Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31050/96

by Antonio MELELEO

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

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 1 March 1996 by

Antonio Meleleo against Sweden and registered on 18 April 1996 under

file No. 31050/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, an Italian citizen born in 1943, resides in

Göteborg.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

Between 1982 and 1987, the applicant had a relationship with L.E.

They lived together from March to November 1987. On 5 August 1987

their son A was born. L.E. has had custody of him ever since.

The applicant and L.E. were not able to agree on the applicant's

access to A. Court proceedings followed, in which L.E. claimed that

the applicant had sexually abused his son. L.E. also reported the

applicant to the Public Prosecutor who, however, found that there was

no evidence to support L.E.'s allegation and, accordingly, discontinued

the investigations. By judgment of 9 July 1992, the Court of Appeal

(hovrätten) for Western Sweden awarded the applicant access to A every

second weekend and on specified dates around the major holidays. It

appears, however, that L.E. refused to comply with the judgment.

In December 1992, L.E. instituted new access proceedings before

the District Court (tingsrätten) of Göteborg. She stated that A was

not well and that he was regularly seeing a psychologist. She claimed

that the reason for A's problems could be some abusive conduct by the

applicant or the latter's inability to understand A's need of security.

he requested that the applicant should be awarded access to A only one

day every second week between 10 am and 6 pm in the presence of a

so-called contact person (kontaktperson) appointed by the social

authorities.

By provisional decisions of 16 February 1993 and

16 December 1994, the District Court decided in accordance with L.E.'s

request.

After having held an oral hearing during which the parties and

witnesses proposed by the applicant were heard, the District Court, by

judgment of 23 February 1995, found that the applicant's meetings with

A had worked well and that there was no reason not to award the

applicant normal access to his son following a transitional period.

The court thus decided that the applicant, as from 1 September 1995,

should have access to A every second weekend, every second major

holiday and four weeks during the summer.

L.E., however, refused to let the applicant meet A and appealed

to the Court of Appeal.

By provisional decision of 29 June 1995 and by judgment of

21 December 1995, the Court of Appeal decided to restrict the

applicant's access to every second Saturday between 10 am and 6 pm in

the presence of a contact person. The court found, in accordance with

Chapter 6, Section 15 of the Parental Code (Föräldrabalken), that this

was in A's best interests. In so deciding, the court considered that,

although there was no evidence to show that the applicant had sexually

abused his son, A's mental status as well as his attitude towards the

applicant and the parents' ability to cooperate had to be taken into

account. The court took note of a statement from the Children's

Psychiatric Clinic (Barn- och ungdomspsykiatriska kliniken) where A

received treatment, according to which A was in need of further therapy

for about a year and thus should not meet the applicant without a

contact person being present. The court had further regard to A's

statement, expressed to a social worker dealing with the case, that he

wished that some other person be present when he met the applicant but

that he would rather not have any meetings at all before he had grown

up. It also noted the parents' disagreements which, in the court's

view, could harm A. The Court of Appeal did not set a time-limit for

the access restrictions, as the necessity thereof depended on how long

A had to undergo therapy and his age at the time when it would end.

Before giving judgment, the court had held a hearing in the case and

heard the parties and several witnesses.

On 22 February 1996 the Supreme Court (Högsta domstolen) refused

the applicant leave to appeal.

Due to continuing conflicts with L.E., the applicant thereafter

applied to the County Administrative Court (länsrätten) of the County

of Göteborg and Bohus for an enforcement order regarding his right of

access. The court rejected his request on 20 May 1996. However, upon

the applicant's appeal, the Administrative Court of Appeal

(kammarrätten) in Göteborg decided, on 28 June 1996, to grant his

request and order L.E. to hand over A to the applicant on every access

occasion during the following three months under penalty of a fine.

As from the end of May 1996 the applicant has had access to A in

accordance with the Court of Appeal's judgment of 21 December 1995.

COMPLAINTS

1. The applicant contends that the access awarded by the Court of

Appeal on 21 December 1995 is insufficient and constitutes a violation

of his right to respect for family life as guaranteed by Article 8 of

the Convention.

2. The applicant further claims that the Court of Appeal was not

impartial. In this respect, he invokes Article 6 of the Convention.

THE LAW

1. The applicant contends that the access awarded by the Court of

Appeal on 21 December 1995 is insufficient and constitutes a violation

of his right to respect for family life. He invokes 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 and morals, or for the protection of the rights and

freedoms of others."

In accordance with the Commission's established case-law, the

right to respect for family life within the meaning of Article 8

(Art. 8) of the Convention includes the right of a divorced parent who

is deprived of custody following the break-up of the marriage to have

access or contact with his child. The State may not interfere with the

exercise of that right otherwise than in accordance with the conditions

set out in Article 8 para. 2 (Art. 8-2) (cf. Hendriks v. the

Netherlands, Comm. Report 8.3.82, para. 94, D.R. 29, p. 14).

The Commission furthermore considers that the natural link

between a parent and a child is of fundamental importance and that,

where the actual family life in the sense of living together has come

to an end, continued contact between them is desirable and should in

principle remain possible. Respect for family life under Article 8

(Art. 8) thus implies that this contact should not be denied unless

there are strong reasons which justify such an interference.

Turning to the facts of the present case, the Commission recalls

that it does not concern a divorced parent. It does, however, concern

a case in which there had been actual family life in the sense that the

unmarried parents were living together, although it came to an end a

few months after the birth of the child. In these circumstances where,

furthermore, the question of paternity is not in dispute, the

Commission accepts that the judgment of the Court of Appeal to restrict

the natural father's access to supervised meetings for eight hours

every second week interfered with the exercise of his right to respect

for his family life under Article 8 (Art. 8). It must therefore

examine whether the interference complained of was justified under

para. 2 of that provision, i.e. whether the interference was in

accordance with the law and had an aim which was legitimate and whether

the interference was necessary in a democratic society.

The Commission observes that the Court of Appeal's judgment was

based on Chapter 6, Section 15 of the Parental Code and that, thus, the

interference was in accordance with the law.

As regards the legitimate aim, the Commission has constantly held

that in assessing the question of whether or not the refusal or, as in

the present case, the restriction of the right of access to the

non-custodial parent was in conformity with Article 8 (Art. 8) of the

Convention, the interests of the child predominate (cf., e.g., No.

12495/86, Dec. 7.12.87, D.R. 54, p. 187). There is no doubt that the

restrictions on access in the present case had the aim of protecting

the child's interests. What remains to be considered is therefore

whether the interference was necessary in a democratic society for that

aim.

In examining this issue, the Commission does not intend to

substitute its own judgment for that of the competent domestic court.

Its function is to assess from the point of view of Article 8 (Art. 8)

the decision which the Court of Appeal took in the exercise of its

discretionary power.

It is an important function of the law in a democratic society

to provide safeguards in order to protect children from harm or mental

suffering resulting, for instance, from the break-up of the

relationship of their parents (cf. Hendriks v. the Netherlands,

op. cit., para. 120).

In the present case, the Commission recalls that A had expressed

the wish to see his father only in the presence of another person, if

at all. Furthermore, according to the Children's Psychiatric Clinic,

it was not advisable to arrange meetings without a contact person. The

Court of Appeal had regard to these statements and also took into

account A's need of further therapy and the disputes between the

parents. It came to the conclusion that supervised access once every

second week was in A's best interests. It gave judgment after having

held an oral hearing, during which it had heard the parties and several

witnesses. In these circumstances, the Commission is satisfied that

the interference complained of, namely the access restrictions, was

required by the interests of A and that the Court of Appeal, when so

deciding, did not go beyond its discretionary power.

The Commission concludes therefore that the interference with the

applicant's right to respect for his family life, being proportionate

to the legitimate aim pursued, was justified under Article 8 para. 2

(Art. 8-2) of the Convention as being necessary in a democratic society

for the protection of the rights and freedoms of another person, namely

the child concerned.

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 applicant further claims that the Court of Appeal was not

impartial. He argues that the court believed L.E. and the experts

consulted by her without carefully scrutinising their statements.

Allegedly affected by a prevailing incest hysteria, the experts did not

examine the facts objectively but based themselves on L.E.'s untrue

allegations. In this respect, the applicant invokes Article 6

(Art. 6) of the Convention, the relevant parts of which read as

follows:

"1. In the determination of his civil rights ..., everyone

is entitled to a fair ... hearing ... by an ... impartial

tribunal ..."

The Commission finds, however, that the submissions of the

applicant fail to substantiate the present complaint.

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.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

Menu

MELELEO v. SWEDEN

MELELEO v. SWEDEN

LEXI