Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21849/93

by Asta FÄLLGREN

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 February 1995, 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

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 8 November 1991

by Asta FÄLLGREN against Sweden and registered on 13 May 1993 under

file No. 21849/93;

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 1937 and residing at

Umeå, Sweden, is an office employee. Before the Commission she is

represented by Mrs. Mari Ann Johansson, a lawyer practising in Umeå.

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

summarised as follows.

The applicant has a daughter, D.F., born in 1961. In 1979 D.F.

gave birth to her first son, J. They lived with the applicant until

the summer of 1980. Because of D.F.'s psychological and social

problems, J was, at her request, placed with the applicant in February

1982. In June 1985, D.F. had a second son, H. He was, at D.F.'s

request, placed with foster-parents in September 1985. The placement

was preceded by an investigation by the Social Council (Socialnämnden)

of Umeå ("the Council"). The Council concluded that the applicant

could not take care of a second child, for which reason H was not

placed with her. In November 1988 the foster-parents got a divorce,

after which H has lived with the foster-mother.

By letter of 17 May 1989, D.F. requested the Council to place H

with the applicant instead of the foster-mother.

Under Section 25 of the Social Services Act (Socialtjänstlagen),

a minor may not, without the permission of the Council, be placed for

permanent care in a private home other than his parents' or custodians'

home. Before giving such permission, the Council must investigate the

conditions in the private home and the possibility of placing the minor

in that home.

The Council, accordingly, carried out an investigation of the

matter. In its report of 15 September 1989, it stated that the care

of J was very demanding for the applicant - from August 1987 she had

been assisted by a family appointed by the Council (kontaktfamilj) -

and that she was also assisting her daughter, D.F., which required a

lot of time and effort. According to the appointed family, it would

be impossible for the applicant to take care of H. Moreover, H had

been placed with the foster-parents almost from birth and his need of

continuity demanded that he was not removed from his home. In this

connection, the Council had regard to the opinion of the personnel at

H's day-care centre, according to which the foster-parents' divorce had

been trying for H and another separation would be disastrous for him.

The Council further noted the applicant's age and the fact that, due

to D.F.'s psychological status, H would probably have to be placed in

a foster-home for a long period of time. As regards access to H, the

Council stated in the report that D.F. had met H four times in 1986 and

about the same number of times in 1987. The last meeting had taken

place on 17 December 1987, after which date D.F. had declined further

meetings. The Council had, therefore, found it to be important for H

to meet the applicant and J, and had, accordingly, organised meetings

which had taken place in June and December 1988 and in March and June

1989. At a meeting at the Council on 26 October 1989, the applicant,

assisted by a district medical officer, was given an opportunity to

express her views on the report and on the case in general. Later the

same day, the Council decided to refuse the requested permission.The

applicant appealed against the Council's decision to the County

Administrative Court (Länsrätten) of the County of Västerbotten. The

Court requested the opinion of the County Administrative Board

(Länsstyrelsen), which subsequently recommended to the Court to reject

the appeal. On 17 April 1990, after having held a hearing at which the

applicant and representatives of the Council were heard, the Court,

concurring with the Council's conclusions, rejected the appeal.

The applicant appealed to the Administrative Court of Appeal

(Kammarrätten) of Sundsvall, which held a hearing at which it heard the

applicant and a witness proposed by the applicant. In a statement to

the Court, the Council noted that meetings between the applicant, J and

H had taken place in December 1989, May 1990, the summer of 1990 and

October 1990. On 18 February 1991 the Court rejected the appeal.

On 1 July 1991 the Supreme Administrative Court (Regeringsrätten)

refused leave to appeal.

COMPLAINTS

1. The applicant complains that she has been refused permission to

take care of H and that both she and, as a consequence, J have

allegedly been denied the right to meet H. She further alleges that

the Council has forbidden her to talk about the matter at home and that

the family appointed by the Council has tried to influence J to develop

a negative attitude towards H. The applicant invokes in this respect

Article 8 of the Convention.

2. The applicant contends that, in violation of Article 10 of the

Convention, the Council has forbidden her to talk to the press.

3. The applicant finally alleges that the Council has influenced

D.F. and other persons during its investigation and that, for this

reason, she has not had an effective remedy under Article 13 of the

Convention against the Council's decision not to grant her the

requested permission.

THE LAW

1. The applicant complains that she has been refused permission to

take care of H and that both she and, as a consequence, J have been

denied the right to meet H. She further alleges that the Council has

forbidden her to talk about the matter at home and that the family

appointed by the Council has tried to influence J to develop a negative

attitude towards H. The applicant 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 or morals, or for the protection of the rights and

freedoms of others." As has been stated by the Court (Eur.

Court H.R., Marckx judgment of 13 June 1979, Series A no.

31, p. 21, para. 45), "family life" within the meaning of

Article 8 (Art. 8) includes at least the ties between close

relatives, since such relatives may play a considerable

part in family life. By way of example, the Court

mentioned the relationship between grandparents and

grandchildren. The Commission, however, recalls that the

existence or not of family ties falling within the scope of

Article 8 (Art. 8) will depend on a number of factors and

on the particular circumstances of each case (cf., e.g.,

No. 12763/87, Dec. 14.7.88, D.R. 57 p. 216).

With regard to the refusal of a permission for the applicant to

take care of H, the Commission finds that it can be left open whether

the relationship between the applicant and H concerns "family life"

within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention,

because, even assuming that the refusal complained of interfered with

the applicant's family life, the Commission considers that the

interference was permissible under para. 2 of this provision. In

reaching this conclusion, the Commission finds that the decision to

refuse the applicant permission to take care of H was in accordance

with the law and had a legitimate aim. In respect of the condition

that the interference be "necessary in a democratic society", the

Commission recalls the conclusions of the Council that the care of J

was very demanding for the applicant, that H had been placed with

foster-parents almost from birth and that his need of continuity

demanded that he was not removed from the foster-home. The Commission,

therefore, finds that the decision to refuse the applicant the

requested permission 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 the refusal was

necessary. 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.

In respect of the complaint concerning access to H, the

Commission notes that the applicant and J have met H eight times

between June 1988 and October 1990. The Commission, therefore, finds

that the applicant has not established that she, or J, has been denied

a right to meet H.

With regard to the other complaints submitted under Article 8

(Art. 8) of the Convention, the Commission finds that the applicants'

submissions are not substantiated and therefore do not disclose any

appearance of a violation of Article 8 (Art. 8).

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 contends that, in violation of Article 10

(Art. 10) of the Convention, the Council has forbidden her to talk to

the press. Article 10 (Art. 10) reads as follows:

"1. Everyone has the right to freedom of expression. This right

shall include freedom to hold opinions and to receive and impart

information and ideas without interference by public authority

and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with

it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic

society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder

or crime, for the protection of health or morals, for the

protection of the reputation or rights of others, for

preventing the disclosure of information received in

confidence, or for maintaining the authority and

impartiality of the judiciary."

The Commission finds that the applicants' submissions are not

substantiated and therefore do not disclose any appearance of a

violation of Article 10 (Art. 10) of the Convention.

It follows that also 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 alleges that the Council has influenced D.F. and

other persons during its investigation and that, for this reason, she

has not had an effective remedy under Article 13 (Art. 13) of the

Convention against the Council's decision not to grant her the

requested permission. Article 13 (Art. 13) 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 recalls that this provision has been interpreted

by the European Court of Human Rights as requiring a remedy in domestic

law only in respect of grievances which can be regarded as "arguable"

in terms of the Convention (cf., e.g., Boyle and Rice judgment of

27 April 1988, Series A no. 131, p. 23, para. 52). The Commission,

having regard to its above conclusions in respect of the Convention

complaints submitted, considers that the applicant does not have any

"arguable claims" of a violation of the provisions invoked for these

complaints. The Commission further recalls that the applicant's

request for a permission to take care of H was heard by courts at three

levels. The Commission finds nothing in the case file to suggest that

the conduct of the Council in any way hindered her effective use of

these remedies.

It follows that also this part of 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.

Secretary to the Second Chamber Acting President of the Second Chamber

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

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FÄLLGREN v. SWEDEN

FÄLLGREN v. SWEDEN