AS TO THE ADMISSIBILITY OF
Application No. 23977/94
by Heinz STOMBROWSKI and Others
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 30 March 1994 by
Heinz STOMBROWSKI and Others against Sweden and registered on
26 April 1994 under file No. 23977/94;
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
a. The particular circumstances of the case
The applicants are a married couple, Heinz and Margareta
Stombrowski, born in 1935 and 1945 respectively, their children
Anne-Marie, Elisabeth and Tomas Stombrowski, born in 1968, 1978 and
1982 respectively, and the children's uncle Gerhard Stombrowski, born
in 1937. They are all Swedish citizens. Elisabeth Stombrowski resides
at Karlskoga, Tomas Stombrowski at Västerfärnebo and the other
applicants at Edane. Before the Commission they are represented by Mrs.
Siv Westerberg, a lawyer practising in Gothenburg.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
Taking of the children into public care
On 2 April 1985 the County Administrative Court (Länsrätten) of
the County of Värmland decided, at the request of the Social Council
(Socialnämnden) of Arvika, that the above three children and the
applicant's other child, Katarina, born in 1975, should be immediately
taken into public care on a provisional basis under Section 6 of the
1980 Act with Special Provisions on the Care of Young Persons (Lagen
med särskilda bestämmelser om vård av unga, 1980:621). The main purpose
of this decision was to provide the basis for an investigation into the
children's situation by the Children's and Juveniles' Psychiatric
Clinic at Arvika. On 18 April 1985 the decision was upheld on appeal
by the Administrative Court of Appeal (Kammarrätten) of Gothenburg.
By judgment of 28 May 1985, the County Administrative Court
granted, pursuant to Section 1 of the 1980 Act, the Social Council's
request for a care order in respect of the four children. The Court
relied on the report of the psychiatric clinic, according to which the
children's development was disturbed due to the parents' inadequate
care. On 7 October 1985 the care order was upheld on appeal by the
Administrative Court of Appeal. On 19 December 1985 the Supreme
Administrative Court (Regeringsrätten) refused leave to appeal.
Placement of the children
Immediately after the County Administrative Court's provisional
decision, the children were, with the exception of Anne-Marie, placed
in a children's home in Karlstad. Anne-Marie remained at the boarding-
house in Karlstad where she had stayed since August 1984. The public
care of her came to an end in December 1986, when she attained her
majority, and she moved back to her parents with whom she is still
living. Elisabeth remained at the children's home until February 1986,
when she was placed in a foster home at Karlskoga where she still
resides. In July 1985, Katarina and Tomas were placed with foster
parents at Filipstad, where they stayed until August 1992. After having
received reports of possible sexual assault committed by the foster
father against Katarina, the Social Council, on 3 August 1992, placed
Katarina and Tomas temporarily with other foster parents and then, on
12 August 1992, placed them in a children's home in Karlstad. When
Katarina came of age in January 1993, the compulsory care of her was
discontinued. Instead, she was placed in a foster home on a voluntary
basis. Tomas remained at the children's home until August 1993, when
the Social Council decided to move him to a foster home at
Västerfärnebo, where he presently lives.
The Social Council's decision to place Tomas in the foster home
at Västerfärnebo was appealed to the County Administrative Court by his
parents. The Court held a hearing at which the parents, their lawyer,
Tomas' public counsel, representatives of the Social Council and
several witnesses proposed by the parents were present and heard. By
judgment of 18 November 1993, the Court, referring to Section 11 of the
1990 Act with Special Provisions on the Care of Young Persons
(1990:52), rejected the appeal, stating that Tomas was mentally
retarded and in need of qualified care which the foster home in
question could provide, as it had a great experience of taking care of
children with Tomas' needs. With respect to the parents' allegation
that Tomas would be at risk of being infected with the HIV virus due
to the foster home's acceptance of HIV positive children, the Court
noted that the foster home had assured that it would not accept any HIV
positive children as long as Tomas was placed there.
The parents appealed to the Administrative Court of Appeal which,
on 10 March 1994, upheld the County Administrative Court's judgment.
It noted that the County Administrative Board (Länsstyrelsen) had
investigated the conditions in the foster home after a former employee
of the foster home had reported that the conditions were
unsatisfactory. On 31 January 1994 the Board had struck the case off
its list of cases after having instructed the foster home to provide
for some further training of its staff. After the parents' further
appeal, the Supreme Administrative Court, on 2 May 1994, refused leave
to appeal.
Parental access
During the public care several decisions on parental access have
been taken. Initially, the parents were allowed to meet their children
once every two months. On 11 December 1990 the Social Council rejected
the parents' request for access to Elisabeth and Tomas once a month.
The Council further decided that access should take place at the
respective foster homes. The Council's decision was upheld on appeal
by the County Administrative Court. On 13 August 1992, after Katarina
and Tomas had been moved from their foster home, the Council decided
to prohibit their father from meeting them, as, according to the
Council, there was a risk that he would abduct them, endanger their
health and development or otherwise obstruct the public care. The
Council further decided not to disclose Katarina's and Tomas'
whereabouts. The mother was, however, allowed to meet them at a place
designated by the Council. On 21 December 1992 the Council decided to
prohibit both parents' meetings with Tomas during his stay in the
children's home. This decision was renewed on 11 March 1993, on which
date the Council also decided to prohibit the father from visiting
Elisabeth, but to let the mother meet her once every two months in the
presence of her foster parents and a third person appointed by the
Council. On 5 August 1993, after Tomas' placement in the foster home
at Västerfärnebo, the Council decided to allow the mother access to him
with the same restrictions as those applicable to her access to
Elisabeth. Tomas' father was, however, still prohibited from meeting
him.
Requests for termination of care
By two decisions of 9 December 1993, the Social Council rejected
the parents' request for a termination of the care of Elisabeth and
Tomas. It also renewed its access decisions of 11 March and
5 August 1993.
The parents appealed against the Council's decisions to the
County Administrative Court in so far as they concerned termination of
care. The Court held a hearing at which the parents, their lawyer, the
children's counsel and representatives of the Social Council were
present and heard. The former employee who had criticised the
conditions in Tomas' foster home at Västerfärnebo was heard as a
witness. The parents also submitted transcriptions of the testimonies
given in the previous hearing in the case concerning the placement of
Tomas in the said foster home.
By two judgments of 15 April 1994, the County Administrative
Court, referring to Section 2 of the 1990 Act, rejected the appeals.
It recalled that the initial decision to take the children into care
had been based on the aggressive behaviour of their father and uncle,
who was living with the family, their parents' inability to realise the
children's special needs and give them the necessary stimulation and
their father's fierce attitude towards, inter alia, the social
authorities, which rendered voluntary measures impossible. Finding that
these deficiencies still existed, the Court concluded that there was
still a clear risk of impairment of Elisabeth's and Tomas' health and
development due to the conditions in their parents' home. The Court
further had regard to Elisabeth's express wish not to return to her
parents and to a psychiatric statement according to which Tomas would
be in need of assistance for many years due to his mental retardation.
The parents appealed to the Administrative Court of Appeal, which
held a hearing, during which it heard the same persons as the County
Administrative Court with the exception of the former foster home
employee. It further heard three witnesses proposed by the parents. By
two judgments of 20 June 1994, the Administrative Court of Appeal
upheld the appealed judgments. It shared the views of the County
Administrative Court as regards the conditions in the parents' home.
It further noted that Elisabeth at the time was almost 16 years of age
and had expressed her wish not to return to her parents. It also found
that Tomas had special needs that could not be met by the parents. On
7 November 1994 the Supreme Administrative Court refused leave to
appeal.
Requests to study public documents
On 11 October 1993 the Social Council refused the parents'
request to study the Council files on the original investigations of
Katarina's, Elisabeth's and Tomas' different foster homes. The parents
appealed to the Administrative Court of Appeal which, by judgment of
1 December 1993, decided that the parents should be allowed to study
the documents in question except for a few passages concerning two of
the foster homes. With respect to the exceptions, the Court referred
to the protection of private life under Chapter 7, Section 4 of the
Secrecy Act (Sekretesslagen, 1980:100).
By separate decisions of 17 November 1993, the Public Prosecution
Authority (Åklagarmyndigheten) and the police authorities in
Kristinehamn refused the parents permission to study the records
concerning the foster father who had been accused of sexual assault of
Katarina. The parents appealed against both decisions to the
Administrative Court of Appeal, where the appeal against the Public
Prosecution Authority's decision is apparently still pending. As
concerns the police authorities' decision, the Court, by judgment of
15 December 1993, found that some documents could be handed over to the
parents and referred the case back to the police authorities to enforce
the judgment. Some documents could, however, not be handed over, as
they contained information the disclosure of which could harm the
persons concerned. The Court referred to Chapter 9, Section 17 of the
Secrecy Act.
On 18 March 1994 the Supreme Administrative Court upheld the
judgments of the Administrative Court of Appeal of 1 and
15 December 1993.
Issuing of passports for Elisabeth and Tomas
By decisions of 14 December 1989 and 30 January 1990, the police
authorities in Karlskoga and Kristinehamn issued passports for
Elisabeth and Tomas. The passport applications had been approved by the
Social Council. After being informed of this, the parents sought to
have the passports revoked. Sometime in early 1994 the Karlskoga police
authorities notified the parents that Elisabeth's passport had been
reported stolen and that it therefore could not be revoked. The police
authorities had, however, responded to the parents' request by blocking
the passport. No further action was taken by the parents in this
matter. With respect to Tomas' passport, the Kristinehamn police
authorities, on 29 March 1994, rejected the parents' request for a
revocation. This decision was upheld on appeal by the County
Administrative Board of Värmland on 23 May 1994 and by the
Administrative Court of Appeal on 30 June 1994. The parents then
appealed to the Supreme Administrative Court, where the case is
apparently still pending.
Various
During the public care, the parents have allegedly been prevented
from telling their children that they would like them to move back
home. Furthermore, the applicants claim that Tomas has not been
informed of the reasons for his removal, in August 1992, from the
foster home at Filipstad. Moreover, the children have allegedly had
several accidents and illnesses while in public care. The social
authorities and the foster parents have, according to the applicants,
withheld information on this from the parents. The parents have thus
been unable to claim damages on behalf of the children.
b. Relevant domestic law
The taking of children into public care without the consent of
the parents is governed by the 1990 Act with Special Provisions on the
Care of Young Persons. It entered into force on 1 July 1990 and
replaced the 1980 Act. Section 2 of the 1990 Act provides that care is
to be provided if there is a clear risk of impairment of the health or
development of a person under eighteen years of age due to ill-
treatment, exploitation, lack of care or any other condition in the
home.
Once public care has been ordered, it is executed by the Social
Council, which decides on the particular details of the care. Section
11 of the 1990 Act provides that the Council shall decide on how the
care should be arranged and where the child should live. With respect
to parents' and other custodians' access, the Council may, pursuant to
Section 14 of the 1990 Act, decide on how this access should be
arranged. Swedish law does not afford any access rights to siblings or
uncles.
Section 41 of the 1990 Act determines the right of appeal. It
reads, in relevant parts, as follows:
(translation)
"The Council's decisions may be appealed to the County
Administrative Court, if the Council has
1. decided where the care of the young person is to begin
or decided on the removal of the young person from the home
where he or she is living,
2. decided on the continuation of care in accordance with
the Act,
3. decided on access in accordance with Section 14 ...
..."
The decisions of the County Administrative Court may, pursuant
to Section 33 of the Administrative Procedure Act (Förvaltnings-
processlagen, 1971:291), be appealed to the Administrative Court of
Appeal and the Supreme Administrative Court.
The Secrecy Act contain provisions on secrecy in public services
and prohibitions on disclosure of public documents. Within the social
services information is, according to Chapter 7, Section 4 of the Act,
secret unless it is clear that it can be disclosed without any harm to
the individual concerned or persons close to him or her. According to
Chapter 9, Section 17 of the Act, information obtained in a preliminary
investigation is secret if it is presumed that the disclosure would
harm the individual concerned or persons close to him or her.
COMPLAINTS
1. Heinz and Margareta Stombrowski complain on their own behalf and
on behalf of their children Elisabeth and Tomas that the taking into
care of Elisabeth and Tomas for the purpose of carrying out a
psychiatric investigation gave rise to violations of Articles 5, 8 and
13 of the Convention.
2. Anne-Marie Stombrowski and the parents, on their own behalf and
on behalf of Elisabeth and Tomas, allege that the initial decision to
take the children into care violated Article 8 of the Convention. As
Elisabeth and Tomas are still in public care, they claim that there is
a continuing violation of the said Article.
3. The parents complain, under Article 8 of the Convention, of the
placement of Katarina in a foster home where she was allegedly sexually
assaulted.
4. The parents complains on their own behalf and on behalf of
Elisabeth that she was placed in a deficient foster home which prevents
her from making contacts with her parents. They invoke Article 8 of the
Convention.
5. The parents complain on behalf of Tomas that he was beaten in the
foster home at Filipstad in violation of Article 3 of the Convention.
They further claim that his placement in the foster home at
Västerfärnebo violates his rights under Articles 2, 3 and 8 of the
Convention and the parents' rights under Article 8.
6. The parents complain on their own behalf and on behalf of
Elisabeth and Tomas that the restrictions on and the arrangements of
the parental access violate Article 8 of the Convention.
7. Anne-Marie and Gerhard Stombrowski and the parents on behalf of
Elisabeth and Tomas maintain that they have not been able to bring
before a court the questions of Anne-Marie and Gerhard Stombrowski's
access to Elisabeth and Tomas. They invoke Articles 8 and 13 of the
Convention.
8. Invoking Articles 10 and 13 of the Convention, the parents
maintain that they have not been allowed to study all the documents
pertaining to the sexual assault allegedly committed by Katarina's
foster father.
9. Further under Article 10 of the Convention, the parents claim on
their own behalf and on behalf of Elisabeth and Tomas that they have
been prevented from telling the children that they would like them to
move back home. On behalf of Tomas, the parents further claim that
Article 10 has been violated in that Tomas has not been informed of the
reasons for his removal, in August 1992, from the foster home at
Filipstad.
10. The parents complain on their own behalf and on behalf of
Elisabeth and Tomas that the issuing of passports for the children
against the will of the parents violated Article 8 of the Convention.
11. Finally, invoking Articles 8, 10 and 13, the parents allege on
their own behalf and on behalf of Elisabeth and Tomas that they have
not been informed of accidents the children have had and that, for this
reason, they have not been able to claim damages on behalf of the
children in respect of these accidents.
THE LAW
1. The parents complain on their own behalf and on behalf of their
children Elisabeth and Tomas that the taking into care of Elisabeth and
Tomas for the purpose of carrying out a psychiatric investigation gave
rise to violations of Articles 5, 8 and 13 (Art. 5, 8, 13) of the
Convention.
The Commission, however, is not required to decide whether or not
the facts alleged by the applicants disclose any appearance of a
violation of the Articles invoked as, under Article 26 (Art. 26) of the
Convention, it "may only deal with the matter ... within a period of
six months from the date on which the final decision was taken". The
Commission recalls that the psychiatric investigation was made possible
by the County Administrative Court's decision of 2 April 1985 to
provisionally take the children into care and that the Supreme
Administrative Court on 19 December 1985 refused the parents leave to
appeal against the subsequent care order. The present application was
introduced on 30 March 1994, which is more than six months after this
decision.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
2. Anne-Marie Stombrowski and the parents, on their own behalf and
on behalf of Elisabeth and Tomas, allege that the initial decision to
take the children into care violated Article 8 (Art. 8) of the
Convention. As Elisabeth and Tomas are still in public care, they claim
that there is a continuing violation of Article 8 (Art. 8), 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."
Having regard to its above conclusion under 1, the Commission
finds that it may not, pursuant to Article 26 (Art. 26) of the
Convention, examine this complaint in so far as it concerns the initial
decision to take the children into care. The Commission's examination
will therefore be confined to the Social Council's decisions of
9 December 1993 not to terminate the care of Elisabeth and Tomas and
the subsequent court decisions on this matter.
The Commission finds that the refusal to terminate the care of
Elisabeth and Tomas interfered with the parents', Elisabeth's and
Tomas' right to respect for their 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 or those aims.
As regards the first condition, the Commission finds that the
relevant decisions were in conformity with Swedish law, namely Section
2 of the 1990 Act.
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. That does
not mean, however, that the Commission's review is 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 H.R., Olsson
judgment of 24 March 1988, Series A no. 130, pp. 31-32, paras. 67-68).
In the present case, the Commission recalls that the County
Administrative Court, in its judgments of 15 April 1994, found that the
deficiencies on which the initial care decisions had been based still
existed and that, thus, there was still a clear risk of impairment of
Elisabeth's and Tomas' health and development due to the conditions in
their parents' home. The Court referred to the father's and the uncle's
aggressive behaviour, the parents' inability to realise the children's
special needs and give them the necessary stimulation and the father's
fierce attitude towards, inter alia, the social authorities, which
rendered voluntary measures impossible. On appeal, the Administrative
Court of Appeal, by judgments of 20 June 1994, shared the views of the
County Administrative Court as regards the conditions in the parents'
home and further noted that Elisabeth, at the time almost 16 years of
age, had expressed her wish not to return to her parents. The
Administrative Court of Appeal also found that Tomas, due to his mental
retardation, had special needs which could not be met by the parents.
The Commission further recalls that the courts, before giving their
judgments, had held hearings, at which the parents, their lawyer, the
children's counsel, representatives of the Social Council and several
witnesses were present and heard. The courts further had regard to the
parties' written submissions. Thus, the courts cannot be said to have
intervened without adequate knowledge of the cases.
In the light of the foregoing the Commission finds that the
refusal to terminate care was supported by relevant and sufficient
reasons and that, having regard to their margin of appreciation, the
Swedish authorities were reasonably entitled to think that it was
necessary for the care decisions to remain in force. Accordingly, the
Commission concludes that the decisions not to terminate care 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.
3. The parents complain, under Article 8 (Art. 8) of the Convention,
of the placement of Katarina in a foster home where she was allegedly
sexually assaulted.
The Commission is, however, not required to decide whether or not
the facts alleged by the applicants disclose any appearance of a
violation of the Article invoked as, under Article 26 (Art. 26) of the
Convention, it "may only deal with the matter ... within a period of
six months from the date on which the final decision was taken". The
Commission recalls that Katarina was removed from the foster home in
question on 3 August 1992, which is more than six months before the
introduction of the present application.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
4. The parents complain on their own behalf and on behalf of
Elisabeth that she was placed in a deficient foster home which prevents
her from making contacts with her parents. They invoke Article 8
(Art. 8) of the Convention.
The Commission, noting that the parents did not appeal against
the initial decision to place Elisabeth in the said foster home, finds
that their submissions fail to substantiate the present 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.
5. The parents complain on behalf of Tomas that he was beaten in the
foster home at Filipstad in violation of Article 3 (Art. 3) of the
Convention. They further claim that his placement in the foster home
at Västerfärnebo violates his rights under Articles 2, 3 and 8
(Art. 2, 3, 8) of the Convention and the parents' rights under
Article 8 (Art. 8).
Article 2 para. 1 (Art. 2-1) of the Convention reads, in so far
as relevant, as follows:
"Everyone's right to life shall be protected by law. ..."
Article 3 (Art. 3) of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission, recalling that Tomas was removed from the foster
home at Filipstad on 3 August 1992, i.e. more than six months before
the introduction of the present application, confines its examination
of the present complaint to the conditions in the foster home at
Västerfärnebo.
In regard to the foster home at Västerfärnebo the applicants
submit that it is run by people who are not qualified to take care of
mentally retarded children and that it accepts HIV positive children
for which reason Tomas is at risk of being infected with the HIV virus.
They further submit that a former employee has criticised the
conditions in the foster home, finding them unsatisfactory.
The Commission recalls that the placement of Tomas in the foster
home at Västerfärnebo has been examined by the administrative courts.
In its judgment of 18 November 1993, the County Administrative Court
found that Tomas, being mentally retarded, was in need of qualified
care which the foster home in question could provide, as it had a great
experience of taking care of children with Tomas' needs. The Court
further noted that the foster home would not accept any HIV positive
children as long as Tomas was placed there. The judgment was upheld by
the Administrative Court of Appeal which, in its judgment of 10 March
1994, noted that the former employee's criticism of the conditions in
the foster home had been examined by the County Administrative Board,
which had only instructed the foster home to provide for some further
training of its staff. The Commission further recalls that the County
Administrative Court held a hearing at which the parents, their lawyer,
Tomas' public counsel, representatives of the Social Council and
several witnesses proposed by the parents were present and heard.
In view of the above, the Commission finds that the applicants'
submissions in respect of this complaint do not disclose any appearance
of a violation of the rights and freedoms of the Convention and in
particular the Articles invoked.
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.
6. The parents complain on their own behalf and on behalf of
Elisabeth and Tomas that the restrictions on and the arrangements of
the parental access violate Article 8 (Art. 8) of the Convention.
The Commission is, however, not required to decide whether or not
the facts alleged by the applicants disclose any appearance of a
violation of the Article invoked as, under Article 26 (Art. 26) of the
Convention, it "may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law ...". The Commission notes that, with the
exception of the decision of 11 December 1990, the parents have not
appealed against any Social Council decision concerning access. The
decision of 11 December 1990 was appealed to the County Administrative
Court but not further to the Administrative Court of Appeal. The
Council decision of 9 December 1993 concerning continuation of the
public care and restrictions on parental access was only appealed in
respect of the care issue. Furthermore, an examination of the complaint
does not disclose the existence of any special circumstance which might
have absolved the applicants from exhausting the remedies at their
disposal.
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.
7. Anne-Marie and Gerhard Stombrowski and the parents on behalf of
Elisabeth and Tomas maintain that they have not been able to bring
before a court the questions of Anne-Marie and Gerhard Stombrowski's
access to Elisabeth and Tomas. They invoke Articles 8 and 13
(Art. 8, 13) of the Convention.
The Commission recalls that the right of access to court is
contained in Article 6 para. 1 (Art. 6-1) of the Convention, which in
its relevant parts reads as follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing by [a] ... tribunal ..."
The Commission recalls that in order for Article 6 para. 1
(Art. 6-1) to apply to the proceedings in question it must first be
ascertained whether there was a dispute over a "right" which can be
said, at least on arguable grounds, to be recognised under domestic law
(cf., e.g., Eur. Court H.R., W v. the United Kingdom judgment of 8 July
1987, Series A no. 121-A, p. 32-33, para. 73). Under Swedish law Anne-
Marie and Gerhard Stombrowski, Elisabeth's and Tomas' sister and uncle,
have no right of access to Elisabeth and Tomas. Thus they cannot claim
on any arguable ground that they have a right under domestic law, for
which reason Article 6 (Art. 6) does not apply in the present case (cf.
No. 12763/87, Dec 14.7.88, D.R. 57 p. 216).
However, the applicants maintain that the impossibility of
bringing the question of Anne-Marie and Gerhard Stombrowski's access
to Elisabeth and Tomas before a court constitutes violations of
Article 8 and 13 (Art. 8, 13) of the Convention. 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."
With respect to Article 8 (Art. 8), the Commission finds that,
although the said Article provides some procedural safeguards, the lack
of access to court does not in the circumstances amount to an
interference with the applicants' rights under that Article.
As regards Article 13 (Art. 13), the Commission recalls that this
provision 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 terms of the Convention (cf.,
e.g., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.
23, para. 52). The Commission considers that the present complaint does
not concern any such "arguable claim".
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.
8. The parents maintain that they have not been allowed to study all
the documents pertaining to the sexual assault allegedly committed by
Katarina's foster father. They invoke Articles 10 and 13 (Art. 10, 13)
of the Convention. Article 10 (Art. 10) reads, in relevant parts, as
follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for
preventing the disclosure of information received in
confidence, or for maintaining the authority and
impartiality of the judiciary."
The Commission recalls that the parents, in 1993, requested
permission to study the Social Council files concerning Katarina's,
Elisabeth's and Tomas' various foster homes and the files kept at the
Public Prosecution Authority and the police authorities concerning the
foster father's alleged sexual assault of Katarina. After their
requests had been refused, they appealed against all decisions to the
Administrative Court of Appeal, where the case concerning the Public
Prosecution Authority files are apparently still pending. By judgments
of 1 and 15 December 1993, later upheld by the Supreme Administrative
Court, the Administrative Court of Appeal decided that, with some
exceptions, the documents in the files kept at the Social Council and
the police authorities could be handed over to the parents. With
respect to the exceptions, the Court referred to the protection of
private life under the Secrecy Act.
The Commission, even assuming that the refusal to disclose
certain information to the parents interfered with their freedom to
receive information under Article 10 (Art. 10) of the Convention,
considers that the interference was justified under para. 2 of the said
provision "for the protection of the reputation or rights of others".
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.
9. Further under Article 10 (Art. 10) of the Convention, the parents
claim on their own behalf and on behalf of Elisabeth and Tomas that
they have been prevented from telling the children that they would like
them to move back home. On behalf of Tomas, the parents further claim
that Article 10 (Art. 10) has been violated in that Tomas has not been
informed of the reasons for his removal, in August 1992, from the
foster home at Filipstad.
The Commission finds that an examination of this complaint as it
has been submitted does not disclose any appearance of a violation of
the rights and freedoms of the Convention and in particular the Article
invoked.
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.
10. The parents complain on their own behalf and on behalf of
Elisabeth and Tomas that the issuing of passports for the children
against the will of the parents violated Article 8 (Art. 8) of the
Convention.
The Commission recalls that Elisabeth's passport was blocked by
the Karlskoga police authorities in early 1994 and that no further
action was taken by the parents in this matter. The case concerning
revocation of Tomas' passport is apparently pending in the Supreme
Administrative Court. The Commission, therefore, considers that the
domestic remedies available to the applicants have not been exhausted.
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.
11. Invoking Articles 8, 10 and 13 (Art. 8, 10, 13), the parents
allege on their own behalf and on behalf of Elisabeth and Tomas that
they have not been informed of accidents the children have had and
that, for this reason, they have not been able to claim damages on
behalf of the children in respect of these accidents.
The Commission finds that an examination of this complaint as it
has been submitted does not disclose any appearance of a violation of
the rights and freedoms of the Convention and in particular the
Articles invoked.
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.
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