CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 octobre 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 } .sB6586327 { width:29.62pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block } .s79535B21 { width:28.92pt; display:inline-block } .s5AA75112 { width:24.19pt; display:inline-block }      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. Åke 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)