
In so far as the complaint has been lodged by the third and the
fourth applicant, the Commission recalls that in order for Article 6
para. 1 (Art. 6-1) to apply to the proceedings in question it must
first 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 H.R., W v. the United Kingdom
judgment of 8 July 1987, Series A no. 121-A, p. 32-33, para. 73). Under
Swedish law the third and the fourth applicant have no right of access
to the second applicant. Thus, they cannot, on arguable grounds, claim
to have a "right" under domestic law. Article 6 (Art. 6) does not
therefore apply in their case. It follows that in this respect the
complaint is incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2).
16. The second applicant complains under Article 8 (Art. 8) of the
Convention that the restrictions on his other relatives' access to him
have no basis in domestic law and are not necessary. He claims
unrestricted contact with his maternal grandparents.
Recalling its reasoning with regard to complaint no. 13 above,
the Commission considers that domestic remedies have not been
exhausted. It follows that this complaint must also be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
17. The second applicant complains that the withdrawals from his
national supplementary insurance account with a view to covering
running expenses incurred on account of his placement in the "family
home" violate his property rights under Article 1 of Protocol No. 1
(P1-1) to the Convention. He submits that the withdrawals constitute
a de facto deprivation of his possessions to which the first applicant
has been forced to consent under threat of having his access rights
further restricted.
The Commission considers that this complaint could be raised in
civil proceedings instituted by the first applicant for the purpose of
claiming the restoration of the money withdrawn (cf. No. 14451/88, Dec.
2.7.93, not published). No such action has been brought. The Commission
recalls that where doubts exist as to the effectiveness of a remedy
that remedy must be tried (e.g., No. 10148/82, Dec. 14.3.85, D.R. 42
p. 98).
In the above circumstances the Commission finds that it has not
been shown that domestic remedies have been exhausted. Moreover, an
examination of the complaint does not disclose the existence of any
special circumstance which might have absolved the applicants,
according to the generally recognised rules of international law, from
exhausting the domestic remedy at their disposal. It follows that this
complaint must be rejected for non-exhaustion of domestic remedies
under Article 27 para. 3 (Art. 27-3) of the Convention.
18. The first and the second applicant complain under Article 6
para. 1 (Art. 6-1) of the Convention that they have no court remedy at
their disposal against the withdrawals from the second applicant's
national supplementary insurance account.
Recalling its reasoning with regard to complaint no. 17 above,
the Commission considers that this complaint is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
19. The second applicant complains that he was refused his right to
attend preschool. He invokes Article 2 of Protocol No. 1 (P1-2).
Leaving aside the question of Sweden's reservation to this
provision, as valid at the relevant time, the Commission observes that
the situation complained of ceased to exist in 1991 when the second
applicant started attending elementary school. The application,
however, was lodged with the Commission on 16 November 1992.
Furthermore, an examination of the case does not disclose the existence
of any special circumstances which might have interrupted or suspended
the running of the six month period provided for in Article 26
(Art. 26) of the Convention. It follows that this complaint has been
introduced out of time and must be rejected in accordance with Article
27 para. 3 (Art. 27-3) of the Convention.
20. The first applicant complains under Article 25 (Art. 25) of the
Convention about the refusal to accept his counsel before the
Commission as his official counsel in the proceedings under the 1990
Act which he initiated in October 1992. He considers that the refusal
limits his possibilities effectively to pursue his complaint with the
Commission in respect of the second applicant's placement in public
care.
Article 25 para. 1 (Art. 25-1) of the Convention reads, as far
as relevant, as follows:
"The Commission may receive petitions ... from any person
... claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in this
Convention, provided that the High Contracting Party
against which the complaint has been lodged has declared
that it recognises the competence of the Commission to
receive such petitions. Those of the High Contracting
Parties who have made such a declaration undertake not to
hinder in any way the effective exercise of this right."
The Commission recalls that Article 25 para. 1 (Art. 25-1) of the
Convention imposes an obligation on the Contracting States not to
interfere with the right of the individual effectively to present and
pursue his application before the Commission. Such an obligation
confers upon the applicant a right of a procedural nature
distinguishable from the substantive rights set out under Section I of
the Convention or under its Protocols. It flows from the very essence
of this right that it must be open to individuals to complain of
alleged infringements of it in the proceedings before the Commission.
In this respect the Convention must be interpreted as guaranteeing
rights which are practical and effective as opposed to theoretical and
illusory (e.g., Eur. Court H.R., Cruz Varas and Others judgment of
20 March 1991, Series A no. 201, pp. 35-36, para. 99).
In the case at issue the Commission observes that one of the
complaints lodged by the first applicant in the application now under
examination concerns precisely the question whether the second
applicant's continued placement in public care is justified under
Article 8 para. 2 (Art. 8-2) of the Convention. In these circumstances
the Commission cannot find that the first applicant has up to this
stage of the proceedings been hindered in the exercise of his right of
petition (cf. ibid., p. 37, para. 104). No action is therefore called
for.
21. The applicants complain that the first and the fourth applicant
have been discriminated against, the first applicant on account of
being a single parent and the fourth applicant on account of her
Finnish origin. The Commission finds this complaint unsubstantiated.
It follows that it is manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
22. In the submission of 22 December 1994 the first applicant
complains that except on one occasion he has not been informed by the
Social Council of its notes concerning the second applicant's "family
home", although this is required by Section 52 of the Social Services
Act.
The Commission, examining this complaint in the light of the
above-cited Article 8 (Art. 8) of the Convention, cannot find any
evidence that the first applicant has requested access to the notes
concerned. It has therefore not been shown that domestic remedies have
been exhausted. Moreover, an examination of the complaint does not
disclose the existence of any special circumstance which might have
absolved the applicants, according to the generally recognised rules
of international law, from exhausting the domestic remedy at their
disposal. It follows that this complaint must be rejected for
non-exhaustion of domestic remedies under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
1. DECLARES THE APPLICATION INADMISSIBLE; and
2. DECIDES TO TAKE NO FURTHER ACTION IN RESPECT OF THE
ALLEGED INTERFERENCE WITH THE EFFECTIVE EXERCISE OF THE
RIGHT OF INDIVIDUAL PETITION.
Secretary Acting
to the Second Chamber President of the Second Chamber
(K. ROGGE) (G. H. THUNE)
Full & Egal Universal Law Academy