CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 juillet 1992

.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. 16039/90                     by Peter SOLYMOSSY                     against Sweden          The European Commission of Human Rights sitting in private on 1 July 1992, the following members being present:                  MM.   S. TRECHSEL, President of the Second Chamber                     G. JÖRUNDSSON                     A. WEITZEL                     H.G. SCHERMERS                     H. DANELIUS                Mrs. G.H. THUNE                MM.   F. MARTINEZ                     L. LOUCAIDES                     J.-C. GEUS                  Mr.   K. ROGGE, Secretary to the Second Chamber        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 August 1989 by Peter SOLYMOSSY against Sweden and registered on 22 January 1990 under file No. 16039/90;        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, as submitted by the applicant, may be summarised as follows.        The applicant, who is of Hungarian origin, is a naturalised Swedish citizen born in 1952 and residing in Stockholm.        Around 1980 the applicant was engaged to a Ms V.   Together they had a son born in May 1980. In their notification to the public records they indicated the child's family name to be Solymossy. Under the law Ms V. alone had custody over the child. In 1985 the relationship broke down.        On 6 June 1986 the applicant applied to the District Court (tingsrätt) of Södra Roslag in order to have his right of access to the child determined and to have an interim decision granting him certain access. At a preliminary hearing (muntlig förberedelse) on 29 October 1986 attended by the applicant's legal representative, the District Court decided, in view of the mother's objections, not to grant any right of access for the period until judgment and, with the consent of the applicant's representative, to have the access question investigated by the social authorities. The Court indicated at the hearing that its decision to consult the social authorities could be appealed in accordance with the provisions of Article 6, Chapter 49, of the Code of Judicial Procedure (rättegångsbalken) if it caused undue delay. Under Article 1 of Chapter 52 of the Code, this possibility of appeal was not limited in time. The social authorities' access investigation, which reiterated certain statements from the mother to the effect that the applicant was abusing alcohol, had beaten and unlawfully threatened her, was filed on 21 January 1988. By judgment of 6 June 1988 the District Court decided in accordance with the social authority's recommendation, to allow the applicant access to his son, initially with two and subsequently three hours every second week in the presence of a "contact person" appointed by the local social district council. In the judgment the Court stated, inter alia:   (translation from Swedish)        "In case a child does not live together with both its      parents, it is generally important to ensure that the child      has such contacts with the parent who does not have custody      that a good relation is created between them. However, the      contacts in such a relation will have to be established on      the basis of the child's situation and needs; the right of      access is a right for the child and not a right for the      parent.        During the time [the applicant's child] has lived with both      parents there have - according to the information supplied      by both of them - been numerous quarrels between them. On      the basis of what has come forth in this case, the District      Court is unable to draw any clear conclusions as to the      form and extent of these quarrels. Independently of what      really happened it is, however, clear that the son cannot      have escaped being influenced by his parents' quarrels.      What impression he may have got of his father cannot be      ascertained with any degree of certainty. It may,      nevertheless, be assumed that he is somewhat cautious in      his attitude towards his father.          [The applicant] has not met his son for approximately three      years. The contacts during the year before this period have      been sporadic. In view of the above, the District Court      accordingly finds that it is not now in the best interests      of [the child] to allow [the applicant] the requested right      of access. [The applicant] should, however, be given the      opportunity to create a good contact with his son. Such a      contact should initially be established in the presence of      a third person. ..."        The applicant's appeal to the Svea Court of Appeal (hovrätt) was rejected on 29 November 1988 as the Court found no reason to change the evaluation made at first instance. On 28 February 1989 the Supreme Court (högsta domstolen) refused leave to appeal.        In the meantime, on 11 December 1987, the District Court of Södra Roslag convicted the applicant of unlawful interference with possessions (egenmäktigt förfarande) on the ground that he had changed the lock on the mother's apartment door. However, by judgment of 29 November 1988 the Svea Court of Appeal acquitted him since it found that the applicant's action had not been criminal as he had put keys to the new lock at the mother's disposal. The mother's request for leave to appeal was refused by the Supreme Court on 28 February 1989.        While both the above proceedings were still pending, on 18 May 1988, the child sued, through his mother, the applicant before the District Court of Södra Roslag in order to have his family name changed from Solymossy to V. in accordance with section 6 of the Name Act 1982 (namnlagen 1982:670). The District Court requested an opinion from the local social district council. This opinion, which was in favour of the change, was lodged with the Court on 6 September 1988. By decision of 4 November 1988 the Court decided, after having held an oral hearing, to grant the application. In its decision the Court stated, inter alia, the following:   (translation from Swedish)        "In order for a change of name to be authorised in a      situation where the parent whose name the child bears      opposes the change, section 6 of the Name Act requires that      the court finds the change of name to be in the best      interests of the child. According to the preparatory works      and to existing case-law, it should not be considered to be      in the child's best interests to allow such a change of      name if the change may be assumed to have negative      influences on the child's relationship with the parent who      does not have custody and whose name the child carries. It      appears in the present case that [the applicant] has only      kept sporadic contacts with his child over the years.      Having regard hereto and to what has otherwise come forth      in the case the change of name must be considered to be in      accordance with the best interests of the child."        The applicant appealed to the Court of Appeal maintaining that the District Court's decision constituted an attempt by this "germanic" court to discriminate against him on racial grounds on account of his Hungarian origins. By decision of 16 December 1988 the Court of Appeal decided, on the case-file, to uphold the District Court's ju   the 6.   Th applicant appealed to the Supreme Court complaining, inter alia, of the absence of an oral hearing before the Court of Appeal. On 27 February 1989 the Supreme Court refused leave to appeal.     COMPLAINTS        The applicant's complaints under the Convention may be summarised as follows:   1.    a violation of Article 6 para. 1 in the access proceedings as the District Court did not render its judgment within a reasonable time;   2.    violations of Article 6 para. 2 in that both the judgment in the access proceedings and the decision in the change of name proceedings were based on the mother's wrongful accusations that he had committed criminal acts: battery, unlawful threats and unlawful interferences with possessions;   3.    a violation of Article 13 as the Court of Appeal decided to authorise the change of his child's name without having given him an opportunity to appear in person and plead his case;   4.    violations of Article 6 para. 1 taken both alone and together with Article 14 in both the access proceedings and the change of name proceedings as the courts were prejudiced against him on account of his ethnic origin and looks.     THE LAW        The applicant alleges a number of violations of Article 6 paras. 1 and 2 and of Articles 13 and 14 (Art. 6-1, 6-2, 13, 14) of the Convention. These provisions read in relevant parts as follows:                         Article 6 (Art. 6)        "1. In the determination of his civil rights and      obligations ... 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.        ... ."                        Article 13 (Art. 13)        "Everyone whose rights and freedoms as set forth in [the]      Convention are violated shall have an effective remedy      before a national authority notwithstanding that the      violation has been committed by persons acting in an      official capacity."                          Article 14 (Art. 14)        "The enjoyment of the rights and freedoms set forth in      [the] Convention shall be secured without discrimination on      any ground such as sex, race, colour, language, religion,      political or other opinion, national or social origin,      association with a national minority, property, birth or      other status."   1.    The applicant alleges that the District Court did not render its judgment in the access proceedings within a reasonable time, thus violating Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission notes that the proceedings before the District Court lasted for approximately 24 months. However, in the circumstances of the present case it is not required to decide whether of not this period violates the requirements of Article 6 para. 1 (Art. 6-1) as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.        A large part of the above period was spent waiting for the social authorities' opinon; in fact it took approximately 15 months for the results of this investigation to reach the District Court. However, the applicant did not challenge the Court's decision to obtain this opinion and did not lodge any appeal against it despite the fact that the Court reminded him of his right under Chapter 49, Article 6 of the Code of Judicial Procedure to do so if he considered that the decision caused undue delay. This remedy must, in the circumstances of the present case and in particular in view of the fact that its exercise was not limited in time, be considered to have been "effective" within the meaning of Article 13 (Art. 13) (see 11306/84, Dec. 16.10.86, D.R. 50, p. 162). Moreover, an examination of the case as it has been submitted does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from raising his complaint in the proceedings referred to.        It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and his application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant also alleges a violation of Article 6 para. 2 (Art. 6-2) in that he claims that the courts in both the access and the change of name proceedings based their decisions on the mother's wrongful accusations that he had committed criminal acts: battery, unlawful threats and unlawful interferences with possessions.        The applicant has, however, not provided any material capable of supporting this allegation. It follows that this complaint is unsubstantiated and must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant furthermore alleges a breach of Article 13 (Art. 13) of the Convention as a result of the Court of Appeal's decision to authorise the change of his child's name without giving him an opportunity to appear in person and plead his case.          The Commission finds that this question falls to be considered under Article 6 para. 1 (Art. 6-1) of the Convention rather than under Article 13. It recalls that, provided a public hearing has been held at first instance, the absence of such a hearing on appeal may be justified by the special features of the proceedings at issue (see Eur. Court H.R., Helmers judgment of 29 October 1991, Series A No. 212-A, para. 36).        In the proceedings here at issue, an oral hearing had been held at first instance. In addition, the questions raised by the applicant in his appeal - sweeping accusations against the Swedish judiciary of racial discrimination - did not concern questions of law or fact which could not be adequately resolved on the basis of the case-file; furthermore, even if what was at stake was of great importance for the applicant personally, it was not, in the light of existing case-law, of sufficient importance to require an oral hearing (see Eur. Court H.R., above mentioned Helmers judgment of 29 October 1991, para. 38; cf Eur. Court H.R. Fejde judgment of 29 October 1991, Series A No. 212- C, para. 33). Accordingly, the present complaint is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicant finally alleges violations of Article 6 para. 1 (Art. 6-1) of the Convention both taken alone and together with Article 14 (Art. 14) of the Convention in both the access proceedings and the change of name proceedings in that he finds that the courts were prejudiced against him on account of his ethnic origins and looks.        The applicant has, however, not provided any material capable of supporting this allegation. It follows that this complaint is unsubstantiated and must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.          For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Second Chamber        President of the Second Chamber              (K. ROGGE)                         (S. TRECHSEL)