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)