AS TO THE ADMISSIBILITY OF
Application No. 27303/95
by Eva, Anders and Cecilia HOVING
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 9 April 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
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 10 January 1995
by Eva, Anders and Cecilia HOVING against Sweden and registered on
12 May 1995 under file No. 27303/95;
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 applicants, a mother and her two children, are Swedish
citizens, born in 1947, 1975 and 1981 respectively. They reside in
Stockholm. Before the Commission the applicants are represented by
Mr Lars Arrhenius of the law firm Bengt H Nilsson AB, Stockholm.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
On 23 April 1992 the National Police Board (Rikspolisstyrelsen)
submitted a request on behalf of the applicants to the Stockholm
District Court (tingsrätt) for leave to use fictitious personal
information (fingerade personuppgifter) pursuant to the 1991 Act on
Fictitious Personal Information [lagen (1991:483) om fingerade
personuppgifter]. The request was made due to the applicants' repeated
allegations of harassment by the first applicant's ex-husband who was
also the second and third applicants' father.
On 16 June 1992 the District Court rejected the request since the
investigation made disclosed, in the Court's view, that the applicants
did not fulfil the necessary requirements.
The applicants appealed against this decision to the Svea Court
of Appeal (Svea hovrätt) which, however, upheld it on 15 January 1993.
The applicants thus asked for leave to appeal to the Supreme Court
(Högsta domstolen). Leave was granted on 8 November 1993. Following
further written observations the Supreme Court rejected the applicants'
request on 11 July 1994. In its decision the court stated inter alia
as follows:
(Translation)
"The 1991 Act on Fictitious Personal Information is
intended to protect harassed and threatened persons in
certain special circumstances by allowing them to use other
information concerning themselves than what is actually
correct. Leave to use fictitious personal information may
be granted for a maximum of five years.
The Act states as a precondition for such leave that there
is an obvious risk that the person concerned may be the
subject of particularly serious crimes which threatens
life, health and freedom. This must be considered to imply
that the risk shall be of an objective character. Thus, it
is not sufficient that the person in question considers
that such a risk exists.
A further precondition for leave to use fictitious personal
information is that the person cannot obtain sufficient
protection by other means. This means, according to the
travaux préparatoires, that it shall be examined first
whether registration pursuant to section 16 of the National
Register Act [folkbokföringslagen (1981:481)], visit
prohibitions or other means would be sufficient in order to
protect the person ...
The investigations in this case show that, on
27 November 1991, the applicant and her children were
permitted to remain registered at their previous address
until 31 December 1994. A special secrecy examination
pursuant to Chapter 7, Section 15 of the Secrecy Act
[sekretesslagen (1980:100)] applies in regard to
information concerning them at the local registration
office since 7 September 1989. According to a special
decision such an examination shall be carried out until
31 December 1994.
[The first applicant] has submitted before the Supreme
Court and the Court of Appeal that she, and her children,
experience a considerable risk that [her ex-husband] will
commit serious crimes against them. According to [the first
applicant] [her ex-husband] committed serious offences
during their marriage, such as assault and battery and
rape. She has not, however, maintained that, following the
separation in January 1989, [her ex-husband] has committed
similar offences or otherwise used physical force against
them. She alleges instead that, during the years following
the separation, [her ex-husband] indirectly harassed and
threatened her and the children. ... As an example [the
first applicant] has submitted that [her ex-husband] and
his sister made slanderous remarks about her and the
children to various authorities and obtained information
about them in data registers. [Her ex-husband] furthermore
stays near her and the children in order to sustain the
fear [he] has provoked in them through his previous acts.
It is undeniable that [the applicants] experience a strong
fear for [the ex-husband/father] and that for this reason
they live under a strong mental strain and in otherwise
very difficult circumstances. What has been submitted does
not show, however, that from an objective point of view
such a risk as the Act requires exists. Therefore, leave
to use fictitious personal information cannot be granted."
COMPLAINTS
The applicants complain that the refusal to grant them leave to
use fictitious personal information in the circumstances violates their
rights set out in Article 8 of the Convention.
THE LAW
The applicants complain of a violation of 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." They maintain that Sweden has
violated its positive obligation under the above provision,
to secure to them their right to respect for their private
and family life, by refusing to allow them to use
fictitious personal information.
The Commission recalls that the obligation to secure the
effective exercise of the Convention rights may involve positive
obligations on a State in a number of areas, and these obligations may
involve the adoption of measures even in the sphere of the relations
of individuals themselves. An obligation of this kind exists, for
instance, in regard to the right to respect for private and family life
guaranteed by Article 8 (Art. 8) of the Convention (see e.g. Eur. Court
HR, X and Y v. the Netherlands judgment of 26 March 1985, Series A no.
91, p. 11, para. 23).
In the present case the Commission recalls that the applicants
had asked for leave to use fictitious personal information out of fear
that their ex-husband/father would otherwise threaten their life,
health and freedom. These issues were thoroughly examined by three
courts which also took into consideration other means which could be,
and were indeed, implemented in order to protect the applicants. Having
regard to the reasons advanced by, in particular, the Supreme Court in
its decision of 11 July 1994 the Commission finds no indication that
the court gave inadequate consideration to the applicants' rights under
Article 8 (Art. 8).
Furthermore, the fact that the applicants were unsuccessful in
their request submitted under the Fictitious Personal Information Act
does not mean that the respondent State has failed in its obligation
to provide adequate protection for their rights under Article 8
(Art. 8) of the Convention. The Commission finds, therefore, that the
case does not disclose any appearance of a violation of this provision.
It follows that 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.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy