AS TO THE ADMISSIBILITY OF
Application No. 23346/94
by Anneli and Gabriel LJUNGQVIST
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 April 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
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 29 December 1993
by Anneli and Gabriel LJUNGQVIST against Sweden and registered on
28 January 1994 under file No. 23346/94;
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, Swedish citizens residing at Nässjö, are mother
and son born in 1951 and 1989 respectively. Before the Commission they
are represented by their lawyers, Mrs. Ruby Harrold-Claesson,
Olofstorp, and Mr. Sören Alfredsson, Röbäck.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
On 12 May 1992 the Chairman of the Social Council (Socialnämnden)
of Nässjö ("the Council") decided provisionally to take the second
applicant into care pursuant to Section 6 of the Act with Special
Provisions on the Care of Young Persons (Lagen med särskilda
bestämmelser om vård av unga, 1990:52 - "the 1990 Act"). The same day
he was placed with foster parents. On 25 May 1992 the County
Administrative Court (Länsrätten) of the County of Jönköping confirmed
the Council's decision.
On 30 June 1992 the County Administrative Court ordered that the
second applicant be taken into care pursuant to Section 2 of the 1990
Act, which provides that such orders may be made in cases where, due
to physical abuse, exploitation, inadequate care or some other
circumstances in the home, there is a clear risk of the young person's
health and development being impaired. In its judgment, the Court
stated that the second applicant, at least on one occasion, had been
physically abused by the first applicant and that the possibility of
further abuse could not be ruled out. The Court further found that the
first applicant had psychological problems which could injuriously
affect the second applicant's mental health. On 27 August 1992 the
first applicant's appeal was rejected by the Administrative Court of
Appeal (Kammarrätten) of Jönköping. No appeal was made to the Supreme
Administrative Court (Regeringsrätten).
After the placement of the second applicant in the foster home,
the first applicant had access to him initially once a week and from
11 June 1992 twice a week. On 7 July 1992 the Council decided that the
first applicant's access to her son should be restricted to one day in
the foster home every second weekend. The first applicant appealed to
the County Administrative Court which, on 30 September 1992, decided
to strike the case off its list of cases, as the Council, on
15 September 1992, had annulled the appealed decision. Thereafter, the
first applicant had access to her son once a week. By a Council
decision of 1 March 1993, the first applicant's right of access was
settled at once a week, alternately in her own home and in the foster
home.
After the first applicant had requested the Council to terminate
the care of the second applicant, the Council requested the County
Administrative Court to appoint a public counsel to assist her. By
decision of 26 March 1993, the Court appointed a lawyer practising in
Jönköping. The first applicant, however, requested the Court to
appoint Mrs. Ruby Harrold-Claesson. The request was rejected by the
Court on 1 April 1993, as Mrs. Harrold-Claesson practised some distance
away from Jönköping and the appointment of her would therefore entail
considerably higher costs. By decisions of 3 May and 15 July 1993, the
rejection was upheld by the Administrative Court of Appeal. On
7 September 1993 the Supreme Administrative Court refused leave to
appeal. On 13 May 1993 the County Administrative Court dismissed the
public counsel at his own request, as the first applicant had declared
that she did not want him to represent her. Mrs. Harrold-Claesson
subsequently represented the first applicant as private counsel. After
the first applicant had notified the Council that she intended to
arrange a meeting between her natural father and the second applicant,
the Council decided, on 13 April 1993, that access to the second
applicant could only be exercised by the first applicant. On 14 April
1993, after the first applicant had arrived at the foster home with her
natural father, the Council decided to prohibit access until 27 April
1993. The first applicant appealed against this decision to the County
Administrative Court. On 21 April 1993 the Court decided to reject the
appeal, finding that the Council had allowed the first applicant access
to her son on his birthday on 22 April 1993 and that, thus, access had
not been restricted in practice compared to the access arrangement of
1 March 1993. After having had access on her son's birthday, the first
applicant did not return him to the foster home.
On 23 June 1993 the Council decided to terminate the care of the
second applicant. Having regard to this decision, the County
Administrative Court, on 23 August 1993, struck the case concerning
termination of care off its list of cases.
COMPLAINTS
1. Invoking Articles 8 and 9 of the Convention, the applicants
complain of the taking into public care of the second applicant and the
Council's decision of 14 April 1993 to prohibit access.
2. The first applicant claims that the courts' decisions not to
appoint as her public counsel a lawyer of her own choosing violated
Article 6 para. 1 of the Convention.
3. The first applicant further claims that she did not have an
effective remedy under Article 13 of the Convention in that the
Administrative Court of Appeal only confirmed the decisions of the
County Administrative Court which, on its part, only confirmed the
Council's decisions.
THE LAW
1. The applicants complain of the taking into public care of the
second applicant and the Council's decision of 14 April 1993 to
prohibit access. They invoke Articles 8 and 9 (Art. 8, 9) of the
Convention.
The Commission recalls that it is not required to decide whether
or not the facts submitted by an applicant disclose any appearance of
a violation of the provisions referred to if, inter alia, the
requirement under Article 26 (Art. 26) of the Convention as to the
exhaustion of domestic remedies has not been complied with.
In the present case, the Administrative Court of Appeal, by
decision of 27 August 1992, upheld the County Administrative Court's
decision to take the second applicant into care. The applicants did
not appeal to the Supreme Administrative Court. Moreover, they did not
appeal against the Council's general access decision of 1 March 1993.
Finally, after the County Administrative Court, on 21 April 1993, had
rejected the first applicant's appeal against the Council's decision
of 14 April 1993 to temporarily restrict her access to the second
applicant, the applicants did not appeal to the Administrative Court
of Appeal.
Accordingly, it is clear that the applicants have not exhausted
the remedies available to them. However, with regard to the care
decision the first applicant submits that the administrative courts
only confirm the decisions of the social authorities, for which reason
her public counsel had told her that an appeal to the Supreme
Administrative Court would have been of no avail.
The Commission recalls, in this respect, that in order to comply
with the requirements of Article 26 (Art. 26) of the Convention, an
applicant is obliged to exhaust every domestic remedy which cannot
clearly be said to lack any prospect of success. The mere existence
of a doubt as to the effectiveness of a particular remedy does not
itself excuse an applicant from the requirement to exhaust it (cf.,
e.g., No. 6271/73, Dec. 13.5.76, D.R. 6 p. 62, and No. 9586/82,
Dec. 14.5.87, D.R. 52 p. 38).
In the present case, the Commission considers that the applicants
have not shown that recourse to the domestic remedies at their disposal
clearly lacked any prospect of success. The Commission, thus, finds
that no special circumstance existed which might have absolved the
applicants from exhausting these remedies.
It follows that this part of the application must be rejected for
non-exhaustion of domestic remedies under Article 27 para. 3
(Art. 27-3) of the Convention.
2. The first applicant claims that the courts' decisions not to
appoint as her public counsel a lawyer of her own choosing violated
Article 6 para. 1 (Art. 6-1) of the Convention, which, in so far as
relevant, reads as follows:
"In the determination of his civil rights ..., everyone is
entitled to a fair ... hearing ..."
The Commission recalls that, although the Convention contains no
provision on legal assistance in civil rights disputes, Article 6,
para. 3 (c) (Art. 6-3-c) dealing only with criminal proceedings,
Article 6 para. 1 (Art. 6-1) may sometimes compel the State to provide
for the assistance of a lawyer when such assistance proves
indispensable for an effective access to court (cf. Eur. Court H.R.,
Airey judgment of 9 October 1979, Series A no. 32, p. 14-16, para. 26).
In the present case, a public counsel had been appointed for the
first applicant by the County Administrative Court. In its decision
not to replace the counsel by a lawyer chosen by the applicant, the
Court stated that the replacement would entail considerably higher
costs. Throughout the subsequent proceedings, the applicant was
represented by her private counsel. The Commission, therefore, finds
that the decision not to replace the public counsel does not disclose
any appearance of a violation of the applicant's rights under Article
6 para. 1 (Art. 6-1) of the Convention.
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.
3. The first applicant further claims that she did not have an
effective remedy in that the Administrative Court of Appeal only
confirmed the decisions of the County Administrative Court which, on
its part, only confirmed the Council's decisions. She invokes Article
13 (Art. 13) of the Convention, which 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 notes that with regard to both the Council's
decision to take the second applicant into public care and its
subsequent decisions on access the first applicant had the possibility
to apply to the County Administrative Court. Furthermore, even
assuming that Article 13 (Art. 13) applies to further appeals, the
Commission notes that the applicant had the possibility to appeal to
the Administrative Court of Appeal, and, with leave to appeal, to the
Supreme Administrative Court. The Commission finds no indication that
these courts did not constitute effective remedies under 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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber Acting President of the Second Chamber
(K. ROGGE) (G.H. THUNE)
Full & Egal Universal Law Academy