AS TO THE ADMISSIBILITY OF
Application No. 29778/96
by Lennart MICHEL
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
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 29 December 1995
by Lennart MICHEL against Sweden and registered on 10 January 1996
under file No. 29778/96;
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 Swedish citizen born in 1946, resides in
Halmstad. He was married to B, who died on 8 December 1995. Before
the Commission he is represented by Mrs. Ruby Harrold-Claesson, a
lawyer practising in Olofstorp.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In the autumn of 1993 the Social Council (socialnämnden) of
Halmstad applied to the County Administrative Court (länsrätten) of the
County of Halland for a care order concerning the applicant's and B's
son P, born in 1985, and daughter M, born in 1988. The application was
made pursuant to Sections 1 and 2 of the Act with Special Provisions
on the Care of Young Persons (Lagen med särskilda bestämmelser om vård
av unga, 1990:52; hereinafter "the 1990 Act"), according to which
compulsory care is to be provided if there is a clear risk of
impairment of the health and development of a person under 18 years of
age due to ill-treatment, exploitation, lack of care or any other
condition in the home and if the necessary care cannot be provided with
the consent of the young person's custodian.
On 18 October 1993, following an oral hearing in the case, the
County Administrative Court rejected the application.
In the summer of 1994 the Social Council again applied for P and
M to be taken into public care.
On 2 August 1994 the County Administrative Court rejected also
the second application. The Social Council appealed, however, and on
31 October the Administrative Court of Appeal (Kammarrätten) in
Gothenburg granted the application and ordered that the children be
taken into public care. The appellate court found the investigation
in the case to show that the conditions in their home were seriously
deficient and that B did not understand the children's special needs.
Both the County Administrative Court and the Administrative Court of
Appeal held oral hearings before deciding in the case. On 28 November
the Supreme Administrative Court (Regeringsrätten) refused the
applicants leave to appeal.
In November 1994 the Social Council tried to enforce the care
order but the applicant and B had left their home with the children
before the Council arrived. Upon their return in January 1995 the care
order could no longer be enforced as, under Section 5 of the 1990 Act,
such enforcement had to take place within four weeks from the day the
care order gained legal force, i.e. the day of the decision of the
Supreme Administrative Court.
On 1 February 1995 the president of the Social Council decided,
pursuant to Section 6 of the 1990 Act, immediately to take P and M into
public care on a provisional basis. The decision was confirmed by the
County Administrative Court on 10 February. The children were placed
in a children's home in Kungälv.
Following the Social Council's further application, the County
Administrative Court, by judgment of 15 March 1995, issued a new care
order. The court found that the conditions in the parents' home had
not improved since the appellate court's care order of 31 October 1994.
It further took into account that the applicant and B had obstructed
the enforcement of that order and had kept the children in hiding, away
from school, day-care centre and other social contacts for three
months. There was thus a clear risk of impairment of the health and
development of the children. Before giving judgment, the County
Administrative Court had held a hearing at which the applicant and B,
their counsel, the children's counsel and representatives of the Social
Council and the County Administrative Board (länsstyrelsen) of the
County of Halland had been heard. The court had also heard evidence
from three witnesses adduced by the parents.
The applicant and B appealed to the Administrative Court of
Appeal. They further requested that their public counsel be dismissed
and their representative, Mrs. Harrold-Claesson, be appointed as new
public counsel.
The request to have Mrs. Harrold-Claesson appointed as public
counsel was rejected by decisions of the appellate court of 3, 10 and
15 May 1995. The previously appointed counsel was however dismissed
by the latter decision. On 3 July the Supreme Administrative Court
refused leave to appeal against these decisions.
On 15 May 1995 the Administrative Court of Appeal held a hearing
in the case, during which it heard the applicant and B, their
representative, the children's counsel and representatives of the
Social Council. It further heard evidence from five witnesses adduced
by the parents.
By judgment of 2 June 1995, the Administrative Court of Appeal
upheld the County Administrative Court's care order. On the same day
it rejected a renewed request to have Mrs. Harrold-Claesson appointed
as public counsel. The applicant and B appealed against the judgment
and the decision on public counsel. They further claimed that the
Administrative Court of Appeal was not impartial on account of its
refusal to appoint new counsel. On 5 September 1995 the Supreme
Administrative Court refused leave to appeal in all respects.
On 12 June 1995, after having visited the children, the applicant
removed them from the children's home and later brought them to Poland,
where they have since been staying with the B and her relatives.
By judgment of 18 July 1995, the District Court (tingsrätten) of
Stenungsund convicted the applicant for having arbitrarily removed the
children from the home (egenmäktighet med barn) and sentenced him to
three months in prison.
The applicant and B later requested that the public care of P and
M be terminated. The request was rejected by the Social Council on
19 October 1995 and, on appeal, by the County Administrative Court on
15 February 1996. The court stated that there was no indication of a
change of the conditions in the applicant's home such as to make public
care unnecessary. His abduction of the children from the children's
home was further adduced as evidence of his lack of care of the
children. The court held a hearing and heard the applicant,
Mrs. Harrold-Claesson - at this time appointed public counsel for the
applicant - the children's counsel and representatives of the Social
Council.
The applicant appealed against the County Administrative Court's
judgment and also complained that the judge presiding over the court's
hearing on 13 February 1996 had not been impartial as she had also
presided when the County Administrative Court gave its previous
judgment on 15 March 1995. By decision of 7 May 1996, the
Administrative Court of Appeal noted that, under Section 41 of the
Administrative Procedure Act (Förvaltningsprocesslagen, 1971:291) and
Chapter 4, Section 14 of the Code of Judicial Procedure
(Rättegångsbalken), a challenge against the impartiality of a judge
shall be made when the complainant first becomes aware of the fact on
which the challenge is based. The applicant should thus have raised
the issue during the County Administrative Court's hearing. As this
had not been done, the appellate court was prevented from examining the
complaint, which was accordingly dismissed. It appears that no appeal
has been made against this decision.
On 13 September 1996 the Administrative Court of Appeal, agreeing
with the reasons given by the County Administrative Court, upheld the
appealed judgment. The appellate court held a hearing, during which,
in addition to the persons heard by the County Administrative Court,
it also heard evidence from a witness proposed by the applicant. On
24 October 1996 the Supreme Administrative Court refused leave to
appeal.
COMPLAINTS
1. The applicant complains that the decisions and judgments
concerning the public care of P and M have violated his and B's right
to respect for their family life under Article 8 of the Convention.
2. The applicant also contends that he and B were denied a fair
hearing because of the refusal of the Administrative Court of Appeal
to appoint their representative, Mrs. Harrold-Claesson, as public
counsel and beacuse of that court's lack of impartiality in deciding
on this issue. He invokes Article 6 para. 3 (c) of the Convention.
3. Invoking Article 3 of the Convention, the applicant further
claims that the children's placement in the children's home, where they
stayed for four months, constituted inhuman and degrading treatment and
punishment.
4. Moreover, the taking into care of the children allegedly caused
B's death and thus violated Article 2 of the Convention.
5. The applicant also alleges that the decision of the president of
the Social Council of 1 February 1995 to take P and M immediately into
care and place them in the children's home constituted a deprivation
of the children's liberty and a violation of Article 5 of the
Convention.
6. Finally, the applicant claims that Article 2 of Protocol No. 1
to the Convention has been violated as P's preparation for confirmation
was allegedly interrupted when he was taken into care on 1 February
1995. He submit that B was catholic and that, according to catholic
tradition, children shall be confirmed at the age of ten.
THE LAW
The Commission first observes that B died on 8 December 1995,
i.e. before the present application was lodged, and therefore cannot
be, under Article 25 (Art. 25) of the Convention, an applicant in the
present case.
1. The applicant complains that the decisions and judgments
concerning the public care of P and M have violated his and B's right
to respect for their family life. They invoke Article 8 (Art. 8) of
the Convention, which 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 and morals, or for the protection of the rights and
freedoms of others."
The applicant contends that the provisions of the 1990 Act do not
meet the requirements of accessibility and foreseeability and that,
thus, the decisions and judgments in the case were not taken in
accordance with law. Moreover, there was no need to take the children
into care as they were healthy and well taken care of by their parents.
Thus, the measure of taking them into public care did not pursue a
legitimate aim. Finally, there was no pressing social need justifying
the measure which was, accordingly, not necessary in a democratic
society.
The Commission finds that the taking into public care of P and
M interfered with the applicant's right to respect for his family life
as ensured by Article 8 para. 1 (Art. 8-1) of the Convention. It must
therefore be 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 satisfied: the interference must
be "in accordance with the law", it must pursue one or more of the
legitimate aims enumerated in para. 2 and it must be "necessary in a
democratic society" for that aim or those aims.
As regards the first condition, the Commission finds that the
relevant decisions were in conformity with Swedish law, namely
Sections 1, 2 and 6 of the 1990 Act, and that these provisions met the
requirements of accessibility and foreseeability.
The Commission further 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 expressions "for the
protection of health or morals" and "for the protection of the rights
and freedoms of others".
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. However, the
Commission's review is not 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. Eur. Court HR, Olsson v. Sweden judgment of 24 March 1988,
Series A no. 130, pp. 31-32, paras. 67-68).
In the present case, the Commission recalls that the
Administrative Court of Appeal, in its judgment of 31 October 1994,
found that the conditions in the parents' home were seriously deficient
and that B did not understand the children's special needs. In later
judgments, the respective courts have considered that no improvement
of those conditions has occurred. It is further recalled that the
applicant and B obstructed the enforcement of the first care order and
kept the children in hiding for three months and that the applicant on
12 June 1995 abducted the children from the children's home and brought
them to Poland where they have been staying ever since.
The Commission also takes into account that the County
Administrative Court and the Administrative Court of Appeal, before
deciding in the case, had held hearings at which the applicant and B,
their counsel, the children's counsel, representatives of the Social
Council and several witnesses were heard. Thus, the courts cannot be
said to have intervened without adequate knowledge of the case.
In the light of the foregoing the Commission finds that the
decisions on the public care of P and M have been supported by relevant
and sufficient reasons and that, having regard to their margin of
appreciation, the Swedish authorities have been reasonably entitled to
think that it has been necessary to take P and M into care.
Accordingly, the Commission concludes that the relevant decisions can
reasonably be regarded as "necessary in a democratic society" within
the meaning of Article 8 para. 2 (Art. 8-2) 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.
2. The applicant also contends that he and B were denied a fair
hearing because of the refusal of the Administrative Court of Appeal
to appoint their representative, Mrs. Harrold-Claesson, as public
counsel and beacuse of that court's lack of impartiality in deciding
on this issue. He invokes Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention.
The relevant parts of Article 6 (Art. 6) read as follows:
"1. In the determination of his civil rights ..., everyone
is entitled to a fair ... hearing ... by an ... impartial
tribunal ...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interests of justice so require; ..."
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 HR,
Airey v. Ireland 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
applicant and B. After the Administrative Court of Appeal, on 15 May
1995, had dismissed that counsel at the their request, the applicant
and B were represented, throughout the subsequent proceedings, by their
private counsel. In these circumstances, the Commission finds that the
refusal to appoint the private counsel as new public counsel does not
disclose any appearance of a violation of the applicants' rights under
Article 6 (Art. 6) of the Convention. The Commission further considers
that the applicant's submissions fail to substantiate any lack of
impartiality on the part of the Administrative Court of Appeal deciding
on the matter.
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. The applicant has made further complaints under Articles 2, 3 and
5 (Art. 2, 3, 5) of the Convention and Article 2 of Protocol No. 1
(P1-2) to the Convention.
The Commission, having examined the separate complaints as they
have been submitted, considers, however, that they fail to disclose any
appearance of a violation of the applicants' rights under the
Convention and its Protocols and in particular the Articles invoked.
It follows that these parts of the application are 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
Full & Egal Universal Law Academy