Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27303/95

by Eva, Anders and Cecilia HOVING

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

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 10 January 1995

by Eva, Anders and Cecilia HOVING against Sweden and registered on

12 May 1995 under file No. 27303/95;

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 applicants, a mother and her two children, are Swedish

citizens, born in 1947, 1975 and 1981 respectively. They reside in

Stockholm. Before the Commission the applicants are represented by

Mr Lars Arrhenius of the law firm Bengt H Nilsson AB, Stockholm.

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

summarised as follows.

On 23 April 1992 the National Police Board (Rikspolisstyrelsen)

submitted a request on behalf of the applicants to the Stockholm

District Court (tingsrätt) for leave to use fictitious personal

information (fingerade personuppgifter) pursuant to the 1991 Act on

Fictitious Personal Information [lagen (1991:483) om fingerade

personuppgifter]. The request was made due to the applicants' repeated

allegations of harassment by the first applicant's ex-husband who was

also the second and third applicants' father.

On 16 June 1992 the District Court rejected the request since the

investigation made disclosed, in the Court's view, that the applicants

did not fulfil the necessary requirements.

The applicants appealed against this decision to the Svea Court

of Appeal (Svea hovrätt) which, however, upheld it on 15 January 1993.

The applicants thus asked for leave to appeal to the Supreme Court

(Högsta domstolen). Leave was granted on 8 November 1993. Following

further written observations the Supreme Court rejected the applicants'

request on 11 July 1994. In its decision the court stated inter alia

as follows:

(Translation)

"The 1991 Act on Fictitious Personal Information is

intended to protect harassed and threatened persons in

certain special circumstances by allowing them to use other

information concerning themselves than what is actually

correct. Leave to use fictitious personal information may

be granted for a maximum of five years.

The Act states as a precondition for such leave that there

is an obvious risk that the person concerned may be the

subject of particularly serious crimes which threatens

life, health and freedom. This must be considered to imply

that the risk shall be of an objective character. Thus, it

is not sufficient that the person in question considers

that such a risk exists.

A further precondition for leave to use fictitious personal

information is that the person cannot obtain sufficient

protection by other means. This means, according to the

travaux préparatoires, that it shall be examined first

whether registration pursuant to section 16 of the National

Register Act [folkbokföringslagen (1981:481)], visit

prohibitions or other means would be sufficient in order to

protect the person ...

The investigations in this case show that, on

27 November 1991, the applicant and her children were

permitted to remain registered at their previous address

until 31 December 1994. A special secrecy examination

pursuant to Chapter 7, Section 15 of the Secrecy Act

[sekretesslagen (1980:100)] applies in regard to

information concerning them at the local registration

office since 7 September 1989. According to a special

decision such an examination shall be carried out until

31 December 1994.

[The first applicant] has submitted before the Supreme

Court and the Court of Appeal that she, and her children,

experience a considerable risk that [her ex-husband] will

commit serious crimes against them. According to [the first

applicant] [her ex-husband] committed serious offences

during their marriage, such as assault and battery and

rape. She has not, however, maintained that, following the

separation in January 1989, [her ex-husband] has committed

similar offences or otherwise used physical force against

them. She alleges instead that, during the years following

the separation, [her ex-husband] indirectly harassed and

threatened her and the children. ... As an example [the

first applicant] has submitted that [her ex-husband] and

his sister made slanderous remarks about her and the

children to various authorities and obtained information

about them in data registers. [Her ex-husband] furthermore

stays near her and the children in order to sustain the

fear [he] has provoked in them through his previous acts.

It is undeniable that [the applicants] experience a strong

fear for [the ex-husband/father] and that for this reason

they live under a strong mental strain and in otherwise

very difficult circumstances. What has been submitted does

not show, however, that from an objective point of view

such a risk as the Act requires exists. Therefore, leave

to use fictitious personal information cannot be granted."

COMPLAINTS

The applicants complain that the refusal to grant them leave to

use fictitious personal information in the circumstances violates their

rights set out in Article 8 of the Convention.

THE LAW

The applicants complain of a violation of 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." They maintain that Sweden has

violated its positive obligation under the above provision,

to secure to them their right to respect for their private

and family life, by refusing to allow them to use

fictitious personal information.

The Commission recalls that the obligation to secure the

effective exercise of the Convention rights may involve positive

obligations on a State in a number of areas, and these obligations may

involve the adoption of measures even in the sphere of the relations

of individuals themselves. An obligation of this kind exists, for

instance, in regard to the right to respect for private and family life

guaranteed by Article 8 (Art. 8) of the Convention (see e.g. Eur. Court

HR, X and Y v. the Netherlands judgment of 26 March 1985, Series A no.

91, p. 11, para. 23).

In the present case the Commission recalls that the applicants

had asked for leave to use fictitious personal information out of fear

that their ex-husband/father would otherwise threaten their life,

health and freedom. These issues were thoroughly examined by three

courts which also took into consideration other means which could be,

and were indeed, implemented in order to protect the applicants. Having

regard to the reasons advanced by, in particular, the Supreme Court in

its decision of 11 July 1994 the Commission finds no indication that

the court gave inadequate consideration to the applicants' rights under

Article 8 (Art. 8).

Furthermore, the fact that the applicants were unsuccessful in

their request submitted under the Fictitious Personal Information Act

does not mean that the respondent State has failed in its obligation

to provide adequate protection for their rights under Article 8

(Art. 8) of the Convention. The Commission finds, therefore, that the

case does not disclose any appearance of a violation of this provision.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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HOVING v. SWEDEN

HOVING v. SWEDEN

LEXI