FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40382/98 by Matts DAHLSTRÖM against Sweden

The European Court of Human Rights ( First Section ), sitting on 4 May 2000 as a Chamber composed of

Mrs W. Thomassen, President , Mrs E. Palm, Mr L. Ferrari Bravo, Mr C. Bîrsan, Mr J. Casadevall, Mr B. Zupančič, Mr T. Panţîru, judges , [Note1]

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 11 November 1997 and registered on 23 March 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Swedish national, born in 1935 and living in Östersund .

A. Particular circumstances of the case

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

On 13 June 1997 I., the then 15-year-old daughter of the applicant’s cohabitee , E., reported to the police that he had sexually harassed her.  The local Social Welfare Committee then decided to take I. into public care on a provisional basis under the 1990 Care of Young Persons (Special Provisions) Act ( lagen med särskilda bestämmelser om vård av unga ).

The decision was upheld on 26 June 1997 by the County Administrative Court ( länsrätten ) of the County of Dalarna .  E. appealed against this decision, but it was upheld by the Administrative Court of Appeal ( kammarrätten ) in Sundsvall on 16 July 1997.

The Social Welfare Committee later applied to the County Administrative Court for a care order under the 1990 Act.  The applicant was summoned to give evidence but he was not a party to the proceedings as I. was not his child and he did not have custody of her.  By judgment of 28 July 1997 the court granted the application, finding that the applicant had made sexual advances towards I. and verbally abused her.

Both the applicant and E. appealed to the Administrative Court of Appeal. The applicant claimed that the inferior court’s judgment contained false accusations against him.  On 22 August 1997 the appellate court found that the applicant had no standing in the case and therefore dismissed his appeal.  By judgment of 9 October 1997, the court rejected the appeal lodged by E., giving the following reasons:

(Translation)

“I. has, according to the [court], made a mature and credible impression.  The information she has provided regarding the events and facts of relevance to the case is also in several respects supported by other circumstances and statements.  The [court] finds that it must be considered to have been established in the case that [the applicant] on some occasions has kissed and caressed [I.] in a way which was improper with regard to the fact that they were in a stepfather–stepdaughter relation to each other.  [I.] has recounted at least one of these occasions to [E.].  The information concerning how [E.] has reacted to this is not coherent but at least it is apparent that she has not taken [ I.’s ] allegations seriously, be it because she did not believe [I.] or because she did not find the matter called for action.  In both these cases [E’s.] care for [I.] must, as stated by the County Administrative Court, be deemed to have been seriously lacking.  It is true that some time has now passed since these events took place and that they seem not to have recurred since January ‑ February1997.  Furthermore, [I.] has now stated that she is no longer afraid of [the applicant].  However, the [court] finds that what has happened entails such a grave disloyalty to [I.] that it constitutes an apparent deficiency in the home of [E.] as long as [the applicant] resides there, even if it should be possible to prevent a recurrence.  The facts further show that [I.] has been subjected to degrading treatment in the home.  Firstly, she has been caused to undergo an abnormally strict control of her whereabouts, a control which to some extent amounted to a violation of her privacy.  She has also been subjected to degrading epithets and accusations and [the applicant and E. have] also [made] mainly entirely unsubstantiated reports and requests [concerning I.’s behaviour] to school and police authorities.  In these respects both [E.] and [the applicant] have, on several occasions, treated [I.] in a very peculiar way, as it appears often with [the applicant] as instigator.  In sum, the [court] finds, with reference to the above, that there prevail such severe deficiencies in [ I.’s ] home that there must be deemed to exist a palpable risk of her mental health and social development being impaired if she, against her will, is forced to live with [E.] and [the applicant]. – [E.] is still cohabiting with [the applicant].  It is true that she has declared that she intends to leave him for a home of her own in Mora as soon as the opportunity occurs, but her intentions in that respect seem rather vague.  She has also stated that, for the time being, she does not intend to discontinue her relationship with [the applicant], who will consequently be in her home whether she moves or not. Having regard hereto, the [court] finds that necessary care presently cannot be provided [I.] by [E.] and that [I.] therefore must be placed in a foster home.  Since [E.] does not consent to such a measure there are, as the County Administrative Court has found, reasons for providing [I.] with care pursuant to [the 1990 Act].  Consequently, the appeal shall be rejected.”

On 22 October 1997 the Supreme Administrative Court ( Regeringsrätten ) refused the applicant leave to appeal against the appellate court’s decision of 22 August 1997.  On 23 December 1997 the Supreme Administrative Court found that he had no standing to appeal against the appellate court’s judgment of 28 July 1997 and thus dismissed his appeal in this respect.

On 8 September 1998 the applicant was informed by the Local Prosecution Office in Falun that he was going to be questioned regarding suspicions of having committed sexual harassment.  On 25 October 1999 the applicant was informed that the Office had decided to terminate the preliminary investigation on the ground that it could not be proved that a crime had been committed.

B. Relevant domestic law

Care pursuant to the 1990 Act shall be provided for a young person under 18 years of age if one of the situations referred to in Sections 2 or 3 of the Act is at hand and the necessary care presumably cannot be given to the young person with the consent of the person having custody of him and, if the young person himself has reached the age of 15 years, with his own consent.  According to Section 2 of the Act care shall be provided if there is a palpable risk of impairment of the health or development of the young person due to ill-treatment, exploitation, lack of care or any other condition in the home.

Decisions on whether to place a young person under public care are made by the County Administrative Court following an application from the Social Welfare Committee.

The concept of health or development in the 1990 Act was taken directly from the previous legislation in this area as a description of a person’s physical or mental health or development.  The concept refers to situations where the young person is risking his physical health or where mental suffering is inflicted because of the situation in the home.

According to the travaux préparatoires to the 1990 Act the expression palpable or apparent risk ( påtaglig risk ) was deemed well suited for indicating at what level a compulsory care order could be justified.  A subjective assumption that a young person is in danger is not enough and irrelevant circumstances such as public order must not be the basis of a care order.  There has to be concrete or apparent circumstances supporting the fact that there is a risk for the young person’s physical or mental health (cf. Government Bill 1989/90:28, pp. 63 and 107).

According to Section 6 of the 1990 Act the Social Welfare Committee may order the immediate taking into care of a young person (“provisional care order”) if he probably needs to be provided with care under this Act and a court decision on the matter cannot be awaited owing to the risk to the young person’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented.  A provisional care order shall be put before the County Administrative Court which shall rule on whether the order shall be upheld awaiting the Court’s judgment regarding the application for public care.

According to Section 33, subsection 2 of the 1971 Administrative Court Procedure Act ( förvaltningsprocesslagen ) a decision made by a county administrative court or an administrative court of appeal may be appealed against by a person whom the decision concerns, provided that the decision affects him adversely.

COMPLAINTS

1. The applicant complains about the proceedings before the Administrative Court of Appeal and the Supreme Administrative Court in which he had no standing as a party.  He claims that these proceedings involved a determination of a criminal charge against him whereas he was not allowed to defend himself against the defamatory accusations made.  He alleges that the courts found him guilty of offences he did not commit.

2. The applicant also claims that the administrative courts were not impartial.

The applicant invokes Article 6 of the Convention.

THE LAW

1. The applicant complains that the proceedings before the Administrative Court of Appeal and the Supreme Administrative Court in which he had no standing violated his right to a fair trial and a proper defence within the meaning of Article 6 of the Convention.  He alleges that the courts found him guilty of offences he did not commit.

Article 6 of the Convention reads, so far as relevant, as follows:

“1. In the determination of his civil rights and obligations or any criminal charge against him, 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.”

The Court recalls at the outset that whereas the police investigations commenced on the date I. reported the case to the police, i.e. on 13 June 1997, the applicant was not notified of a criminal suspicion against him prior to the proceedings before the administrative courts.  The applicant cannot therefore, at that time, be deemed to have been substantially affected so as to be considered as “charged with a criminal offence” under Article 6 (cf. the Eckle v. Germany judgment of 15 July 1982, Series A no. 51, p. 33, § 73).  Furthermore, the aim of the administrative proceedings was to decide whether there existed such deficiencies in I.’s home as to cause a risk for her health or development being impaired.  The courts, referring to several episodes which had occurred in I.’s home, and which included as well the applicant as I.’s mother, answered that question in the affirmative.  However, the courts did not in this context make any statements regarding criminal implications of these events, if any.

In these circumstances the Court finds that the proceedings complained of did not determine a criminal charge against the applicant within the meaning of Article 6 of the Convention.

Furthermore, having regard to the aim of the administrative proceedings as set out above the Court considers that they concerned the “civil rights” of  I. and her mother.  However, the Court finds that these proceedings did not, in the specific circumstances of this case, involve a determination of the “civil rights” of the applicant, who was not the custodian of I.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2. The applicant also claims that the courts were not impartial when they decided in the matter of public care of I.

However, the Court has already found that Article 6 of the Convention is not applicable to these proceedings as regards the applicant.

It follows that also this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Wilhelmina Thomassen Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)