AS TO THE ADMISSIBILITY OF
Application No. 13648/88
by Jan KUCZYNSKI
against Sweden
The European Commission of Human Rights sitting in private on
13 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 January 1988
by Jan KUCZYNSKI against Sweden and registered on 7 March 1988 under
file No. 13648/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Polish citizen, born in 1946 and resident
at Alvesta, Sweden. He is an engineer by profession. Before the
Commission the applicant is represented by Mrs. Siv Westerberg, a
lawyer practising at Gothenburg.
The applicant is living together with a Polish citizen, Eva
Nowacka, who is the first applicant in Application No. 12805/86.
That case concerns the taking into public care of Ewa Nowacka's
daughter, Katarzyna, who is the second applicant in the case.
Ewa Nowacka and her daughter came to Sweden from Poland in
May 1985 and settled in Alvesta with the applicant. Katarzyna
was taken into public care by a decision of the Chairman of the Social
Council (socialnämnden) of Alvesta of 16 August 1985 as there was a
strong suspicion of her having been maltreated. A report was addressed
to the police by the social authorities. As a result criminal
investigations against the applicant were initiated in August 1985 on
suspicion of ill-treatment of the child.
The Chairman's care decision was revoked on 8 October 1985 by
the County Administrative Court (länsrätten) of the County of
Kronoberg after an agreement had been reached between Ewa Nowacka and
the social authorities that care be provided for Katarzyna on a
voluntary basis.
On 10 October 1985 the District Prosecutor (distriktsåklagaren)
discontinued the criminal investigation against the applicant on the
ground that it could not be proven that a criminal offence had been
committed.
On 31 October 1985 the Chairman of the Social Council again
decided to take Katarzyna into care on a provisional basis on the
ground that the social authorities suspected that the girl had been
maltreated. The social authorities lodged a request that Katarzyna be
taken into care pursuant to the 1980 Act with Special Provisions on
the Care of Young Persons (lagen med särskilda bestämmelser om vård av
unga). The County Administrative Court granted the Social Council's
request for public care in a judgment of 17 December 1985. The
judgment was upheld, on appeal, by the Administrative Court of Appeal
(kammarrätten) of Jönköping and by the Supreme Administrative Court
(regeringsrätten) on 19 June 1986 and 22 December 1987, respectively.
The Courts considered that, during a relatively short period of time,
Katarzyna had suffered a number of injuries and been bruised in a way
that showed that her mother had not properly cared for her and that
her home environment entailed a danger to her health and development.
The Supreme Administrative Court found that she had been maltreated or
otherwise subjected to physical violence. There was no finding that
the applicant had maltreated her.
On 8 March 1988 the applicant made a request to the Regional
Public Prosecution Authority (regionåklagarmyndigheten) of Kalmar that
the decision of the District Prosecutor of 10 October 1985 be reviewed
and found to be correct. The Regional Public Prosecution Authority, on
21 March 1988, decided not to review the decision nor to take any
other action in the matter. The applicant then requested that the
Office of the Prosecutor-General (riksåklagaren) review the decision
of the Regional Public Prosecution Authority and establish that the
decision of the District Prosecutor was correct. The Office of the
Prosecutor-General on 24 May 1988 decided not to examine the request.
COMPLAINTS
The applicant complains that there has been a violation of his
right to a fair and public hearing as guaranteed by Article 6 para. 1
of the Convention. He maintains that, although the District
Prosecutor decided to discontinue the investigation against him
regarding the suspected maltreatment of Katarzyna, it is clear from
the actions of the social authorities, and from the judgments of the
Courts in the care proceedings, that the social authorities, as well
as the Courts, consider the applicant to be guilty of having assaulted
Katarzyna. He submits that he did not have access to a court to have
the question of his guilt examined.
THE LAW
The applicant complains that he did not have access to a
procedure satisfying the conditions of Article 6 para. 1 (Art. 6-1) of the
Convention for the purpose of establishing whether he was guilty of
having assaulted Katarzyna.
Under Article 6 para. 1 (Art. 6-1) everyone is entitled, in the
determination of any criminal charge against him, to a fair and public
hearing by a tribunal. However, according to the Commission's
case-law, this provision cannot be construed so as to bar the
prosecution from formally discontinuing criminal proceedings or from
not pursuing charges (No. 8233/78, Dec. 3.10.79, D.R. 17 p. 122).
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
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)