Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25622/94

by Johnny FUNCH

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 January 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 7 July 1993 by

Johnny Funch against Sweden and registered on 9 November 1994 under

file No. 25622/94;

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, a Swedish citizen born in 1952, is a student. He

resides at Malmö.

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

summarised as follows.

Between 1982 and 1991, the applicant cohabited with M.T. They had

two sons, J, born in 1984, and A, born in 1987, of whom they had joint

custody. After the applicant and M.T. had separated in March 1991, M.T.

filed an application for custody of the children.

The District Court (Tingsrätten) of Trelleborg held a preparatory

hearing in the case on 26 June 1991. The applicant claimed, in the

first place, that he should be awarded custody and, in the second

place, that he should have access to the children every second week.

On 26 June 1991 the District Court decided provisionally to award

M.T. custody and the applicant access every second weekend. It further

ordered the social authorities at Trelleborg and Svedala to investigate

the questions of custody and access. The Court held a second

preparatory hearing on 10 December 1991 and granted the applicant

further provisional access to the children.

Apparently, however, the applicant did not meet the children

after the decision in December 1991, as, allegedly, M.T. refused him

access. At the end of December, M.T. moved with the children to Molde,

Norway.

At a further preparatory hearing on 3 June 1992, at which M.T.

and her representative did not appear, the District Court decided

provisionally to transfer custody of the children to the applicant in

view of M.T.'s conduct. On 21 August the decision was, however,

reversed on appeal by the Court of Appeal (Hovrätten) of Skåne and

Blekinge.

On 11 September 1992 the District Court requested a custody

investigation from the social authorities at Molde. On 8 February 1993

it held the main hearing in the case, during which it heard the parties

and several witnesses. It further had at its disposal reports from the

above-mentioned social authorities and written statements concerning

J by school teachers and a psychologist.

By judgment of 2 March 1993, the District Court awarded M.T.

custody of the children and granted the applicant access to them every

fourth weekend, every second major holiday and five weeks during the

summer. The Court found that both parents were suitable as custodians.

Noting that M.T. had had the main responsibility for the children at

the time when the parties were living together and that she had custody

of the children's half-brothers, the Court considered that M.T. was

more suitable to take care of the children than the applicant. It

further took into account that J, who was slightly retarded, should not

be removed from his home in Norway where he had been living for

fourteen months. The Court finally stated that it could not be ruled

out that the previous problems as regards the applicant's access, to

some extent, were due to the applicant's own behaviour.

The applicant appealed to the Court of Appeal. It held an oral

hearing, during which it heard the parties and some of the witnesses

heard by the District Court.

On 14 September 1993 the Court of Appeal, with some slight

alterations as to the dates of the applicant's access, upheld the

District Court's judgment. The Court of Appeal considered, with some

hesitation due to further access problems created by M.T., that custody

should remain with her. The main reasons for this conclusion were the

children's long stay in Norway and their need of stability.

On 7 July 1994 the Supreme Court (Högsta domstolen) refused the

applicant leave to appeal.

The applicant maintains that he has met his children on only 6-7

occasions since he and M.T. separated. Further access has allegedly

been refused by M.T. In the beginning of 1992, the applicant applied

to the County Administrative Court (Länsrätten) of the County of

Malmöhus for an enforcement order regarding his right of access. The

Court dismissed his request on 2 March 1992, finding that it lacked

jurisdiction as M.T. and the children, at the time, were living in

Norway. The applicant later requested the Romsdal Court of Enforcement

(Romsdal namsrett) at Molde to enforce his right of access during the

Christmas and New Year holidays of 1993/94 and during the summer of

1994. The applications were granted and the applicant, apparently, had

access to his children during these periods.

COMPLAINTS

1. The applicant contends that the authorities have not given him

sufficient assistance in arranging meetings between him and the

children. He claims that this constitutes inhuman and degrading

treatment in violation of Article 3 of the Convention.

2. He further alleges that his right to respect for his family life

has been violated. In this respect, he invokes Article 8 of the

Convention.

THE LAW

1. The applicant complains that he has been subjected to treatment

contrary to Article 3 (Art. 3) of the Convention, which reads as

follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

The Commission, however, considers that the applicant's

submissions fail to disclose any appearance of treatment attaining the

minimum level of severity required for the application of Article 3

(Art. 3).

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 complains of a violation of his right to

respect for family life as guaranteed by Article 8 (Art. 8) of the

Convention, which provides the following:

"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 so far as the applicant complains of the fact that custody was

awarded to the mother, the Commission recalls that the national courts

are always faced with the problem of making a choice between the

parents. Their decisions in this respect will not as such disclose any

lack of respect for the family life of the parent who is not awarded

custody. In the circumstances of the present case, the Commission has

not found any elements which could lead to another conclusion.

As regards the question of access, the Commission recalls that

the courts granted the applicant access every fourth weekend, every

second major holiday and five weeks during the summer. In view of this,

the Commission considers that the access decisions do not disclose any

disrespect for the applicant's family life.

The applicant states that he has met his children on only a few

occasions and claims that the authorities have not given him sufficient

assistance in arranging meetings. Noting that the present application

is directed against Sweden, the Commission, however, finds that the

applicant's submissions fail to disclose any failure of the Swedish

authorities in this respect.

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 Acting President

to the Second Chamber of the Second Chamber

(M.-T. SCHOEPFER) (G.H. THUNE)

Menu

FUNCH v. SWEDEN

FUNCH v. SWEDEN

LEXI