AS TO THE ADMISSIBILITY OF
Application No. 21607/93
by Peter WEDBERG and Mette HILLBLOM
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 April 1996, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
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 26 July 1992 by
Peter WEDBERG and Mette HILLBLOM against Sweden and registered on
31 March 1993 under file No. 21607/93;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 11 April and 3 July 1995 and the observations in reply
submitted by the applicants on 2 June and 29 August 1995;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, a student born in 1957, and the second
applicant, a gardener born in 1958, are Swedish citizens and reside at
Uppsala.
The facts of the case, as submitted by the parties, may be
summarised as follows.
In November 1990 a medical examination at the Academic Hospital
in Uppsala revealed that the applicants' son Victor, born in May 1989,
was suffering from a malignant tumour in the liver. Chemotherapy was
initiated at the hospital under the supervision of doctor A.K. At the
same time, Victor was, on the applicants' initiative, given homeopathic
treatment, initially by doctor P.A. at Järna and later by doctor D.R.
in Copenhagen. Doctor A.K. was in contact with these doctors.
Following an examination at the Academic Hospital on
30 January 1991, it was decided that Victor should undergo surgery on
26 February. According to doctor A.K., Victor could not be cured by
means of medicine but had to undergo surgery. An operation was
necessary to remove the remains of the tumour, as there was a risk that
the tumour would grow and reduce the chance of further successful
treatment. This view was shared by doctor P.A. and by physicians at the
Children's Clinic at the University Hospital in Lund with whom doctor
A.K. had discussed the case. Doctor A.K. had also consulted colleagues
at the Karolinska Hospital in Stockholm. He deemed that with an
operation there were good prospects of completely curing Victor's
disease.
However, after having discussed the operation with doctor A.K.
on several occasions, the applicants decided not to allow it. They
instead relied on doctor D.R., who found the operation inexpedient and
wanted to continue with homeopathic treatment. On 26 February 1991 the
applicants left the ward at the Academic Hospital together with Victor
and did not return.
On 27 February 1991, as a consequence of the applicants' refusal,
doctor A.K. sent a report on the matter to the Social Council
(Socialnämnden) at Uppsala and requested that Victor immediately be
taken into public care for the purpose of carrying out the operation.
The report was filed with the Council on 1 March. The Council initiated
an investigation, during which it contacted the applicants and doctors
A.K. and D.R.
The applicants stated, inter alia, that it was difficult for
Victor to cope with the chemotherapy and that if he also had to go
through an operation he might give up. They were also afraid of the
risks involved in removing a major part of his liver and felt that an
operation might prove to be unnecessary as tests allegedly had shown
that there was very little activity in the tumour. As they strongly
believed in alternative medicine, they wanted to continue with the
treatment given by doctor D.R. for some time before operating.
In his statement to the Social Council, doctor A.K. claimed that
Victor should undergo an operation as soon as possible, since his life
was otherwise at risk. Every delay was allegedly disadvantageous to
Victor. According to doctor A.K., there were clear indications of
increased activity in the tumour. He based this assessment on Victor's
AFP values, an indicator used to determine the activity of cancer
tumours. In November 1990 the AFP value was over 1 million, as compared
to the normal value of less than 10. As a result of chemotherapy, it
had fallen to 1,530 on 7 February 1991. On 7 March the AFP value was
4,420. Doctor A.K. deemed that there was less than a ten per cent risk
in operating and that the risk that Victor might die was much greater
if the operation was not performed.
Doctor D.R. submitted to the Social Council a taped statement in
English on his contacts with the applicants and Victor and on Victor's
medical records. He further stated that he had observed a considerable
improvement in Victor's health and that he wanted him to be
continuously examined and observed at the Academic Hospital at the same
time as he received alternative treatment in Copenhagen. According to
doctor D.R. it was not necessary, at the time, to let Victor undergo
surgery.
The Social Council included the above statements in a report and
concluded that if the physicians at the Academic Hospital, after
further tests, would find that Victor should be operated on within a
few days and the applicants would refuse, the primary consideration
would have to be the child and Victor should thus, in these
circumstances, be taken into care.
On 7 March 1991 the County Administrative Court (Länsrätten) of
the County of Uppsala, at the request of the Social Council, appointed
public counsel for the applicants and for Victor.
On 12 March 1991 the Social Council held a meeting with the
applicants, assisted by their counsel. After the meeting, the Council
decided to apply to the County Administrative Court for a care order
concerning Victor under Section 2 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"). This Section provides that a child
may be taken into care if, inter alia, its health is endangered because
of insufficient care. The Council considered that the applicants were
subjecting Victor's health to serious risks by preventing the operation
from taking place.
On 12 March 1991 the application was sent by telefax to the
Court. The Social Council further sent its investigation and report,
the minutes from the meeting on 12 March, letters from doctor A.K. and
the tape received from doctor D.R.
After considering whether to hold a hearing in the case on 19 or
21 March 1991, the Court, apparently due to the fact that the operation
had already been scheduled for the latter date, decided to hold the
hearing on 19 March. On 13 March, the Court summoned the applicants and
their counsel, the public counsel appointed for Victor, doctor A.K.,
the representatives of the Social Council and a social welfare
consultant (socialkonsulent) from the County Administrative Board
(Länsstyrelsen) to appear at the hearing. Also on 13 March the Court
sent doctor D.R.'s tape for translation and transcription.
The applicants wanted to hear doctor D.R. as a witness during the
hearing, but he could not appear at such short notice. He was, however,
able and willing to appear on 21 March 1991. According to the
applicants, the first applicant and their counsel contacted the Court
and requested that the hearing be postponed so that doctor D.R. would
be able to appear. This request was apparently refused. As an
alternative to attending the hearing, doctor D.R. wished to submit a
written statement on the question of the urgency of the operation. The
applicants allege that he was not given an opportunity to do so.
On 19 March 1991, between 9.00 am and 12.10 pm, the hearing took
place in the presence of those who had been summoned to appear. The
Government submit that, according to the minutes of the hearing, the
chairman of the Court informed the parties that the Court's members had
read the written submissions and the documentation in the case,
including doctor D.R.'s taped statement which had now been translated
and transcribed.
At the hearing, the applicants stated that, for the reasons given
to the Social Council, they wanted to wait with the operation. They
would accept an operation at a later date, if there were greater
chances of survival with an operation. Doctor A.K., heard as an expert
witness, stated, inter alia, that recent examinations on Victor
indicated that the tumour was growing (on 13 March 1991 the AFP value
was 6,450) and that if an operation was not carried out immediately
there was a great risk that the tumour would grow so much as to make
an operation impossible. In such a situation, the chances of curing
Victor would be extremely slim. The social welfare consultant and
Victor's public counsel supported the Social Council's application.
By judgment of 19 March 1991, the day of the hearing, the County
Administrative Court, having regard to doctor A.K.'s statement, found
that the only reasonable treatment of Victor was an immediate
operation. For the protection of his health, the Court therefore
ordered that Victor be taken into care pursuant to Section 2 of the
1990 Act. The Court further decided that the judgment was immediately
enforceable. The judgment was sent to the applicants' public counsel
by telefax on the same day at 16.47 pm.
The applicants informed their counsel the same day of their wish
to appeal. In the late afternoon or in the evening of 20 March 1991,
counsel sent the appeal to the County Administrative Court by telefax.
It was apparently found in the Court's telefax machine in the morning
of 21 March. At 10.16 am the same day, it was forwarded by telefax to
the Administrative Court of Appeal (Kammarrätten) in Stockholm.
The applicants requested the Administrative Court of Appeal to
terminate the public care of Victor and to stay the execution of the
County Administrative Court's judgment. They further requested that a
hearing be held and that doctor D.R. be heard as an expert witness.
On 21 March 1991, at 15.00 pm, the judge in charge of the case
at the Administrative Court of Appeal was in contact with doctor A.K.
The judge was informed that an operation had been going on since 8.00
am that day. Initially the operation went according to the plans, but
after some hours bleeding occurred which were impossible to control.
Victor was declared dead at 16.15 pm due to loss of blood.
On 22 March 1991 it was noted in the case-file of the
Administrative Court of Appeal that Victor had died during the
operation and that the applicants' counsel had withdrawn the request
for a stay of the execution of the County Administrative Court's
judgment.
On 27 June 1991 the Administrative Court of Appeal decided not
to take any further action in the case, as there was no reason to
examine the request for termination of the public care in view of
Victor's death. Thus, the Court did not hold a hearing or hear doctor
D.R. The proceedings of Swedish administrative courts are, however,
principally of a written nature and the courts shall, according to
Section 30 of the Administrative Procedure Act
(Förvaltningsprocesslagen, 1971:291), take into account both written
and oral testimony.
On 6 February 1992 the Supreme Administrative Court
(Regeringsrätten) refused the applicants leave to appeal.
COMPLAINTS
1. The applicants allege that they were denied a fair hearing in the
County Administrative Court in violation of Article 6 of the
Convention.
2. The applicants further allege that their rights under Article 6
have been violated, as they were not given reasonable time in which to
file an appeal to the Administrative Court of Appeal.
3. The applicants claim that Article 6 has been violated also in
that the Administrative Court of Appeal refused to try their appeal on
the merits and so refused to give them an oral hearing and to hear
their expert witness.
4. The applicants complain, alternatively or additionally, that
their right to respect for their family life under Article 8 of the
Convention has been violated because no adequate right of appeal
against the judgment of the County Administrative Court was provided
for in practice and because the Administrative Court of Appeal did not
examine the case.
5. The applicants finally contend that there were no relevant and
sufficient reasons justifying the decision to take their son into
public care. They invoke Article 8 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 July 1992 and registered on
31 March 1993.
On 11 January 1995 the Commission (Second Chamber) decided to
communicate the application to the respondent Government pursuant to
Rule 48 para. 2 (b) of the Commission's Rules of Procedure.
The Government's written observations were submitted on 11 April
1995 after an extension of the time-limit fixed for that purpose. The
applicants replied on 2 June 1995. Additional observations were
submitted by the Government on 3 July 1995 and by the applicants on
29 August 1995.
THE LAW
1. The applicants allege that they were denied a fair hearing in the
County Administrative Court in violation of Article 6 (Art. 6) of the
Convention, which in relevant parts reads as follows:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing
by [a] ... tribunal"
The Government maintain that, on 26 February 1991, it must have
been clear to the applicants that the physicians responsible for the
treatment of Victor deemed an operation necessary, as the operation was
initially scheduled for that date. On 7 March, at the latest, the
applicants must have fully understood the situation, as the County
Administrative Court on that day appointed counsel for them and for
Victor. The Government further submit that it was necessary for the
Court to deal with the Social Council's application expeditiously, as
a delay risked to cause a situation where an operation would serve no
purpose. In view of the circumstances, the Government thus hold that
the Court's speedy handling of the case was justified. With regard to
the fact that doctor D.R. was not heard at the hearing, the Government
claim that his opinion was clear to the Court from his taped statement.
As the Court did not summon doctor D.R., it evidently considered that
it was not necessary to hear him. This assessment allegedly falls
within the discretionary power of a court in a case of the present
character. In this respect, the Government refer to the judgment of the
European Court of Human Rights in the Bricmont case (Eur. Court H.R.,
Bricmont judgment of 7 July 1989, Series A no. 158). The County
Administrative Court's failure to hear doctor D.R. as an expert witness
does not therefore constitute a violation of Article 6 (Art. 6) of the
Convention.
The applicants claim that they were not given adequate time and
facilities to prepare their case, as they were summoned to the hearing
of the County Administrative Court only six days in advance. This was
not sufficient time to assemble evidence and expert testimony to
challenge doctor A.K.'s opinion and the diagnostic technique on which
it was based. The applicants further allege that the urgency with which
the Court dealt with the case was not supported by medical evidence.
In this respect, they contend that the small increase of the AFP value
did not conclusively show that the tumour was growing. The real reason
for the urgency was allegedly the administrative convenience of the
hospital which, having assembled a medical team, was determined not to
let anything delay the operation. Moreover, by holding the hearing on
a date when the applicants' expert witness, doctor D.R., was unable to
appear and by not giving him an opportunity to submit written testimony
on the urgency of the operation, the Court allegedly violated the
principle of equality of arms. As the only evidence before the Court
was medical evidence and the Court was bound to attach decisive
importance to the evidence presented by an expert witness in the court
room, the applicants maintain that this principle required that both
parties had a real possibility to present their arguments and to
support these arguments by referring to competent medical opinion. The
applicants also claim that the Court did not properly consider the
taped statement of doctor D.R., as the transcripts of the proceedings
allegedly fail to show that it took this evidence into account.
The Commission notes that it is implicit in the right to a fair
hearing that parties to proceedings must be allowed to present their
case under conditions which do not place them at a substantial
disadvantage vis-à-vis their opponent (cf., e.g., No. 2803/66, Dec.
16.7.78, Collection 27 p. 61). According to its established case-law,
in order to determine whether Article 6 para. 1 (Art. 6-1) of the
Convention has been complied with the Commission must examine the
proceedings as a whole. As concerns the right to have witnesses heard,
the Commission would point out that the Convention does not explicitly
secure this right to persons whose civil rights and obligations are
determined. It is secured, under Article 6 para. 3 (d) (Art. 6-3-d) of
the Convention, only to persons charged with criminal offences. That
does not mean, however, that the questioning of witnesses is irrelevant
to Article 6 para. 1 (Art. 6-1) of the Convention. In determining
whether the applicants' right to a fair hearing was infringed by the
fact that their expert witness neither appeared at the hearing of the
County Administrative Court nor submitted a written statement directly
to the Court, regard must be had to the circumstances of the case.
The Commission recalls that, according to doctor A.K., Victor's
chances of surviving were extremely slim if an immediate operation was
not carried out. This view was apparently shared by doctor P.A. who had
initially treated Victor on the applicants' initiative and by
physicians at the University Hospital in Lund with whom doctor A.K. had
been in contact. Moreover, an operation scheduled for 26 February 1991
had already been cancelled, as the applicants had refused to allow it.
Thus, whether or not the opinion of doctor A.K. was shared by doctor
D.R., the Commission considers that the matter before the County
Administrative Court was such that it required a prompt examination.
The Commission further recalls that the operation had initially
been decided on 30 January 1991, after which date it must have been
apparent to the applicants that an operation on their son might be
carried out in the near future. The Social Council's request for the
County Administrative Court to take Victor into public care was,
furthermore, preceded by an investigation of the matter by the Council,
during which it heard the applicants. Moreover, on 7 March - twelve
days before the hearing - the Court appointed public counsel for the
applicants. Thus, the question of an operation on their son had been
of immediate concern to the applicants for a considerable period of
time before they were summoned to the hearing of 19 March. The
Commission therefore finds that the period of six days between serving
of the summons and the hearing cannot, in the circumstances of the
case, be considered as insufficient time for the applicants to prepare
their case.
As concerns the applicants' wish to have doctor D.R. heard during
the hearing, the Commission first recalls that it is normally for the
national courts to decide whether it is necessary or advisable to call
a witness. There are, however, exceptional circumstances where the
failure to hear a person as a witness is incompatible with Article 6
(Art. 6) (cf. above-mentioned Bricmont judgment, p. 31, para. 89). In
the present case, the Commission notes that the County Administrative
Court did not refuse to hear doctor D.R., but held its hearing on 19
March 1991 when he was apparently unable to appear. However, the
Commission cannot find, in the circumstances of the case, that it was
unreasonable to hold the hearing on that date, as a postponement would,
irrespective of the outcome of the case, involve a second cancellation
of the planned operation which, according to the statements of several
physicians, was very urgent. The Commission further recalls that the
taped statement made by doctor D.R. to the Social Council had been
forwarded to the Court and that doctor D.R. had declared that, as an
alternative to appearing at the hearing, he wished to submit a written
statement. It has not been shown that the Court refused to receive such
a statement. Furthermore, the Commission finds that, because of the
urgency of the matter, it was not unreasonable to expect of doctor D.R.
to make arrangements enabling him either to appear on the date fixed
by the Court or to submit a written statement before that date.
With regard to the applicants' claim that the Court did not
properly consider the taped statement of doctor D.R., the Commission
notes that the applicants and the Government disagree on the question
whether it was taken into account by the Court. However, the
proceedings of Swedish administrative courts are principally of a
written nature and the courts shall take into account both written and
oral testimony. Thus, having regard to the fact that the Court had the
tape transcribed and translated from English to Swedish, the Commission
finds, irrespective of whether the statement was specifically referred
to during the hearing, that there is no evidence of the Court having
failed to duly examine the statement. In this connection, the
Commission further notes that it has not been shown that the applicants
were prevented from referring to the statement during the hearing.
For these reasons, the Commission finds no appearance of a
violation of the applicants' right to a fair hearing in the County
Administrative Court.
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 applicants further allege that their rights under Article 6
(Art. 6) of the Convention have been violated, as they were not given
reasonable time in which to file an appeal to the Administrative Court
of Appeal.
The Government submit that it was clear to the applicants that
the consequence of the judgment of the County Administrative Court was
that the operation would be performed on 21 March 1991. The judgment
was sent by telefax to the applicants' counsel at 16.47 pm on 19 March,
the day of the judgment. It was thus possible for the applicants to
file an appeal against the judgment and a request to stay the execution
thereof on 19 March or early on 20 March. As the appeal was not sent
until the late afternoon or evening of 20 March, there was no real
chance that it would prevent the execution of the judgment. In view of
these circumstances and the urgency of the matter, the Government hold
that no violation of Article 6 (Art. 6) has taken place as regards the
applicants' possibility to lodge an appeal against the County
Administrative Court's care order.
The applicants contend that, in practice, they were denied the
right to appeal. They claim that in the circumstances of the case, even
if the need for urgency is accepted, a period of 2-3 days in which to
file an appeal would have been reasonable.
The Commission recalls at the outset that Article 6 (Art. 6) of
the Convention does not as such guarantee the right of appeal to a
higher court, but that where the opportunity to seek appeal is provided
under domestic law, the guarantees of Article 6 (Art. 6) continue to
apply to the proceedings on appeal (cf., e.g., Eur. Court H.R.,
Delcourt judgment of 17 January 1970, Series A no. 11, pp. 14-15, para.
25). The Commission further recalls that the right to a fair hearing
includes the right of access to the courts. This does not, however,
debar Contracting States from making regulations governing the access
of litigants to an appellate court, provided that such regulations
serve the purpose of ensuring the proper administration of justice (cf.
No. 8407/78, Dec. 6.5.80, D.R. 20 p. 179).
In the present case, the applicants had access to the appellate
court. The applicants, however, claim that they were in practice denied
a right to appeal because of the short time between the judgment of the
County Administrative Court and the operation. To decide whether in
this respect Article 6 (Art. 6) of the Convention has been violated,
the Commission needs to look at the proceedings as a whole.
As has been stated above, the case before the administrative
courts required a prompt examination. According to several physicians,
an immediate operation was called for. Moreover, at the time when the
applicants were summoned to the hearing of the County Administrative
Court, the operation had already been scheduled for 21 March 1991. When
the applicants' counsel received the Court's judgment in the late
afternoon of 19 March, it was thus clear that the operation would be
carried out if a request to have the execution of the judgment stayed
was not lodged immediately. However, this request, together with the
applicants' appeal against the care order, was apparently not sent
until 20 March after the courts' normal working hours. The
Administrative Court of Appeal could not, therefore, deal with the
matter before the start of the operation. Considering that the
applicants had an opportunity to seek a stay of execution and having
regard to the special circumstances of the case, the Commission cannot
find that the limited time at the applicants' disposal involved a
violation of Article 6 (Art. 6) 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.
3. The applicants complain of a violation of Article 6 (Art. 6) of
the Convention also in that the Administrative Court of Appeal refused
to examine their appeal on the merits and so refused to give them an
oral hearing and to hear their expert witness.
The Government submit that the purpose of taking the applicants'
son into care was to carry out the operation in question. When the son
had died, there was no longer any purpose in examining whether the
conditions for the care order were at hand. In this connection, the
Government state that the Swedish administrative court procedure does
not recognise the concept of declaratory judgments.
The applicants maintain that important points of principle
remained to be determined by the appellate court. Particularly in view
of the tragic result of the operation, the applicants had a legitimate
interest in vindicating their opinion that the operation should not
have been carried out at the particular time. Furthermore, the
applicants wished to be assured that the courts had taken proper
account of the statement given by their expert witness.
The Commission recalls that, in their appeal to the
Administrative Court of Appeal, the applicants requested the public
care of their son to be terminated. When the Court decided that there
was no reason to examine the appeal, the public care had already ended
as a consequence of the son's unfortunate death during the operation.
In these circumstances, the Commission finds that the appellate court's
failure to examine the appeal on the merits and to hear the applicants'
expert witness do not involve a violation of Article 6 (Art. 6) 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.
4. The applicants complain, alternatively or additionally, that
their right to respect for their family life under Article 8
(Art. 8) of the Convention has been violated because no adequate right
of appeal against the judgment of the County Administrative Court was
provided for in practice and because the Administrative Court of Appeal
did not examine the case.
The Government maintain that these complaints are in principle
identical with the complaints under Article 6 (Art. 6) of the
Convention and that they do not warrant a separate examination.
Moreover, a right to appeal cannot be derived from Article 8
(Art. 8) of the Convention.
Having regard to its findings under Article 6 (Art. 6) of the
Convention, the Commission considers that these complaints do not
reveal any appearance of a violation of the applicants' rights under
Article 8 (Art. 8) 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.
5. The applicants contend that the decision to take their son into
public care violated their 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 or morals, or for the protection of the rights and
freedoms of others."
The Government admit that there has been an interference with the
applicants' rights under Article 8 (Art. 8) as a result of the care
order. The interference was, however, in accordance with the law and
pursued the legitimate aim of protecting Victor's life and health in
spite of the tragic outcome of the operation. With regard to the
necessity of taking Victor into care, the Government argue that, in all
actions concerning children, the best interests of the child shall be
a primary consideration. In the opinion of doctor A.K. and several
experienced physicians whom he had consulted, an operation at the
particular time was the only way to save Victor's life. The applicants
had previously refused to allow an operation and the responsible
physicians were very much concerned of the increased activity of the
tumour. Doctor A.K. deemed that every delay involved increasing risks
for Victor. It is this situation, prior to the operation, that should
constitute the basis for the examination of whether the care order was
necessary. The tragic and unexpected result of the operation must not
affect this examination. The Government thus hold that the reasons for
taking Victor into care were relevant and sufficient and proportionate
to the aim pursued.
The applicants submit that the care order was not in accordance
with the law and not necessary in a democratic society. They claim that
the need to take custody over Victor to carry out the operation at the
particular time had not been convincingly demonstrated. The AFP values
were not conclusive in this respect. They contend that too great an
emphasis was placed on the administrative convenience of the hospital.
The Commission finds that the taking into care of the applicants'
son interfered with their 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
decision of the County Administrative Court to take the applicants' son
into public care was in conformity with Swedish law, namely Section 2
of the Act with Special Provisions on the Care of Young Persons.
The Commission further finds that the interference had a
legitimate aim under Article 8 para. 2 (Art. 8-2), namely the interests
of the child, 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" (cf. Eur. Court H.R., Olsson judgment of 24
March 1988, Series A no. 130, p. 31, paras. 64-65).
It thus remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the child.
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. above-mentioned Olsson judgment, pp. 31-32, paras. 67-
68).
In agreement with the view expressed by the Government, the
Commission considers that the necessity issue must be examined in the
light of the situation prevailing at the time of the County
Administrative Court's decision to take the applicants' son into care.
His tragic death during the operation cannot affect the assessment of
whether there were relevant and sufficient reasons, at the time of the
Court's judgment, to take him into care.
The Commission recalls that the Court's judgment was based on the
opinion of the responsible physician, doctor A.K., that the applicants'
son's only chance to survive was to undergo an immediate operation.
This view was shared by several physicians whom doctor A.K. had
consulted. The only physician to disagree on the urgency of the
operation was doctor D.R. As the applicants would not allow the
operation, it could not be carried out unless their son was taken into
public care.
The Commission further recalls that the Court's judgment was
preceded by an investigation of the matter by the Social Council,
during which the Council heard the applicants and doctors A.K. and D.R.
The Council's report, which included the statements made by these
persons, was submitted to the Court. The Court further held a hearing
in the case, during which it heard, inter alia, the applicants and
doctor A.K. It further had at its disposal a transcribed and translated
statement made by doctor D.R. Thus, the Court cannot be said to have
intervened without adequate knowledge of the case.
In the light of the foregoing the Commission finds that the
decision to take the applicants' son into care was supported by
relevant and sufficient reasons and that, having regard to their margin
of appreciation, the Swedish authorities were entitled to think that
is was necessary to take him into care for the purpose of carrying out
the operation. Accordingly, the Commission concludes that the decision
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 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 Acting President of
the Second Chamber the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy