Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23346/94

by Anneli and Gabriel LJUNGQVIST

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 5 April 1995, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. H. DANELIUS

G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 29 December 1993

by Anneli and Gabriel LJUNGQVIST against Sweden and registered on

28 January 1994 under file No. 23346/94;

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 applicants, Swedish citizens residing at Nässjö, are mother

and son born in 1951 and 1989 respectively. Before the Commission they

are represented by their lawyers, Mrs. Ruby Harrold-Claesson,

Olofstorp, and Mr. Sören Alfredsson, Röbäck.

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

summarised as follows.

On 12 May 1992 the Chairman of the Social Council (Socialnämnden)

of Nässjö ("the Council") decided provisionally to take the second

applicant into care pursuant to Section 6 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"). The same day

he was placed with foster parents. On 25 May 1992 the County

Administrative Court (Länsrätten) of the County of Jönköping confirmed

the Council's decision.

On 30 June 1992 the County Administrative Court ordered that the

second applicant be taken into care pursuant to Section 2 of the 1990

Act, which provides that such orders may be made in cases where, due

to physical abuse, exploitation, inadequate care or some other

circumstances in the home, there is a clear risk of the young person's

health and development being impaired. In its judgment, the Court

stated that the second applicant, at least on one occasion, had been

physically abused by the first applicant and that the possibility of

further abuse could not be ruled out. The Court further found that the

first applicant had psychological problems which could injuriously

affect the second applicant's mental health. On 27 August 1992 the

first applicant's appeal was rejected by the Administrative Court of

Appeal (Kammarrätten) of Jönköping. No appeal was made to the Supreme

Administrative Court (Regeringsrätten).

After the placement of the second applicant in the foster home,

the first applicant had access to him initially once a week and from

11 June 1992 twice a week. On 7 July 1992 the Council decided that the

first applicant's access to her son should be restricted to one day in

the foster home every second weekend. The first applicant appealed to

the County Administrative Court which, on 30 September 1992, decided

to strike the case off its list of cases, as the Council, on

15 September 1992, had annulled the appealed decision. Thereafter, the

first applicant had access to her son once a week. By a Council

decision of 1 March 1993, the first applicant's right of access was

settled at once a week, alternately in her own home and in the foster

home.

After the first applicant had requested the Council to terminate

the care of the second applicant, the Council requested the County

Administrative Court to appoint a public counsel to assist her. By

decision of 26 March 1993, the Court appointed a lawyer practising in

Jönköping. The first applicant, however, requested the Court to

appoint Mrs. Ruby Harrold-Claesson. The request was rejected by the

Court on 1 April 1993, as Mrs. Harrold-Claesson practised some distance

away from Jönköping and the appointment of her would therefore entail

considerably higher costs. By decisions of 3 May and 15 July 1993, the

rejection was upheld by the Administrative Court of Appeal. On

7 September 1993 the Supreme Administrative Court refused leave to

appeal. On 13 May 1993 the County Administrative Court dismissed the

public counsel at his own request, as the first applicant had declared

that she did not want him to represent her. Mrs. Harrold-Claesson

subsequently represented the first applicant as private counsel. After

the first applicant had notified the Council that she intended to

arrange a meeting between her natural father and the second applicant,

the Council decided, on 13 April 1993, that access to the second

applicant could only be exercised by the first applicant. On 14 April

1993, after the first applicant had arrived at the foster home with her

natural father, the Council decided to prohibit access until 27 April

1993. The first applicant appealed against this decision to the County

Administrative Court. On 21 April 1993 the Court decided to reject the

appeal, finding that the Council had allowed the first applicant access

to her son on his birthday on 22 April 1993 and that, thus, access had

not been restricted in practice compared to the access arrangement of

1 March 1993. After having had access on her son's birthday, the first

applicant did not return him to the foster home.

On 23 June 1993 the Council decided to terminate the care of the

second applicant. Having regard to this decision, the County

Administrative Court, on 23 August 1993, struck the case concerning

termination of care off its list of cases.

COMPLAINTS

1. Invoking Articles 8 and 9 of the Convention, the applicants

complain of the taking into public care of the second applicant and the

Council's decision of 14 April 1993 to prohibit access.

2. The first applicant claims that the courts' decisions not to

appoint as her public counsel a lawyer of her own choosing violated

Article 6 para. 1 of the Convention.

3. The first applicant further claims that she did not have an

effective remedy under Article 13 of the Convention in that the

Administrative Court of Appeal only confirmed the decisions of the

County Administrative Court which, on its part, only confirmed the

Council's decisions.

THE LAW

1. The applicants complain of the taking into public care of the

second applicant and the Council's decision of 14 April 1993 to

prohibit access. They invoke Articles 8 and 9 (Art. 8, 9) of the

Convention.

The Commission recalls that it is not required to decide whether

or not the facts submitted by an applicant disclose any appearance of

a violation of the provisions referred to if, inter alia, the

requirement under Article 26 (Art. 26) of the Convention as to the

exhaustion of domestic remedies has not been complied with.

In the present case, the Administrative Court of Appeal, by

decision of 27 August 1992, upheld the County Administrative Court's

decision to take the second applicant into care. The applicants did

not appeal to the Supreme Administrative Court. Moreover, they did not

appeal against the Council's general access decision of 1 March 1993.

Finally, after the County Administrative Court, on 21 April 1993, had

rejected the first applicant's appeal against the Council's decision

of 14 April 1993 to temporarily restrict her access to the second

applicant, the applicants did not appeal to the Administrative Court

of Appeal.

Accordingly, it is clear that the applicants have not exhausted

the remedies available to them. However, with regard to the care

decision the first applicant submits that the administrative courts

only confirm the decisions of the social authorities, for which reason

her public counsel had told her that an appeal to the Supreme

Administrative Court would have been of no avail.

The Commission recalls, in this respect, that in order to comply

with the requirements of Article 26 (Art. 26) of the Convention, an

applicant is obliged to exhaust every domestic remedy which cannot

clearly be said to lack any prospect of success. The mere existence

of a doubt as to the effectiveness of a particular remedy does not

itself excuse an applicant from the requirement to exhaust it (cf.,

e.g., No. 6271/73, Dec. 13.5.76, D.R. 6 p. 62, and No. 9586/82,

Dec. 14.5.87, D.R. 52 p. 38).

In the present case, the Commission considers that the applicants

have not shown that recourse to the domestic remedies at their disposal

clearly lacked any prospect of success. The Commission, thus, finds

that no special circumstance existed which might have absolved the

applicants from exhausting these remedies.

It follows that this part of the application must be rejected for

non-exhaustion of domestic remedies under Article 27 para. 3

(Art. 27-3) of the Convention.

2. The first applicant claims that the courts' decisions not to

appoint as her public counsel a lawyer of her own choosing violated

Article 6 para. 1 (Art. 6-1) of the Convention, which, in so far as

relevant, reads as follows:

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

entitled to a fair ... hearing ..."

The Commission recalls that, although the Convention contains no

provision on legal assistance in civil rights disputes, Article 6,

para. 3 (c) (Art. 6-3-c) dealing only with criminal proceedings,

Article 6 para. 1 (Art. 6-1) may sometimes compel the State to provide

for the assistance of a lawyer when such assistance proves

indispensable for an effective access to court (cf. Eur. Court H.R.,

Airey judgment of 9 October 1979, Series A no. 32, p. 14-16, para. 26).

In the present case, a public counsel had been appointed for the

first applicant by the County Administrative Court. In its decision

not to replace the counsel by a lawyer chosen by the applicant, the

Court stated that the replacement would entail considerably higher

costs. Throughout the subsequent proceedings, the applicant was

represented by her private counsel. The Commission, therefore, finds

that the decision not to replace the public counsel does not disclose

any appearance of a violation of the applicant's rights under Article

6 para. 1 (Art. 6-1) 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 first applicant further claims that she did not have an

effective remedy in that the Administrative Court of Appeal only

confirmed the decisions of the County Administrative Court which, on

its part, only confirmed the Council's decisions. She invokes Article

13 (Art. 13) of the Convention, which reads as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

The Commission notes that with regard to both the Council's

decision to take the second applicant into public care and its

subsequent decisions on access the first applicant had the possibility

to apply to the County Administrative Court. Furthermore, even

assuming that Article 13 (Art. 13) applies to further appeals, the

Commission notes that the applicant had the possibility to appeal to

the Administrative Court of Appeal, and, with leave to appeal, to the

Supreme Administrative Court. The Commission finds no indication that

these courts did not constitute effective remedies under Article 13

(Art. 13) 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 the Second Chamber Acting President of the Second Chamber

(K. ROGGE) (G.H. THUNE)

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LJUNGQVIST v. SWEDEN

LJUNGQVIST v. SWEDEN