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KUCZYNSKI v. SWEDEN

Doc ref: 13648/88 • ECHR ID: 001-1086

Document date: March 13, 1989

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Cited paragraphs: 0
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KUCZYNSKI v. SWEDEN

Doc ref: 13648/88 • ECHR ID: 001-1086

Document date: March 13, 1989

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 13648/88

by Jan KUCZYNSKI

against Sweden

The European Commission of Human Rights sitting in private on

13 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 January 1988

by Jan KUCZYNSKI against Sweden and registered on 7 March 1988 under

file No. 13648/88;

Having regard to the report provided for in Rule 40 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 Polish citizen, born in 1946 and resident

at Alvesta, Sweden. He is an engineer by profession. Before the

Commission the applicant is represented by Mrs. Siv Westerberg, a

lawyer practising at Gothenburg.

The applicant is living together with a Polish citizen, Eva

Nowacka, who is the first applicant in Application No. 12805/86.

That case concerns the taking into public care of Ewa Nowacka's

daughter, Katarzyna, who is the second applicant in the case.

Ewa Nowacka and her daughter came to Sweden from Poland in

May 1985 and settled in Alvesta with the applicant. Katarzyna

was taken into public care by a decision of the Chairman of the Social

Council (socialnämnden) of Alvesta of 16 August 1985 as there was a

strong suspicion of her having been maltreated. A report was addressed

to the police by the social authorities. As a result criminal

investigations against the applicant were initiated in August 1985 on

suspicion of ill-treatment of the child.

The Chairman's care decision was revoked on 8 October 1985 by

the County Administrative Court (länsrätten) of the County of

Kronoberg after an agreement had been reached between Ewa Nowacka and

the social authorities that care be provided for Katarzyna on a

voluntary basis.

On 10 October 1985 the District Prosecutor (distriktsåklagaren)

discontinued the criminal investigation against the applicant on the

ground that it could not be proven that a criminal offence had been

committed.

On 31 October 1985 the Chairman of the Social Council again

decided to take Katarzyna into care on a provisional basis on the

ground that the social authorities suspected that the girl had been

maltreated. The social authorities lodged a request that Katarzyna be

taken into care pursuant to the 1980 Act with Special Provisions on

the Care of Young Persons (lagen med särskilda bestämmelser om vård av

unga). The County Administrative Court granted the Social Council's

request for public care in a judgment of 17 December 1985. The

judgment was upheld, on appeal, by the Administrative Court of Appeal

(kammarrätten) of Jönköping and by the Supreme Administrative Court

(regeringsrätten) on 19 June 1986 and 22 December 1987, respectively.

The Courts considered that, during a relatively short period of time,

Katarzyna had suffered a number of injuries and been bruised in a way

that showed that her mother had not properly cared for her and that

her home environment entailed a danger to her health and development.

The Supreme Administrative Court found that she had been maltreated or

otherwise subjected to physical violence. There was no finding that

the applicant had maltreated her.

On 8 March 1988 the applicant made a request to the Regional

Public Prosecution Authority (regionåklagarmyndigheten) of Kalmar that

the decision of the District Prosecutor of 10 October 1985 be reviewed

and found to be correct. The Regional Public Prosecution Authority, on

21 March 1988, decided not to review the decision nor to take any

other action in the matter. The applicant then requested that the

Office of the Prosecutor-General (riksåklagaren) review the decision

of the Regional Public Prosecution Authority and establish that the

decision of the District Prosecutor was correct. The Office of the

Prosecutor-General on 24 May 1988 decided not to examine the request.

COMPLAINTS

The applicant complains that there has been a violation of his

right to a fair and public hearing as guaranteed by Article 6 para. 1

of the Convention. He maintains that, although the District

Prosecutor decided to discontinue the investigation against him

regarding the suspected maltreatment of Katarzyna, it is clear from

the actions of the social authorities, and from the judgments of the

Courts in the care proceedings, that the social authorities, as well

as the Courts, consider the applicant to be guilty of having assaulted

Katarzyna. He submits that he did not have access to a court to have

the question of his guilt examined.

THE LAW

The applicant complains that he did not have access to a

procedure satisfying the conditions of Article 6 para. 1 (Art. 6-1) of the

Convention for the purpose of establishing whether he was guilty of

having assaulted Katarzyna.

Under Article 6 para. 1 (Art. 6-1) everyone is entitled, in the

determination of any criminal charge against him, to a fair and public

hearing by a tribunal. However, according to the Commission's

case-law, this provision cannot be construed so as to bar the

prosecution from formally discontinuing criminal proceedings or from

not pursuing charges (No. 8233/78, Dec. 3.10.79, D.R. 17 p. 122).

It follows that 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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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