PERSSON v. SWEDEN
Doc ref: 14451/88 • ECHR ID: 001-45647
Document date: April 14, 1994
- Inbound citations: 0
- •
- Cited paragraphs: 0
- •
- Outbound citations: 1
EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 14451/88
Gärdh Persson
against
Sweden
REPORT OF THE COMMISSION
(adopted on 14 April 1994)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-14). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 15-19) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 20-57). . . . . . . . . . . . . . . . . . . . . . . . 4
A. The particular circumstances of the case
(paras. 20-40) . . . . . . . . . . . . . . . . . . . . . 4
1. The compulsory care order
(paras. 20-25) . . . . . . . . . . . . . . . . . . 4
2. The conditions in the Rosenhill nursing home
(paras. 26-35) . . . . . . . . . . . . . . . . . . 4
3. The restriction on the applicant's visiting
rights in the Rosenhill nursing home
(paras. 36-37) . . . . . . . . . . . . . . . . . . 6
4. The restriction on the applicant's visiting
rights in the Björnkulla nursing home
(paras. 38-40) . . . . . . . . . . . . . . . . . . 6
B. Evidence before the Commission
(paras. 41-50) . . . . . . . . . . . . . . . . . . . . . 6
1. Witnesses
(paras. 41-48) . . . . . . . . . . . . . . . . . . 6
2. Other evidence
(paras. 49-50) . . . . . . . . . . . . . . . . . . 8
C. Relevant domestic law
(paras. 51-57) . . . . . . . . . . . . . . . . . . . . . 8
1. The 1967 Act on the Care of Certain Mentally
Handicapped Persons
(paras. 51-52) . . . . . . . . . . . . . . . . . . 8
2. Supervision of nursing homes
(paras. 53-54) . . . . . . . . . . . . . . . . . . 9
3. The 1985 Act on Special Care of Mentally
Handicapped Persons and Others and the
Transitional Act
(paras. 55-56) . . . . . . . . . . . . . . . . . . 9
4. The 1949 Parental Code
(paras. 57-58) . . . . . . . . . . . . . . . . . . 9
III. OPINION OF THE COMMISSION
(paras. 59-101) . . . . . . . . . . . . . . . . . . . . . . .11
A. Complaints declared admissible
(para. 59) . . . . . . . . . . . . . . . . . . . . . . .11
B. Points at issue
(para. 60) . . . . . . . . . . . . . . . . . . . . . . .11
C. As regards Article 8 of the Convention
(paras. 61-80) . . . . . . . . . . . . . . . . . . . . 11
1. The conditions in the Rosenhill nursing home
during the applicant's visits
(paras. 62-70) . . . . . . . . . . . . . . . . . .11
CONCLUSION
(para. 71) . . . . . . . . . . . . . . . . . . . .13
2. The restrictions on the applicant's right to visit
Kjell Persson in the nursing homes
(paras. 72-79) . . . . . . . . . . . . . . . . . .13
CONCLUSION
(para. 80) . . . . . . . . . . . . . . . . . . . .14
D. As regards Article 6 para. 1 of the Convention
(paras. 81-91) . . . . . . . . . . . . . . . . . . . . .15
CONCLUSION
(para. 92) . . . . . . . . . . . . . . . . . . . . . . .16
E. As regards Article 13 of the Convention
(paras. 93-96) . . . . . . . . . . . . . . . . . . . . .16
CONCLUSION
(para. 97) . . . . . . . . . . . . . . . . . . . . . . .17
F. Recapitulation
(paras. 98-101). . . . . . . . . . . . . . . . . . . . .17
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .18
APPENDIX II : PARTIAL DECISION OF THE COMMISSION
AS TO THE ADMISSIBILITY OF THE APPLICATION . . .20
APPENDIX III : FINAL DECISION OF THE COMMISSION
AS TO THE ADMISSIBILITY OF THE APPLICATION . . .49
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Swedish citizen, born in 1937 and resident
at Kista. She was represented before the Commission by
Mrs. Siv Westerberg, a lawyer in Gothenburg.
3. The application is directed against Sweden. The respondent
Government were represented by Mr. HÃ¥kan Berglin, Ministry for Foreign
Affairs, Stockholm, succeeded by Ms. Eva Jagander of the same Ministry.
4. The case concerns the restrictions of the applicant's right to
visit her son placed in compulsory care in two nursing homes, the
absence of a right to a court review of those restrictions as well as
the conditions in one nursing home during her visits. The applicant
invokes Articles 6, 8 and 13 of the Convention.
B. The proceedings
5. The application was introduced on 2 September 1988 by the
applicant and her son jointly. It was registered on 8 December 1988.
6. On 15 April 1991 the Commission decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on the admissibility and merits of part of
the application.
7. The Government's observations were submitted on 29 July 1991.
The applicants replied on 22 September 1991. Additional observations
were submitted by the applicants on 11 February 1992.
8. On 13 September 1991 the Commission granted the applicants legal
aid for the representation of their case.
9. On 11 December 1992 the Government were invited to submit further
information. This was filed on 5 January 1993. The applicants' comments
in reply were submitted on 5 February 1993.
10. On 3 May 1993 the Commission decided to hold a hearing of the
parties with regard to the applicants' complaints under Article 8 of
the Convention relating to the son's alleged lack of privacy at one
nursing home, their complaint relating to the restrictions of the
mother's visiting rights, their complaints under Articles 6 and 13
relating to the absence of a right to a court review of those
restrictions as well as their complaint under Article 1 of
Protocol No. 1 relating to the administration of and spending of the
son's pension income. The remainder of the application was declared
inadmissible.
11. The hearing was held on 2 July 1993. The applicants were
represented by Mrs. Siv Westerberg and Ms. Birgitta Hellwig. The
Government were represented by Ms. Eva Jagander and Ms. Eva Hammar.
12. On 2 July 1993 the Commission declared admissible the complaints
under Articles 6, 8 and 13 of the Convention in so far as they had been
lodged by the present applicant. It declared inadmissible the remainder
of the application.
13. The text of the Commission's decision on admissibility was sent
to the parties on 12 July 1993 and they were invited to submit further
observations on the merits. The remaining applicant submitted such
observations on 1 September 1993 and the Government on
23 September 1993. Additional observations were submitted by the
Government on 8 October 1993 and by the applicant on 15 October 1993.
14. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
15. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
16. The text of this Report was adopted on 14 April 1994 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
17. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under the
Convention.
18. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I. The Commission's partial
decision on the admissibility of the application is attached as
Appendix II and its final decision on admissibility as Appendix III.
19. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
1. The compulsory care order
20. The applicant's only son, Mr. Kjell Persson, born on
3 November 1965, was seriously disabled from birth, both mentally and
physically. He was born, inter alia, with his tongue grown to his
palate, resulting in a lack of faculty of speech and great eating
difficulties, for which reason he needed to be fed. He was somewhat
mobile, but only with assistance.
21. In 1983 several physicians found that Kjell Persson was extremely
underweight and that the applicant had not satisfactorily managed to
nourish him in their home. His severe mental retardation combined with
his physical disability were considered to warrant his placement in
compulsory care in accordance with the 1967 Act on the Care of Certain
Mentally Handicapped Persons (lag 1967:940 angående omsorger för vissa
psykiskt utvecklingsstörda; hereinafter "the 1967 Act").
22. On 20 December 1983 the Chairman of the Administrative Board
(beslutsnämnden) of the County Council (landstinget) of Stockholm
provisionally placed Kjell Persson in compulsory care pursuant to
Section 35, subsection 1 (b) of the 1967 Act.
23. On 28 December 1983 the Administrative Board confirmed the
Chairman's decision, having found that Kjell Persson was mentally
retarded, that as a consequence of his retardation he was unable to
take care of himself, and that, in view of the degree of his
retardation, care in a nursing home was absolutely necessary.
24. On 29 December 1983 Kjell Persson was admitted to the Rosenhill
nursing home, where he stayed until 21 March 1988, when he was
provisionally discharged.
25. On 28 June 1984 the District Court (tingsrätten) of Stockholm
appointed the applicant as Kjell Persson's guardian in accordance with
Chapter 18, Section 3 of the 1949 Parental Code (föräldrabalken).
2. The conditions in the Rosenhill nursing home
26. During Kjell Persson's placement in the Rosenhill nursing home
it initially accommodated sixteen and subsequently twelve young and
severely retarded patients. The nursing home was a long narrow building
with three wards. Each ward had a living room and a kitchenette. The
patient rooms measured 8-10 square metres. Up to the summer of 1986
five patients were placed on Kjell Persson's ward and subsequently
four. In the daytime and in the evening the ward had three assistant
nurses. In the nighttime two assistant nurses supervised the whole
nursing home.
27. Kjell Persson's room was located towards the end of the nursing
home in a shorter corridor crosswise to the main corridor. The shorter
corridor had three patient rooms. Part of the wall between Kjell
Persson's room and a corridor had a window. There was a further window
in the upper part of the door between Kjell Persson's room and the
corridor. Finally, there were windows in the wall between Kjell
Persson's room and a toilet and between the toilet and an adjacent
patient room.
28. The nursing home had a staff dining-room. In the wall between
this room and the kitchen there was a service hatch for serving meals.
29. The nursing home was closed in 1988 after Kjell Persson's
provisional discharge.
30. The facts regarding the conditions of the applicant's visits to
Kjell Persson during his placement in the Rosenhill nursing home are
in dispute between the parties.
31. According to the applicant, she normally visited Kjell Persson
inside the nursing home, either in his own room, in the day room, the
staff dining-room or in a room normally used for physical therapy. Due
to his weak state of health she could only occasionally take him
outside in his wheel-chair.
32. The applicant alleges that none of the above described windows
in his room had any curtains. The corridor next to Kjell Persson's room
was allegedly in frequent use by staff, other patients as well as
visitors. Thus, passers-by in the corridor had a free view into his
room. Also the patient in the adjacent patient room could look into the
room.
33. The applicant further alleges that when she visited Kjell Persson
in his room the manager of the nursing home would demonstratively enter
the room and embrace him. When she saw Kjell Persson in the staff
dining-room, staff in the kitchen would supervise the visits by
watching her and Kjell Persson through the service hatch. Sometimes
staff would enter the dining-room during her visits outside meal time
merely for supervisory purposes.
34. The applicant further alleges that the visits which took place
in the room used for physical therapy would also be disturbed. A staff
member would be cleaning the room or staff would otherwise enter the
room in order to supervise the visits. When the applicant took Kjell
Persson outside the nursing home, they were only allowed to remain in
its immediate vicinity. Staff would then supervise them through the
windows.
35. According to the Government, the windows in the wall and the door
between Kjell Persson's room and the corridor had curtains. Moreover,
it was not possible to see all parts of the staff dining-room through
the service hatch in the wall to the kitchen when the sliding-door was
closed. The applicant was also free to take Kjell Persson out for
walks.
3. The restriction on the applicant's visiting rights in the
Rosenhill nursing home
36. According to the applicant she was, in the beginning of
January 1984, orally notified by staff of the Rosenhill nursing home
that her visits to Kjell Persson would be restricted to two hours twice
a week. Soon thereafter her visits were allegedly restricted to two
hours once a week.
37. By a letter of 27 June 1984 from the Director of Mental Welfare
Services (vårdchefen) of the County Council (landstinget) of Stockholm
and the Acting Head of the Department for children placed in nursing
homes the applicant was notified that, as from 2 July 1984 and
provisionally until the end of August 1984, she could visit Kjell
Persson twice a week, on Thursdays and Sundays between 1 p.m. and
3 p.m. The restriction was subsequently prolonged.
4. The restriction on the applicant's visiting rights in the
Björnkulla nursing home
38. On 27 December 1988 Kjell Persson was admitted to the Björnkulla
nursing home, where he stayed until 29 September 1989, when his
compulsory care was revoked.
39. According to the applicant, she was immediately notified orally
by nursing staff that her visits to the nursing home were restricted
to two visits a week.
40. According to a letter of 22 February 1989 from a representative
of the Mental Welfare Committee (styrelsen för omsorger om psykiskt
utvecklingsstörda) to the Discharge Board (utskrivningsnämnden), the
applicant's visits were restricted to four hours on Wednesdays and four
hours on Sundays.
B. Evidence before the Commission
1. Witnesses
41. On 1 September 1993 the applicant submitted affidavits by
herself, Mrs. Siv Westerberg and Mr. Karl Göran Granberg.
42. In his affidavit of 24 August 1993 Mr. Granberg, an engineer,
states that he visited Kjell Persson on several occasions together with
the applicant, but never detected any curtains in front of the windows.
He again visited the nursing home in the summer 1993. On this occasion
the windows still had no curtains, nor were there any curtain rods or
any traces of such rods next to the windows in the wall or the door
towards the corridor.
43. In her affidavit of 27 August 1993 the applicant states that
during none of her visits to Kjell Persson did the window between his
room and the corridor have a curtain. In the summer of 1993 she again
visited the nursing home. On this occasion neither the window in the
wall between Kjell Persson's room and the corridor nor the window in
the door had any curtain. Moreover, there were no curtain rods next to
the windows or any traces of such rods.
44. Mrs. Westerberg is the applicant's counsel before the Commission
and was Kjell Persson's counsel during his stay in the nursing home.
In her affidavit of 31 August 1993 she states that when she visited
Kjell Persson in the nursing home she noticed that the wall between his
room and the corridor had a large window with no curtain. During one
of her visits she, the applicant and Kjell Persson could meet in the
staff dining-room. Because of the service hatch in the wall between the
dining-room and the kitchen, the latter of which would be occupied by
staff, the applicant could not meet Kjell in the dining-room without
being disturbed.
45. On 23 September 1993 the Government submitted affidavits by
Dr. Gunnar Braathen, Ms. Pia Wickman and Ms. Irene Åkerström.
46. Dr. Braathen, a physician specialised in paediatrics and
treatment of disabled children, served as a consulting physician in the
nursing home from 1983 to 1988 and was especially charged with physical
rehabilitation. In his affidavit of 23 August 1993 he states that he
cannot recall whether or not Kjell Persson's room had any curtains. He
has no knowledge of the conditions under which the applicant met Kjell
Persson in the nursing home. His only recollection is that sometimes
they sat together in the "coffee room". In general, Dr. Braathen did
not notice any problems with regard to personal integrity in the
nursing home.
47. Ms. Wickman, an assistant nurse, worked in the nursing home from
1986 until it was closed in May 1988. In her affidavit of
24 August 1993 she states that the wall between Kjell Persson's room
and the corridor had no window. The door between his room and the
corridor had a window measuring about one square metre. This was
covered by curtains on the inside of the door. The curtains were only
kept open when Kjell Persson's state of health required that staff
frequently glance at him in the nighttime without disturbing him. There
was little commotion in the corridor where his room was located. His
ward as well as his room were the least disturbed in the nursing home,
since they were rather secluded.
48. Ms. Åkerström, a nurse, served in the nursing home from 1979 to
1988 and was manager during the period of Kjell Persson's placement.
In her affidavit of 25 and 30 August 1993 she states that the window
in the door between Kjell Persson's room and the corridor had a
curtain. The curtain was only kept open in the nighttime so as to
enable staff to glance at him without disturbing him. During her visit
to the nursing home in August 1993, Ms. Åkerström detected a further
window next to the door and of the same size as the window in the door.
According to her recollection, this window used to be covered by a
drapery hanging in Kjell Persson's room. The curtain in the door window
was occasionally opened, but the drapery in the window in the wall was
always closed. The curtain and drapery were hanging on the inside of
Kjell Persson's room. According to Ms. Åkerström, Kjell Persson's room
was slightly secluded. Out of the four patients on his ward he was the
patient who required most medical attention.
2. Other evidence
49. On 1 September 1993 the applicant submitted drawings and
measurements by Mr. Granberg pertaining to the layout of the nursing
home, and in particular of the room in which Kjell Persson had been
staying. These were produced on the basis of Mr. Granberg's and the
applicant's visit to the nursing home in the summer of 1993. The
applicant also submitted photographs of the nursing home taken by
Mr. Granberg during the visit in 1993 and showing various parts of the
nursing home, including Kjell Persson's room.
50. On 23 September 1993 the Government submitted a blueprint of the
layout of the nursing home as approved by the Building Committee
(byggnadsnämnden) of Huddinge in 1966. The Government further filed
photographs taken by Ms. Åkerström during her service in the nursing
home. The photographs show various parts of the nursing home with the
exception of Kjell Persson's room and the room used for physical
therapy. The Government also invoke some of the pictures submitted by
the applicant as evidence.
C. Relevant domestic law
1. The 1967 Act on the Care of Certain Mentally Handicapped
Persons
51. Section 35, subsection 1, reads, as far as relevant:
(Swedish)
"Psykiskt utvecklingsstörd som fyllt 15 år får oberoende av
samtycke ... beredas vård i vårdhem ..., om vården är
oundgängligen påkallad med hänsyn till utvecklingsstörningens
grad och till att han till följd av utvecklingsstörningen
...
(b) är ur stånd att taga vård om sig själv, ..."
(Translation)
"A mentally handicapped person who has attained the age of
15 may be given care in a nursing home ... irrespective of
whether ... consent ... has been obtained ..., if such care
is absolutely necessary in view of the degree of his mental
handicap and the fact that due to this handicap he
...
(b) is incapable of taking care of himself, ..."
52. Section 51 reads, in so far as relevant:
(Swedish)
"Frågan om utskrivning från ... vårdhem ... skall prövas
fortlöpande.
Vårdnadshavaren, förmyndaren eller den psykiskt
utvecklingsstörde, om han fyllt 15 år, får göra ansökan om
utskrivning. ..."
(Translation)
"The question of discharge from a ... nursing home ...
shall be considered continuously.
A request for a discharge may be lodged by the custodian or
guardian [of the mentally handicapped] or by himself, if he
has reached 15 years of age . ..."
2. Supervision of nursing homes
53. Care provided in accordance with the 1967 Act shall be supervised
by the National Board of Education (skolöverstyrelsen) and the National
Board of Health and Welfare (socialstyrelsen) (Section 13).
54. The authorities and officials responsible for the care are also
under supervision by the Parliamentary Ombudsman (riksdagens
justitieombudsman).
3. The 1985 Act on Special Care of Mentally Handicapped Persons
and Others and the Transitional Act
55. The 1985 Act on Special Care of Mentally Handicapped Persons and
Others (lag 1985:568 om särskilda omsorger om psykiskt
utvecklingsstörda m.fl.) and the Transitional Act to that Act
(lag 1985:569 om införande av lagen 1985:568 om särskilda omsorger om
psykiskt utvecklingsstörda m.fl.) entered into force on 1 July 1986.
56. Upon the entry into force of the 1985 Act the 1967 Act was
repealed with certain exceptions provided for in the Transitional Act.
As regards nursing homes, Section 6 of the Transitional Act provided
that, inter alia, Sections 35 and 51 of the 1967 Act were to remain in
force.
4. The 1949 Parental Code
57. Chapter 18, Section 3 of the 1949 Parental Code (as amended by
Act no. 1974:1034) read:
(Swedish)
"Om någon på grund av sjukdom, hämmad förståndsutveckling,
försvagat hälsotillstånd eller liknande förhållande behöver
bistånd med att bevaka sin rätt, förvalta sin egendom eller sörja
för sin person, skall rätten, där så erfordras, förordna god man
för honom. Förordnande som nu nämnts må ej givas utan samtycke
från den för vilken god man skall utses, med mindre hans
tillstånd medför hinder mot inhämtande av samtycke eller eljest
särskilda skäl föreligga."
(Translation)
"If someone due to [his] illness, hampered intellectual
development, weakened state of health or similar reason is in
need of assistance in order to safeguard his right[s], administer
his possessions or care for himself, the court shall, if
necessary, appoint a guardian for him. This appointment shall not
be ordered without the consent of the person for whom the
guardian is appointed, unless his state prevents the obtaining
of consent or other particular reasons are at hand."
58. As from 1 January 1989 Chapter 18, Section 3 of the Parental Code
was repealed and replaced by a similar provision in Chapter 11,
Section 4 of the same Code.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
59. The Commission has declared admissible the applicant's complaints
relating to the conditions in the Rosenhill nursing home during her
visits to Kjell Persson and the restrictions on her right to visit
Kjell Persson in both the Rosenhill and Björnkulla nursing homes as
well as her complaint of the absence of a right to a court review of
the restrictions on her visiting rights.
B. Points at issue
60. Accordingly, the issues to be determined are:
- whether there has been a violation of Article 8 (Art. 8) of the
Convention on account of the conditions in the Rosenhill nursing home
during the applicant's visits to Kjell Persson;
- whether there has been a violation of Article 8 (Art. 8) of the
Convention on account of the restrictions on her right to visit
Kjell Persson both in the Rosenhill and Björnkulla nursing homes;
- whether there has been a violation of Article 6 para. 1
(Art. 6-1)of the Convention on account of the absence of a right to a
court review of the above restrictions; and
- whether there has been a violation of Article 13 (Art. 13) of
the Convention on account of that absence.
C. As regards Article 8 (Art. 8) of the Convention
61. Article 8 (Art. 8) of the Convention provides:
"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."
1. The conditions in the Rosenhill nursing home during the
applicant's visits
62. The applicant complains that the conditions during her visits to
Kjell Persson in the Rosenhill nursing home constituted an unjustified
interference with her private and family life. She could not associate
with Kjell Persson in private during her visits. Wherever she would
meet him in the nursing home, the visits would be disturbed by staff,
other patients or visitors. In particular, as there were no curtains
in several windows of Kjell Persson's room, passers-by in the corridor
as well as the patient in an adjacent room could look into that room
during the applicant's visits.
63. The applicant further states she was never informed that she
could close the sliding-door in the staff dining-room. On the contrary,
she was told that she was not allowed to see Kjell Persson in private
and that staff would supervise her visits. She did not therefore dare
to close the sliding-door, fearing further restrictions on her visiting
rights or a total prohibition of visits.
64. The Government do not dispute that the applicant's private and
family life was affected by the conditions during her visits in the
nursing home. They question, however, whether the respect ensured by
Article 8 (Art. 8) required that her visits should have taken place in
total privacy, given that the nursing staff was responsible for Kjell
Persson's care also during those visits. In any case, the applicant had
ample opportunities to meet with Kjell Persson in various parts of the
nursing home as well as in its vicinity. In the Government's view, no
conclusions can be drawn from the present state of Kjell Persson's old
room in the nursing home.
65. The Commission has considered whether the conditions in the
nursing home during the applicant's visits amounted to a lack of
respect for her private and family life. It recalls that the notion of
"respect" enshrined in Article 8 (Art. 8) is not clear-cut. This is the
case especially where the positive obligations implicit in that concept
are concerned. Its requirements will vary considerably from case to
case according to the practices followed and the situations obtaining
in the Contracting States. When determining whether or not such an
obligation exists regard must be had to the fair balance that has to
be struck between the general interest and the interests of the
individual as well as to the margin of appreciation afforded to the
Contracting States (Eur. Court H.R., B. v. France judgment of
25 March 1992, Series A no. 232-C, pp. 47 et seq., paras. 44 et seq.).
66. In the present case the Commission must strike a balance between,
on the one hand, the interest of the applicant and Kjell Persson in
being able to meet under acceptable conditions and, on the other hand,
the State's interest in ensuring an adequate care of the patients in
the nursing home, taking into account also the interests of other
visitors.
67. The Commission finds it established that Kjell Persson's room was
located at the end of the nursing home in a short corridor with less
passers-by. Moreover, although the applicant's visits were restricted
to the nursing home and its vicinity, they could also take place in
various other parts of the building and occasionally outside, Kjell
Persson's state of health permitting.
68. The Commission considers therefore that, regardless of whether
or not the windows in Kjell Persson's room facing the corridor and the
adjacent patient room had curtains, the applicant had a reasonable
opportunity to visit him in the nursing home without being
unnecessarily disturbed. Regard must also be had to the character of
the nursing home as a public institution.
69. Taking these various elements into account, the Commission does
not find it established that the national authorities failed to make
such efforts as could reasonably be expected in order to safeguard the
interest of the applicant in meeting her son under acceptable
conditions.
70. In view of the margin of appreciation afforded to the State the
Commission concludes that a fair balance was struck between the
conflicting interests at stake in the instant case. Accordingly, there
has been no lack of respect for the applicant's private and family life
and, thus, no violation of Article 8 (Art. 8) of the Convention.
CONCLUSION
71. The Commission concludes, unanimously, that there has been no
violation of Article 8 (Art. 8) of the Convention on account of the
conditions in the Rosenhill nursing home during the applicant's visits
to Kjell Persson.
2. The restrictions on the applicant's right to visit
Kjell Persson in the nursing homes
72. The applicant complains that the restrictions on her right to
visit Kjell Persson in both the Rosenhill and the Björnkulla nursing
home had no legal basis and were, in any event, unnecessary for any of
the purposes enumerated in Article 8 para. 2 (Art. 8-2) of the
Convention. His care by no means required that her visits be
supervised. On the contrary, these visits were of great importance for
his well-being.
73. The Government do not dispute that the restrictions interfered
with the applicant's right to respect for her family life and admit the
absence of a provision in the 1967 Act explicitly allowing restrictions
on visits to a person placed in compulsory care. They consider,
however, that the restrictions on the applicant's visits were justified
under Article 8 para. 2 (Art. 8-2), given that they were part and
parcel of the implementation of the compulsory care order regarding
Kjell Persson which was based on Section 35, subsection 1 (b) of the
1967 Act. The restrictions were imposed in order to improve the
possibilities of caring for him and, thus, aimed at protecting his
health. A further aim of the restriction imposed in the Björnkulla
nursing home was to enable the staff responsible for Kjell Persson's
care to get to know him properly. The restrictions on the applicant's
visits were necessary in view of her lack of confidence in the nursing
staff and her attempts to interfere with Kjell Persson's care. As
visits were not totally prohibited, the restrictions did not prevent
the applicant from fulfilling her duties as his guardian.
74. The Commission finds that the restrictions on the applicant's
right to visit Kjell Persson interfered with her right to respect for
her family life under Article 8 (Art. 8) of the Convention. Such an
interference must be "in accordance with the law", have one or several
aims which are legitimate under para. 2 of that provision and be
"necessary in a democratic society" (Eur. Court H.R., Rieme judgment
of 22 April 1992, Series A no. 226-B, p. 68, para. 56). An interference
cannot be held to be "in accordance with the law" unless, first of all,
it has some basis in domestic law.
75. The expression "in accordance with the law" relates to the
quality of the law in question and implies that the law should be
accessible to the person concerned, who must moreover be able to
foresee its consequences for him. The law must be compatible with the
rule of law in the sense that the person concerned should have access
to a measure of protection under national law against arbitrary
interferences with his rights (Eur. Court H.R., Kruslin and Huvig
judgments of 24 April 1990, Series A nos. 176-A and 176-B, p. 20,
para. 27, and p. 52, para. 26, respectively, and the Herczegfalvy
judgment of 24 September 1992, Series A no. 244, p. 27-28,
paras. 88-91). The term "law" should be understood in its "substantive"
sense, not its "formal" one. It may therefore include enactments of
lower rank than statutes as well as unwritten law. In a sphere covered
by written law, the "law" is the enactment in force as the competent
courts have interpreted it (the above-mentioned Kruslin and Huvig
judgments, pp. 21-22, and para. 29, pp. 53-54, para. 28, respectively).
76. If a law confers discretion on a public authority or a person
exercising such authority, it must indicate the scope of that
discretion. As it may not be possible to formulate a law to cover every
eventuality, the degree of precision required will depend on the
particular subject matter (cf. Eur. Court H.R., Silver and Others
judgment, Series A no. 61, p. 33, para. 88, the above-mentioned Kruslin
and Huvig judgments, pp. 22-23, para. 30, and pp. 54-55, para. 29,
respectively, and the above-mentioned Herczegfalvy judgment, p. 27,
para. 89).
77. In the present case the Government admit the absence of a
provision in the 1967 Act explicitly allowing restrictions on the
applicant's visits. They consider, however, that the restrictions were,
nevertheless, "in accordance with the law", as they were inherent in
the compulsory care order regarding Kjell Persson issued under
Section 35, subsection 1 (b) of the 1967 Act.
78. In the Commission's view, however, such an implied right under
the 1967 Act to restrict the applicant's visits does not meet the
requirements of foreseeability as recalled above. Thus, the applicant
did not enjoy the minimum degree of protection to which one is entitled
under the rule of law in a democratic society. Accordingly, the
interference was not carried out "in accordance with the law".
79. In view of this finding there is no need for the Commission to
examine whether the other requirements under Article 8 para. 2
(Art. 8-2) have been complied with, i.e. whether the interference
pursued a legitimate aim and whether it was proportionate and thus
necessary in a democratic society.
CONCLUSION
80. The Commission concludes, unanimously, that there has been a
violation of Article 8 (Art. 8) of the Convention on the ground that
the restrictions on the applicant's visits to Kjell Persson in both
nursing homes were not "in accordance with the law".
D. As regards Article 6 para. 1 (Art. 6-1) of the Convention
81. Article 6 para. 1 (Art. 6-1) of the Convention reads, insofar as
it is relevant:
"In the determination of his civil rights ... everyone is
entitled to a fair ... hearing ... by an independent and
impartial tribunal established by law. ..."
82. The applicant complains that she could not obtain a court review
of the restrictions on her right to visit Kjell Persson in the
Rosenhill and Björnkulla nursing homes, neither in her capacity as
mother nor as his appointed guardian.
83. The applicant submits that no distinction can be made between the
present case and cases where the Convention organs have considered it
necessary to provide for a court review of disputes regarding the
restriction on parents' access to their children. Neither can the
restrictions on her visits be compared with those imposed during, for
instance, emergency treatment of patients in a hospital. In the latter
case the reasons for the restrictions are strictly medical and the
patient's placement is not of a compulsory character. In view of Kjell
Persson's compulsory placement and his state of health her only means
of obtaining access to him was by paying visits to the nursing homes.
Finally, in her capacity as his guardian she had not only a right but
an obligation under the Parental Code to visit him.
84. The Government submit that Article 6 para. 1 (Art. 6-1) is
inapplicable in the instant case, as there was no determination of the
applicant's "civil rights" within the meaning of that provision.
Firstly, the restrictions on the applicant's visits formed an inherent
part of Kjell Persson's compulsory care. The applicant could not
therefore claim any "right" under domestic law to visit him. Secondly,
the restrictions did not finally determine her right of access to him,
only her right to visit the nursing homes. Thirdly, during his
placement in compulsory care the applicant was no longer Kjell
Persson's custodian and no parental rights were therefore involved.
Should the Commission consider Article 6 (Art. 6) to be applicable, the
Government admit that the restrictions at issue could not be challenged
by the applicant before a tribunal.
85. The Commission must first ascertain whether Article 6 para. 1
(Art. 6-1) of the Convention is applicable in the instant case and,
notably, whether there was a dispute over a "civil right" which can be
said, at least on arguable grounds, to be recognised under domestic
law. The dispute must be genuine and serious and its outcome must be
directly decisive for the right in question (e.g. Eur. Court H.R.,
Zander judgment of 25 November 1993, Series A no. 279-B, para. 22).
86. The Commission recalls that, on the one hand, Article 6 para. 1
(Art. 6-1) is not aimed at creating new substantive rights without a
legal basis in the Contracting State, but at providing procedural
protection of rights already recognised in domestic law (Eur. Court
H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A
no. 121-A, p. 32-33, para. 73; No. 14247/88, Dec. 3.7.92, D.R. 73
p. 27). On the other hand, the term "right" must be given an autonomous
interpretation under Article 6 para. 1 (Art. 6-1) of the Convention
(Eur. Court H.R., König judgment of 28 June 1986, Series A no. 27,
p. 29, para. 87).
87. In the present case the Commission observes that Kjell Persson
reached the age of majority under domestic law prior to his placement
in the Rosenhill nursing home. Consequently, the applicant ceased to
be his custodian. However, given that she remained his appointed
guardian, the Commission does not consider it necessary to determine
whether or not she could arguably claim a "right" to visit him already
in her capacity as his parent.
88. The Commission observes that in her capacity as Kjell Persson's
guardian the applicant had not only legal standing under domestic law
for the purpose of requesting that his compulsory care be revoked, but
an obligation under the Parental Code to safeguard his interests. Her
status as Kjell Persson's guardian could be considered to have given
her a special right to visit him which was not as such dependent on the
character of his care nor of the restrictions imposed.
89. The Commission further considers that the applicant's "right" was
clearly of a civil character. Thus, she could, on arguable grounds,
claim a "civil right" to visit Kjell Persson in the nursing homes. The
dispute between the applicant and the nursing homes was a genuine and
serious one and its outcome was directly decisive for her possibility
of visiting the nursing homes.
90. In the above-mentioned circumstances the Commission finds that
Article 6 para. 1 (Art. 6-1) is applicable in the instant case.
91. It is not disputed that under domestic law the applicant had no
right to obtain a court review of the restrictions on her visiting
rights. The Commission finds that this is incompatible with Article 6
para. 1 (Art. 6-1).
CONCLUSION
92. The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention on account
of the absence of a right to a court review of the restrictions on the
applicant's visiting rights in both nursing homes.
E. As regards Article 13 (Art. 13) of the Convention
93. Article 13 (Art. 13) of the Convention reads:
"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."
94. The applicant complains of the absence of an effective remedy in
order to challenge the restrictions on her visiting rights.
95. The Government admit that no formal procedure existed for the
purpose of challenging the restrictions on the applicant's visits. They
refer, however, to the supervision carried out by the National Board
of Education, the National Board of Health and Welfare as well as by
the Parliamentary Ombudsman and consider this aggregate of remedies to
satisfy the requirements of Article 13 (Art. 13).
96. In view of its above finding with regard to the complaint under
Article 6 para. 1 (Art. 6-1) the Commission does not find it necessary
to examine this complaint separately.
CONCLUSION
97. The Commission concludes, unanimously, that it is not necessary
to examine separately the complaint under Article 13 (Art. 13) of the
Convention.
F. Recapitulation
98. The Commission concludes, unanimously, that there has been no
violation of Article 8 (Art. 8) of the Convention on account of the
conditions in the Rosenhill nursing home during the applicant's visits
to Kjell Persson (para. 71).
99. The Commission concludes, unanimously, that there has been a
violation of Article 8 (Art. 8) of the Convention on the ground that
the restrictions on the applicant's visits to Kjell Persson in both
nursing homes were not "in accordance with the law" (para. 80).
100. The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention on account
of the absence of a right to a court review of the restrictions on the
applicant's visiting rights in both nursing homes (para. 92).
101. The Commission concludes, unanimously, that it is not necessary
to examine separately the complaint under Article 13 (Art. 13) of the
Convention (para. 97).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
2 September 1988 Introduction of application
8 December 1988 Registration of application
Examination of admissibility
15 April 1991 Commission's decision to communicate
the case to the respondent Government
and to invite the parties to submit
observations on admissibility and
merits
29 July 1991 Government's observations
22 September 1991 Applicants' observations in reply
11 February 1992 Applicants' additional observations
13 September 1992 Commission's grant of legal aid
11 December 1992 Rapporteur's request for further
information from the Government
5 January 1993 Government's further information
5 February 1993 Applicants' comments
3 May 1993 Commission's decision to declare the
application in part inadmissible and
to hold a hearing on the remaining
part
2 July 1993 Hearing on admissibility and merits
2 July 1993 Commission's decision to declare the
remainder of the application in part
admissible and in part inadmissible
9 July 1993 Commission's adoption of text of
decision on admissibility
Examination of the merits
12 July 1993 Decision on admissibility transmitted
to parties. Invitation to parties to
submit further observations on the
merits
1 September 1993 Remaining applicant's observations
23 September 1993 Government's observations
8 October 1993 Government's additional observations
15 October 1993 Remaining applicant's additional
observations
4 January 1993 Commission's consideration of state
of proceedings
5 April 1994 Commission's deliberations on the
merits, final vote and consideration
of text of the Report
14 April 1994 Adoption of Report