AS TO THE ADMISSIBILITY OF
Application No. 31050/96
by Antonio MELELEO
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
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 1 March 1996 by
Antonio Meleleo against Sweden and registered on 18 April 1996 under
file No. 31050/96;
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, an Italian citizen born in 1943, resides in
Göteborg.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Between 1982 and 1987, the applicant had a relationship with L.E.
They lived together from March to November 1987. On 5 August 1987
their son A was born. L.E. has had custody of him ever since.
The applicant and L.E. were not able to agree on the applicant's
access to A. Court proceedings followed, in which L.E. claimed that
the applicant had sexually abused his son. L.E. also reported the
applicant to the Public Prosecutor who, however, found that there was
no evidence to support L.E.'s allegation and, accordingly, discontinued
the investigations. By judgment of 9 July 1992, the Court of Appeal
(hovrätten) for Western Sweden awarded the applicant access to A every
second weekend and on specified dates around the major holidays. It
appears, however, that L.E. refused to comply with the judgment.
In December 1992, L.E. instituted new access proceedings before
the District Court (tingsrätten) of Göteborg. She stated that A was
not well and that he was regularly seeing a psychologist. She claimed
that the reason for A's problems could be some abusive conduct by the
applicant or the latter's inability to understand A's need of security.
he requested that the applicant should be awarded access to A only one
day every second week between 10 am and 6 pm in the presence of a
so-called contact person (kontaktperson) appointed by the social
authorities.
By provisional decisions of 16 February 1993 and
16 December 1994, the District Court decided in accordance with L.E.'s
request.
After having held an oral hearing during which the parties and
witnesses proposed by the applicant were heard, the District Court, by
judgment of 23 February 1995, found that the applicant's meetings with
A had worked well and that there was no reason not to award the
applicant normal access to his son following a transitional period.
The court thus decided that the applicant, as from 1 September 1995,
should have access to A every second weekend, every second major
holiday and four weeks during the summer.
L.E., however, refused to let the applicant meet A and appealed
to the Court of Appeal.
By provisional decision of 29 June 1995 and by judgment of
21 December 1995, the Court of Appeal decided to restrict the
applicant's access to every second Saturday between 10 am and 6 pm in
the presence of a contact person. The court found, in accordance with
Chapter 6, Section 15 of the Parental Code (Föräldrabalken), that this
was in A's best interests. In so deciding, the court considered that,
although there was no evidence to show that the applicant had sexually
abused his son, A's mental status as well as his attitude towards the
applicant and the parents' ability to cooperate had to be taken into
account. The court took note of a statement from the Children's
Psychiatric Clinic (Barn- och ungdomspsykiatriska kliniken) where A
received treatment, according to which A was in need of further therapy
for about a year and thus should not meet the applicant without a
contact person being present. The court had further regard to A's
statement, expressed to a social worker dealing with the case, that he
wished that some other person be present when he met the applicant but
that he would rather not have any meetings at all before he had grown
up. It also noted the parents' disagreements which, in the court's
view, could harm A. The Court of Appeal did not set a time-limit for
the access restrictions, as the necessity thereof depended on how long
A had to undergo therapy and his age at the time when it would end.
Before giving judgment, the court had held a hearing in the case and
heard the parties and several witnesses.
On 22 February 1996 the Supreme Court (Högsta domstolen) refused
the applicant leave to appeal.
Due to continuing conflicts with L.E., the applicant thereafter
applied to the County Administrative Court (länsrätten) of the County
of Göteborg and Bohus for an enforcement order regarding his right of
access. The court rejected his request on 20 May 1996. However, upon
the applicant's appeal, the Administrative Court of Appeal
(kammarrätten) in Göteborg decided, on 28 June 1996, to grant his
request and order L.E. to hand over A to the applicant on every access
occasion during the following three months under penalty of a fine.
As from the end of May 1996 the applicant has had access to A in
accordance with the Court of Appeal's judgment of 21 December 1995.
COMPLAINTS
1. The applicant contends that the access awarded by the Court of
Appeal on 21 December 1995 is insufficient and constitutes a violation
of his right to respect for family life as guaranteed by Article 8 of
the Convention.
2. The applicant further claims that the Court of Appeal was not
impartial. In this respect, he invokes Article 6 of the Convention.
THE LAW
1. The applicant contends that the access awarded by the Court of
Appeal on 21 December 1995 is insufficient and constitutes a violation
of his right to respect for family life. He invokes 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."
In accordance with the Commission's established case-law, the
right to respect for family life within the meaning of Article 8
(Art. 8) of the Convention includes the right of a divorced parent who
is deprived of custody following the break-up of the marriage to have
access or contact with his child. The State may not interfere with the
exercise of that right otherwise than in accordance with the conditions
set out in Article 8 para. 2 (Art. 8-2) (cf. Hendriks v. the
Netherlands, Comm. Report 8.3.82, para. 94, D.R. 29, p. 14).
The Commission furthermore considers that the natural link
between a parent and a child is of fundamental importance and that,
where the actual family life in the sense of living together has come
to an end, continued contact between them is desirable and should in
principle remain possible. Respect for family life under Article 8
(Art. 8) thus implies that this contact should not be denied unless
there are strong reasons which justify such an interference.
Turning to the facts of the present case, the Commission recalls
that it does not concern a divorced parent. It does, however, concern
a case in which there had been actual family life in the sense that the
unmarried parents were living together, although it came to an end a
few months after the birth of the child. In these circumstances where,
furthermore, the question of paternity is not in dispute, the
Commission accepts that the judgment of the Court of Appeal to restrict
the natural father's access to supervised meetings for eight hours
every second week interfered with the exercise of his right to respect
for his family life under Article 8 (Art. 8). It must therefore
examine whether the interference complained of was justified under
para. 2 of that provision, i.e. whether the interference was in
accordance with the law and had an aim which was legitimate and whether
the interference was necessary in a democratic society.
The Commission observes that the Court of Appeal's judgment was
based on Chapter 6, Section 15 of the Parental Code and that, thus, the
interference was in accordance with the law.
As regards the legitimate aim, the Commission has constantly held
that in assessing the question of whether or not the refusal or, as in
the present case, the restriction of the right of access to the
non-custodial parent was in conformity with Article 8 (Art. 8) of the
Convention, the interests of the child predominate (cf., e.g., No.
12495/86, Dec. 7.12.87, D.R. 54, p. 187). There is no doubt that the
restrictions on access in the present case had the aim of protecting
the child's interests. What remains to be considered is therefore
whether the interference was necessary in a democratic society for that
aim.
In examining this issue, the Commission does not intend to
substitute its own judgment for that of the competent domestic court.
Its function is to assess from the point of view of Article 8 (Art. 8)
the decision which the Court of Appeal took in the exercise of its
discretionary power.
It is an important function of the law in a democratic society
to provide safeguards in order to protect children from harm or mental
suffering resulting, for instance, from the break-up of the
relationship of their parents (cf. Hendriks v. the Netherlands,
op. cit., para. 120).
In the present case, the Commission recalls that A had expressed
the wish to see his father only in the presence of another person, if
at all. Furthermore, according to the Children's Psychiatric Clinic,
it was not advisable to arrange meetings without a contact person. The
Court of Appeal had regard to these statements and also took into
account A's need of further therapy and the disputes between the
parents. It came to the conclusion that supervised access once every
second week was in A's best interests. It gave judgment after having
held an oral hearing, during which it had heard the parties and several
witnesses. In these circumstances, the Commission is satisfied that
the interference complained of, namely the access restrictions, was
required by the interests of A and that the Court of Appeal, when so
deciding, did not go beyond its discretionary power.
The Commission concludes therefore that the interference with the
applicant's right to respect for his family life, being proportionate
to the legitimate aim pursued, was justified under Article 8 para. 2
(Art. 8-2) of the Convention as being necessary in a democratic society
for the protection of the rights and freedoms of another person, namely
the child concerned.
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 further claims that the Court of Appeal was not
impartial. He argues that the court believed L.E. and the experts
consulted by her without carefully scrutinising their statements.
Allegedly affected by a prevailing incest hysteria, the experts did not
examine the facts objectively but based themselves on L.E.'s untrue
allegations. In this respect, the applicant invokes Article 6
(Art. 6) of the Convention, the relevant parts of which read as
follows:
"1. In the determination of his civil rights ..., everyone
is entitled to a fair ... hearing ... by an ... impartial
tribunal ..."
The Commission finds, however, that the submissions of the
applicant fail to substantiate the present complaint.
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
Full & Egal Universal Law Academy