Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16039/90

by Peter SOLYMOSSY

against Sweden

The European Commission of Human Rights sitting in private on

1 July 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 23 August 1989 by

Peter SOLYMOSSY against Sweden and registered on 22 January 1990 under

file No. 16039/90;

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 facts, as submitted by the applicant, may be summarised as

follows.

The applicant, who is of Hungarian origin, is a naturalised

Swedish citizen born in 1952 and residing in Stockholm.

Around 1980 the applicant was engaged to a Ms V. Together they

had a son born in May 1980. In their notification to the public records

they indicated the child's family name to be Solymossy. Under the law

Ms V. alone had custody over the child. In 1985 the relationship broke

down.

On 6 June 1986 the applicant applied to the District Court

(tingsrätt) of Södra Roslag in order to have his right of access to the

child determined and to have an interim decision granting him certain

access. At a preliminary hearing (muntlig förberedelse) on 29 October

1986 attended by the applicant's legal representative, the District

Court decided, in view of the mother's objections, not to grant any

right of access for the period until judgment and, with the consent of

the applicant's representative, to have the access question

investigated by the social authorities. The Court indicated at the

hearing that its decision to consult the social authorities could be

appealed in accordance with the provisions of Article 6, Chapter 49,

of the Code of Judicial Procedure (rättegångsbalken) if it caused undue

delay. Under Article 1 of Chapter 52 of the Code, this possibility of

appeal was not limited in time. The social authorities' access

investigation, which reiterated certain statements from the mother to

the effect that the applicant was abusing alcohol, had beaten and

unlawfully threatened her, was filed on 21 January 1988. By judgment

of 6 June 1988 the District Court decided in accordance with the social

authority's recommendation, to allow the applicant access to his son,

initially with two and subsequently three hours every second week in

the presence of a "contact person" appointed by the local social

district council. In the judgment the Court stated, inter alia:

(translation from Swedish)

"In case a child does not live together with both its

parents, it is generally important to ensure that the child

has such contacts with the parent who does not have custody

that a good relation is created between them. However, the

contacts in such a relation will have to be established on

the basis of the child's situation and needs; the right of

access is a right for the child and not a right for the

parent.

During the time [the applicant's child] has lived with both

parents there have - according to the information supplied

by both of them - been numerous quarrels between them. On

the basis of what has come forth in this case, the District

Court is unable to draw any clear conclusions as to the

form and extent of these quarrels. Independently of what

really happened it is, however, clear that the son cannot

have escaped being influenced by his parents' quarrels.

What impression he may have got of his father cannot be

ascertained with any degree of certainty. It may,

nevertheless, be assumed that he is somewhat cautious in

his attitude towards his father.

[The applicant] has not met his son for approximately three

years. The contacts during the year before this period have

been sporadic. In view of the above, the District Court

accordingly finds that it is not now in the best interests

of [the child] to allow [the applicant] the requested right

of access. [The applicant] should, however, be given the

opportunity to create a good contact with his son. Such a

contact should initially be established in the presence of

a third person. ..."

The applicant's appeal to the Svea Court of Appeal (hovrätt) was

rejected on 29 November 1988 as the Court found no reason to change the

evaluation made at first instance. On 28 February 1989 the Supreme

Court (högsta domstolen) refused leave to appeal.

In the meantime, on 11 December 1987, the District Court of Södra

Roslag convicted the applicant of unlawful interference with

possessions (egenmäktigt förfarande) on the ground that he had changed

the lock on the mother's apartment door. However, by judgment of 29

November 1988 the Svea Court of Appeal acquitted him since it found

that the applicant's action had not been criminal as he had put keys

to the new lock at the mother's disposal. The mother's request for

leave to appeal was refused by the Supreme Court on 28 February 1989.

While both the above proceedings were still pending, on 18 May

1988, the child sued, through his mother, the applicant before the

District Court of Södra Roslag in order to have his family name changed

from Solymossy to V. in accordance with section 6 of the Name Act 1982

(namnlagen 1982:670). The District Court requested an opinion from the

local social district council. This opinion, which was in favour of the

change, was lodged with the Court on 6 September 1988. By decision of

4 November 1988 the Court decided, after having held an oral hearing,

to grant the application. In its decision the Court stated, inter alia,

the following:

(translation from Swedish)

"In order for a change of name to be authorised in a

situation where the parent whose name the child bears

opposes the change, section 6 of the Name Act requires that

the court finds the change of name to be in the best

interests of the child. According to the preparatory works

and to existing case-law, it should not be considered to be

in the child's best interests to allow such a change of

name if the change may be assumed to have negative

influences on the child's relationship with the parent who

does not have custody and whose name the child carries. It

appears in the present case that [the applicant] has only

kept sporadic contacts with his child over the years.

Having regard hereto and to what has otherwise come forth

in the case the change of name must be considered to be in

accordance with the best interests of the child."

The applicant appealed to the Court of Appeal maintaining that

the District Court's decision constituted an attempt by this "germanic"

court to discriminate against him on racial grounds on account of his

Hungarian origins. By decision of 16 December 1988 the Court of Appeal

decided, on the case-file, to uphold the District Court's ju

the 6. Th

applicant appealed to the Supreme Court complaining, inter alia, of the

absence of an oral hearing before the Court of Appeal. On 27 February

1989 the Supreme Court refused leave to appeal.

COMPLAINTS

The applicant's complaints under the Convention may be summarised

as follows:

1. a violation of Article 6 para. 1 in the access proceedings as the

District Court did not render its judgment within a reasonable time;

2. violations of Article 6 para. 2 in that both the judgment in the

access proceedings and the decision in the change of name proceedings

were based on the mother's wrongful accusations that he had committed

criminal acts: battery, unlawful threats and unlawful interferences

with possessions;

3. a violation of Article 13 as the Court of Appeal decided to

authorise the change of his child's name without having given him an

opportunity to appear in person and plead his case;

4. violations of Article 6 para. 1 taken both alone and together

with Article 14 in both the access proceedings and the change of name

proceedings as the courts were prejudiced against him on account of his

ethnic origin and looks.

THE LAW

The applicant alleges a number of violations of Article 6 paras.

1 and 2 and of Articles 13 and 14 (Art. 6-1, 6-2, 13, 14) of the

Convention. These provisions read in relevant parts as follows:

Article 6 (Art. 6)

"1. In the determination of his civil rights and

obligations ... everyone is entitled to a fair and public

hearing within a reasonable time by an independent and

impartial tribunal ... .

...

2. Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law.

... ."

Article 13 (Art. 13)

"Everyone whose rights and freedoms as set forth in [the]

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."

Article 14 (Art. 14)

"The enjoyment of the rights and freedoms set forth in

[the] Convention shall be secured without discrimination on

any ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

1. The applicant alleges that the District Court did not render its

judgment in the access proceedings within a reasonable time, thus

violating Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission notes that the proceedings before the District

Court lasted for approximately 24 months. However, in the circumstances

of the present case it is not required to decide whether of not this

period violates the requirements of Article 6 para. 1 (Art. 6-1) as,

under Article 26 (Art. 26) of the Convention, it may only deal with a

matter after all domestic remedies have been exhausted according to the

generally recognised rules of international law.

A large part of the above period was spent waiting for the social

authorities' opinon; in fact it took approximately 15 months for the

results of this investigation to reach the District Court. However, the

applicant did not challenge the Court's decision to obtain this opinion

and did not lodge any appeal against it despite the fact that the Court

reminded him of his right under Chapter 49, Article 6 of the Code of

Judicial Procedure to do so if he considered that the decision caused

undue delay. This remedy must, in the circumstances of the present case

and in particular in view of the fact that its exercise was not limited

in time, be considered to have been "effective" within the meaning of

Article 13 (Art. 13) (see 11306/84, Dec. 16.10.86, D.R. 50, p. 162).

Moreover, an examination of the case as it has been submitted does not

disclose the existence of any special circumstances which might have

absolved the applicant, according to the generally recognised rules of

international law, from raising his complaint in the proceedings

referred to.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and his application must in

this respect be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

2. The applicant also alleges a violation of Article 6 para. 2

(Art. 6-2) in that he claims that the courts in both the access and the

change of name proceedings based their decisions on the mother's

wrongful accusations that he had committed criminal acts: battery,

unlawful threats and unlawful interferences with possessions.

The applicant has, however, not provided any material capable of

supporting this allegation. It follows that this complaint is

unsubstantiated and must be rejected as manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. The applicant furthermore alleges a breach of Article 13

(Art. 13) of the Convention as a result of the Court of Appeal's

decision to authorise the change of his child's name without giving him

an opportunity to appear in person and plead his case.

The Commission finds that this question falls to be considered

under Article 6 para. 1 (Art. 6-1) of the Convention rather than under

Article 13. It recalls that, provided a public hearing has been held

at first instance, the absence of such a hearing on appeal may be

justified by the special features of the proceedings at issue (see Eur.

Court H.R., Helmers judgment of 29 October 1991, Series A No. 212-A,

para. 36).

In the proceedings here at issue, an oral hearing had been held

at first instance. In addition, the questions raised by the applicant

in his appeal - sweeping accusations against the Swedish judiciary of

racial discrimination - did not concern questions of law or fact which

could not be adequately resolved on the basis of the case-file;

furthermore, even if what was at stake was of great importance for the

applicant personally, it was not, in the light of existing case-law,

of sufficient importance to require an oral hearing (see Eur. Court

H.R., above mentioned Helmers judgment of 29 October 1991, para. 38;

cf Eur. Court H.R. Fejde judgment of 29 October 1991, Series A No. 212-

C, para. 33). Accordingly, the present complaint is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. The applicant finally alleges violations of Article 6 para. 1

(Art. 6-1) of the Convention both taken alone and together with Article

14 (Art. 14) of the Convention in both the access proceedings and the

change of name proceedings in that he finds that the courts were

prejudiced against him on account of his ethnic origins and looks.

The applicant has, however, not provided any material capable of

supporting this allegation. It follows that this complaint is

unsubstantiated and must be rejected as 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 President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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SOLYMOSSY v. SWEDEN

SOLYMOSSY v. SWEDEN

LEXI