FIFTH SECTION

DECISION

Application no . 43570/10 Draggan MARINKOVIC against Sweden

The European Court of Human Rights ( Fifth Section ), sitting on 10 December 2013 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ann Power-Forde, Ganna Yudkivska , Helena Jäderblom , Aleš Pejchal , judges , and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 23 June 2010 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Draggan Marinkovic , is a Swedish national who was born in 1957 and lives in Bromma . The Swedish Government (“the Government”) were represented by their Agent, Ms H. Kristiansson , of the Ministry of Foreign Affairs .

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. The applicant lived with X from the early 1990s. They have two daughters together, Y , born in 1994, and Z , born in 1995. In the summer of 2000 , the applicant and X separated. The children remained with X and the applicant had some contact ( umgänge ) with them. Frequently, however, X made it difficult for the applicant to see the children.

4. On 11 April 2003 , after the applicant instituted proceedings against X in November 2001 , the District Court ( tingsrätt ) in Stockholm decided that the parents should have joint custody , that the applicant should have extensive contact rights , effectively every other week, and that the children should continue to live with X.

5. X appealed against the judgment to the Svea Court of Appeal ( hovrätt ) and refused any further contact between the applicant and the children. The applicant successfully petitioned the County Administrative Court ( länsrätten ) in Stockholm for enforcement of his contact rights in accordance with the District Court ’ s ruling . Shortly before the custody case was to be examined by the Court of Appeal, X withdrew her appeal.

6. O n 12 March 2004 , X instituted new proceedings before the District Court, requesting sole custody of the children and that the applicant be granted only limited contact with the children.

7. The court held an initial preparatory hearing on 22 April 2004 and a further preparatory hearing on 18 June 2004. As a result of the latter, during which X revoked her request for sole custody, the court delivered an interim decision on 23 June 2004 , fix ing the dates when the applicant should see his daughters, effectively every other weekend. The court stated that the lack of contact with the applicant appeared to be partly due to X ’ s negative attitude towards him, which affected the children . Considering the importance of reasonably normal contact between the children and their father, the court found that meetings should be fixed much more frequently than had been suggested by the children and accepted by X. Upon appeal by X, the Court of Appeal upheld the lower c ourt ’ s decision .

8. O n 8 December 2004 , the District Court held a third preparatory hearing , following a request from t he applicant , inter alia , for sole custody of Y and Z or, failing that, regular contact with them. It was noted by the court that the applicant had not had any contact with his children since June 2004, when he had seen them for two hours. On 7 October 2004, the County Administrative Court in Stockholm had issued an enforcement judgment against X , ordering her to give the applicant access to the children on penalty of a fine . However, X had paid the fine and there had been no contact. T he District Court decided to uphold its decision of 23 June 2004. Upon appeal by X, the appellate court upheld the lower court ’ s decision.

9. A t the fourth preparatory hearing , on 11 March 2005 , the court n ot ed that no further meetings between the applicant and the children had taken place . It decided that the meetings should take place at certain times and, after a certain date, in accordance with its decision of 23 June 2004.

10. Subsequently X requested , on an interim basis, tha t she be given sole custody of Y and Z and that the applicant have no contact with them, which t he applicant opposed . By a decision of 27 July 2005 the District Court rejected X ’ s requests , finding that they were not in the children ’ s best interest.

11. Following a fifth preparatory hearing , on 8 June 2006 , where, inter alia , it had transpired that the children had not wanted to meet the applicant during an investigativ e stay at a home, arranged by the social council, the District Court awarded temporary s ole custody of the children to X . It noted, firstly, that it had to decide in accordance with what was perceived to be in the best interest of the children, and that sole custody should only be granted in exceptional situations. Having concluded that n either of the parents w as unsuitable as guardian , the court went on to state that the ir very deep conflict and their inability to cooperate had undoubtedly affected the children in a negative way in that they had clearly expressed their unwillingness to have any contact with their father. Irrespective of whether this attitude had come about as a consequence of X ’ s negative influence or for any other reason, the court had to take it into account as Y and Z were now 12 and 11 years of age. The court also had regard to the fact that the applicant had not had any proper meeting with the children for three years.

12. On 7 December 2006 the District Court held a further preparatory hearing . Both the applicant and X requested sole custody of the children.

13. By a decision of 14 December 2006 the District Court refused to admit certain evidence invoked by the applicant . In February 2007, the court upheld its decision when the applicant reiterated his request .

14. The District Court ’ s main hearing was held on 26 and 27 March 2008 . It had previously been cancelled due to a hearing in the County Administrative Court , in October 2007, concerning the social council ’ s application for public care of the children, which had been rejected by both the County Administrative Court and the Administrative Court of Appeal ( k ammarrätten ). The applicant based his claim for sole custody, inter alia , on X ’ s negative influence which had led to a break in contact between him and his children. During the main hearing t he court heard several witnesses and had at its disposal the numerous reports on custody and contact drawn up by the social council , the latest dated 25 January 2008.

15. By a judgment of 21 April 2008 the District Court awarded X sole custody of the children. It noted that joint custody was ruled out due to the parents ’ in ability to cooperate on matters concerning the children. It further concluded that Y and Z , in order to find some stability in their lives, had had to take sides with one of the parents, and that this at least part ly explained why they did not want to see their father. Finding it important that this stability should not be weakened, the court considered that it was in the children ’ s best interests to be in the care of the parent with whom they had been living for a long time. As for contact rights, the court noted that neither of the parties had made any claims in this regard and thus the contact rights set out in the court ’ s previous judgment of 11 April 2003 still applied.

16. The applicant appealed to the Court of Appeal, maintaining his claims. O n 24 September 2009, after having held an oral hearing, the Court of Appeal upheld the District Court ’ s judgment. While the appellate court found that it could not be rul ed out that X ’ s attitude had contributed to Y ’ s and Z ’ s dissociation from their father, it nevertheless stated that the children now appeared to be living in very positive circumstances. I t further had regard to their clear wish not to meet their father.

17. On 28 December 2009 , the Supreme Court ( Högsta domstolen ) refused leave to appeal.

B. Relevant domestic law and practice

1. Civil liability of the State

19. An individual who wants to claim compensation from the State may proceed in either of two ways: he or she may petition the Chancellor of Justice ( Justitiekanslern ) in accordance with Section 3 of the Ordinance on the Administration of Claims for Damages against the State ( Förordningen om handläggning av skadeståndsanspråk mot staten , 1995:1301), or bring a civil action against the State before a district court, with the possibility to appeal to a court of appeal and later to the Supreme Court. No appeal lies against a decision of the Chancellor of Justice. However, if the claim is rejected, the claimant still has the possibility to institute civil proceedings before the courts. In such proceedings, the State is represented by the Chancellor of Justice (section 2 of the Ordinance with Instructions for the Chancellor of Justice [ Förordning med instruktion för Justitiekanslern , 1975:1345]).

20. According to section 2 of the Limitations Act ( Preskriptionslagen , 1981:130), the period of limitation in respect of claims against the State is ten years from the point in time when the claim arose, unless the period has been interrupted beforehand.

2. Compensation for violations of the Convention

(a) Case-law developments

22. In a decision of 4 May 2007 (NJA 2007 p. 295), the Supreme Court held that the principle concerning a right to damages established in the above ‑ mentioned case of 9 June 2005 also applied with regard to the rights contained in Article 5 of the Convention. The Supreme Court stated that the plaintiff ’ s right to damages on account of a violation of Article 5 should be assessed in the first place under the Tort Liability Act and the Act on Compensation for Deprivation of Liberty and Other Coercive Measures ( Lagen om ersättning vid frihetsberövanden och andra tvÃ¥ngsÃ¥tgärder , 1998:714). To the extent necessary, the relevant provisions of domestic law should be interpreted in accordance with the Convention. If Sweden ’ s obligations under Article 5 § 5 could not be met by such an interpretation, the domestic courts should award compensation without the support of specific legal provisions. As concerned the determination of the level of compensation, the Supreme Court repeated that the Court ’ s case-law was a natural point of departure but also noted that account must be taken of the fact that different national conditions may lead to variations from one country to another in what should be regarded as a reasonable level of compensation.

23. In a judgment of 21 September 2007 (NJA 2007 p. 584), the Supreme Court held that the plaintiffs ’ right to respect for their private life under Article 8 had been violated on the basis that a police decision on a medical examination of some of them had not been “in accordance with the law”. Having found that compensation for the violation could not be awarded directly on the basis of the Tort Liability Act, the Supreme Court held that there was no reason to limit the scope of application of the principle established in the above-mentioned cases of 9 June 2005 and 21 September 2007 to violations of Articles 5 and 6 of the Convention. In view of this and with reference to, inter alia , Articles 8 and 13 of the Convention and the Court ’ s case-law under these Articles, the Supreme Court concluded that the plaintiffs should be awarded non-pecuniary damages for the violation of Article 8. With regard to the levels of compensation, the Supreme Court concluded that they should not be too far removed from the levels which applied when awarding damages under the Tort Liability Act. Generally speaking these levels should, however, be compatible with the case-law of the Court.

24. Another Supreme Court judgment of 28 November 2007 (NJA 2007 p. 891) concerned a claim for damages against the Swedish State on the basis of an alleged violation of Article 2 of the Convention relating to the suicide of the plaintiffs ’ father while in detention. The Supreme Court concluded that the case revealed no violation of Article 2. However, in its reasoning leading to this conclusion, the Supreme Court noted, inter alia , that according to the Court ’ s case-law there was a right to an effective remedy under Article 13 connected to the State ’ s duty under the Convention to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty which should, in principle, include a possibility of obtaining compensation for damage. The Supreme Court referred in particular to the judgment in Keenan v. the United Kingdom (no. 27229/95 , § 130, ECHR 2001-III).

25. In a judgment of 3 December 2009 (NJA 2009 N 70), the Supreme Court confirmed its previous case-law in a case concerning claims for damages against the Swedish State on account of excessive length of tax proceedings. The court affirmed that it is now a general principle of law that, to the extent that Sweden has a duty to provide redress to victims of Convention violations through a right to compensation for damages, and that this duty cannot be fulfilled even by interpreting national tort law in accordance with the Convention ( fördragskonform tolkning ), compensation for damages may be ordered without direct support in law.

(b) Other developments

27. In May 2009 the Government decided to set up a working group on tort liability and the Convention to study the current legal situation. In December 2010 the working group submitted its report ( Skadestånd och Europakonventionen , SOU 2010:87) to the Government. In the report it is proposed that the Tort Liability Act be amended in order to allow natural and legal persons to obtain damages from the State or a municipality for violations of the Convention. Such an action against public authorities would be examined by a general court which would need first to establish that a right provided by the Convention has been violated. The aim of the proposal is to provide a legal basis for granting non-pecuniary damages arising from disregard of the Convention and to fulfil, together with the other already existing legal remedies, Sweden ’ s obligations under Article 13 of the Convention.

28. In its comments of 7 July 2011 on the above report, the Office of the Chancellor of Justice stated that, since the autumn of 2007 following the Supreme Court ’ s case-law developments (as set out above), it had dealt with a large number of requests from individuals for compensation on the basis of violations of the Convention. It estimated that it had dealt with roughly 1000 cases over the previous three years. During this time the Chancellor of Justice had also represented the Swedish State in a number of cases before the civil courts concerning alleged violations of the Convention. A majority of the cases that the Office had dealt with had concerned non-pecuniary damages for excessive length of proceedings under Article 6 § 1 of the Convention. Since November 2009, it had received more than 400 such complaints, and in more than half of them the Chancellor of Justice had found a violation and granted compensation. The level of compensation for non-pecuniary damage had been determined with reference to the Court ’ s case-law and varied between SEK 10,000 and SEK 30,000 (approximately EUR 1,100 and EUR 3,300). Furthermore, the Chancellor of Justice had dealt with a substantial number of cases (around 160) concerning the registration of individuals in the Security Police register. These cases had concerned one or more of Articles 8, 10, 11 and 13 of the Convention.

29. There continue to be other individual cases relating to alleged violations of Articles 5, 6, 7, 8, 9 and 13 of the Convention, among others. For example, in a decision of 8 February 2012 ( dnr 2453-11-40 ), the Chancellor of Justice held that the reasoning in a District Court ’ s judgment failed to fulfil the requirements set by Article 6 of the Convention. Referring to the case-law of the Supreme Court, the Chancellor of Justice stated that the applicant therefore could be awarded compensation for the damage caused by the violation of the Convention. However, due to the particular circumstances of that case, the applicant was not granted compensation. Furthermore, in a decision of 27 November 2012 ( dnr 4560-12-40 ), the Chancellor of Justice found that a County Administrative Court, in dismissing the applicant ’ s appeal against a decision by the Employment Office ( Arbetsförmedlingen ), had violated his right to access to court (the Chancellor referred to the case of Mendel v. Sweden , no. 28426/06 , 7 April 2009). Consequently, the applicant was awarded damages.

30. In a decision of 24 September 2013 ( dnr 2045-13-40 ), the Chancellor of Justice found that the District Court had violated the applicants ’ rights under Article 9. The court had refused to allow the applicants, who were wearing niqabs , to be present at a custody hearing, including the parts of the hearing which were open to the public. However, due to the particular circumstances in the case, no compensation was awarded.

COMPLAINTS

32. The applicant complained under Article 6, taken alone and together with Article 8 of the Convention, about the fairness and the extensive length of the custody proceedings. He claimed that the length of proceedings, in combination with the authorities ’ passivity, had violated the respect for his family life.

THE LAW

33. The applicant complained under Articles 6 and 8 of the Convention, which in relevant parts read as follows:

Article 6

“1. In the determination of his civil rights and obligations ... , everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal...”

Article 8

“1. Everyone has the right to respect for his private and family life....

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.”

35. The applicant disagreed with the Government and claimed that neither the Swedish Supreme Court nor the Chancellor of Justice had been presented with a case concerning a violation of Article 8 of the Convention regarding specifically the issue of child protection in custody proceedings. In any event, he submitted that he had exhausted all domestic remedies available to him at the time when the application was lodged with the Court. In this regard, he argued that decisions in the cases referred to by the Government had been delivered two years after he had submitted his application to the Court.

36. The Court reiterates that the purpose of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in the domestic system in respect of the alleged breach. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with further references).

37. However, the only remedies which Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, Mifsud v. France ( dec. ) [GC], no. 57220/00, § 15, ECHR 2002 ‑ VIII, and McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010).

38. In the present case, the Court observes that it is not clear from the case-file whether the applicant raised his complaints before the domestic courts, in particular before the appellate courts which would then have had the opportunity to remedy the violations under the Convention alleged by him. However, in any event, the Government claimed that the applicant had failed to avail himself of remedies capable of affording him sufficient redress in the form of compensation for the alleged violations, since he could turn to the Chancellor of Justice or the ordinary courts.

40. Noting that there is more than one potentially effective remedy available in Sweden, applicants may choose to make their claims either to the Chancellor of Justice or the domestic courts (see, amongst other authorities, T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999, and Karakó v. Hungary , no. 39311/05, § 14, 28 April 2009).

42. The Court also observes that the proceedings about which the applicant is complaining were terminated on 28 December 2009 . That is the date on which the alleged violations of Articles 6 and 8 of the Convention must be considered to have occurred, in the sense of section 2 of the Limitations Act. Thus, t he applicant still has the possibility to claim compensation from the Swedish State in relation to the alleged damage.

44. It follows from the above that the Government ’ s objection must be accepted and the application be declared inadmissible for non ‑ exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President