Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12154/86

by Knell Ragnwald ABRAHAMSSON

against Sweden

The European Commission of Human rights sitting in private

on 5 October 1987, the following members being present:

MM. C.A. NØRGAARD, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 23 October 1985

BY Mr. Kjell Ragnwald Abrahamsson against Sweden and registered on

14 May 1986 under file No. 12154/86;

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 Swedish citizen, born in 1947. He is a

teacher and resides at Gällivare, Sweden. In the proceedings before

the Commission, the applicant is represented by Mr. Ã…ke Eklund.

On 28 April 1984 the applicant punished his son by striking

him three times on the bottom with a birch rod for ignoring previous

instructions not to give his younger brother a lift on the back of his

bicycle. Following this incident, the applicant's son lodged a

complaint with the police. The son later tried to withdraw the

complaint but the authorities refused to allow this and the matter was

pursued as a public prosecution.

On 14 August 1984 the applicant was convicted of assault and

battery under Chapter 3 Section 5 of the Swedish Penal Code and was

fined 100 Swedish crowns by the District Court (tingsrätt) of

Gällivare. Both the applicant and the prosecution appealed against

this judgment to the Court of Appeal (hovrätten).

On 26 March 1985 the Court of Appeal found the applicant

guilty of the charge brought against him and imposed a fine of 250

Swedish crowns. In its judgment, the Court of Appeal stated inter

alia:

"The following elements appear from the travaux

préparatoires relating to this provision (Chapter 6 Section

1 of the Code on Parenthood): an express prohibition

against physical punishment of children should be

introduced. By such a provision one will arrive at the

final point in a legal development to the effect that

society increasingly has repudiated corporal punishment as a

means of education. This development in turn reflects the

attitude nowadays prevailing that the child is an

independent individual who may demand full respect for its

person. With this provision in the Code on Parenthood,

there can be no doubt that punishment of children is a

criminal offence if the corresponding act against another

person would be considered as assault according to the Penal

Code. ... The legal importance of the statutory revision

(the introduction of a total prohibition against punishment

of children) will be that it is clearly stated that such

treatment which by itself should be considered to be against

the law can never to any extent be considered permissible as

being based on a right for the holders of parental custody

to punish their children. But the revision of the law goes

further than that. Assault, according to the Penal Code,

requires that the physical disturbance is not too slight or

transitory.

The ... amendment of the Code on Parenthood (...) means

however that every act involving corporal damage or pain to

the child is prohibited even if the disturbance is quite

slight or transitory. To the extent that the provision

exceeds the punishable area it would be of importance

primarily as a pedagogical support in the endeavours to

convince parents that no forms of violence should be used as

means of education of children.

As was found by the District Court, it has been established

that the applicant has given his son three lashes with a

birch rod on his bottom. It follows from the documents

submitted that the applicant's son suffered the damage

alleged by the prosecutor. The corporal punishment to which

the applicant has exposed his son is obviously to be

considered as assault, even if a minor one. Thus the

applicant is guilty of assault according to the indictment

and should be sentenced accordingly."

The applicant applied for leave to appeal against this

judgment to the Supreme Court (Högsta Domstolen). He referred inter

alia to Articles 8 and 9 of the European Convention on Human Rights as

well as Article 2 of Protocol No. 1 to the Convention. On 11 October

1985, however, the Supreme Court rejected the applicant's request for

leave to appeal.

COMPLAINTS

The applicant complains that the amendment to the Swedish law

relating to the corporal punishment of children violates his right to

respect for his family life, to freedom of religion, to respect for

his right to ensure that his children's education and teaching is in

conformity with his own religious and philosophical convictions. He

invokes Articles 8 and 9 of the Convention and Article 2 of Protocol

No. 1 to the Convention. Finally, he maintains that the prevailing

situation in Sweden also amounts to a violation of Article 17 of the

Convention.

THE LAW

1. The applicant has complained under Article 8 (Art. 8) of the Convention

that the fact that he has been found guilty of a minor assault and

that he has been fined for having punished his son with three lashes

of a birch rod violates his right to respect for his family life.

The Commission recalls that the applicant was prosecuted

pursuant to Chapter 3 Section 5 of the Penal Code for minor assault.

Furthermore, as regards the scope of the Swedish criminal law of

assault and molestation, the Commission recalls its decision of 13

May 1982 in Application No. 8811/79 where it stated the following:

"The Commission recognises that whilst the upbringing of

children remains essentially a parental duty encapsulated

within the concept of family life, it is inevitable that

certain aspects of criminal law will affect the relationship

between parents and children to a greater or lesser degree.

Hence the assault of children by their parents is treated as

criminal and although the applicants have drawn attention to

the wider prohibition of all corporal punishment of children

contained in the Code on Parenthood, they concede that it is

not every corporal rebuke which would infringe the Penal Code.

However, the applicants have not shown that the provisions

of Swedish law criminalising the assault of children are

unusual or in any way draconian. The fact that no

distinction is made between the treatment of children by

their parents and the same treatment applied to an adult

stranger cannot, in the Commission's opinion, constitute an

interference with respect for the applicant's private and

family life since the consequences of an assault are equated

in both cases.

Nor does the mere fact that legislation, or the state of the

law, intervenes to regulate something which pertains to

family life constitute a breach of Article 8 para. 1 (Art. 8-1) of the

Convention unless the intervention in question violates the

applicants' right to respect for their family life. The

Commission finds that the scope of the Swedish law of

assault and molestation is a normal measure for the control

of violence and that its extension to apply to the ordinary

physical chastisement of children by their parents is

intended to protect a potentially weak and vulnerable member

of society.

The Commission therefore concludes that the state of Swedish

criminal law does not interfere with their right to respect

for private and family life within the meaning of Article 8

para. 1 (Art. 8-1) of the Convention. It follows that this aspect of

their complaint is manifesly ill-founded within the meaning

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

The Commission notes that in this case the applicant has been

found guilty of assault contrary to the Swedish Penal Code. Though

the changes made in the Code on Parenthood may in some respects have

affected the application of the provisions of the Penal Code relating

to assaults on children, the Commission considers that the reasoning

set out above applies also in the circumstances of the present

application. For the same reasons the Commission therefore concludes

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. As regards the applicant's complaint that the legal position

in question fails to respect his rights to freedom of religion as

guaranteed by Article 9 (Art. 9) of the Convention, the Commission considers

that the same reasoning applies mutatis mutandis to the applicant's complaint

under this Article as to the complaint under Article 8 (Art. 8). It follows

that there has been no interference with the applicant's right as guaranteed by

Article 9 (Art. 9) and this aspect of the application is therefore also

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

the Convention.

3. Finally, the Commission has considered the applicant's

remaining complaints under Article 2 of Protocol No. 1 (P1-2) to the

Convention as well as Article 17 (Art. 17) of the Convention. However, the

documents and the information submitted by the applicant do not

disclose any substantiated facts which would justify a further

examination of these complaints. 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.

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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ABRAHAMSSON v. SWEDEN

ABRAHAMSSON v. SWEDEN

LEXI