Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21827/93

by Jonas ERIKSSON and Anneli ALANKO

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

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 21 April 1993 by

Jonas ERIKSSON and Anneli ALANKO against Sweden and registered on

12 May 1993 under file No. 21827/93;

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

a. The particular circumstances of the case

The first applicant, a Swedish citizen born in 1981 and residing

at Arboga, Sweden, is a student. The second applicant, a Swedish

citizen born in 1966 and residing at Gällstad, Sweden, is an

agricultural worker. They are half-siblings. Before the Commission they

are represented by Mrs. Siv Westerberg, a lawyer practising in

Gothenburg.

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

summarised as follows.

In March 1978, the Southern Social District Council (Södra

sociala distriktsnämnden) of Lidingö decided to take L, the first

applicant's sister and the second applicant's half-sister, into public

care in accordance with the Child Welfare Act (Barnavårdslagen,

1960:97). L, then one month old, was placed in a foster home, where she

has lived ever since. L's and the applicants' mother, C, instituted

several unsuccessful sets of proceedings in the administrative courts.

In January 1990, the District Court (Tingsrätten) of Sjuhäradsbygden

decided to appoint the foster parents as custodians of L and to grant

C access to her at certain intervals. The decision was upheld on

appeal. Later, the administrative courts refused to enforce C's right

of access, as L was opposed to meeting her outside the foster home.

In December 1984, C brought an application before the Commission.

The European Court of Human Rights subsequently held that there had

been violations of her rights under Article 8 and Article 6 para. 1 of

the Convention (Eur. Court H.R., Eriksson judgment of 22 June 1989,

Series A no. 156). In March 1990, C brought another application before

the Commission, which was declared inadmissible on 16 January 1992.

C has met L a few times per year. The meetings have taken place

for a few hours each time in the foster home in the presence of the

first applicant. In recent years, C and the first applicant have not

met L at all. Apparently, the second applicant has not met L for

several years.

On 12 March 1992, the applicants requested the Social Council of

Halmstad to institute proceedings in the District Court with a view to

securing access to L. However, on 25 June 1992, the Social Council

decided not to institute proceedings, as L, at that time 14 years old,

had stated in very definite terms that she did not want to meet the

applicants.

The applicants appealed to the County Administrative Court

(Länsrätten) of the County of Halland, which by decision of

27 August 1992 dismissed the appeal, as the decision by the Social

Council was final. An appeal against the dismissal was rejected by the

Administrative Court of Appeal (Kammarrätten) of Göteborg on

23 September 1992. On 12 March 1993, the Supreme Administrative Court

(Regeringsrätten) refused leave to appeal.

b. Relevant domestic law

Swedish law does not afford siblings any rights over each other.

The rights over a child are normally vested in its parents or

custodians, who, according to Chapter 6, Section 15, subsection 1 of

the Parental Code (Föräldrabalken), shall see to it that the child's

need of access to a person who is particularly close to the child is

satisfied to the utmost possible extent. As concerns the possibility

of instituting court proceedings, subsection 3 provides that such

proceedings may be brought by the Social Council, if access requested

by somebody else than the natural parents is denied by the child's

custodians. The court shall determine the question of access in keeping

with the child's best interests.

COMPLAINTS

1. The applicants allege, under Article 8 of the Convention, that

the denial of access to L constitutes an interference with their right

to respect for their family life.

2. They further complain that they could not bring this issue before

a court. In this respect, they invoke Article 6 of the Convention.

THE LAW

1. The applicants allege that the refusal of the Social Council to

institute proceedings concerning access to L constitutes an

interference with their right to respect for their family life. They

invoke Article 8 (Art. 8) of the Convention which reads:

"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 near 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

considers that the same reasoning applies to the relationships between

siblings and between half-siblings. 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).

In the present case, the Commission finds that it can be left

open whether the relationship between the applicants and L concerns

"family life" which has been interfered with within the meaning of

Article 8 para. 1 (Art. 8-1) of the Convention, because, even assuming

this to be the case, the Commission considers that the interference was

permissible under para. 2 of this provision. In reaching this

conclusion, the Commission finds that the Social Council's decision was

in accordance with the law and had a legitimate aim. The Commission

further finds that the decision did not exceed what could reasonably

be regarded as necessary, as L, at the age of 14, very clearly had

stated that she did not want to meet the applicants.

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 complain that they could not bring the

access dispute before a court for determination and they consider this

to be in violation of the right of access to court within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention, which in its

relevant parts reads as follows:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing by [a] ... tribunal ..."

The Commission recalls that in order for Article 6 para. 1

(Art. 6-1) to apply to the proceedings in question it must first be

ascertained whether there was a dispute over a "right" which can be

said, at least on arguable grounds, to be recognised under domestic law

(cf., e.g., Eur. Court H.R., W v. the United Kingdom judgment of 8 July

1987, Series A no. 121-A, p. 32-33, para. 73). Under Swedish law the

applicants have no right of access to their sister. Thus they cannot

claim on any arguable ground that they have a right under domestic law,

for which reason Article 6 (Art. 6) does not apply in the present case

(cf. No. 12763/87, referred to above).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention 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 President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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ERIKSSON AND ALANKO v. SWEDEN

ERIKSSON AND ALANKO v. SWEDEN

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