CEDH · CASELAW;REPORTS;ENG — 14 avril 1994

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 14451/88                                Gärdh Persson                                   against                                   Sweden                          REPORT OF THE COMMISSION                         (adopted on 14 April 1994)   TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-14). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 15-19) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 20-57). . . . . . . . . . . . . . . . . . . . . . . . 4         A.    The particular circumstances of the case            (paras. 20-40) . . . . . . . . . . . . . . . . . . . . . 4              1.     The compulsory care order                  (paras. 20-25) . . . . . . . . . . . . . . . . . . 4              2.     The conditions in the Rosenhill nursing home                  (paras. 26-35) . . . . . . . . . . . . . . . . . . 4              3.     The restriction on the applicant's visiting                  rights in the Rosenhill nursing home                  (paras. 36-37) . . . . . . . . . . . . . . . . . . 6              4.     The restriction on the applicant's visiting                  rights in the Björnkulla nursing home                  (paras. 38-40) . . . . . . . . . . . . . . . . . . 6         B.    Evidence before the Commission            (paras. 41-50) . . . . . . . . . . . . . . . . . . . . . 6              1.     Witnesses                  (paras. 41-48) . . . . . . . . . . . . . . . . . . 6              2.     Other evidence                  (paras. 49-50) . . . . . . . . . . . . . . . . . . 8         C.    Relevant domestic law            (paras. 51-57) . . . . . . . . . . . . . . . . . . . . . 8              1.     The 1967 Act on the Care of Certain Mentally                  Handicapped Persons                  (paras. 51-52) . . . . . . . . . . . . . . . . . . 8              2.     Supervision of nursing homes                  (paras. 53-54) . . . . . . . . . . . . . . . . . . 9              3.     The 1985 Act on Special Care of Mentally                  Handicapped Persons and Others and the                  Transitional Act                  (paras. 55-56) . . . . . . . . . . . . . . . . . . 9              4.     The 1949 Parental Code                  (paras. 57-58) . . . . . . . . . . . . . . . . . . 9   III.   OPINION OF THE COMMISSION       (paras. 59-101) . . . . . . . . . . . . . . . . . . . . . . .11         A.    Complaints declared admissible            (para. 59) . . . . . . . . . . . . . . . . . . . . . . .11         B.    Points at issue            (para. 60) . . . . . . . . . . . . . . . . . . . . . . .11         C.    As regards Article 8 of the Convention            (paras. 61-80) . . . . . . . . . . . . . . . . . . . .   11              1.     The conditions in the Rosenhill nursing home                  during the applicant's visits                  (paras. 62-70) . . . . . . . . . . . . . . . . . .11                    CONCLUSION                  (para. 71) . . . . . . . . . . . . . . . . . . . .13              2.     The restrictions on the applicant's right to visit                  Kjell Persson in the nursing homes                  (paras. 72-79) . . . . . . . . . . . . . . . . . .13                    CONCLUSION                  (para. 80) . . . . . . . . . . . . . . . . . . . .14         D.    As regards Article 6 para. 1 of the Convention            (paras. 81-91) . . . . . . . . . . . . . . . . . . . . .15              CONCLUSION            (para. 92) . . . . . . . . . . . . . . . . . . . . . . .16         E.    As regards Article 13 of the Convention            (paras. 93-96) . . . . . . . . . . . . . . . . . . . . .16              CONCLUSION            (para. 97) . . . . . . . . . . . . . . . . . . . . . . .17         F.    Recapitulation            (paras. 98-101). . . . . . . . . . . . . . . . . . . . .17   APPENDIX I        : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .18   APPENDIX II       : PARTIAL DECISION OF THE COMMISSION                    AS TO THE ADMISSIBILITY OF THE APPLICATION . . .20   APPENDIX III      : FINAL DECISION OF THE COMMISSION                    AS TO THE ADMISSIBILITY OF THE APPLICATION . . .49   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a Swedish citizen, born in 1937 and resident at Kista. She was represented before the Commission by Mrs. Siv Westerberg, a lawyer in Gothenburg.   3.     The application is directed against Sweden. The respondent Government were represented by Mr. Håkan Berglin, Ministry for Foreign Affairs, Stockholm, succeeded by Ms. Eva Jagander of the same Ministry.   4.     The case concerns the restrictions of the applicant's right to visit her son placed in compulsory care in two nursing homes, the absence of a right to a court review of those restrictions as well as the conditions in one nursing home during her visits. The applicant invokes Articles 6, 8 and 13 of the Convention.   B.     The proceedings   5.     The application was introduced on 2 September 1988 by the applicant and her son jointly. It was registered on 8 December 1988.   6.     On 15 April 1991 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of part of the application.   7.     The Government's observations were submitted on 29 July 1991. The applicants replied on 22 September 1991. Additional observations were submitted by the applicants on 11 February 1992.   8.     On 13 September 1991 the Commission granted the applicants legal aid for the representation of their case.   9.     On 11 December 1992 the Government were invited to submit further information. This was filed on 5 January 1993. The applicants' comments in reply were submitted on 5 February 1993.   10.    On 3 May 1993 the Commission decided to hold a hearing of the parties with regard to the applicants' complaints under Article 8 of the Convention relating to the son's alleged lack of privacy at one nursing home, their complaint relating to the restrictions of the mother's visiting rights, their complaints under Articles 6 and 13 relating to the absence of a right to a court review of those restrictions as well as their complaint under Article 1 of Protocol No. 1 relating to the administration of and spending of the son's pension income. The remainder of the application was declared inadmissible.   11.    The hearing was held on 2 July 1993. The applicants were represented by Mrs. Siv Westerberg and Ms. Birgitta Hellwig. The Government were represented by Ms. Eva Jagander and Ms. Eva Hammar.   12.    On 2 July 1993 the Commission declared admissible the complaints under Articles 6, 8 and 13 of the Convention in so far as they had been lodged by the present applicant. It declared inadmissible the remainder of the application.   13.    The text of the Commission's decision on admissibility was sent to the parties on 12 July 1993 and they were invited to submit further observations on the merits. The remaining applicant submitted such observations on 1 September 1993 and the Government on 23 September 1993. Additional observations were submitted by the Government on 8 October 1993 and by the applicant on 15 October 1993.   14.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   15.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:         MM.   C.A. NØRGAARD            S. TRECHSEL            A. WEITZEL            F. ERMACORA            E. BUSUTTIL            H.G. SCHERMERS            H. DANELIUS       Mrs. G.H. THUNE       Mrs. J. LIDDY       MM.   L. LOUCAIDES            J.-C. GEUS            M.A. NOWICKI            I. CABRAL BARRETO            B. CONFORTI   16.    The text of this Report was adopted on 14 April 1994 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   17.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         i)    to establish the facts, and         ii)   to state an opinion as to whether the facts found disclose       a breach by the State concerned of its obligations under the       Convention.   18.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I. The Commission's partial decision on the admissibility of the application is attached as Appendix II and its final decision on admissibility as Appendix III.   19.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case         1.    The compulsory care order   20.    The applicant's only son, Mr. Kjell Persson, born on 3 November 1965, was seriously disabled from birth, both mentally and physically. He was born, inter alia, with his tongue grown to his palate, resulting in a lack of faculty of speech and great eating difficulties, for which reason he needed to be fed. He was somewhat mobile, but only with assistance.   21.    In 1983 several physicians found that Kjell Persson was extremely underweight and that the applicant had not satisfactorily managed to nourish him in their home. His severe mental retardation combined with his physical disability were considered to warrant his placement in compulsory care in accordance with the 1967 Act on the Care of Certain Mentally Handicapped Persons (lag 1967:940 angående omsorger för vissa psykiskt utvecklingsstörda; hereinafter "the 1967 Act").   22.    On 20 December 1983 the Chairman of the Administrative Board (beslutsnämnden) of the County Council (landstinget) of Stockholm provisionally placed Kjell Persson in compulsory care pursuant to Section 35, subsection 1 (b) of the 1967 Act.   23.    On 28 December 1983 the Administrative Board confirmed the Chairman's decision, having found that Kjell Persson was mentally retarded, that as a consequence of his retardation he was unable to take care of himself, and that, in view of the degree of his retardation, care in a nursing home was absolutely necessary.   24.    On 29 December 1983 Kjell Persson was admitted to the Rosenhill nursing home, where he stayed until 21 March 1988, when he was provisionally discharged.   25.    On 28 June 1984 the District Court (tingsrätten) of Stockholm appointed the applicant as Kjell Persson's guardian in accordance with Chapter 18, Section 3 of the 1949 Parental Code (föräldrabalken).         2.    The conditions in the Rosenhill nursing home   26.    During Kjell Persson's placement in the Rosenhill nursing home it initially accommodated sixteen and subsequently twelve young and severely retarded patients. The nursing home was a long narrow building with three wards. Each ward had a living room and a kitchenette. The patient rooms measured 8-10 square metres. Up to the summer of 1986 five patients were placed on Kjell Persson's ward and subsequently four. In the daytime and in the evening the ward had three assistant nurses. In the nighttime two assistant nurses supervised the whole nursing home.   27.    Kjell Persson's room was located towards the end of the nursing home in a shorter corridor crosswise to the main corridor. The shorter corridor had three patient rooms. Part of the wall between Kjell Persson's room and a corridor had a window. There was a further window in the upper part of the door between Kjell Persson's room and the corridor. Finally, there were windows in the wall between Kjell Persson's room and a toilet and between the toilet and an adjacent patient room.   28.    The nursing home had a staff dining-room. In the wall between this room and the kitchen there was a service hatch for serving meals.   29.    The nursing home was closed in 1988 after Kjell Persson's provisional discharge.   30.    The facts regarding the conditions of the applicant's visits to Kjell Persson during his placement in the Rosenhill nursing home are in dispute between the parties.   31.    According to the applicant, she normally visited Kjell Persson inside the nursing home, either in his own room, in the day room, the staff dining-room or in a room normally used for physical therapy. Due to his weak state of health she could only occasionally take him outside in his wheel-chair.   32.    The applicant alleges that none of the above described windows in his room had any curtains. The corridor next to Kjell Persson's room was allegedly in frequent use by staff, other patients as well as visitors. Thus, passers-by in the corridor had a free view into his room. Also the patient in the adjacent patient room could look into the room.   33.    The applicant further alleges that when she visited Kjell Persson in his room the manager of the nursing home would demonstratively enter the room and embrace him. When she saw Kjell Persson in the staff dining-room, staff in the kitchen would supervise the visits by watching her and Kjell Persson through the service hatch. Sometimes staff would enter the dining-room during her visits outside meal time merely for supervisory purposes.   34.    The applicant further alleges that the visits which took place in the room used for physical therapy would also be disturbed. A staff member would be cleaning the room or staff would otherwise enter the room in order to supervise the visits. When the applicant took Kjell Persson outside the nursing home, they were only allowed to remain in its immediate vicinity. Staff would then supervise them through the windows.   35.    According to the Government, the windows in the wall and the door between Kjell Persson's room and the corridor had curtains. Moreover, it was not possible to see all parts of the staff dining-room through the service hatch in the wall to the kitchen when the sliding-door was closed. The applicant was also free to take Kjell Persson out for walks.         3.    The restriction on the applicant's visiting rights in the            Rosenhill nursing home   36.    According to the applicant she was, in the beginning of January 1984, orally notified by staff of the Rosenhill nursing home that her visits to Kjell Persson would be restricted to two hours twice a week. Soon thereafter her visits were allegedly restricted to two hours once a week.   37.    By a letter of 27 June 1984 from the Director of Mental Welfare Services (vårdchefen) of the County Council (landstinget) of Stockholm and the Acting Head of the Department for children placed in nursing homes the applicant was notified that, as from 2 July 1984 and provisionally until the end of August 1984, she could visit Kjell Persson twice a week, on Thursdays and Sundays between 1 p.m. and 3 p.m. The restriction was subsequently prolonged.         4.    The restriction on the applicant's visiting rights in the            Björnkulla nursing home   38.    On 27 December 1988 Kjell Persson was admitted to the Björnkulla nursing home, where he stayed until 29 September 1989, when his compulsory care was revoked.   39.    According to the applicant, she was immediately notified orally by nursing staff that her visits to the nursing home were restricted to two visits a week.   40.    According to a letter of 22 February 1989 from a representative of the Mental Welfare Committee (styrelsen för omsorger om psykiskt utvecklingsstörda) to the Discharge Board (utskrivningsnämnden), the applicant's visits were restricted to four hours on Wednesdays and four hours on Sundays.   B.     Evidence before the Commission         1.    Witnesses   41.    On 1 September 1993 the applicant submitted affidavits by herself, Mrs. Siv Westerberg and Mr. Karl Göran Granberg.   42.     In his affidavit of 24 August 1993 Mr. Granberg, an engineer, states that he visited Kjell Persson on several occasions together with the applicant, but never detected any curtains in front of the windows. He again visited the nursing home in the summer 1993. On this occasion the windows still had no curtains, nor were there any curtain rods or any traces of such rods next to the windows in the wall or the door towards the corridor.   43.    In her affidavit of 27 August 1993 the applicant states that during none of her visits to Kjell Persson did the window between his room and the corridor have a curtain. In the summer of 1993 she again visited the nursing home. On this occasion neither the window in the wall between Kjell Persson's room and the corridor nor the window in the door had any curtain. Moreover, there were no curtain rods next to the windows or any traces of such rods.   44.    Mrs. Westerberg is the applicant's counsel before the Commission and was Kjell Persson's counsel during his stay in the nursing home. In her affidavit of 31 August 1993 she states that when she visited Kjell Persson in the nursing home she noticed that the wall between his room and the corridor had a large window with no curtain. During one of her visits she, the applicant and Kjell Persson could meet in the staff dining-room. Because of the service hatch in the wall between the dining-room and the kitchen, the latter of which would be occupied by staff, the applicant could not meet Kjell in the dining-room without being disturbed.   45.    On 23 September 1993 the Government submitted affidavits by Dr. Gunnar Braathen, Ms. Pia Wickman and Ms. Irene Åkerström.   46.     Dr. Braathen, a physician specialised in paediatrics and treatment of disabled children, served as a consulting physician in the nursing home from 1983 to 1988 and was especially charged with physical rehabilitation. In his affidavit of 23 August 1993 he states that he cannot recall whether or not Kjell Persson's room had any curtains. He has no knowledge of the conditions under which the applicant met Kjell Persson in the nursing home. His only recollection is that sometimes they sat together in the "coffee room". In general, Dr. Braathen did not notice any problems with regard to personal integrity in the nursing home.   47.    Ms. Wickman, an assistant nurse, worked in the nursing home from 1986 until it was closed in May 1988. In her affidavit of 24 August 1993 she states that the wall between Kjell Persson's room and the corridor had no window. The door between his room and the corridor had a window measuring about one square metre. This was covered by curtains on the inside of the door. The curtains were only kept open when Kjell Persson's state of health required that staff frequently glance at him in the nighttime without disturbing him. There was little commotion in the corridor where his room was located. His ward as well as his room were the least disturbed in the nursing home, since they were rather secluded.   48.    Ms. Åkerström, a nurse, served in the nursing home from 1979 to 1988 and was manager during the period of Kjell Persson's placement. In her affidavit of 25 and 30 August 1993 she states that the window in the door between Kjell Persson's room and the corridor had a curtain. The curtain was only kept open in the nighttime so as to enable staff to glance at him without disturbing him. During her visit to the nursing home in August 1993, Ms. Åkerström detected a further window next to the door and of the same size as the window in the door. According to her recollection, this window used to be covered by a drapery hanging in Kjell Persson's room. The curtain in the door window was occasionally opened, but the drapery in the window in the wall was always closed. The curtain and drapery were hanging on the inside of Kjell Persson's room. According to Ms. Åkerström, Kjell Persson's room was slightly secluded. Out of the four patients on his ward he was the patient who required most medical attention.         2.    Other evidence   49.    On 1 September 1993 the applicant submitted drawings and measurements by Mr. Granberg pertaining to the layout of the nursing home, and in particular of the room in which Kjell Persson had been staying. These were produced on the basis of Mr. Granberg's and the applicant's visit to the nursing home in the summer of 1993. The applicant also submitted photographs of the nursing home taken by Mr. Granberg during the visit in 1993 and showing various parts of the nursing home, including Kjell Persson's room.   50.    On 23 September 1993 the Government submitted a blueprint of the layout of the nursing home as approved by the Building Committee (byggnadsnämnden) of Huddinge in 1966. The Government further filed photographs taken by Ms. Åkerström during her service in the nursing home. The photographs show various parts of the nursing home with the exception of Kjell Persson's room and the room used for physical therapy. The Government also invoke some of the pictures submitted by the applicant as evidence.   C.     Relevant domestic law         1.    The 1967 Act on the Care of Certain Mentally Handicapped            Persons   51.    Section 35, subsection 1, reads, as far as relevant:         (Swedish)         "Psykiskt utvecklingsstörd som fyllt 15 år får oberoende av       samtycke ... beredas vård i vårdhem ..., om vården är       oundgängligen påkallad med hänsyn till utvecklingsstörningens       grad och till att han till följd av utvecklingsstörningen       ...       (b) är ur stånd att taga vård om sig själv, ..."         (Translation)         "A mentally handicapped person who has attained the age of       15 may be given care in a nursing home ... irrespective of       whether ... consent ... has been obtained ..., if such care       is absolutely necessary in view of the degree of his mental       handicap and the fact that due to this handicap he       ...       (b) is incapable of taking care of himself, ..."   52.    Section 51 reads, in so far as relevant:         (Swedish)         "Frågan om utskrivning från ... vårdhem ... skall prövas       fortlöpande.         Vårdnadshavaren, förmyndaren eller den psykiskt       utvecklingsstörde, om han fyllt 15 år, får göra ansökan om       utskrivning. ..."         (Translation)         "The question of discharge from a ... nursing home ...       shall be considered continuously.         A request for a discharge may be lodged by the custodian or       guardian [of the mentally handicapped] or by himself, if he       has reached 15 years of age . ..."         2.    Supervision of nursing homes   53.    Care provided in accordance with the 1967 Act shall be supervised by the National Board of Education (skolöverstyrelsen) and the National Board of Health and Welfare (socialstyrelsen) (Section 13).   54.    The authorities and officials responsible for the care are also under supervision by the Parliamentary Ombudsman (riksdagens justitieombudsman).         3.    The 1985 Act on Special Care of Mentally Handicapped Persons            and Others and the Transitional Act   55.    The 1985 Act on Special Care of Mentally Handicapped Persons and Others (lag 1985:568 om särskilda omsorger om psykiskt utvecklingsstörda m.fl.) and the Transitional Act to that Act (lag 1985:569 om införande av lagen 1985:568 om särskilda omsorger om psykiskt utvecklingsstörda m.fl.) entered into force on 1 July 1986.   56.    Upon the entry into force of the 1985 Act the 1967 Act was repealed with certain exceptions provided for in the Transitional Act. As regards nursing homes, Section 6 of the Transitional Act provided that, inter alia, Sections 35 and 51 of the 1967 Act were to remain in force.         4.    The 1949 Parental Code   57.    Chapter 18, Section 3 of the 1949 Parental Code (as amended by Act no. 1974:1034) read:         (Swedish)         "Om någon på grund av sjukdom, hämmad förståndsutveckling,       försvagat hälsotillstånd eller liknande förhållande behöver       bistånd med att bevaka sin rätt, förvalta sin egendom eller sörja       för sin person, skall rätten, där så erfordras, förordna god man       för honom. Förordnande som nu nämnts må ej givas utan samtycke       från den för vilken god man skall utses, med mindre hans       tillstånd medför hinder mot inhämtande av samtycke eller eljest       särskilda skäl föreligga."         (Translation)         "If someone due to [his] illness, hampered intellectual       development, weakened state of health or similar reason is in       need of assistance in order to safeguard his right[s], administer       his possessions or care for himself, the court shall, if       necessary, appoint a guardian for him. This appointment shall not       be ordered without the consent of the person for whom the       guardian is appointed, unless his state prevents the obtaining       of consent or other particular reasons are at hand."   58.    As from 1 January 1989 Chapter 18, Section 3 of the Parental Code was repealed and replaced by a similar provision in Chapter 11, Section 4 of the same Code.   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   59.    The Commission has declared admissible the applicant's complaints relating to the conditions in the Rosenhill nursing home during her visits to Kjell Persson and the restrictions on her right to visit Kjell Persson in both the Rosenhill and Björnkulla nursing homes as well as her complaint of the absence of a right to a court review of the restrictions on her visiting rights.   B.     Points at issue   60.    Accordingly, the issues to be determined are:         - whether there has been a violation of Article 8 (Art. 8) of the Convention on account of the conditions in the Rosenhill nursing home during the applicant's visits to Kjell Persson;         - whether there has been a violation of Article 8 (Art. 8) of the Convention on account of the restrictions on her right to visit Kjell Persson both in the Rosenhill and Björnkulla nursing homes;         - whether there has been a violation of Article 6 para. 1 (Art. 6-1)of the Convention on account of the absence of a right to a court review of the above restrictions; and         - whether there has been a violation of Article 13 (Art. 13) of the Convention on account of that absence.   C.     As regards Article 8 (Art. 8) of the Convention   61.    Article 8 (Art. 8) of the Convention provides:         "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."         1.    The conditions in the Rosenhill nursing home during the            applicant's visits   62.    The applicant complains that the conditions during her visits to Kjell Persson in the Rosenhill nursing home constituted an unjustified interference with her private and family life. She could not associate with Kjell Persson in private during her visits. Wherever she would meet him in the nursing home, the visits would be disturbed by staff, other patients or visitors. In particular, as there were no curtains in several windows of Kjell Persson's room, passers-by in the corridor as well as the patient in an adjacent room could look into that room during the applicant's visits.   63.    The applicant further states she was never informed that she could close the sliding-door in the staff dining-room. On the contrary, she was told that she was not allowed to see Kjell Persson in private and that staff would supervise her visits. She did not therefore dare to close the sliding-door, fearing further restrictions on her visiting rights or a total prohibition of visits.   64.    The Government do not dispute that the applicant's private and family life was affected by the conditions during her visits in the nursing home. They question, however, whether the respect ensured by Article 8 (Art. 8) required that her visits should have taken place in total privacy, given that the nursing staff was responsible for Kjell Persson's care also during those visits. In any case, the applicant had ample opportunities to meet with Kjell Persson in various parts of the nursing home as well as in its vicinity. In the Government's view, no conclusions can be drawn from the present state of Kjell Persson's old room in the nursing home.   65.    The Commission has considered whether the conditions in the nursing home during the applicant's visits amounted to a lack of respect for her private and family life. It recalls that the notion of "respect" enshrined in Article 8 (Art. 8) is not clear-cut. This is the case especially where the positive obligations implicit in that concept are concerned. Its requirements will vary considerably from case to case according to the practices followed and the situations obtaining in the Contracting States. When determining whether or not such an obligation exists regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual as well as to the margin of appreciation afforded to the Contracting States (Eur. Court H.R., B. v. France judgment of 25 March 1992, Series A no. 232-C, pp. 47 et seq., paras. 44 et seq.).   66.    In the present case the Commission must strike a balance between, on the one hand, the interest of the applicant and Kjell Persson in being able to meet under acceptable conditions and, on the other hand, the State's interest in ensuring an adequate care of the patients in the nursing home, taking into account also the interests of other visitors.   67.    The Commission finds it established that Kjell Persson's room was located at the end of the nursing home in a short corridor with less passers-by. Moreover, although the applicant's visits were restricted to the nursing home and its vicinity, they could also take place in various other parts of the building and occasionally outside, Kjell Persson's state of health permitting.   68.    The Commission considers therefore that, regardless of whether or not the windows in Kjell Persson's room facing the corridor and the adjacent patient room had curtains, the applicant had a reasonable opportunity to visit him in the nursing home without being unnecessarily disturbed. Regard must also be had to the character of the nursing home as a public institution.   69.    Taking these various elements into account, the Commission does not find it established that the national authorities failed to make such efforts as could reasonably be expected in order to safeguard the interest of the applicant in meeting her son under acceptable conditions.   70.    In view of the margin of appreciation afforded to the State the Commission concludes that a fair balance was struck between the conflicting interests at stake in the instant case. Accordingly, there has been no lack of respect for the applicant's private and family life and, thus, no violation of Article 8 (Art. 8) of the Convention.         CONCLUSION   71.    The Commission concludes, unanimously, that there has been no violation of Article 8 (Art. 8) of the Convention on account of the conditions in the Rosenhill nursing home during the applicant's visits to Kjell Persson.         2.    The restrictions on the applicant's right to visit            Kjell Persson in the nursing homes   72.    The applicant complains that the restrictions on her right to visit Kjell Persson in both the Rosenhill and the Björnkulla nursing home had no legal basis and were, in any event, unnecessary for any of the purposes enumerated in Article 8 para. 2 (Art. 8-2) of the Convention. His care by no means required that her visits be supervised. On the contrary, these visits were of great importance for his well-being.   73.    The Government do not dispute that the restrictions interfered with the applicant's right to respect for her family life and admit the absence of a provision in the 1967 Act explicitly allowing restrictions on visits to a person placed in compulsory care. They consider, however, that the restrictions on the applicant's visits were justified under Article 8 para. 2 (Art. 8-2), given that they were part and parcel of the implementation of the compulsory care order regarding Kjell Persson which was based on Section 35, subsection 1 (b) of the 1967 Act. The restrictions were imposed in order to improve the possibilities of caring for him and, thus, aimed at protecting his health. A further aim of the restriction imposed in the Björnkulla nursing home was to enable the staff responsible for Kjell Persson's care to get to know him properly. The restrictions on the applicant's visits were necessary in view of her lack of confidence in the nursing staff and her attempts to interfere with Kjell Persson's care. As visits were not totally prohibited, the restrictions did not prevent the applicant from fulfilling her duties as his guardian.   74.    The Commission finds that the restrictions on the applicant's right to visit Kjell Persson interfered with her right to respect for her family life under Article 8 (Art. 8) of the Convention. Such an interference must be "in accordance with the law", have one or several aims which are legitimate under para. 2 of that provision and be "necessary in a democratic society" (Eur. Court H.R., Rieme judgment of 22 April 1992, Series A no. 226-B, p. 68, para. 56). An interference cannot be held to be "in accordance with the law" unless, first of all, it has some basis in domestic law.   75.    The expression "in accordance with the law" relates to the quality of the law in question and implies that the law should be accessible to the person concerned, who must moreover be able to foresee its consequences for him. The law must be compatible with the rule of law in the sense that the person concerned should have access to a measure of protection under national law against arbitrary interferences with his rights (Eur. Court H.R., Kruslin and Huvig judgments of 24 April 1990, Series A nos. 176-A and 176-B, p. 20, para. 27, and p. 52, para. 26, respectively, and the Herczegfalvy judgment of 24 September 1992, Series A no. 244, p. 27-28, paras. 88-91). The term "law" should be understood in its "substantive" sense, not its "formal" one. It may therefore include enactments of lower rank than statutes as well as unwritten law. In a sphere covered by written law, the "law" is the enactment in force as the competent courts have interpreted it (the above-mentioned Kruslin and Huvig judgments, pp. 21-22, and para. 29, pp. 53-54, para. 28, respectively).   76.    If a law confers discretion on a public authority or a person exercising such authority, it must indicate the scope of that discretion. As it may not be possible to formulate a law to cover every eventuality, the degree of precision required will depend on the particular subject matter (cf. Eur. Court H.R., Silver and Others judgment, Series A no. 61, p. 33, para. 88, the above-mentioned Kruslin and Huvig judgments, pp. 22-23, para. 30, and pp. 54-55, para. 29, respectively, and the above-mentioned Herczegfalvy judgment, p. 27, para. 89).   77.    In the present case the Government admit the absence of a provision in the 1967 Act explicitly allowing restrictions on the applicant's visits. They consider, however, that the restrictions were, nevertheless, "in accordance with the law", as they were inherent in the compulsory care order regarding Kjell Persson issued under Section 35, subsection 1 (b) of the 1967 Act.   78.    In the Commission's view, however, such an implied right under the 1967 Act to restrict the applicant's visits does not meet the requirements of foreseeability as recalled above. Thus, the applicant did not enjoy the minimum degree of protection to which one is entitled under the rule of law in a democratic society. Accordingly, the interference was not carried out "in accordance with the law".   79.    In view of this finding there is no need for the Commission to examine whether the other requirements under Article 8 para. 2 (Art. 8-2) have been complied with, i.e. whether the interference pursued a legitimate aim and whether it was proportionate and thus necessary in a democratic society.         CONCLUSION   80.    The Commission concludes, unanimously, that there has been a violation of Article 8 (Art. 8) of the Convention on the ground that the restrictions on the applicant's visits to Kjell Persson in both nursing homes were not "in accordance with the law".   D.     As regards Article 6 para. 1 (Art. 6-1) of the Convention   81.    Article 6 para. 1 (Art. 6-1) of the Convention reads, insofar as it is relevant:         "In the determination of his civil rights ... everyone is       entitled to a fair ... hearing ... by an independent and       impartial tribunal established by law. ..."   82.    The applicant complains that she could not obtain a court review of the restrictions on her right to visit Kjell Persson in the Rosenhill and Björnkulla nursing homes, neither in her capacity as mother nor as his appointed guardian.   83.    The applicant submits that no distinction can be made between the present case and cases where the Convention organs have considered it necessary to provide for a court review of disputes regarding the restriction on parents' access to their children. Neither can the restrictions on her visits be compared with those imposed during, for instance, emergency treatment of patients in a hospital. In the latter case the reasons for the restrictions are strictly medical and the patient's placement is not of a compulsory character. In view of Kjell Persson's compulsory placement and his state of health her only means of obtaining access to him was by paying visits to the nursing homes. Finally, in her capacity as his guardian she had not only a right but an obligation under the Parental Code to visit him.   84.    The Government submit that Article 6 para. 1 (Art. 6-1) is inapplicable in the instant case, as there was no determination of the applicant's "civil rights" wit