LARSON v. SWEDEN



                      AS TO THE ADMISSIBILITY OF

                      Application No. 33250/96

                      by Mark A. LARSON

                      against Sweden

      The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 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

                 A. ARABADJIEV

           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 12 June 1996 by

Mark A. LARSON against Sweden and registered on 30 September 1996 under

file No. 33250/96;

      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 applicant, a citizen of the United States of America, was

born in 1965. He resides at Orem, Utah.

      The facts of the case, as submitted by the applicant, may be

summarised as follows.

a.    The particular circumstances of the case

      On 27 October 1989 the applicant married S.Ö., a Swedish citizen

born in 1967. The marriage took place in Utah, where the couple

established their marital home. Their daughter, J, was born on

13 August 1990. Under Utah law the applicant and S.Ö. had joint custody

of J, who was - and still is - an American citizen.

      The applicant, S.Ö. and J. spent the Christmas of 1990 in Sweden.

On this occasion, S.Ö. kidnapped J and subsequently retained her in

Sweden for approximately five months. On 3 June 1991, however, both

S.Ö. and J returned to Utah, where they were reunited with the

applicant.

      While in Sweden, S.Ö. had filed a petition for divorce and sole

custody of J. In or about May 1991, the District Court (tingsrätten)

of Sandviken issued an interim order awarding S.Ö. temporary custody

of J. Before doing so the court had had communications with the

applicant, giving him an opportunity to submit observations. However,

relying on S.Ö.'s assurances that she would withdraw the petition, he

had refrained from doing so. When asked about the May 1991 order, S.Ö.

again assured the applicant that she had instructed her lawyer to have

the case struck out of the court's list of cases. Hence, the applicant

took no action in respect of the said order.

      From 3 June 1991 to 13 January 1992, the applicant, S.Ö. and J

lived together in Utah. On the latter date, however, S.Ö. abducted J

from Utah to Sweden. At this stage, as during the previous retention

of J in Sweden, the applicant allegedly had no knowledge of the

remedies provided by the 1980 Hague Convention on the Civil Aspects of

International Child Abduction (hereinafter "the Hague Convention").

      On 22 February 1992 the applicant was notified by the District

Court of Sandviken that S.Ö. had petitioned for a final decision in the

proceedings concerning divorce and custody. Thus, contrary to S.Ö.'s

assurances, those proceedings had never been discontinued. On or about

13 November 1992, following a preparatory hearing at which both parties

had been present, the court issued a partial judgment ordering the

dissolution of their marriage. Furthermore, the court ordered that the

interim order of May 1991 - awarding temporary custody to S.Ö. and

rights of access to the applicant amounting to four weeks per year -

continue in force. Apparently, no final hearing has been held on the

issues of custody and access.

      Having come to believe that the Swedish court did not have

jurisdiction over the issues of custody and divorce, the applicant

instituted such proceedings in the Fourth District Court of Utah County

(hereinafter: "the Utah State Court"). That case is still pending.

      In November 1993, the applicant and his new wife went to Sweden

to see J. On this occasion the applicant abducted J to Utah.

      On 26 January 1994 S.Ö., represented by a Utah lawyer allegedly

hired on her behalf by the Swedish Ministry for Foreign Affairs,

instituted proceedings against the applicant in the United States

District Court for the District of Utah (hereinafter: "the United

States District Court"). Invoking the Hague Convention and requesting

that J be returned to Sweden, S.Ö. claimed inter alia that J was

habitually resident in Sweden and had been wrongfully removed to Utah

in breach of S.Ö.'s custody rights. On the same day, the court issued

a temporary ex parte order requiring that J be immediately handed over

to S.Ö. - who was now staying in Utah - pending a hearing scheduled for

1 February 1994. The order also expressly prohibited S.Ö. from removing

J from the State of Utah pending further orders of the court. Complying

with the court order, the applicant had J delivered to S.Ö. on

30 January 1994.

      On 1 February 1994 S.Ö. fled to Sweden, taking J with her.

      In March 1994 the United States District Court found S.Ö. in

contempt of court and issued a warrant for her arrest. By order of

15 August 1994 this court also requested S.Ö. to cause J to be returned

to Utah within thirty days. The order was not complied with.

      On 27 January 1995, invoking the Hague Convention and the 1989

Act on the Recognition and Enforcement of Foreign Decisions Relating

to Custody etc. and Concerning the Return of Children (lagen om

erkännande och verkställighet av utländska vårdnadsavgöranden m.m. och

om överflyttning av barn, 1989:14 - "the 1989 Act"), the applicant

instituted proceedings before the County Administrative Court

(länsrätten) of the County of Gävleborg, requesting that J be returned

to Utah. As proceedings under that convention were still pending before

the United States District Court, however, he requested the Swedish

court to await the former court's final ruling. The County

Administrative Court granted this request.

      By judgment of 12 June 1995, the United States District Court

rejected the claims brought by S.Ö. under the Hague Convention.  The

court found inter alia that S.Ö.'s retention of J in Sweden in 1991 and

removal from Utah in January 1992 were wrongful and that - for the

purposes of the Hague Convention - J had been habitually resident in

Utah continuously since her birth. For this reason, so the court

stated, the applicant's removal of J from Sweden to Utah in November

1993 had not been wrongful within the meaning of the Hague Convention.

The court further ordered that J be immediately returned to Utah. The

judgment was not complied with.

      The Hague Convention proceedings in Sweden, instituted by the

applicant in respect of S.Ö.'s 1994 abduction of J to that country,

were subsequently resumed. In these proceedings the applicant

consistently requested that the Swedish courts recognise and respect

the judgment of the United States District Court. Finding, however,

that the case did not concern the enforcement of a foreign judgment,

each of the Swedish courts decided on the case independently and on the

basis of Swedish law.

      By judgment of 5 July 1995, following an oral hearing, the County

Administrative Court rejected the applicant's request that J be

returned to Utah. In doing so, the court referred to the interim order

of the District Court of Sandviken, according to which the applicant

lacked custody rights under Swedish law.

      On 25 August 1995, also following an oral hearing, the judgment

was reversed on appeal by the Administrative Court of Appeal

(kammarrätten) of Sundsvall. This court noted at the outset that the

requested return of J to Utah could not be refused on the sole ground

that the applicant, temporarily and under Swedish law, had been

deprived of his custody rights. Moreover, stating that S.Ö. had

wrongfully removed J from her then habitual residence in 1992, the

court found that a new habitual residence for the purposes of the Hague

Convention had not been established for J in Sweden. The court

therefore concluded that J's habitual residence was still in Utah when

S.Ö. removed her to Sweden in February 1994, thus making the removal

wrongful. For this reason the court ordered that J be returned to Utah.

      On 30 August 1995, following an appeal by S.Ö., the Supreme

Administrative Court (Regeringsrätten) granted leave to appeal and

ordered a stay of execution. Both parties subsequently made further

submissions to the court. By judgment of 20 December 1995 this court

reversed the Administrative Court of Appeal's judgment. The Supreme

Administrative Court concluded that the main issue of the case was

whether the 1994 removal of J from Utah was wrongful. The court went

on to find that this would be the case if it were established that J's

habitual residence at the time had been Utah, but not if that residence

had been Sweden. Having stated that a general objective of the Hague

Convention is to protect children from the harmful effects of being

uprooted from their familiar environment and that the object of the

term "habitual residence" in the Hague Convention is to specify the

kind of connection with a country that gives the right to protection

under that Convention, the court made the following general remarks:

(Translation)

      "It is not consistent with this objective that a removal,

      that takes place contrary to the will of one of the legal

      custodians, should be instrumental in changing the child's

      residence. On the other hand, it does not seem entirely

      consistent with that objective to regard the circumstances

      of a removal as a permanent obstacle to the establishment

      of a new residence. If the child has been in the new

      country for such a length of time and under such conditions

      that it has acquired a connection with that country of the

      kind referred to in the provisions, there should be no

      obstacle to considering that it has acquired a new

      residence. At this juncture, particular note should be

      taken of the fact that under the provisions of section 12

      of [the 1989 Act], as well as Article 12 of the [Hague]

      Convention, the return of a child that has been wrongfullly

      removed may be refused where, at the time of the submission

      of the application for the child's return, at least one

      year has passed from the time of the removal and the child

      has settled down in its new environment."

      The court went on to find that S.Ö.'s first removal of J from

Utah to Sweden - the 1992 removal - had taken place against the

applicant's will. Noting, however, that the applicant had not

instituted proceedings to have J returned following that abduction, the

court concluded:

      "Considering this fact, the circumstances under which [J]

      was abducted in January 1992 should not, on expiry of the

      twelve month period referred to in both [the 1989 Act] and

      the [Hague] Convention, prevent the child from acquiring

      residence in Sweden. ... [T]he Supreme Administrative Court

      finds that [J] must be considered to have acquired

      residence in Sweden some time before November 1993, when

      she was removed to the U.S.A. by [the applicant]. The

      subsequent events - the abduction of [J] to the U.S.A. and

      her stay there for some two months - cannot once again have

      changed her residential status. Consequently ... she must

      be deemed still to have had Swedish residence at the time

      of the abduction from the U.S.A. in February 1994, which

      abduction is at issue in the present case.

      The abduction in February 1994 was therefore not wrongful

      within the meaning of section 11 para. 2 of [the 1989 Act].

      ..."

      Between 20 June and 2 September 1995, on account of the ongoing

Hague Convention proceedings before the Swedish courts, the applicant

and his new wife stayed in Sweden. During this period the applicant and

officials of the Social Council of Sandviken made numerous efforts to

bring about a meeting between the applicant and his daughter. However,

S.Ö. did not allow this.

      On 19 March 1996, in the proceedings concerning custody and

divorce instituted by the applicant, the Utah State Court issued an

order awarding temporary custody of J to the applicant. Finding S.Ö.

in contempt of court, the court also ordered that J be returned to Utah

within 30 days. The order was not complied with.

b.    Relevant international and domestic law

      The preamble of the Hague Convention includes the following

statement as to the purpose of that Convention:

      "... to protect children internationally from the harmful

      effects of their wrongful removal or retention and to

      establish procedures to ensure their prompt return to the

      State of their habitual residence, ..."

      The object of such a return is that, following the restoration

of status quo, the conflict between the custodian and the person who

has removed or retained the child can be resolved in the state where

the child is habitually resident.

      The Hague Convention has been incorporated into Swedish law

insofar as provisions intended to reflect the provisions of that

convention have been included in the 1989 Act. Section 11 of this Act,

reflecting Article 3 of the Hague Convention, provides the following:

(Translation)

      "A child who has been wrongfully removed to this country or

      who is being wrongfully retained here shall, on petition,

      be returned to the person from whom the child is being

      withheld, if immediately before the removal or retention

      the child was habitually resident in a Contracting State to

      the Hague Convention.

      A removal or retention is wrongful if the removal or

      retention is in breach of the rights of custody which the

      legal custodian or someone else has in the State where the

      child was habitually resident immediately before the

      removal or retention and those rights were also exercised

      at the time the child was removed or retained, or would

      have been exercised at that time if the removal or

      retention had not taken place."

      Section 12, subsection 1 of the 1989 Act, reflecting Article 12

of the Hague Convention, reads as follows:

(Translation)

      "The return of a child pursuant to section 11 can be

      refused

      1. if, at the time of the submission of an application for

      the child's return, a period of at least one year has

      elapsed from the date of the wrongful removal or retention

      and the child is now settled in its new environment,

      ..."

      Neither the Hague Convention nor the 1989 Act explicitly defines

the term "habitual residence". In this respect, the travaux

préparatoires to the 1989 Act referred to the contexts in which this

term had previously been used in Swedish legislation.

      Finally, section 15 para. 2 of the 1989 Act, reflecting Article

11 of the Hague Convention, provides the following:

(Translation)

      " ... [C]ases concerning the return of children pursuant to

      section 11 shall be decided upon expeditiously. If the

      court has not reached a decision within six weeks from the

      date of commencement of the proceedings, it shall, upon the

      applicant's request, be obliged to give an account of the

      reasons for the delay."

COMPLAINTS

1.    The applicant complains of the fact that the Swedish courts

failed to recognise and respect the outcome of the Hague Convention

proceedings brought before the United States District Court. He also

complains of the fact that the Supreme Administrative Court, when thus

deciding on the case independently, concluded that his daughter's place

of habitual residence was Sweden. He claims that this constituted a

violation of his right to a fair hearing by an impartial tribunal and

his right to respect for his family life. Allegedly, it was also

discriminatory. In this respect, the applicant invokes Articles 6, 8

and 14 of the Convention.

2.    Further under Article 6, the applicant complains of the length

of the proceedings in the Hague Convention cases before the United

States District Court and the Swedish courts.

3.    Invoking Article 8 of the Convention, the applicant further

complains that the authorities failed to provide an effective means of

ensuring contact between him and his daughter during the time when the

Swedish Hague Convention case was pending before the courts.

4.    The applicant also complains of the fact that the Swedish

Government financed S.Ö.'s litigation in both Sweden and the United

States, whereas he himself has had to pay some 76,000 U.S. dollars to

be legally represented. In this respect, he invokes Article 1 of

Protocol No. 1 to the Convention.

5.    Under Article 13 of the Convention, the applicant finally submits

that he has not been provided with an effective remedy in respect of

the alleged violations of his Convention rights.

THE LAW

1.    The applicant complains of the fact that the Swedish courts

failed to recognise and respect the outcome of the Hague Convention

proceedings brought before the United States District Court. He also

complains of the fact that the Supreme Administrative Court, when thus

deciding on the case independently, concluded that his daughter's place

of habitual residence was Sweden. He claims that this constituted a

violation of his right to a fair hearing by an impartial tribunal and

his right to respect for his family life. Allegedly, it was also

discriminatory. He invokes Articles 6, 8 and 14 (Art. 6, 8, 14) of the

Convention. The respective provisions read, so far as relevant, as

follows:

      Article 6 (Art. 6):

      "1. In the determination of his civil rights and

      obligations ..., everyone is entitled to a fair ... hearing

      within a reasonable time by an independent and impartial

      tribunal ..."

      Article 8 (Art. 8):

      "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 and 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."

      Article 14 (Art. 14):

      "The enjoyment of the rights and freedoms set forth in this

      Convention shall be secured without discrimination on any

      ground such as sex, race, colour, language, religion,

      political or other opinion, national or social origin,

      association with a national minority, property, birth or

      other status."

      The applicant maintains that the judgment of the Supreme

Administrative Court is erroneous and manifestly motivated by a desire

on the part of the court to circumvent the purposes of the Hague

Convention, thus allowing that his daughter could remain in Sweden in

spite of the fact that she had been abducted to that country. In so

doing, the court allegedly disregarded both Swedish and international

case-law on the concept of "habitual residence".

      The Commission first finds that the proceedings in question

related to the applicant's "civil rights" within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention, which is therefore applicable

to his complaint.

      The Commission recalls, however, 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 a complaint

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. On this point, the Commission refers to its constant case-

law (see, e.g., No. 25062/94, Dec 18.10.95, D.R. 83 p. 77).

      The Commission has not, however, found any substantiated

allegations in the applicant's submissions which could lead it to

conclude that the proceedings were unfair and that the Supreme

Administrative Court reached its decision unfairly. Nor is there

anything to show that the latter court was partial or influenced by

irrelevant elements. There is thus no appearance of a violation of

Article 6 (Art. 6) of the Convention.

      As regards the applicant's complaint under Article 8 (Art. 8) of

the Convention, the Commission recalls that, in the instant case, the

Supreme Administrative Court was called upon to apply the provisions

of the Hague Convention, as incorporated into Swedish law by means of

the 1989 Act. In particular, this involved determining the child's

"habitual residence". Having considered the facts of the case, the

court reached the conclusion that J was habitually resident in Sweden,

and that the applicant's request that she be returned to Utah could

therefore not be granted. There is nothing to show that the court acted

arbitrarily when evaluating the facts of the case or that it failed to

strike a fair balance between the various interests at stake. Thus, the

Commission cannot find that the decision as such discloses any lack of

respect for the applicant's family life. This is even more so since the

decision did not involve a determination of the issues most closely

linked to the applicant's family life, i.e. the issues of custody and

rights of access. Apparently, these issues have yet to be finally

decided by the District Court of Sandviken.

      The applicant further claims that he has been discriminated

against, contrary to Article 14 (Art. 14) of the Convention. The

Commission finds, however, that the applicant's submissions fail to

substantiate this complaint.

      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.    Further under Article 6 (Art. 6) of the Convention, the applicant

complains of the length of the proceedings in the Hague Convention

cases before the United States District Court and the Swedish courts.

      The applicant claims that, by instructing the American lawyer

allegedly hired on S.Ö.'s behalf by the Ministry for Foreign Affairs,

the Swedish authorities took specific action to have the proceedings

before the United States District Court prolonged. As a result, these

proceedings lasted for 16 months. The applicant further claims that the

proceedings before the Swedish courts were intentionally delayed, inter

alia as a result of the Supreme Administrative Court's decision to

grant leave to appeal. He maintains that the relevant period to be

taken into consideration started on 27 January 1995, when he instituted

proceedings in the County Administrative Court, and ended on

20 December 1995, when the judgment of the Supreme Administrative Court

was delivered. As to the length of the Swedish proceedings the

applicant refers to section 15 para. 2 of the 1989 Act, requiring the

courts to act "expeditiously".

      Noting that the present application is directed against Sweden,

the Commission finds, at the outset, that it is not competent to deal

with the applicant's complaint concerning the length of the proceedings

before the United States District Court.

      As regards the applicant's complaint concerning the length of the

proceedings in the Swedish Hague Convention case, the Commission makes

the following observations. It is true that the applicant commenced

proceedings against S.Ö. on 27 January 1995. In so doing, however, he

specifically requested the County Administrative Court to await the

judgment of the United States District Court before proceeding with the

case. The court granted this request and took no further action in the

case until after the delivery of the awaited judgment, i.e. after

12 June 1995. In view of this and taking into account that the

proceedings - involving courts at three levels - ended on 20 December

1995, only about six months after the resumption of the County

Administrative Court's examination, the Commission cannot find that the

length of the proceedings exceeded what could be considered as

reasonable in the circumstances of the case.

      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.

3.    Invoking Article 8 (Art. 8) of the Convention, the applicant

further complains that the authorities failed to provide an effective

means of ensuring contact between him and his daughter during the time

when the Swedish Hague Convention case was pending before the courts.

      The Commission recalls that, on account of the ongoing Hague

Convention proceedings, the applicant and his wife stayed in Sweden

between 20 June and 2 September 1995. The Commission also recalls that,

as admitted by the applicant, the Social Council of Sandviken made

numerous, although unsuccessful, efforts during this period to bring

about a meeting between him and his daughter. Noting that S.Ö.

consistently refused to allow such a meeting to take place, the

Commission, however, finds that the failure of the Social Council's

efforts cannot be imputed to the respondent State.

       The Commission further recalls the 1991 interim order of the

District Court of Sandviken, whereby the applicant had been awarded

rights of access to his daughter. It appears that nothing would have

prevented the applicant from instituting a separate set of proceedings

to have this order enforced, applying provisions of the Parental Code

(Föräldrabalken). However, this was not done.

      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.

4.    The applicant also complains of the fact that the Swedish

Government financed S.Ö.'s litigation in both Sweden and the United

States, whereas he himself has had to pay some 76,000 U.S. dollars to

be legally represented. Invoking Article 1 of Protocol No. 1 (P1-1) to

the Convention, he claims that this constitutes an interference with

his right to the peaceful enjoyment of his possessions.

      The Commission, considering that the respondent State cannot be

held responsible for the size of the applicant's costs for legal

representation, finds that an examination of this complaint as it has

been submitted does not disclose any appearance of a violation of the

provision invoked.

      However, the Commission notes that the applicant's complaint

falls to be considered also under Article 6 (Art. 6) of the Convention,

in that it calls into question whether, in the circumstances of the

case, the applicant had a fair hearing. In this respect, however, the

Commission cannot find that the manner in which the parties financed

the proceedings made these proceedings unfair.

      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.    Under Article 13 (Art. 13) of the Convention, the applicant

finally submits that he has not been provided with an effective remedy

in respect of the alleged violations of his Convention rights. Article

13 (Art. 13) reads as follows:

      "Everyone whose rights and freedoms as set forth in this

      Convention are violated shall have an effective remedy

      before a national authority notwithstanding that the

      violation has been committed by persons acting in an

      official capacity."

      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 the terms of the Convention (see, e.g., Eur. Court H.R.,

Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23,

para. 52).

      Having regard to its findings in respect of the complaints

submitted by the applicant, the Commission finds that he does not have

any arguable claims necessitating a remedy under Article 13 (Art. 13)

of the Convention. Furthermore, in respect of the complaints under 1

above, the Commission notes that the applicant had access to, and did

in fact use, several channels of complaint. Thus, both his request that

the Swedish courts recognise and respect the judgment of the United

States District Court and his claim that his daughter was habitually

resident in the United States were heard by courts at three levels.

      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.

      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

 

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