Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15087/89

by Robert ANDERSSON

against Sweden

The European Commission of Human Rights sitting in private

on 1 July 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

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 March 1989

by Robert ANDERSSON against Sweden and registered on 7 June 1989

under file No. 15087/89;

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

summarised as follows.

The applicant is a Swedish citizen born in 1961 and resident

at Malmö. He is a salesman and a taxi driver by profession. Before

the Commission he is represented by Mr. Göran Ravnsborg, Assistant

Professor at the Faculty of Law at the University of Lund.

In the end of 1983 the applicant, through his friend

Mr. P.H., met Miss S.F.

In March 1984 the applicant was informed by S.F. that she was

pregnant and that he was the father of the child. The applicant did

not hear from S.F. until 1 December 1984, when he was arrested and

taken into custody, suspected of having illegally threatened S.F. and

the child, born in October 1984. The arrest was carried out following

a police report in which S.F. alleged that the applicant had

threatened to "do away" with her and "their" baby in order not to be

obliged to pay maintenance.

Following the Public Prosecutor's request that the applicant

be detained on remand, the District Court (tingsrätten) of Lund on

4 December 1984 held a hearing at which the applicant was represented

by official counsel. The applicant was released, as there was no

plausible cause to suspect that he had illegally threatened S.F.

Subsequently, the Social Welfare Board of Lund instituted an

investigation in order to establish the paternity of the child.

In April 1985 S.F. and her child submitted blood samples for

the purpose of the paternity investigation.

Following the applicant's refusal to undergo a blood test he

was in November 1985 summoned to the District Court for the

establishment of paternity.

The District Court summoned the parties to an oral preparation

of the case on 5 March 1986. The applicant failed to appear in court,

nor was he represented by a lawyer. Following a telephone contact

with the applicant on the same day the District Court ordered him to

undergo a blood test.

Shortly thereafter the applicant submitted a blood sample and a

new sample was taken from the child.

On 27 May 1987 the District Court held a preliminary hearing

at which the result of the blood tests, a so-called simple or

minor forensic genetic examination (rättsgenetisk undersökning), was

presented. The applicant attended but was not represented by counsel.

The tests, which were carried out by the National Laboratory of

Forensic Chemistry (statens rättskemiska laboratorium) did not

eliminate the possibility that the applicant could be the father of

the child. S.F. alleged that in January 1984 she and the applicant

had twice completed sexual intercourse in the applicant's home. The

applicant contested the paternity and stated that he had never had

sexual intercourse with S.F. The applicant was provisionally ordered

to pay maintenance in advance to the child.

At the main hearing before the District Court on 17 August

1987 both the applicant and S.F. were heard under oath (sannings-

försäkran). The applicant was not represented by counsel.

On the applicant's request P.H. was heard as a witness. He

stated that it was excluded that the applicant would have had any

relationship with S.F., since it was not the applicant's "way of

behaviour" to take any interest in girls with S.F.'s living habits.

Having regard to the result of the forensic genetic

examination, the opinion of the National Laboratory of Forensic

Chemistry as well as all other circumstances in the case, the District

Court on 31 August 1987 Lund declared the applicant father of the

child. The applicant was ordered to pay maintenance. In its decision

the District Court noted inter alia that S.F., on decisive points,

both in the paternity investigation carried out by the Social Welfare

Board and in the proceedings before the District Court, had given a

consistent and plausible account of her acquaintance and intercourse

with the applicant as well as of her reaction and steps after she had

found out that she was pregnant. Moreover, the applicant had shown

great passivity in looking after his interests in the paternity

investigation and the preparation of the case. The District Court

finally had regard to the result of the forensic genetic examination,

rating the probability of paternity at 92.4 %.

The applicant, now represented by official counsel, appealed

to the Court of Appeal (hovrätten) of Skåne and Blekinge, inter alia

requesting that an extended forensic genetic examination be carried

out. He referred to the result of the previous examination, according

to which the paternity index (faderskapsindex) was only 12.3 and the

total capacity of exclusion of him as the father of the child

(uteslutningskapacitet) was 82.6 %. As the index was lower than 19 he

alleged that one could not attach any importance to it as such.

On 9 October 1987 the Court of Appeal rejected the applicant's

request.

On 21 April 1988 the District Court's decision was upheld by

the Court of Appeal insofar as it concerned the paternity issue,

following a re-hearing where the applicant and S.F. were again heard

under oath. At the hearing the applicant again requested that an

extended forensic genetic examination be carried out, alleging

inconsistencies in the account given by S.F. before the Court of

Appeal. The Court of Appeal, however, found that an extended forensic

genetic examination could not be expected to give any other result

than the first one and rejected his request.

The applicant appealed to the Supreme Court (Högsta dom-

stolen), inter alia repeating his request that an extended forensic

genetic examination be carried out.

On 19 October 1988 the Supreme Court refused leave to appeal.

COMPLAINTS

The applicant complains that the result of the blood tests was

completely inconclusive and that the paternity was established only on

the basis of irreconcilable statements made under oath by the mother

and by himself. He complains that the District Court should ex

officio have ordered that an extended forensic genetic examination be

carried out. He further complains of the refusals of the Court of

Appeal and the Supreme Court to order the mother, the child and

himself to undergo such an examination.

He further states that privately he could not have arranged an

extended examination to be carried out, as a privately arranged test

would have been costly and as only an examination which is ordered by

a court may be enforced where the mother refuses to co-operate in

undergoing the test herself or having the child undergo it. He

complains that the refusals violated his right to a fair hearing and

to access to an impartial and independent tribunal. He also complains

that the courts' attitude to him was highly degrading.

He finally complains that the decision declaring him the

father of S.F.'s child violates his family and property rights, not

only for inter vivos but also for mortis causa purposes, especially

having regard to the statutory share of inheritance (laglott).

He invokes Articles 3, 6 para. 1, and 8 of the Convention and

Article 1 of Protocol No. 1 to the Convention, each provision read in

conjunction with Article 18 of the Convention.

THE LAW

1. The applicant complains that his right to a fair hearing by an

independent and impartial tribunal was violated because of the

refusals of the domestic courts to order an extended forensic genetic

examination. He alleges a violation of Article 6 para. 1 (Art. 6-1), read

together with Article 18 (Art. 18) of the Convention.

Article 6 para. 1 (Art. 6-1) of the Convention reads, insofar

as it is relevant:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair ... hearing ... by an

independent and impartial tribunal..."

a. As to the proceedings before the District Court and the Court

of Appeal the Commission recalls that paternity proceedings concern

the determination of civil rights (No. 8315/79, Dec. 15.7.81, D.R. 25

p. 203).

However, with regard to the judicial decisions of which the

applicant complains, the Commission recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention. In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set

out in the Convention. The Commission refers, on this point, to its

established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3

pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;

No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

It is true that the applicant also complains of a violation of

Article 6 para. 1 (Art. 6-1) of the Convention, as the District Court

did not ex officio order that an extended forensic genetic examination

be carried out and his request for such an examination was rejected by

the Court of Appeal. However, the Commission further recalls that, as

a general rule, it is for the national courts, and in particular the

court of first instance, to assess the evidence before them as well as

the relevance of the evidence which a party seeks to adduce (cf. e.g.

Eur. Court H.R., Barberà, Messegué and Jabardo judgment of 6 December

1988, Series A No. 146, p. 31, para. 68).

Furthermore, there is no indication that the District Court and

the Court of Appeal were not independent and impartial tribunals as

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

An examination by the Commission of this complaint as it has

been submitted by the applicant does therefore not disclose any

appearance of a violation of Article 6 para. 1 (Art. 6-1) of the

Convention, neither taken separately nor read together with Article 18

(Art. 18) 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.

b. As to the proceedings before the Supreme Court, the Commission

recalls that these concerned the applicant's request for leave to

appeal. When a Supreme Court determines, in a preliminary examination

of a case whether or not the conditions required for granting leave to

appeal have been fulfilled, it is not making a decision relating to

"civil rights and obligations" (No. 10515/83, Dec. 2.10.84, D.R. 40

p. 258). Thus, in the present case Article 6 para. 1 (Art. 6-1) of

the Convention does not apply to the proceedings in which the Supreme

Court, without entering on the merits, refused leave to appeal against

the decision of the Court of Appeal.

It follows that this part of the application is incompatible

rationae materiae with the provisions of the Convention within the

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

2. The applicant further alleges a violation of Article 8 (Art.

8), read together with Article 18 (Art. 18) of the Convention, in

that he was declared the father of S.F.'s child and ordered to pay

maintenance to the child. Furthermore, the child will have a right to

inherit from him.

Article 8 (Art. 8) of the Convention 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."

The Commission notes that the paternity of S.F.'s child was

established following a forensic genetic examination resulting in

a high probability that the applicant was the father, a paternity

investigation carried out by the social authorities as well as court

proceedings during which the mother, the applicant and a witness

called by him had submitted statements under oath.

The Commission considers that the District Court's decision

declaring the applicant the father of S.F.'s child, with all further

effects that such a decision might have, may be regarded as being in

accordance with the law and necessary in a democratic society for the

protection of the rights and freedoms of others within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention (cf. No. 10085/82,

Dec. 11.3.85, D.R. 42 p. 73).

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 finally complains of violations of his rights

under Article 3 (Art. 3) of the Convention and Article 1 of Protocol

No. 1 (P1-1) to the Convention, each provision read together with

Article 18 (Art. 18) of the Convention.

An examination by the Commission of this complaint as

submitted by the applicant does not disclose any appearance of a

violation of the provisions invoked by the applicant.

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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Menu

ANDERSSON v. SWEDEN

ANDERSSON v. SWEDEN

LEXI