Lexploria

INTRODUCTION

1. This report relates to Application No. 10554/83 lodged against

Sweden by Mrs. Eva Aminoff on 10 April 1981 under Article 25

(art. 25) of the Convention for the Protection of Human Rights and

Fundamental Freedoms. The application was registered on

7 September 1983.

The applicant was represented by Mr. Lennart Hane, a lawyer

practising in Stockholm.

The Government were represented by their Agent, Ambassador Hans

Corell, Ministry for Foreign Affairs, and, as advisers,

Mr. Karl-Ingvar Rundqvist, Chief Legal Adviser, Ministry of Health and

Social Affairs, Mr. Staffan Duhs, Counsellor, Ministry for Foreign

Affairs, Mrs. Gertrud Holmquist, Legal Adviser, Ministry of Health

and Social Affairs, Mr. HÃ¥kan Berglin, Legal Adviser, Ministry for

Foreign Affairs, and Mrs. Ilse Wetter, Legal Adviser, Lidingö

Municipality.

2. On 15 May 1985 the European Commission of Human Rights

declared the application admissible.* The Commission then proceeded

to carry out its task under Article 28 (art. 28) of the Convention

which provides as follows:

_______________

* This decision is public and can be obtained from the Commission's

Secretary. The decision will be published in the Commission's

official publication entitled Decisions and Reports.

_______________

"In the event of the Commission accepting a petition referred to it:

(a) it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an examination of the

petition and, if need be, an investigation, for the effective conduct

of which the States concerned shall furnish all necessary facilities,

after an exchange of views with the Commission;

(b) it shall place itself at the disposal of the parties concerned

with a view to securing a friendly settlement of the matter on the

basis of respect for Human Rights as defined in this Convention."

3. The Commission found that the parties had reached a friendly

settlement of the case and on 10 October 1986 it adopted this Report,

which, in accordance with Article 30 (art. 30) of the Convention, is

confined to a brief statement of the facts and of the solution

reached.

The following members of the Commission were present when the Report

was adopted:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

PART I: Statement of Facts

4. The applicant, Mrs. Eva Aminoff, is a Finnish citizen born in

1919. When introducing the present application the applicant resided

at Lidingö in Sweden. She now resides in Finland. The applicant has

an adoptive son, Alexander, who was born in March 1969 of Finnish

parents.

5. By decision of 11 October 1979 the Southern Social District

Council (södra sociala distriktsnämnden) of Lidingö decided to take

Alexander into public care pursuant to Sections 25 (a) and 29 of the

1960 Act on Child Welfare (barnavårdslagen). It was decided that the

decision should be executed immediately irrespective of the fact that

it had not yet acquired legal force. As reason for the decision it

was invoked that Alexander was treated at home in a manner which

subjected his health to danger and that his development was

jeopardised as a result of the applicant's unsuitability and inability

to foster Alexander.

As the applicant did not consent to the enforcement of the decision,

it was submitted to the Regional Administrative Court (länsrätten) of

Stockholm for determination. By a decision of 30 October 1979 the

Court ordered that the decision could be enforced prior to the case

having been finally determined by the Court.

6. In November 1979, the Social Council placed Alexander at a

hospital for an examination. However, it appears that Alexander

disappeared from the hospital on 12 November. He then appeared in

Finland where a child psychiatric examination of him was sought at the

Helsinki University Central Hospital.

On 14 November 1979, however, two Swedish social workers and two

Swedish male nurses came to the hospital, fetched Alexander and

brought him back to Sweden. These events were subsequently examined

by the Parliamentary Ombudsman (justitieombudsmannen), who, in a

decision of 24 March 1982, found that the decision to have Alexander

returned to Sweden and the enforcement of that decision were not in

accordance with the applicable provisions. However, since the head of

the social administration of Lidingö could not be held responsible for

unlawful deprivation of liberty due to lack of intent and since he

could not be held responsible for misuse of office, no action was

taken by the Ombudsman.

7. On 16 January 1980 the Regional Administrative Court held a

hearing in the case concerning public care, and by judgment of

13 February 1980 the Court confirmed the decision to take Alexander

into public care.

8. Prior to this decision, by a decision of 23 November 1979, the

Social Council decided that the applicant should not have any right of

access to Alexander, while he was in public care, and that his place

of residence should not be disclosed to the applicant. The applicant

appealed against this decision to the Regional Administrative Court,

which by judgment of 6 February 1981 rejected the appeal.

9. The applicant appealed to the Administrative Court of Appeal

(kammarrätten) of Stockholm, against both the judgment concerning

public care of Alexander and the judgment concerning access to him.

The Administrative Court of Appeal rejected the appeals by two

separate judgments dated 18 September 1981.

10. The applicant appealed to the Supreme Administrative Court

(regeringsrätten) which by a decision of 24 February 1982 refused to

grant leave to appeal.

11. On 17 December 1979 Alexander was placed in a foster home,

situated on an island in the lake of Mälaren outside Stockholm. He

stayed in the foster home until 8 May 1984. The foster parents were

Mr. SS, born in 1936, and Miss MÅ, born in 1948. They were not

married, but had lived together since 1969. It appears that as from

1972 they started to take care of children. In 1982 problems arose in

the relationship between the two, and in the spring of 1983 the

relationship broke up.

Alexander was almost eleven years old when he came to the foster home.

As regards his "siblings" in the foster home, it appears that when

Alexander came to the foster home there were at least two boys there

of twenty years of age, both drug addicts. They left the foster home

in the autumn of 1980. A fourteen year old girl arrived in August

1980 and stayed until the beginning of 1982. Another girl of fourteen

was in the foster home from 1981 to 1983. A boy arrived in the autumn

of 1981 and left one and a half years later. A teenage girl was there

from autumn 1982 to spring 1983. A boy of eleven to twelve years

arrived in the autumn of 1982 and left in spring 1983. He was violent

and drank alcohol. An adopted Chilean boy arrived at Christmas 1983

(age eleven) and has stayed in the foster home since then.

It also appears that in the spring of 1983, at the same time as the

relationship broke up between the foster parents, there was a problem

with one of the girls staying there. As a result, representatives of

three social councils made a visit to the foster home and thereafter

one boy and one girl chose to leave the foster home. As from June

1983 it appears that Alexander was alone with the foster father up to

Christmas 1983 when the Chilean boy arrived.

In the course of his stay in the foster home Alexander did not receive

normal schooling. During substantial periods, inter alia the spring

of 1980 and of 1983, Alexander received education only in the foster

home and partly only for a few hours per week. Moreover, during the

spring semester of 1984 Alexander attended the school only for short

periods. In the school he was not called by his own name of Aminoff,

but was called by his foster father's family name.

12. On 8 May 1984, Alexander disappeared from the foster home to

Finland, where he has since then been staying together with the

applicant.

13. On 1 October 1984 the Social Council decided that the public

care should be discontinued.

14. Before the Commission the applicant complained that the

Swedish authorities subjected her son and herself to inhuman treatment

and that the decisions to take her child into public care and to stop

all access to him while in public care as well as the refusal to

disclose his whereabouts and his treatment in the foster home

constituted violations of Articles 3, 6, 8 (art. 3), (art. 6),

(art. 8) and 10 (art. 10) of the Convention and Article 2 of Protocol

No. 1 (P-1-2) to the Convention.

Part II: Solution reached

15. Following its decision on the admissibility of the

application, the Commission placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 (b) (art. 28-b) of the Convention and invited the

parties to submit any proposals they wished to make.

In accordance with the usual practice the Secretary, acting on the

Commission's instructions, contacted the parties in order to explore

the possibilities of reaching a friendly settlement. Following an

exchange of letters the Secretary and Mr. Erik Fribergh of the

Commission's Secretariat had separate discussions with the parties in

Stockholm on 11 and 12 September 1986. Following these separate

discussions the parties agreed on the terms of a friendly settlement.

16. By letter of 24 September 1986 the Agent of the Government

confirmed the agreement by submitting the following declaration of the

Government:

"In view of the Commission's decision to declare Application

No. 10554/83 admissible, the Government are prepared to make the

following offer in order to terminate the proceedings before the

Commission:

a. The Government will pay to the applicant the sum of two

hundred thousand (200 000) Swedish Crowns to be used for her son

Alexander.

b. The Government will pay the applicant's legal costs in the

proceedings before the Commission in the amount of one hundred

twenty-five thousand (125 000) Swedish Crowns."

17. In his letter of 30 September 1986 the applicant's

representative, Mr. Lennart Hane, made the following declaration on

behalf of the applicant:

"With reference to Application No. 10554/83 pending before the

European Commission of Human Rights in Strasbourg, and in view of the

offer made by the Swedish Government in their letter 24th of September

1986, I hereby accept the offer and declare Application No. 10554/83

to be settled.

This declaration is being made in view of the settlement within the

meaning of Article 28 (b) (art. 28-b) of the European Convention on

Human Rights which has been reached in co-operation with the European

Commission of Human Rights in the proceedings concerning this

application."

18. The Commission, at its session on 10 October 1986, noted that

the parties had reached an agreement regarding the terms of a

settlement. The Commission further found, having regard to Article 28

(b) (art. 28-b) of the Convention, that a friendly settlement had been

secured on the basis of respect for Human Rights as defined in the

Convention.

For these reasons, the Commission adopted this Report.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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AMINOFF v. Sweden

AMINOFF v. Sweden

LEXI