AS TO THE ADMISSIBILITY OF

                      Application No. 24482/94

                      by Jan BOGDANSKI

                      against Sweden

      The European Commission of Human Rights (Second Chamber) sitting

in private on 29 November 1995, the following members being present:

           Mrs.  G.H. THUNE, Acting President

           MM.   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 April 1994 by

Jan Bogdanski against Sweden and registered on 28 June 1994 under file

No. 24482/94;

      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 1946, is a researcher.

He resides at Skogås.

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

summarised as follows.

      In May 1984 the applicant got a divorce from his wife, Z.B. By

a decision of the District Court (Tingsrätten) of Huddinge, she was

awarded custody of their son, A, born on 21 June 1982. Also in May 1984

the applicant was convicted of having threatened and assaulted Z.B. He

was sentenced to pay a fine.

      In 1985 the applicant left Sweden. He first moved to Norway and

then, in 1986, he settled in the United States. In October 1990 he

moved back to Sweden with his cohabitee and her daughter. While abroad,

the applicant did not have any contact with A. At the time of his

return to Sweden, the applicant had not seen his son since

28 October 1983.

      On 17 December 1990 the applicant contacted the Social Council

(Sociala enheten - "the Council") at VÃ¥rby and requested it to help him

in securing access to A. When visiting the social welfare office a

month later, he explained that he wanted a social worker to deliver his

son for the meetings, as he feared that Z.B. again would accuse him of

assault should he contact her. At a visit to the social welfare office

a few days thereafter, the applicant's ex-wife, however, objected to

this arrangement, finding it more appropriate that the applicant first

contacted his son in the latter's home.

      On 11 February 1991 the applicant instituted access proceedings

against Z.B. in the District Court. He also requested the Court to

issue a provisional access order. The Court held a preparatory hearing

with the parties on 18 April. They agreed that the applicant should

meet A on four Saturdays in May and June. However, the first meeting,

scheduled for 4 May at the son's home, did not take place, as nobody

was at home when the applicant arrived. As a consequence, the

applicant, by application dated 7 May, requested the Court to transfer

custody of A to him. He claimed that Z.B. was unfit as A's custodian,

as she allegedly hindered meetings between father and son.

      Thereafter, the Council arranged meetings between the applicant

and A at the latter's home on 29 May and 6 June 1991 in the presence

of a contact person (kontaktperson) appointed by the Council. However,

the meetings went off badly. According to the Council, A asked the

applicant to leave as he had not heard from him for such a long time.

He then refused to talk to his father.

      On 17 June 1991 the Court held a further preparatory hearing,

during which the parties reached an agreement on certain access dates

between June and September and the particular arrangements for these

meetings. The Court decided that the question of access should be

investigated by the Council and that the next preparatory hearing

should be held on 3 October. The parties agreed that the proceedings

should be stayed until that date.

      At a third meeting between the applicant and A on 19 June 1991,

A again had a very negative attitude towards his father and was very

upset. The following meetings, which were to take place on 6 July and

17 August, had to be abandoned due to A's reactions. On 25 June, a

contact between A and a psychiatrist at the Children's Psychiatric

Centre (Psykiatriska barn- och ungdomsmottagningen) at Skärholmen was

initiated by Z.B. as a consequence of A's reactions to the meetings

with his father.

      On 17 July 1991 the Council, at the applicant's request,

appointed another contact person to assist in the access attempts.

After having talked to the parents in September and October, the

contact person concluded that there was no basis for an agreement

between them. The Council then advised the Court to await the result

of its investigation before deciding on future access.

      After a postponement, the Court held its third preparatory

hearing on 5 November 1991. By decision of 8 November, it requested the

Council and the Psychiatric Centre to give, before 29 November, its

opinions on the advisability of further provisional access. The

decision was upheld on appeal.

      In reply to the Court's request, the Psychiatric Centre stated

that while A was undergoing treatment at the Centre it refrained from

commenting on the question of further access. The Council, in its reply

to the Court, found it advisable to await the outcome of the on-going

co-operation talks (samarbetssamtal) between the parents. These talks

were lead by the person appointed by the Council, in

mid-September 1991, to carry out the investigation of the question of

access as requested by the Court on 17 June. The investigator met the

applicant on 25 October, the mother on 7 November and both parents

together on 27 November and 3 December.

      By decision of 3 December 1991, the Court rejected the

applicant's request for provisional access. It found it advisable to

await the outcome of the co-operation talks, the treatment of A at the

Psychiatric Centre and the Council's investigation. It further ordered

that the investigation should be concluded by 31 March 1992. The

decision was upheld on appeal.

      On 4 December 1991, after having been refused to record the

co-operation talks on audio tape, the applicant informed the Council

that he did not want to continue with the talks. He later requested a

meeting with A at the Psychiatric Centre. At this meeting, which took

place on 17 January 1992, A refused to sit in the same room as the

applicant, for which reason they sat in different rooms and talked via

microphone. At the end of the meeting, A expressed that he never wanted

to see his father again.

      The Council later asked for an extension of the time-limit for

submission of its investigation report to the Court. As a consequence,

the applicant lodged a further request for provisional access. By

decision of 7 May 1992, the Court rejected the applicant's request and

ordered the Council to submit its report by 1 June. The decision was

upheld on appeal.

      On 2 June 1992 the Council's investigation was concluded and a

report was submitted to the Court. In the report, it was noted that the

applicant had refused to talk about his feelings for A or his wish to

establish a relationship with him and that he preferred to submit

information in writing. It was further noted that the attempts at

establishing access had been unsuccessful and that A, both to the

Psychiatric Centre and the Council's investigator, had expressed that

he did not want to see his father again, an attitude which, according

to the Centre, could not be expected to change in the foreseeable

future. Having regard to this and to A's age, maturity and clear

attitude towards his father, the investigator concluded that access

would not be beneficial to either A or the applicant. The investigator,

however, expressed that it was to be hoped that future meetings would

take place on A's initiative.

      A further request by the applicant for provisional access to A

was rejected by the Court on 16 July 1992. The decision was upheld on

appeal.

      The Court's main hearing in the case, originally scheduled for

25 August 1992 was, at the applicant's request, postponed until

4 September. During the hearing, the Court heard the parties.

      Having regard to the parties' statements and the Council's

report, the Court, by judgment of 25 September 1992, rejected the

applicant's claim for transfer of custody, finding such a measure not

to be in the best interests of A. In this connection, the Court

considered as unfounded the applicant's allegation that Z.B. was

obstructing the contacts between him and A. As regards access, the

Court, however, found that it was in A's best interests to have contact

with his father. The Court stated that the applicant should have access

to A initially once a month, starting on 3 October, and after the turn

of the year every second weekend, four weeks during summer and every

second Easter, Christmas and New Year. The Court's decisions were taken

in accordance with Chapter 6, Sections 6 (custody) and 15 (access) of

the Parental Code (Föräldrabalken), which state that the child's best

interests are decisive. The decision concerning access was put into

effect immediately.

      On 3 October the applicant came to fetch A at the latter's home.

A, however, refused to leave the apartment and got very upset. After

some discussion the meeting ended. The applicant claimed that Z.B. had

failed in her responsibility to prepare A for the meeting.

      The parties appealed against the judgment of the District Court

to the Svea Court of Appeal (Svea hovrätt). The applicant requested

that custody be transferred to him and Z.B. claimed that the applicant

should not be granted any access to A. Z.B. further requested the Court

of Appeal to stop further access, as it was harmful to A.

      By decision of 30 October 1992, the Court of Appeal annulled the

District Court's decision that the applicant's right of access was

immediately enforceable. The Court of Appeal found, under the

circumstances, no reason to order meetings between the applicant and

A. No appeal was available against this decision.

       On 4 December 1992 the Court of Appeal requested the Children's

Psychiatric Centre at Huddinge to give, before 2 March 1993, its

opinion on the advisability of access between the applicant and A. In

its reply of 2 March, the Centre suggested that an observation study

of A should be made at a children's psychiatric clinic. After having

rejected, by decision of 26 March, the applicant's renewed request for

a provisional access order, the Court of Appeal, however, decided, on

2 April, not to order the suggested study, as both parents were against

it. Instead, the Centre was asked to give its opinion as previously

requested. The Centre replied on 3 May, stating that it had no basis

for an assessment of the relationship between the applicant and A and

that it was thus impossible to appraise the value for A to have contact

with his father. The Centre, however, considered that in the prevailing

situation forced access would be traumatic for A and, for this reason,

inappropriate.

      The Court of Appeal held hearings in the case on 24 and

31 August 1993, during which it heard the parties, the psychiatrist

treating A at the Psychiatric Centre at Skärholmen and the applicant's

cohabitee.

      By judgment of 14 September 1993, the Court of Appeal ruled in

favour of Z.B. The applicant's claim for access to A was thus rejected.

The Court of Appeal shared the District Court's view on the question

of custody. As regards access, the Court of Appeal stated, inter alia,

the following:

(translation)

      "The circumstances of the case are, in the Court of

      Appeal's opinion, exceptional. The Court of Appeal refers,

      in this respect, to the total lack of contact between [A]

      and [the applicant] from the time when [A] was just over a

      year old (the autumn of 1983) until [the applicant]

      returned to Sweden in the autumn of 1990 and the question

      of access arose. The subsequent attempts at establishing

      access - which, as far as meetings between [the applicant]

      and [A] are concerned, have been limited to four meetings

      during the period May-August 1991 and the meeting on

      3 October 1992 - have been unsuccessful. Moreover, the

      [Council's] investigation shows that [A], who is now

      11 years old, has a negative attitude, which has grown

      stronger and stronger, towards meeting the father.

      [A] and [Z.B.] have since June 1991 had a regular contact

      with [the Children's Psychiatric Centre] at Skärholmen.

      [The psychiatrist] has, when heard in the Court of Appeal,

      stated that she has met [A] on about 30 occasions. In her

      view, [A] has already been affected in a very negative way

      by the dispute between the parents. She has, furthermore,

      expressed the opinion that forced contacts will involve

      such an emergency situation for [A] that he will suffer

      mentally.

      The Court of Appeal considers that a decision to grant [the

      applicant] a right of access to [A], at present, would pose

      such risks to [A's] mental health that it would not be in

      his best interests."

On 26 October 1993 the Supreme Court (Högsta domstolen) refused the

applicant leave to appeal.

COMPLAINTS

1.    The applicant claims that he was subjected to inhuman and

degrading treatment in violation of Article 3 of the Convention at the

meeting between him and A at the Children's Psychiatric Centre at

Skärholmen on 17 January 1992.

2.    Invoking Article 6 of the Convention, the applicant further

complains of the length of the proceedings in the case concerning

custody and access.

3.    The applicant also asserts that he has been hindered from

establishing access to his son. In this respect, he invokes Article 8

of the Convention.

4.    Finally, the applicant claims that the courts and the social

authorities, in their handling of his requests for custody and access,

are guilty of sexual discrimination in violation of Article 14 of the

Convention and Article 5 of Protocol No. 7 to the Convention.

THE LAW

1.    The applicant complains that he was subjected to treatment

contrary to Article 3 (Art. 3) of the Convention at the meeting on

17 January 1992.

      The Commission, however, is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of the Articles invoked as, under Article 26 (Art. 26) of the

Convention, it "may only deal with the matter ... within a period of

six months from the date on which the final decision was taken". Where

no domestic remedy is available, the six months period runs from the

date of the act which is itself alleged to be in violation of the

Convention (cf., e.g., No. 10389/83, Johnson v. the United Kingdom,

Dec. 17.7.86, D.R. 47 p. 72).

      In the present case, the Commission observes that the alleged

violation occurred at a meeting on 17 January 1992. Whether or not the

applicant could have instituted proceedings against the persons

responsible for the meeting, he apparently did not do so. In these

circumstances, the Commission finds that the six months period under

Article 26 (Art. 26) began to run from the date of the said meeting.

The present application was introduced on 7 April 1994, which is more

than six months later.

      It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

2.    The applicant complains of the length of the proceedings in the

case concerning custody and access. He invokes Article 6 (Art. 6) of

the Convention which, in so far as relevant, provides the following:

      "1. In the determination of his civil rights and

      obligations ..., everyone is entitled to a fair ... hearing

      within a reasonable time by an independent and impartial

      tribunal ..."

      The applicant claims that the courts intentionally, unfairly and

discriminatory delayed the proceedings of the case. He maintains, in

this respect, that the courts left the determination of the case in the

hands of the social authorities.

      The reasonableness of the length of proceedings is to be

considered in the light of the criteria laid down in the case-law of

the European Court of Human Rights, in particular the complexity of the

case, the conduct of the applicant and that of the relevant

authorities. On the latter point, the importance of what is at stake

for the applicant in the litigation has to be taken into account (cf.,

e.g., Vallée v. France judgment of 26 April 1994, Series A no. 289-A,

p. 17, para. 34).

      The Commission finds that the relevant period to be taken into

consideration started on 11 February 1991, when the applicant requested

the District Court to grant him access to A, and ended on 26 October

1993, when the Supreme Court refused leave to appeal. The proceedings

thus lasted two years and eight and a half months.

      The Commission considers that it is essential that a case

concerning custody and access is not unduly prolonged. It recognises

on the other hand that the decision to be taken requires careful

examination of the circumstances of the case, not least in the

interests of the child. The courts must ensure that they have

sufficient information for this examination.

      In the present case, the Commission recalls that the applicant

had not had any contact with A for more than seven years when he

instituted proceedings in the District Court. When they met on 29 May

and 6 June 1991, A stated that he did not want to see his father. The

son's negative attitude apparently grew stronger and stronger for each

meeting with the father. At the meeting at the Children's Psychiatric

Centre at Huddinge on 17 January 1992, A expressed that he never wanted

to see his father again, a statement he later reiterated to the

Council's investigator.

      The Commission further recalls that the District Court ordered

an investigation by the Council on the question of access and that the

Court of Appeal requested the opinion of the Children's Psychiatric

Centre at Huddinge. It is true that the Council's investigation lasted

for almost a year and that the Psychiatric Centre's opinion was

delivered five months after the Court of Appeal's request. The

Commission, however, recalls that, while the Council investigation was

carried out, the contact person and the investigator appointed by the

Council tried, through talks between the parents, to come to an

agreement on access. The Commission further notes that the applicant

refused to discuss certain matters with the investigator and that he,

after a few meetings, discontinued the co-operation talks. Thus, in the

Commission's opinion, the investigations and thus the courts'

examination of the case were made more difficult partly due to the

applicant's own conduct.

      The Commission also recalls that meetings between the applicant

and his son took place with the help of the social authorities during

the initial stages of the court examination of the case and that the

courts regularly assessed the case when deciding on the applicant's

requests for provisional access orders.

      Having regard to the particular circumstances of the case,

especially A's attitude towards his father and the consequent need for

investigations regarding the advisability and possible effects on A of

any access arrangements, the Commission finds that the length of the

court proceedings did not exceed a "reasonable time" within the meaning

of Article 6 (Art. 6) of the Convention.

      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.

3.    The applicant also asserts that he has been hindered from

establishing access to his son. In this respect, 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."

      The Commission recalls that, in accordance with its constant

case-law, the right to respect for family life within the meaning of

Article 8 (Art. 8) of the Convention includes the right for a divorced

parent, who has not been granted custody of the child after the

dissolution of the marriage, to visit his child or have contacts with

it; the state may not interfere with the exercise of this right except

in accordance with the conditions laid down in para. 2 of this Article

(Art. 8-2) (cf., e.g., No. 7911/77, X. v. Sweden, Dec. 12.12.77,

D.R. 12 p. 192, and No. 9018/80, K. v. the Netherlands, Dec. 4.7.83,

D.R. 33 p. 9).

      The Commission finds that the Court of Appeal's judgment of

14 September 1993, which rejected the applicant's claim for access to

his son, interfered with the applicant's right to respect for his

family life under 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).

      The Commission finds that the relevant decisions were in

conformity with Swedish law, namely Chapter 6, Section 15 of the

Parental Code. 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".

      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. Eur. Court H.R., Olsson judgment of 24 March 1988,

Series A no. 130, pp. 31-32, paras. 67-68).

      In the present case, the Commission recalls that the applicant

and A had not met for more than seven years when the applicant

requested access. On several occasions thereafter, A clearly expressed

that he did not want to see his father. The meetings between the

applicant and A in 1991 and 1992 were all unsuccessful and A's negative

attitude appears to have grown stronger and stronger for each meeting

with the applicant. Moreover, the Council concluded, in its report of

2 June 1992, that access, under the circumstances, would not be

beneficial to A. In its opinion of 3 May 1993, the Children's

Psychiatric Centre at Huddinge considered that in the prevailing

situation forced access would be traumatic for A and, for this reason,

inappropriate. The Commission further recalls that the Court of Appeal,

before giving its judgment, held a hearing, at which A's parents and

two witnesses were present and heard. The Court further had at its

disposal the report of the Council and the opinion of the Centre at

Huddinge. 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 Court

of Appeal's decision to reject the applicant's claim for access to A

was supported by relevant and sufficient reasons and that, having

regard to their margin of appreciation, the Swedish authorities were

reasonably entitled to think that it was necessary to reject the access

claim. Accordingly, the Commission concludes that the relevant 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.

4.    Finally, the applicant claims that the courts and the social

authorities, in their handling of his requests for custody and access,

are guilty of sexual discrimination in violation of Article 14

(Art. 14) of the Convention and Article 5 of Protocol No. 7 (P7-5) to

the Convention.

      The Commission, however, finds that an examination of this

complaint as it has been submitted does not disclose any appearance of

a violation of the rights and freedoms of the Convention and in

particular the Articles invoked.

      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)