CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mai 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    AS TO THE ADMISSIBILITY OF                     Application No. 11996/86                   by P.B. and A.O.                   against Sweden             The European Commission of Human Rights sitting in private on 4 May 1987 the following members being present:                   MM. C. A. NØRGAARD, President                   E. BUSUTTIL                   G. JÖRUNDSSON                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ                 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 24 October 1985 by P.B. and A.O. against Sweden and registered on 13 February 1986 under file N°   11996/86;           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 applicants, may be summarised as follows.           The applicants are Swedish citizens born in 1953 and 1949 respectively.   The first applicant lives at Spånga and the second applicant lives in Stockholm.           The applicants have previously brought two applications before the Commission.   Application No. 8811/79 was declared inadmissible on 13 May 1982 (No. 8811/79, Dec. 13.5.82, D.R. 29 p. 104).   Application No. 10925/84 was declared inadmissible on 9 July 1985 (No. 10925/84, Dec. 9.7.85, unpublished).   Both applications concerned the same factual and legal background, namely the effects in Sweden of the Code of Parenthood (föräldrabalken) as amended on 1 January 1979 which prohibits all corporal punishment of children.           From the applicants' two previous applications it appears that they belong to a protestant free church congregation in Stockholm and that they believe in "traditional" means of bringing up their children.   In particular as an aspect of their religious doctrine they believe in the necessity of physical punishment of their children.           None of the applicants have been prosecuted under the present Swedish law for any incident of corporal punishment nor have any of them lost the custody of their children for this reason.   Nevertheless they express fears that they may be prosecuted for assault of their children following any incident of corporal punishment and that this could influence the authorities in their consideration of their suitability to bring up their children.           In Application No. 8811/79 the applicants invoked Articles 8 and 9 of the Convention as well as Article 2 of Protocol No. 1 to the Convention.   After having obtained from the Swedish Government observations on the admissibility and merits of the application, the Commission found that the applicants' complaints were manifestly ill-founded.   In its decision the Commission wrote inter alia:           "The exact practical effects of the provision about which the         applicants complain remain obscure.   The applicants have not         been directly subjected to any enforcement or other procedure         arising from their disagreement with the Code which might         constitute an interference with their rights.   Nor have they         provided any examples of its interpretation or application by         the Swedish authorities in other cases.   They have further         contended that the provisions of the Code may be relied         upon in deciding questions as to the custody of children, but         again they have not illustrated this submission and the         Commission must therefore find from the facts before it that         this has not actually occurred.   Furthermore the information         provided by the Swedish Government tends to confirm that this         incomplete law is without any direct practical effect beyond         that of attempting to encourage the reappraisal of the         treatment of children."           In their second Application No. 10925/84 the applicants provided examples of cases involving the corporal punishment of children.   The applicants contended that the cases referred to provided evidence of the matters of which they complained.           In its decision of 9 July 1985 the Commission stated inter alia:           "The applicants provide information relating to various         criminal prosecutions concerning parents who have corporally         punished their children.   They claim that these cases         indicate that the Amendment to the Code of Parenthood         (Föräldrabalken), now Chapter 6, Section 3 of the Code,         has been enforced by the Swedish courts through increasing         criminal prosecutions for minor incidents of corporal         punishment of children by their parents.   However, the         Commission notes that the individuals prosecuted in the         cases to which the applicants have made reference were         prosecuted pursuant to Chapter 3, Section 5 of the         Penal Code for a minor assault ('misshandel').   This         provision of the Penal Code is independent and distinct         from Chapter 6, Section 3 of the Code of Parenthood, about         which the applicants complain.   Moreover, the Swedish courts         make no reference to Chapter 6, Section 3 of the Code of         Parenthood in the transcripts which have been submitted to         the Commission.   In these circumstances the Commission does         not consider that it has been established that Chapter 6,         Section 3 of the Code of Parenthood is the legal authority         for any of the cases to which the applicants refer and the         cases referred to do not therefore appear to be 'relevant'         information such as to permit the Commission to examine the         present complaint in accordance with Article 27 para. 1 (b)         of the Convention."           The Commission accordingly concluded that it was prevented by Article 27 para. 1 (b) of the Convention from dealing with the application.           In the present case the applicants have pointed out that it is correct when the Commission in its above decision stated that the Swedish courts made no reference to Chapter 6, Section 3 of the Code of Parenthood in the transcripts which had been submitted to it.   In 1983 however, the Code of Parenthood was amended and the content of the previous Chapter 6, Section 3 is now to be found in Chapter 6, Section 1 of the Code.   The court transcripts submitted to the Commission in the previous application referred to Chapter 6, Section 1 of the Code of Parenthood.   The Commission's decision was accordingly based on a misunderstanding caused by the change of the Code of Parenthood in 1983.   It was not correct, therefore, when the Commission stated that "moreover, the Swedish courts make no reference to Chapter 6, Section 3 of the Code of Parenthood in the transcripts which have been submitted to the Commission".           The applicants find that it has now been established that the Code of Parenthood was the legal authority for convicting the persons mentioned in the cases submitted by them.   COMPLAINTS             The applicants repeat the complaints contained in their two previous applications, namely that the amendment to the Swedish law relating to the corporal punishment of children violates their right to respect for family life, to freedom of religion, and to respect for their right to ensure that their children's education and teaching is in conformity with their own religious and philosophical convictions, in breach of Articles 8 and 9 of the Convention and Article 2 of Protocol No. 1 to the Convention.   THE LAW           The applicants' present application is identical to their two previous applications.   They have pointed out, however, that the Commission's decision in Application No. 10925/84 was based on information that was not consistent with the correct factual circumstances.   They refer in this respect to the fact that the Commission in its decision stated that the Swedish courts had made no reference to Chapter 6, Section 3 of the Code of Parenthood in the court transcripts.   The applicants have pointed out that this is correct.   However, the Code of Parenthood was amended in 1983 and the relevant text is now contained in Chapter 6, Section 1 which was in fact referred to in the court transcripts.           Under Article 27 para. 1 (b) (Art. 27-1-b) the Commission shall not deal with any petition submitted under Article 25 (Art. 25) which is substantially the same as a matter which has already been examined by the Commission or has already been submitted to another procedure of international investigation or settlement and if it contains no relevant new information.   As stated above the Commission finds that the present application is identical to the previous applications introduced by the applicants.   The only remaining question is therefore whether the present application contains any new information which may be regarded as relevant to the Commission's examination of the application under the Convention.           As pointed out by the applicants it is correct that reference to Chapter 6, Section 1 of the Code of Parenthood is made in the court transcripts submitted by them.   However, it remains a fact that the individuals in the cases referred to were prosecuted pursuant to Chapter 3, Section 5 of the Swedish Penal Code for minor assault and that this provision of the Penal Code is independent and distinct from the Code of Parenthood.   The reference to Chapter 6, Section 1 of the Code of Parenthood does not change that position.   Accordingly the matters to which the applicants now refer do not constitute new relevant information such as might distinguish their present application from Applications Nos. 8811/79 and 10925/84 which the Commission has already examined.           The Commission therefore concludes that the present application must be rejected in accordance with Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.           For this reason, the Commission           DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission          President of the Commission           (H. C. KRÜGER)                        (C. A. NØRGAARD)