CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 juillet 1991

.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. 15087/89                       by Robert ANDERSSON                       against Sweden             The European Commission of Human Rights sitting in private on 1 July 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ RUIZ              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   M.P. PELLONPÄÄ                   B. MARXER                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 8 March 1989 by Robert ANDERSSON against Sweden and registered on 7 June 1989 under file No. 15087/89;           Having regard to the report provided for in Rule 47 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 1961 and resident at Malmö.   He is a salesman and a taxi driver by profession.   Before the Commission he is represented by Mr.   Göran Ravnsborg, Assistant Professor at the Faculty of Law at the University of Lund.           In the end of 1983 the applicant, through his friend Mr.   P.H., met Miss S.F.           In March 1984 the applicant was informed by S.F. that she was pregnant and that he was the father of the child.   The applicant did not hear from S.F. until 1 December 1984, when he was arrested and taken into custody, suspected of having illegally threatened S.F. and the child, born in October 1984.   The arrest was carried out following a police report in which S.F. alleged that the applicant had threatened to "do away" with her and "their" baby in order not to be obliged to pay maintenance.           Following the Public Prosecutor's request that the applicant be detained on remand, the District Court (tingsrätten) of Lund on 4 December 1984 held a hearing at which the applicant was represented by official counsel.   The applicant was released, as there was no plausible cause to suspect that he had illegally threatened S.F.           Subsequently, the Social Welfare Board of Lund instituted an investigation in order to establish the paternity of the child.           In April 1985 S.F. and her child submitted blood samples for the purpose of the paternity investigation.           Following the applicant's refusal to undergo a blood test he was in November 1985 summoned to the District Court for the establishment of paternity.           The District Court summoned the parties to an oral preparation of the case on 5 March 1986.   The applicant failed to appear in court, nor was he represented by a lawyer.   Following a telephone contact with the applicant on the same day the District Court ordered him to undergo a blood test.           Shortly thereafter the applicant submitted a blood sample and a new sample was taken from the child.           On 27 May 1987 the District Court held a preliminary hearing at which the result of the blood tests, a so-called simple or minor forensic genetic examination (rättsgenetisk undersökning), was presented.   The applicant attended but was not represented by counsel. The tests, which were carried out by the National Laboratory of Forensic Chemistry (statens rättskemiska laboratorium) did not eliminate the possibility that the applicant could be the father of the child.   S.F. alleged that in January 1984 she and the applicant had twice completed sexual intercourse in the applicant's home.   The applicant contested the paternity and stated that he had never had sexual intercourse with S.F.   The applicant was provisionally ordered to pay maintenance in advance to the child.           At the main hearing before the District Court on 17 August 1987 both the applicant and S.F. were heard under oath (sannings- försäkran).   The applicant was not represented by counsel.           On the applicant's request P.H. was heard as a witness.   He stated that it was excluded that the applicant would have had any relationship with S.F., since it was not the applicant's "way of behaviour" to take any interest in girls with S.F.'s living habits.           Having regard to the result of the forensic genetic examination, the opinion of the National Laboratory of Forensic Chemistry as well as all other circumstances in the case, the District Court on 31 August 1987 Lund declared the applicant father of the child.   The applicant was ordered to pay maintenance.   In its decision the District Court noted inter alia that S.F., on decisive points, both in the paternity investigation carried out by the Social Welfare Board and in the proceedings before the District Court, had given a consistent and plausible account of her acquaintance and intercourse with the applicant as well as of her reaction and steps after she had found out that she was pregnant.   Moreover, the applicant had shown great passivity in looking after his interests in the paternity investigation and the preparation of the case.   The District Court finally had regard to the result of the forensic genetic examination, rating the probability of paternity at 92.4 %.           The applicant, now represented by official counsel, appealed to the Court of Appeal (hovrätten) of Skåne and Blekinge, inter alia requesting that an extended forensic genetic examination be carried out.   He referred to the result of the previous examination, according to which the paternity index (faderskapsindex) was only 12.3 and the total capacity of exclusion of him as the father of the child (uteslutningskapacitet) was 82.6 %.   As the index was lower than 19 he alleged that one could not attach any importance to it as such.           On 9 October 1987 the Court of Appeal rejected the applicant's request.           On 21 April 1988 the District Court's decision was upheld by the Court of Appeal insofar as it concerned the paternity issue, following a re-hearing where the applicant and S.F. were again heard under oath.   At the hearing the applicant again requested that an extended forensic genetic examination be carried out, alleging inconsistencies in the account given by S.F. before the Court of Appeal.   The Court of Appeal, however, found that an extended forensic genetic examination could not be expected to give any other result than the first one and rejected his request.           The applicant appealed to the Supreme Court (Högsta dom- stolen), inter alia repeating his request that an extended forensic genetic examination be carried out.           On 19 October 1988 the Supreme Court refused leave to appeal.   COMPLAINTS           The applicant complains that the result of the blood tests was completely inconclusive and that the paternity was established only on the basis of irreconcilable statements made under oath by the mother and by himself.   He complains that the District Court should ex officio have ordered that an extended forensic genetic examination be carried out.   He further complains of the refusals of the Court of Appeal and the Supreme Court to order the mother, the child and himself to undergo such an examination.           He further states that privately he could not have arranged an extended examination to be carried out, as a privately arranged test would have been costly and as only an examination which is ordered by a court may be enforced where the mother refuses to co-operate in undergoing the test herself or having the child undergo it.   He complains that the refusals violated his right to a fair hearing and to access to an impartial and independent tribunal.   He also complains that the courts' attitude to him was highly degrading.           He finally complains that the decision declaring him the father of S.F.'s child violates his family and property rights, not only for inter vivos but also for mortis causa purposes, especially having regard to the statutory share of inheritance (laglott).           He invokes Articles 3, 6 para. 1, and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, each provision read in conjunction with Article 18 of the Convention.     THE LAW   1.       The applicant complains that his right to a fair hearing by an independent and impartial tribunal was violated because of the refusals of the domestic courts to order an extended forensic genetic examination.   He alleges a violation of Article 6 para. 1 (Art. 6-1), read together with Article 18 (Art. 18) of the Convention.           Article 6 para. 1 (Art. 6-1) of the Convention reads, insofar as it is relevant:           "In the determination of his civil rights and obligations         ..., everyone is entitled to a fair ... hearing ... by an         independent and impartial tribunal..."   a.       As to the proceedings before the District Court and the Court of Appeal the Commission recalls that paternity proceedings concern the determination of civil rights (No. 8315/79, Dec. 15.7.81, D.R. 25 p. 203).           However, with regard to the judicial decisions of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its established case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           It is true that the applicant also complains of a violation of Article 6 para. 1 (Art. 6-1) of the Convention, as the District Court did not ex officio order that an extended forensic genetic examination be carried out and his request for such an examination was rejected by the Court of Appeal.   However, the Commission further recalls that, as a general rule, it is for the national courts, and in particular the court of first instance, to assess the evidence before them as well as the relevance of the evidence which a party seeks to adduce (cf. e.g. Eur. Court H.R., Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A No. 146, p. 31, para. 68).           Furthermore, there is no indication that the District Court and the Court of Appeal were not independent and impartial tribunals as required by Article 6 para. 1 (Art. 6-1) of the Convention.           An examination by the Commission of this complaint as it has been submitted by the applicant does therefore not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention, neither taken separately nor read together with Article 18 (Art. 18) of the Convention.           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.   b.       As to the proceedings before the Supreme Court, the Commission recalls that these concerned the applicant's request for leave to appeal.   When a Supreme Court determines, in a preliminary examination of a case whether or not the conditions required for granting leave to appeal have been fulfilled, it is not making a decision relating to "civil rights and obligations" (No. 10515/83, Dec. 2.10.84, D.R. 40 p. 258).   Thus, in the present case Article 6 para. 1 (Art. 6-1) of the Convention does not apply to the proceedings in which the Supreme Court, without entering on the merits, refused leave to appeal against the decision of the Court of Appeal.           It follows that this part of the application is incompatible rationae materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant further alleges a violation of Article 8 (Art. 8), read together with Article 18 (Art. 18)   of the Convention, in that he was declared the father of S.F.'s child and ordered to pay maintenance to the child. Furthermore, the child will have a right to inherit from him.           Article 8 (Art. 8) of the Convention reads as follows:   "1.       Everyone has the right to respect for his private and family life, his home and his correspondence.   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."           The Commission notes that the paternity of S.F.'s child was established following a forensic genetic examination resulting in a high probability that the applicant was the father, a paternity investigation carried out by the social authorities as well as court proceedings during which the mother, the applicant and a witness called by him had submitted statements under oath.           The Commission considers that the District Court's decision declaring the applicant the father of S.F.'s child, with all further effects that such a decision might have, may be regarded as being in accordance with the law and necessary in a democratic society for the protection of the rights and freedoms of others within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention (cf.   No. 10085/82, Dec. 11.3.85, D.R. 42 p. 73).           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.   3.       The applicant finally complains of violations of his rights under Article 3 (Art. 3) of the Convention and Article 1 of Protocol No. 1 (P1-1) to the Convention, each provision read together with Article 18 (Art. 18) of the Convention.           An examination by the Commission of this complaint as submitted by the applicant does not disclose any appearance of a violation of the provisions invoked by the applicant.           It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission, by a majority,           DECLARES THE APPLICATION INADMISSIBLE.        Secretary to the Commission       President of the Commission                  (H.C. KRÜGER)                     (C.A. NØRGAARD)