AS TO THE ADMISSIBILITY OF
Application No. 18562/91
by Maria KARPPINEN, Jari KARPPINEN,
Thomas KARPPINEN, Carl KARPPINEN,
Ulla JOHANSSON and Mikael JOHANSSON
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 December 1993, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
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 2 July 1991 by
Maria KARPPINEN and Others against Sweden and registered on 19 July
1991 under file No. 18562/91;
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 first and second applicants are a married couple, both of
Swedish nationality. They were born in 1958 and 1965 respectively and
reside at Trollhättan. The third and fourth applicants are their two
sons, T and C, born in 1986 and 1989. The fifth and sixth applicants
are the first applicant's mother and brother. Before the Commission
all applicants are represented by Mrs Siv Westerberg, a lawyer
practising in Gothenburg. The application relates to the taking into
care of the third and fourth applicants and their placement in a foster
home.
A. The care orders
At the age of six the first applicant developed epilepsy and was
admitted to a home for underdeveloped children where she remained until
the age of sixteen. Following four years at another home she returned
to her parents at the age of twenty. She receives an early retirement
pension (förtidspension) as from 1974. She can neither read nor write.
The second applicant has been on the list of children entitled
to special assistance from the Board for Help and Assistance to the
Mentally Retarded (Omsorgsstyrelsen) from the age of twelve.
In 1984 the first and second applicants met and moved to
Trollhättan. The second applicant subsequently discontinued his
educational training. Since 1989 he has been unemployed.
The first and second applicants married in 1986, the year in
which T was born. Approximately three weeks after his birth, T was
taken into care on a provisional basis and on 26 November 1986 the
County Administrative Court (länsrätten) decided to take him into care.
On 24 June 1987, however, the Administrative Court of Appeal
(kammarrätten) lifted the care order. Although the Court found that
the parents had problems with providing the necessary intellectual
support for T, it found that this shortcoming could be overcome with
appropriate assistance from the social authorities. The social
authorities' request for leave to appeal was refused by the Supreme
Administrative Court (regeringsrätten) on 28 September 1987.
Accordingly, T was returned to his parents.
On 27 November 1989 C was born, and on 14 March 1990 the social
authorities decided to take both children into care on a provisional
basis. The question of provisional care was brought before the County
Administrative Court which decided, on 2 April 1990, following an oral
hearing held on 30 March 1990, to lift the provisional care order as
regards T and to maintain it in respect of C. On 14 May 1990 the
Administrative Court of Appeal also lifted the provisional care order
in respect of C as it found it established that adequate care could be
provided for with the necessary assistance from the social authorities.
Whereas the children were accordingly returned to their parents,
the social authorities nevertheless pursued the question of care and
submitted, on 9 April 1990 and 19 June 1990, an application to the
County Administrative Court requesting that T and C be taken into care
pursuant to the provisions of the 1980 Act containing Special
Provisions on the Care of Young Persons (lagen 1980:621 med särskilda
bestämmelser om vård av unga - "the 1980 Act").
Following an oral hearing, held on 2 July 1990, the Court
decided, by judgment of 13 July 1990, that T and C should be taken into
care.
On 16 July 1990 the social authorities accordingly decided to
place T and C in the children's home Lyckhem, a decision which was
upheld by the County Administrative Court on 23 October 1990.
The first and second applicants appealed to the Administrative
Court of Appeal against the care order and the placement at Lyckhem,
both on their own behalf and also on behalf of their children.
Hearings were held in court on 9 and 16 October 1990 during which the
parents, represented by counsel, as well as a number of witnesses, were
heard. During these proceedings the children were represented by their
own court appointed counsel.
By judgment of 4 December 1990 the Administrative Court of Appeal
upheld the care order and the decision to place T and C at Lyckhem.
In its judgment the Court stated inter alia:
(translation)
"The extensive material in the case does not give an unequivocal
picture of how the situation developed while the children stayed
with their parents. On the one hand the material submitted by
the social authorities shows a picture of a very difficult
environment for the children. On the other hand the statements
of relatives and friends of the parents leave the impression
throughout that the case concerns a quite normal family in which
the parents provide the children with a good and loving care.
The material referred to by the social authorities leaves a very
convincing impression. The reports with different persons'
observations as to how the parents acted vis-à-vis their children
contain no contradictions but are very consistent. The
correctness of the material has not been challenged by counsel
for the children either.
Generally speaking the parents have not submitted anything which
directly could give reason to doubt the correctness of the
observations contained in this material. Neither has the oral
hearing, during which the parents were present, disclosed such
doubts. Instead the parents have maintained that the social
authorities' allegations in the case express revenge, combined
with lies and sabotage. However, the Court has not found any
basis for these accusations.
Accordingly, the Court considers that the environment in which
the children lived was essentially as described by the social
authorities.
...
According to the report of 13 June 1990 from the child
psychiatric clinic at the Norra Älvsborg hospital the (parents')
treatment of their children, as observed by the social
authorities, must be characterised as aggravated mental
ill-treatment. In the report it is further stated that an
environment of this kind without doubt endangers the children's
mental health and development. The examiners at the clinic ...
unequivocally conclude that the lack of care and the
circumstances in the parental home constitute a great danger to
the children's mental health and development.
The Court does not find any reason to question the report and
accordingly concludes that the environment which (the parents)
offer their children is such as to constitute a serious danger
to their mental health and development. The examination of the
case further shows that the circumstances prevailing in the
parental home constitutes a risk to the children, also from a
physical point of view.
...
Previously the courts have found that the social authorities
ought to be able to solve the problems in the parental home.
However, the present case shows that this was not a realistic
view.
...
The difficulties in assisting the parents adequately in their
role as parents are, in the Court's view, to a great extent due
to Siv Westerberg's way of handling the case. Both in the
written submissions and during the oral hearing she has expressed
strong critical views as regards society's activities for the
protection of children. Through this she rejects the views which
constitute the basis for the applicable legislation in this
field. Her inclination to characterise the social authorities'
activities as revenge, sabotage and lies must be considered as
a result of her views. The same applies as regards her demands
that contacts between the social authorities and the parents must
go through her and take place in her presence. She has also
insisted on being present when the children and the parents were
examined at the child psychiatric clinic. This has not only led
to a delay in the examination but also constituted the reason for
the fact that it could not be carried out in all its aspects in
a meaningful manner. ...
...
In conclusion the Court finds that today, at least as long as
(the parents) rely on Siv Westerberg as counsel, there is no
reason to believe that a decisive improvement of the environment
in the parental home can be expected with the assistance of the
social authorities.
...
The children have been placed at Lyckhem awaiting placement in
a family home.
The parents (submit) that the children are subjected to
continuing physical and mental damage due to the placement at the
children's home. Staff there ill-treat the children, both
physically and mentally, and are emotionally indifferent towards
them. In addition the placement at the home aims at preparing
for a lasting separation between parents and children.
What the parents have alleged concerning the treatment in the
children's home is not supported by the other investigations made
in this case. Admittedly there is in the file information
indicating that the children have been scratched by other
children and that they have cried, but there is no reason to
believe that what has happened is anything but every day
incidents which have nothing to do with the conditions in the
children's home.
Counsel for the children has submitted that he has not found
support for the parents' allegations during his visits to the
home and during his conversations with the staff.
The Court accordingly finds that the parents' allegations
concerning the conditions at Lyckhem are unsubstantiated. Their
request for another placement is therefore rejected."
The first and second applicants applied on their own behalf and
on behalf of their children for leave to appeal to the Supreme
Administrative Court. Leave was refused by the Court on
8 February 1991.
B. Question of access while at Lyckhem
Following the care order the social authorities established a
programme of access. The parents and other family members had the
possibility to visit the children every day at Lyckhem and, together
with staff from Lyckhem, the children visited their parents and
grandmother, the fifth applicant. As regards Christmas 1990 and the
following New Year holiday the social authorities, partially granting
a request by the applicants, decided to allow the children to be with
their parents at their home on 24, 25 and 26 December during the day
and on 31 December and 1 January also during the day.
All six applicants appealed against this decision to the County
Administrative Court which, on 28 January 1991, decided not to deal
with it, partly as the appeal had been submitted too late and, as
regards the fifth and sixth applicants (the children's grandmother and
uncle), since they had no right of appeal as the access decision did
not concern them.
These decisions were subsequently upheld by the Administrative
Court of Appeal on 19 February 1991 and leave to appeal to the Supreme
Administrative Court was refused on 14 June 1991.
C. Placement in the foster home
Following the placement at Lyckhem the social authorities
commenced their investigation as to whether or not the children, T and
C, could be placed in a foster home (familjehemsplacering). On
28 March 1991 the social authorities decided, in accordance with
sections 11 and 14 of the 1980 Act, as amended in 1990, to place both
children in the same foster home and to allow the parents access once
a week and the grandmother and uncle once a month.
All six applicants appealed against this decision to the County
Administrative Court and further requested that the appeal be given
suspensive effect. On 17 April 1991 the Court rejected the appeal in
so far as it concerned the grandmother and the uncle as they had no
right of appeal. As regards the other applicants the request for
suspensive effect was granted. Legal aid was also granted, but
Siv Westerberg was not accepted by the Court as court appointed
counsel. These decisions were upheld by the Administrative Court of
Appeal on 29 April 1991. Leave to appeal was refused by the Supreme
Administrative Court on 25 June 1991.
__________
In the meantime the social authorities had decided, on
11 April 1991, to reject the applicants' counsel, Siv Westerberg, as
their privately engaged counsel as far as the administrative
proceedings were concerned. This issue was brought separately before
the County Administrative Court which, on 31 May 1991, upheld the
decision. The Court stated inter alia:
(translation)
"From section 9, subsection 2, of the Code of Public
Administration (förvaltningslagen) the following appears. If
counsel appears to be unqualified, shows incompetence or if he
appears inappropriate in any other way, the administrative
authority may reject him as counsel in the case.
The social authorities have in their submissions to the Court
stated the following. Mrs F.W. reported to the social
authorities on a meeting between her, (the parents),
Siv Westerberg and (the foster parents) of 1 March 1991. During
this meeting Siv Westerberg informed (the foster parents) among
other things that, if they were to become the foster family, they
would not have any private life. Siv Westerberg also stated that
she would contact (the foster family's) employers and their
daughter's school teacher and the parents of their daughter's
classmates. Mrs O. has informed the social authorities that (the
foster mother) on 5 April 1991 submitted that the dean of her
daughter's school had contacted her and told her that somebody
had requested a copy of the list of pupils in the daughter's
class. The school complied with the request. A letter, signed
by (the first and second applicants), has been sent to the
parents (of the children) in (the daughter's) school.
Cooperation with (the first and second applicants) is impossible
as long as Siv Westerberg remains counsel, which again has
negative consequences for the children. Meetings and talks
between (the first and second applicants) and (the foster
parents) and between (the first and second applicants) and the
staff of the social authorities must take place when Siv
Westerberg has the time to be present. (The first and second
applicants) do not get the opportunity to speak spontaneously
when Siv Westerberg is present. Her use of tape recorders during
the talks does not create spontaneity. Siv Westerberg submits
unsubstantiated allegations against the foster family. Siv
Westerberg expresses strong critical views on society's
activities for the protection of children and on the efforts of
the foster parents. Siv Westerberg's proclamation to (the foster
parents) that their daughter, her classmates and their parents
would become involved, has proved to be correct.
The Court decides as follows.
The act of sending letters to classmates and their parents with
the obvious aim of influencing (the foster parents' daughter) to
the extent that she would influence her parents to refrain from
accepting T and C in the home is not only particularly peculiar
but also inappropriate. Siv Westerberg has not denied that she
is behind this. Her statements to the Court on the contrary
confirm the social authorities' allegations in this respect.
Furthermore, the Court believes the social authorities' other
allegations as regards Siv Westerberg's actions in this case.
All in all the Court finds that Siv Westerberg has disclosed such
lack of competence and such lack of suitability that the social
authorities had reason to decide to reject her as counsel."
Siv Westerberg continued to act as privately engaged counsel as
far as the court proceedings were concerned. On 3 June 1991, however,
the County Administrative Court also rejected her as counsel in the
court proceedings pursuant to section 48, subsection 2, of the Code of
Administrative Courts Procedure (förvaltningsprocesslagen) for similar
reasons as stated above. The Court appointed another lawyer as counsel
for the first and second applicants.
On 12 June 1991 the County Administrative Court decided to lift
the suspensive effect in force since 17 April 1991. This decision was
upheld by the Administrative Court of Appeal on 18 June 1991.
Accordingly, T and C were transferred from Lyckhem to the foster home.
__________
On 27 June 1991 the County Administrative Court examined the
first, second, third and fourth applicants' appeal against the social
authorities' above-mentioned decision of 28 March 1991 regarding
placement in the foster home and access. Whereas the first and second
applicants contended that the foster home in question was unacceptable
and that the foster parents were only interested in the financial
aspects of such an arrangement and thus maintained that the children
should not be placed in the foster home, the court appointed counsel
for the third and fourth applicants requested that the appeal be
rejected.
Following an evaluation of the relevant material the Court
concluded that the foster home in question was best qualified for
taking proper care of the children. Furthermore, the Court quashed the
social authorities' decision on access in so far as it concerned the
grandmother and the uncle since the applicable legislation did not
allow the authorities to regulate such access as these persons were not
holders of parental rights. As regards the first and second
applicants, who were the holders of the parental rights, the Court
considered the access arrangements made to be appropriate in the
circumstances of the case. In this respect the Court stated:
(translation)
"Due to the way in which the parents' previous counsel has
handled the case, the situation is now such that time is needed
for establishing a well-functioning relationship between the
foster home and the children and in particular between the foster
home and the parents. The children also need calm and quiet in
order to adapt to the foster home situation. The restrictions
the social authorities have set for the access therefore appear
to be well-founded. The appeal is accordingly rejected in this
respect."
The above decisions were upheld by the Administrative Court of
Appeal on 6 September 1991. Leave to appeal to the Supreme
Administrative Court was refused on 18 October 1991. The children
still live in the foster home.
COMPLAINTS
All applicants complain that the decision to take T and C into
care violated their right to respect for their family life in that the
case did not disclose circumstances which would make such a measure
necessary in a democratic society. They invoke Article 8 of the
Convention.
The applicants also complain that the decision first to place the
children at Lyckhem and subsequently in a foster home amounts to an
additional violation of Article 8 of the Convention.
Under the same provision the applicants further complain that
their access rights have been reduced to an unacceptable minimum.
As regards the care proceedings the applicants complain that they
did not get a fair hearing since the courts only relied on evidence
hostile to them and disregarded the witnesses' statements which spoke
in their favour. They invoke in this respect Article 6 of the
Convention.
They furthermore complain that in the proceedings concerning
placement in the foster home, during which Siv Westerberg was refused
permission to act as their counsel, they did not, for this reason, get
a fair hearing. They also maintain that the reasons for rejecting
their counsel amounted to an unjustified interference with the right
to freedom of expression. They invoke in this respect Articles 6 and
10 of the Convention.
The fifth and sixth applicants complain that they were refused
access to an effective remedy as guaranteed to them under Article 13
of the Convention when the courts rejected their appeal against the
social authorities' decision on access.
As regards the conditions at Lyckhem the applicants complain that
these were comparable to a children's prison, where the children were
subjected to treatment which violated Articles 3 and 4 of the
Convention.
The applicants further maintain that the authorities interfered
with the right to education, to freedom of religion and freedom to
found a family. They refer in these respects to Article 2 of Protocol
No. 1 to the Convention and Articles 9 and 12 of the Convention.
Finally, the applicants complain that the conditions in the
foster home are such that the child T risks dying there. They invoke
Article 2 of the Convention in this respect.
THE LAW
The applicants complain of a variety of violations of the
Convention and of Protocol No. 1 to the Convention in relation to the
decisions taken concerning the children T's and C's care.
Therefore the Commission recalls that it is clear from Article 25
para. 1 (Art. 25-1) of the Convention that the Commission can receive
an application from a person, non-governmental organisation or group
of individuals only if such person, non-governmental organisation or
group of individuals can claim to be a victim of a violation by one of
the High Contracting Parties of the rights set forth in the Convention.
Moreover, the Commission is competent to examine the compatibility of
domestic legislation with the Convention only with respect to its
application in a concrete case, while it is not competent to examine
in abstracto its compatibility with the Convention (cf. for example
No. 11045/84, Dec. 8.3.85, D.R. 42 p. 247).
Nevertheless, in the circumstances of the present case the
Commission has not found it necessary to determine, in respect of the
different complaints submitted, whether all applicants may claim to be
victims, but will, for the purposes of this case, leave this question
open unless it is otherwise expressly indicated.
1. The applicants complain that the decision to take T and C into
care violated Article 8 (Art. 8) of the Convention in so far as it
guarantees the right to respect for family life. This provision 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."
The Commission assumes that the taking into care of T and C
interfered with the applicants' right to respect for their family life
as ensured by Article 8 para. 1 (Art. 8-1) of the Convention. It has
therefore examined whether this interference was justified under the
terms of Article 8 para. 2 (Art. 8-2). In this respect the Commission
recalls that three conditions must be fulfilled: the interference must
be "in accordance with the law", it must pursue one or more of the
legitimate aims enumerated in para. 2 of Article 8 (Art. 8-2) and it
must be "necessary in a democratic society" for that or those
legitimate aims.
As regards the first condition, the Commission finds that the
relevant provisions in Swedish law satisfy the requirements as to the
quality of the law (cf. Eur. Court H.R., Olsson judgment of
24 March 1988, Series A no. 130, pp. 30-31, paras. 60-63).
Furthermore, the issue of care was examined by the competent
administrative courts up to the Supreme Administrative Court which
refused to grant leave to appeal, and there is nothing to suggest that
the decisions taken by the courts in the present case were contrary to
Swedish law.
The Commission also finds that the interference had a legitimate
aim under Article 8 para. 2 (Art. 8-2), namely the interests of the
children, which in this case fall under the expression "for the
protection of health or morals" and "for the protection of the rights
and freedoms of others (cf. also above-mentioned Olsson judgment, p.
31, paras. 64-65).
It thus remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the children.
According to the established case-law of the Commission and the
European Court of Human Rights, the notion of necessity implies that
the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued.
In determining whether an interference is "necessary in a democratic
society", the Commission furthermore has to take into account that a
margin of appreciation is left to the Contracting States (cf.
above-mentioned Olsson judgment, pp. 31-32, para. 67). That does not
mean, however, that the Commission's review is limited to ascertaining
whether the respondent State has exercised its discretion reasonably,
carefully and in good faith. Furthermore, 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. Olsson judgment, p. 32, para. 68).
In the present case, the Commission recalls that the applicants
allege that the care order was based on irrelevant and insufficient
circumstances.
Before considering the substance of this issue, the Commission
recalls that both the County Administrative Court and the
Administrative Court of Appeal held oral hearings during which the
possibility existed of presenting all the views which could be decisive
for the outcome of the case. Having regard to these facts, the
Commission finds that, in so far as certain procedural requirements are
implicit in Article 8 (Art. 8), these requirements were satisfied since
the applicants were involved in the decision-making process to a degree
sufficient to provide them with the requisite protection of their
interests.
As regards the actual care order, the Commission recalls in
particular the judgment of the Administrative Court of Appeal of
4 December 1990. The Court found no reason to question a report in
which it had been found that the parental home environment to which T
and C were subjected could be characterised as aggravated mental
ill-treatment constituting a danger to the children's mental health and
development. Furthermore, the Court concluded that the circumstances
prevailing in the parental home also constituted a risk to the
children's physical well-being.
Such conditions are clearly relevant to a decision to take a
child into care. Furthermore, the Commission recalls that prior to the
taking into care of the children the social authorities had been
involved for a considerable length of time in supporting their parents.
It cannot therefore be said that the authorities intervened without
adequate knowledge of the background.
In the light of this the Commission finds that the decision to
take T and C into care was supported by relevant and sufficient reasons
and that, having regard to their margin of appreciation, the Swedish
authorities were reasonably entitled to think that it was necessary to
take the children into care. Accordingly, the Commission concludes
that this decision can be regarded as "necessary in a democratic
society" within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention in the interest of the children.
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 applicants also complain of the way in which the care order
was implemented. More specifically they maintain that the placement
at Lyckhem, and the restriction imposed on their access rights during
that period of time, was in violation of Article 8 (Art. ) of the
Convention. Furthermore, they maintain that the conditions at Lyckhem
were such that they could be compared with a children's prison where
the children were subjected to treatment which violated Articles 3 and
4 (Art. 3, 4) of the Convention. The applicants also complain about
the restrictions on access after the children's transfer to the foster
home and finally allege, as regards the implementation of the care
order, that the conditions in the foster home were such as to endanger
T's life.
As a starting-point the Commission finds that it has not been
substantiated that the conditions at Lyckhem and in the foster home,
and the quality of the care given to the children there, were not and
are not satisfactory. The applicants' complaints under Articles 2, 3
and 4 (Art. 2, 3, 4) of the Convention therefore disclose no appearance
of a violation of these articles.
As for the remaining aspects of the implementation of the care
order the Commission notes that there appears to be no question of the
children being adopted, and the parents have not been deprived of their
parental rights. Nevertheless the restriction on access was an
interference with the right to respect for family life within the
meaning of Article 8 para. 1 (Art. 8-1) of the Convention for which
reason the Commission must examine whether this interference complied
with para. 2 of this provision.
The Commission finds that the interference was in accordance with
law and had a legitimate aim (cf. Eur. Court H.R., Margareta and Roger
Andersson judgment of 25 February 1992, Series A no. 226-A, pp. 25-28,
paras. 74-87). What remains is accordingly to consider whether it was
"necessary". In this respect the Commission recalls that T and C were
placed together at Lyckhem and their parents and other family members
had the possibility of visiting them daily. Moreover the social
authorities arranged for the children to visit their parents and
grandmother. The Commission has in this respect not overlooked that
the social authorities did not fully comply with certain requests for
access, for example at Christmas 1990. However, the implementation of
the care order at Lyckhem was nevertheless such that easy and regular
access was provided for and thus the access regulation did not, in the
Commission's view, exceed what could be regarded as "necessary" within
the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
As regards the possibilities of access after the children's
placement in the foster home, the Commission recalls that this was
limited to once a week as far as the parents were concerned and to once
a month as far as other family members were concerned. Although the
appeal against this limitation was unsuccessful, nothing has been
submitted which shows that such a regular access was not in fact
established. Furthermore, the Commission recalls the reasons given by
the courts, in particular by the County Administrative Court in its
judgment of 27 June 1991, for partially accepting the access
arrangements fixed by the social authorities. In the particular
circumstances of this case the Commission finds that these reasons were
both relevant and sufficient.
In conclusion the Commission thus finds that the measures taken
in implementation of the care order were supported by reasons
justifying them as proportionate to the aim pursued (cf. also Eur.
Court H.R., Olsson (No. 2) judgment of 27 November 1992, Series A
no. 250, pp. 35-37, paras. 89-92).
It follows that the applicants' complaints relating to the
implementation of the care order as submitted under Articles 2, 3, 4
and 8 (Art. 2, 3, 4, 8) of the Convention are manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. Under Article 6 (Art. 6) of the Convention the applicants
complain of a number of alleged procedural shortcomings in respect of
the court hearings involved. Article 6 para. 1, first sentence
(Art. 6-1-1), which is of relevance in this report, reads as follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law."
a) First the applicants complain that the hearings, in which the
questions of care were determined, were unfair in that the courts only
relied on evidence hostile to them.
With regard to this particular complaint the Commission recalls
that, in accordance with Article 19 (Art. 19) of the Convention, its
only task is to ensure the observance of the obligations undertaken by
the Parties in the Convention. In particular, it is not competent to
deal with an application alleging that errors of law or 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. The Commission refers, on this
point, to its established case-law (see e.g. No. 458/59, Dec. 29.3.60,
Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43
pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).
In the care proceedings the Commission has not, however, found
any appearance of such possible violations of the Convention.
b) The applicants also complain that they did not get a fair hearing
in the proceedings concerning the issue of placement in the foster
home, due to the fact that the courts rejected Siv Westerberg as their
counsel.
Although Article 6 para. 1 (Art. 6-1) of the Convention does not
expressly guarantee the right to legal assistance of one's own
choosing, the Commission will not exclude that situations could arise
whereby an arbitrary or unreasonable rejection of counsel could raise
issues under this provision. However, in the present case the
Commission does not consider that the rejection of Siv Westerberg as
counsel for the applicants was arbitrary or unreasonable. Furthermore,
the Commission recalls that the Court appointed another counsel to
assist the applicants and the Commission has found no substantiated
evidence which shows that this counsel did not fulfil his tasks in an
acceptable way.
In these circumstances the Commission finds no evidence to
support the conclusion that the hearing concerning the placement in the
foster home was unfair or that the Swedish courts otherwise failed to
comply with the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention.
It follows that the applicants' complaints, as submitted under
Article 6 (Art. 6) of the Convention, are manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The fifth and sixth applicants (the children's grandmother and
uncle) complain of the lack of a remedy in respect of their complaints
of lack of access to the children. They refer in this respect to
Article 13 (Art. 13) of the Convention.
The Commission recalls that Article 13 (Art. 13) has been
interpreted by the European Court of Human Rights as requiring a remedy
in domestic law only in respect of grievances which can be regarded as
"arguable" in terms of the Convention (cf. for example Eur. Court H.R.,
Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23,
para. 52).
Having regard to its above conclusions in respect of the
Convention complaints submitted, the Commission considers that the
applicants do not have any "arguable claims" of a violation of the
provisions invoked for these complaints. In these circumstances it
finds no appearance of a violation of Article 13 (Art. 13) of the
Convention.
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.
5. Finally, the Commission has examined the applicants' complaints
under Articles 9, 10 and 12 (Art. 9, 10, 12) of the Convention and
Article 2 of Protocol No. 1 (P1-2) to the Convention, as submitted by
them. However, this examination has not disclosed any appearance of
a violation of these provisions and it follows that this part of the
application is likewise 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) (S. TRECHSEL)
Full & Egal Universal Law Academy