AS TO THE ADMISSIBILITY OF
Application No. 16039/90
by Peter SOLYMOSSY
against Sweden
The European Commission of Human Rights sitting in private on
1 July 1992, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
Mr. K. ROGGE, Secretary to the Second 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 23 August 1989 by
Peter SOLYMOSSY against Sweden and registered on 22 January 1990 under
file No. 16039/90;
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 facts, as submitted by the applicant, may be summarised as
follows.
The applicant, who is of Hungarian origin, is a naturalised
Swedish citizen born in 1952 and residing in Stockholm.
Around 1980 the applicant was engaged to a Ms V. Together they
had a son born in May 1980. In their notification to the public records
they indicated the child's family name to be Solymossy. Under the law
Ms V. alone had custody over the child. In 1985 the relationship broke
down.
On 6 June 1986 the applicant applied to the District Court
(tingsrätt) of Södra Roslag in order to have his right of access to the
child determined and to have an interim decision granting him certain
access. At a preliminary hearing (muntlig förberedelse) on 29 October
1986 attended by the applicant's legal representative, the District
Court decided, in view of the mother's objections, not to grant any
right of access for the period until judgment and, with the consent of
the applicant's representative, to have the access question
investigated by the social authorities. The Court indicated at the
hearing that its decision to consult the social authorities could be
appealed in accordance with the provisions of Article 6, Chapter 49,
of the Code of Judicial Procedure (rättegångsbalken) if it caused undue
delay. Under Article 1 of Chapter 52 of the Code, this possibility of
appeal was not limited in time. The social authorities' access
investigation, which reiterated certain statements from the mother to
the effect that the applicant was abusing alcohol, had beaten and
unlawfully threatened her, was filed on 21 January 1988. By judgment
of 6 June 1988 the District Court decided in accordance with the social
authority's recommendation, to allow the applicant access to his son,
initially with two and subsequently three hours every second week in
the presence of a "contact person" appointed by the local social
district council. In the judgment the Court stated, inter alia:
(translation from Swedish)
"In case a child does not live together with both its
parents, it is generally important to ensure that the child
has such contacts with the parent who does not have custody
that a good relation is created between them. However, the
contacts in such a relation will have to be established on
the basis of the child's situation and needs; the right of
access is a right for the child and not a right for the
parent.
During the time [the applicant's child] has lived with both
parents there have - according to the information supplied
by both of them - been numerous quarrels between them. On
the basis of what has come forth in this case, the District
Court is unable to draw any clear conclusions as to the
form and extent of these quarrels. Independently of what
really happened it is, however, clear that the son cannot
have escaped being influenced by his parents' quarrels.
What impression he may have got of his father cannot be
ascertained with any degree of certainty. It may,
nevertheless, be assumed that he is somewhat cautious in
his attitude towards his father.
[The applicant] has not met his son for approximately three
years. The contacts during the year before this period have
been sporadic. In view of the above, the District Court
accordingly finds that it is not now in the best interests
of [the child] to allow [the applicant] the requested right
of access. [The applicant] should, however, be given the
opportunity to create a good contact with his son. Such a
contact should initially be established in the presence of
a third person. ..."
The applicant's appeal to the Svea Court of Appeal (hovrätt) was
rejected on 29 November 1988 as the Court found no reason to change the
evaluation made at first instance. On 28 February 1989 the Supreme
Court (högsta domstolen) refused leave to appeal.
In the meantime, on 11 December 1987, the District Court of Södra
Roslag convicted the applicant of unlawful interference with
possessions (egenmäktigt förfarande) on the ground that he had changed
the lock on the mother's apartment door. However, by judgment of 29
November 1988 the Svea Court of Appeal acquitted him since it found
that the applicant's action had not been criminal as he had put keys
to the new lock at the mother's disposal. The mother's request for
leave to appeal was refused by the Supreme Court on 28 February 1989.
While both the above proceedings were still pending, on 18 May
1988, the child sued, through his mother, the applicant before the
District Court of Södra Roslag in order to have his family name changed
from Solymossy to V. in accordance with section 6 of the Name Act 1982
(namnlagen 1982:670). The District Court requested an opinion from the
local social district council. This opinion, which was in favour of the
change, was lodged with the Court on 6 September 1988. By decision of
4 November 1988 the Court decided, after having held an oral hearing,
to grant the application. In its decision the Court stated, inter alia,
the following:
(translation from Swedish)
"In order for a change of name to be authorised in a
situation where the parent whose name the child bears
opposes the change, section 6 of the Name Act requires that
the court finds the change of name to be in the best
interests of the child. According to the preparatory works
and to existing case-law, it should not be considered to be
in the child's best interests to allow such a change of
name if the change may be assumed to have negative
influences on the child's relationship with the parent who
does not have custody and whose name the child carries. It
appears in the present case that [the applicant] has only
kept sporadic contacts with his child over the years.
Having regard hereto and to what has otherwise come forth
in the case the change of name must be considered to be in
accordance with the best interests of the child."
The applicant appealed to the Court of Appeal maintaining that
the District Court's decision constituted an attempt by this "germanic"
court to discriminate against him on racial grounds on account of his
Hungarian origins. By decision of 16 December 1988 the Court of Appeal
decided, on the case-file, to uphold the District Court's ju
the 6. Th
applicant appealed to the Supreme Court complaining, inter alia, of the
absence of an oral hearing before the Court of Appeal. On 27 February
1989 the Supreme Court refused leave to appeal.
COMPLAINTS
The applicant's complaints under the Convention may be summarised
as follows:
1. a violation of Article 6 para. 1 in the access proceedings as the
District Court did not render its judgment within a reasonable time;
2. violations of Article 6 para. 2 in that both the judgment in the
access proceedings and the decision in the change of name proceedings
were based on the mother's wrongful accusations that he had committed
criminal acts: battery, unlawful threats and unlawful interferences
with possessions;
3. a violation of Article 13 as the Court of Appeal decided to
authorise the change of his child's name without having given him an
opportunity to appear in person and plead his case;
4. violations of Article 6 para. 1 taken both alone and together
with Article 14 in both the access proceedings and the change of name
proceedings as the courts were prejudiced against him on account of his
ethnic origin and looks.
THE LAW
The applicant alleges a number of violations of Article 6 paras.
1 and 2 and of Articles 13 and 14 (Art. 6-1, 6-2, 13, 14) of the
Convention. These provisions read in relevant parts as follows:
Article 6 (Art. 6)
"1. In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal ... .
...
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
... ."
Article 13 (Art. 13)
"Everyone whose rights and freedoms as set forth in [the]
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."
Article 14 (Art. 14)
"The enjoyment of the rights and freedoms set forth in
[the] 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."
1. The applicant alleges that the District Court did not render its
judgment in the access proceedings within a reasonable time, thus
violating Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission notes that the proceedings before the District
Court lasted for approximately 24 months. However, in the circumstances
of the present case it is not required to decide whether of not this
period violates the requirements of Article 6 para. 1 (Art. 6-1) as,
under Article 26 (Art. 26) of the Convention, it may only deal with a
matter after all domestic remedies have been exhausted according to the
generally recognised rules of international law.
A large part of the above period was spent waiting for the social
authorities' opinon; in fact it took approximately 15 months for the
results of this investigation to reach the District Court. However, the
applicant did not challenge the Court's decision to obtain this opinion
and did not lodge any appeal against it despite the fact that the Court
reminded him of his right under Chapter 49, Article 6 of the Code of
Judicial Procedure to do so if he considered that the decision caused
undue delay. This remedy must, in the circumstances of the present case
and in particular in view of the fact that its exercise was not limited
in time, be considered to have been "effective" within the meaning of
Article 13 (Art. 13) (see 11306/84, Dec. 16.10.86, D.R. 50, p. 162).
Moreover, an examination of the case as it has been submitted does not
disclose the existence of any special circumstances which might have
absolved the applicant, according to the generally recognised rules of
international law, from raising his complaint in the proceedings
referred to.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and his application must in
this respect be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
2. The applicant also alleges a violation of Article 6 para. 2
(Art. 6-2) in that he claims that the courts in both the access and the
change of name proceedings based their decisions on the mother's
wrongful accusations that he had committed criminal acts: battery,
unlawful threats and unlawful interferences with possessions.
The applicant has, however, not provided any material capable of
supporting this allegation. It follows that this complaint is
unsubstantiated and must be rejected as manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant furthermore alleges a breach of Article 13
(Art. 13) of the Convention as a result of the Court of Appeal's
decision to authorise the change of his child's name without giving him
an opportunity to appear in person and plead his case.
The Commission finds that this question falls to be considered
under Article 6 para. 1 (Art. 6-1) of the Convention rather than under
Article 13. It recalls that, provided a public hearing has been held
at first instance, the absence of such a hearing on appeal may be
justified by the special features of the proceedings at issue (see Eur.
Court H.R., Helmers judgment of 29 October 1991, Series A No. 212-A,
para. 36).
In the proceedings here at issue, an oral hearing had been held
at first instance. In addition, the questions raised by the applicant
in his appeal - sweeping accusations against the Swedish judiciary of
racial discrimination - did not concern questions of law or fact which
could not be adequately resolved on the basis of the case-file;
furthermore, even if what was at stake was of great importance for the
applicant personally, it was not, in the light of existing case-law,
of sufficient importance to require an oral hearing (see Eur. Court
H.R., above mentioned Helmers judgment of 29 October 1991, para. 38;
cf Eur. Court H.R. Fejde judgment of 29 October 1991, Series A No. 212-
C, para. 33). Accordingly, the present complaint is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant finally alleges violations of Article 6 para. 1
(Art. 6-1) of the Convention both taken alone and together with Article
14 (Art. 14) of the Convention in both the access proceedings and the
change of name proceedings in that he finds that the courts were
prejudiced against him on account of his ethnic origins and looks.
The applicant has, however, not provided any material capable of
supporting this allegation. It follows that this complaint is
unsubstantiated and must be rejected as 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 President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy