J.R., G.R., R.R. AND Y.R. v. SWITZERLAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 22398/93

                      by J. R., G. R., R. R. and Y. R.

                      against Switzerland

      The European Commission of Human Rights (Second Chamber) sitting

in private on 5 April 1995, the following members being present:

           Mr.   H. DANELIUS, President

           Mrs.  G.H. THUNE

           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 22 May 1993 by

J. R., G. R., R. R. and Y. R. against Switzerland and registered on

2 August 1993 under file No. 22398/93;

      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 facts of the case, as submitted by the applicants, may be

summarised as follows.

      The applicants are a family residing at Schwarsee in Switzerland.

The first applicant is a carpenter born in 1942.  The second applicant,

his wife, is an educator born in 1944.  The third and fourth applicants

are their children, born in 1979 and 1981 respectively.  All applicants

are Swiss citizens.  Before the Commission they are represented by

Mrs. M. Zurrón-Krummenacher, a student and housewife residing at

Schmitten in Switzerland.

                                  I.

      On 27 September 1990 Parliament (Grosser Rat) of the Canton of

Fribourg enacted the School Dental Treatment and Prophylaxis Act

(Gesetz über die Schulzahnpflege und -prophylaxe).  The law was upheld

in a referendum.  On 4 June 1991 Parliament confirmed the law

(Erwahrung).

      The Act which aims at contributing to dental hygiene and

preventing caries envisages yearly dental controls of schoolchildren.

A school dentist service is organised; a dental officer

(Vertrauenszahnarzt) supervises the school dentists.  Further

provisions of the Act state:

      "Section 6

      1.   The school dentist shall control the children's teeth and

      gums at least once a year.

      2.   He shall inform the children and their parents of any

      necessary treatment.

      3.   Dental control shall be compulsory.

      4.   A child shall be exempted from dental control by the school

      dentist if it produces a report not older than three months

      confirming that it is receiving the necessary dental treatment.

      Section 7

      1.   The parents must comply with any treatment aimed at

      preserving dental health regarded necessary by the school

      dentist;  in this respect they may turn to the school dentist or

      to a dentist of their own choice.  Orthodontic treatment is

      voluntary.

      2.   The school dentist shall report to the service any

      treatment which has not been carried out.  The service will

      decide on the necessary measures."

      "Artikel 6

      1.   Der Schulzahnarzt untersucht Gebiss und Zahnfleisch der

      Kinder mindestens einmal im Jahr.

      2.   Er informiert die Kinder und ihre Eltern über die

      notwendigen Zahnbehandlungen.

      3.   Die Zahnkontrolle ist obligatorisch.

      4.   Legt ein Kind ein Zeugnis vor, das höchstens drei Monate

      alt ist und bestätigt, dass das Kind die erforderliche Zahnpflege

      erhielt, so ist es von der Zahnkontrolle durch den Schulzahnarzt

      befreit.

      Artikel 7

      1.   Die Eltern müssen die zahnerhaltenden Behandlungen, die der

      Schulzahnarzt für notwendig erachtet, ausführen lassen; sie

      wenden sich dafür entweder an den Schulzahnarzt oder an einen

      Zahnarzt ihrer eigenen Wahl.  Die orthodontischen Behandlungen

      sind freiwillig.

      2.   Der Schulzahnarzt meldet dem Dienst die nicht ausgeführten

      Behandlungen.  Der Dienst beschliesst die notwendigen Massnah-

      men."

      According to Section 10, indigent parents will receive a

financial contribution to the costs of treatment.  Section 11 provides,

in case of non-compliance with Sections 6 and 7, for a fine between

SFr 20 and 1,000 for those who do not comply with their obligations

under the Act.  Section 12 envisages an appeal to the dental officer

against decisions taken under Sections 6 and 7.

                                  II.

      On 5 July 1991 the applicants and others filed a public law

appeal (staatsrechtliche Beschwerde) with the Federal Court

(Bundesgericht) complaining inter alia under Article 8 of the

Convention of Section 6 para. 4 and Sections 7 and 11 of the Act.

      On 26 November 1992 the Federal Court dismissed the public law

appeal, the decision being served on the applicants on 8 February 1993.

      The Court considered inter alia that the measure complained of

served the "protection of health" within the meaning of Article 8 para.

2 of the Convention.  There was a particular public interest in the

protection of health of children who had limited possibilities of

protecting their own rights.  Caries proved to be a widespread problem;

dental decay could often not be healed, and infections could arise.

Dental problems could also affect digestion and weaken the organism.

      The Court then examined the proportionality of the measure.  It

proceeded from the consideration that the individual's right to self-

determination possessed considerable weight.  The Court noted that the

Act only concerned minors of compulsory schooling age, and did not

envisage cosmetic changes.  Moreover, the school dentist, when

examining the necessity of treatment, would consider, for instance,

whether the child concerned risked infections.  The school dentist was

obliged to counsel the patients and their parents who had the

possibility of appealing against any decision to the dental offices.

Moreover, any further obligation would require consultation of the

guardianship office (Vormundschaftsbehörde).  Finally, the parents were

free to choose their own dentist to carry out the treatment required.

      The Court concluded inter alia that the envisaged measures were

proportionate and did not contravene the Convention.

COMPLAINTS

      The applicants complain under Article 8 of the Convention that

the third and fourth applicants will be obliged to submit to dental

treatment with which the applicants do not agree.  Reference is made

to the right to decide oneself about one's body and to children's

problems with their milk-teeth.  The applicants consider that the

children will be put under pressure if they know that their parents

risk criminal prosecution.

THE LAW

1.    The applicants complain under Article 8 (Art. 8) of the

Convention that the third and fourth applicants will be obliged to

submit to dental treatment with which the applicants do not agree.

      Article 8 (Art. 8) of the Convention states, insofar as relevant:

      "1.  Everyone has the right to respect for his private ... life

      ...

      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."

2.    Under Article 25 (Art. 25) of the Convention the Commission may

only deal with applications "from any person ... claiming to be the

victim of a violation ... of the rights set forth in (the) Convention".

      In the present case the applicants have not claimed that they

were punished on account of their refusal to submit the third and

fourth applicants to dental treatment.  On the other hand, the third

and fourth applicants are school children who may eventually be

subjected to the treatment complained of; alternatively, their parents

i.e. the first and second applicants, risk a fine between SFr 20

and 1,000.

      The Commission need nevertheless not resolve the issue whether

the applicants can claim to be the victims of the violation complained

of within the meaning of Article 25 (Art. 25) of the Convention, since

the application is in any event inadmissible for the following reasons.

3.    The Commission recalls its case-law according to which even minor

medical treatment, as long as it is compulsory, constitutes an

interference with a person's right to respect for private life, though

the measure may be considered necessary in a democratic society where

it serves the aim of the protection of health within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention (see No. 10435/83,

Dec. 10.12.84, D.R. 40 p. 251 with further references).

      Compulsory dental treatment, as in the present case, therefore

amounts to an interference with the applicants' right to respect for

their private life within the meaning of Article 8 (Art. 8) of the

Convention.

      The legal basis for the measure complained of is the School

Dental Treatment and Prophylaxis Act of the Canton of Fribourg.  The

measure complained of is, therefore, "in accordance with the law"

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

      The Commission further accepts that compulsory school dental

treatment serves "the protection of health (and) the protection of the

rights ... of others" within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.

      Finally, the Commission must examine whether the interference was

"necessary in a democratic society" within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention.  This notion implies that the

interference corresponds to a pressing social need and that it is

proportionate to the legitimate aim pursued.  In determining whether

an interference is "necessary in a democratic society" the Convention

organs must also take into account that a margin of appreciation is

left to the Contracting States (see Eur. Court H.R., Olsson judgment

of 24 March 1988, Series A no. 130, p. 31 et seq., para. 67).

      In the present case, the Commission observes that the Federal

Court in its decision of 26 November 1992 carefully weighed the

competing interests at stake.  While proceeding from the individual's

right to self-determination, it saw a particular public interest in the

protection of the health of children who had limited possibilities of

protecting their own rights.  The school dentist would have to

consider, for instance, whether the child concerned risked infections.

The parents had the possibility of filing an appeal against any such

decision to the dental officer, and the guardianship office would also

have to be consulted.  Finally, the parents were free to choose their

own dentist to carry out the treatment required.

      In the Commission's opinion, it cannot be said that the decision

of the Federal Court goes beyond the margin of appreciation left to the

national authorities.  The interference with the applicants' right to

respect for private life can therefore reasonably be considered

"necessary in a democratic society" within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention.

      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.

Secretary to the Second Chamber       President of the Second Chamber

         (K. ROGGE)                           (H. DANELIUS)

 

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