CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1998

.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. 29035/95                       by T.W.                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 14 January 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the 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 10 July 1995 by T.W. against Sweden and registered on 31 October 1995 under file No. 29035/95;         Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 18 February 1997 and the observations in reply submitted by the applicant on 17 April 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Swedish citizen, born on 31 December 1987 and resident in Helsingborg. Before the Commission he is represented by Mr Olle Karlsson, a lawyer in Helsingborg, who is instructed by the applicant's mother and custodian.         The facts, as submitted by the parties, may be summarised as follows.   A.     Particular circumstances of the case         Already in August 1987 the Social Council (socialnämnden) of Helsingborg had begun to investigate who could be the applicant's father. Initially this investigation concerned only R, whom the applicant's mother had referred to as the father. In January 1988 the Social Council contacted R, who denied being the father. In February 1988 the Social Council requested that a legal genetic blood test be carried out in respect of the applicant, his mother and R. The samples were taken between May and October 1988. In January 1989 the results of the tests excluded the possibility that R could be the father.         After the applicant's mother had named V as the possible father the Social Council, in March 1989, began an inquiry in this respect. In September 1989 A stated to the Social Council that he might be the father. In November 1989 the mother denied having had any sexual intercourse with him. In March 1990 the Social Council requested that a legal genetic blood test be carried out in respect of the applicant, his mother and A. The samples were taken in September 1990. The results of October 1990 did not exclude A as the father. In January 1991 the Social Council contacted V, who doubted that he was the applicant's father. The applicant and V failed to show up for certain appointments fixed by the Social Council.         On 14 February 1991 the applicant instituted paternity proceedings against A and V before the District Court (tingsrätten) of Helsingborg. The applicant was represented by a legal aid lawyer jointly appointed by the mother and the Social Council. A preparatory hearing scheduled for April 1991 was postponed, the District Court having granted V's request for a legal genetic blood test involving the applicant, his mother and himself. In June 1991 the District Court ordered V to pay a fine for having failed to supply the necessary blood sample. In October 1991 the District Court again directed V to supply the sample. In December 1991 the District Court held a preparatory hearing and decided to seek police assistance to have V supply the sample. The sample was taken in March 1992. In April 1992 the District Court directed V to submit a further sample at the request of the laboratory. In July 1992 the District Court again decided to seek police assistance to have V supply the fresh sample. The sample was taken the same month. In September 1992 the results were communicated to the applicant's counsel for comments within two weeks. She was granted an extension of one month so as to be able to consult with the mother. In October 1992 the mother withdrew her claim that V might be the father. On 28 October 1992 the District Court dismissed the paternity action against V and ordered that the applicant, his mother and A should undergo an extended legal genetic blood test. Samples were supplied in December 1992 and the results were received by the District Court on 12 March 1993. It indicated that A was the applicant's father with a probability degree of more than 99.999 %. The applicant's lawyer was requested to comment thereon within three weeks but was granted a two-week extension due to difficulties in reaching the applicant's mother. Further observations were submitted in May and June 1993. In August 1993 the District Court fixed its oral hearing for September 1993. Before the District Court the applicant's mother stated under oath that she could not think of any men other than R and V who might have conceived the applicant.         In its judgment of 30 September 1993 the District Court noted that the applicant's mother had denied having had sexual intercourse with A during the period of conception. However, the result of the blood test had shown with a very high probability that he was the applicant's father. Having regard to the circumstances as a whole, it had thus been shown with a reasonable degree of probability that he was the father.         Unlike the Social Council the applicant's mother was unwilling to accept the District Court's judgment on the applicant's behalf. Due to this conflict of interests she sought representation by a new legal aid counsel, whereas the previous counsel continued to represent the applicant on behalf of the Social Council.         In his appeal to the Court of Appeal (hovrätten) of Skåne and Blekinge of 19 October 1993 the applicant through his mother withdrew his paternity claim against A and requested that the case be struck off. It was important, so the applicant argued, that an "incorrect" or "faulty" ("felaktig") father not be found. The applicant wished to make further observations in support of his appeal within one month, should his appeal not be struck off.         The Court of Appeal did not strike the case off its list and in January 1994 it authorised with retroactive effect the applicant's mother's change of legal aid counsel. The Social Council joined the appeal proceedings, arguing that the District Court's judgment should stand. Written observations were submitted between March and August 1994.         In June and December 1994 A contacted the Social Council, stating his wish to establish bonds with the applicant and expressing his concern about the duration of the paternity proceedings. He was advised to await the outcome of the proceedings.          At the Court of Appeal's hearing in October 1994 the applicant's mother disclosed the name of yet a further potential father. The hearing was adjourned until November 1994 for an additional inquiry and the calling of two experts of the National Legal Serological Institute (Statens Rättsserologiska Institut). At the resumed hearing they confirmed the very high probability that A was the applicant's father.         On 15 November 1994 the Court of Appeal upheld the District Court's judgment as far as the paternity matter was concerned. In December 1994 the applicant's mother sought leave to appeal to the Supreme Court (Högsta domstolen). On 17 January 1995 such leave was refused.   B.     Relevant domestic law         According to the Parental Code (Föräldrabalken), a man shall be declared to be the father of a child if he is found to have had sexual intercourse with the child's mother during the relevant period and it is probable, with regard to all the relevant circumstances of the case, that he is the father of the child (chapter 1, subsection 5). Whenever necessary, the local social council is under a duty to inquire into the paternity of a child and institute proceedings on behalf of the child to have the paternity confirmed. The inquiry should be conducted without delay and shall, failing special reasons to the contrary, be completed within one year from the birth of the child (chapter 2, sections 1, 4, 6 and 8). The mother may institute paternity proceedings independently of the Social Council, if she has custody of the child (chapter 3, section 5). The competent court shall ensure that the paternity question is properly investigated (chapter 3, section 9).         According to chapter 49, section 6 of the Code of Judicial Procedure (Rättegångsbalken), any party who is of the opinion that the proceedings in a case have been delayed without cause by a district court's order may appeal against that order separately. No other separate appeals lie open with regard to a delay in the proceedings.     COMPLAINTS   1.     The applicant complains that the paternity proceedings as a whole, starting with the Social Council's investigation, lasted some seven years, which is excessive.   2.     The applicant also complains that he did not receive a fair trial. Allegedly, the courts applied the relevant Swedish law wrongly by declaring A to be his father, although only the second of the two conditions set out in the Parental Code had been met.         The applicant invokes Article 6 para. 1 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 10 July 1995 and registered on 31 October 1995.         On 27 November 1996 the Commission (Second Chamber) decided to communicate to the respondent Government the applicant's complaint concerning the length of the proceedings.         The Government's written observations were submitted on 18 February 1997.   The applicant replied on 17 April 1997, after an extension of the time-limit fixed for that purpose.     THE LAW   1.     The applicant complains about the length of the paternity proceedings. He invokes Article 6 para. 1 (Art. 6-1) of the Convention which, as far as relevant, reads as follows:         "In the determination of his civil rights ..., everyone is       entitled to a fair ... hearing within a reasonable time by       [a] ... tribunal ..."         The Government consider that the applicant has not exhausted the domestic remedies, as required by Article 26 (Art. 26) of the Convention. He did not appeal separately against the District Court's order of 28 October 1992 that he, his mother and A undergo an extended legal genetic blood test. This order delayed the proceedings with four and a half months. In an appeal on this point the applicant could reasonably have argued that an extended blood test regarding A would cause an unnecessary delay, as the applicant's mother had stated that she and A had not had sexual intercourse.         In the alternative, the Government accept that Article 6 para. 1 (Art. 6-1) is applicable but submit that the complaint is manifestly ill-founded, as the delays in the proceedings cannot be attributed to the State. In the Government's view the period to be taken into consideration for the purposes of assessing the length of the proceedings began only on 14 February 1991, when the applicant instituted paternity proceedings against A and V. During the preceding inquiry by the Social Council the applicant was represented by his mother and custodian, who could at any time have instituted court proceedings on his behalf. The period to be taken into consideration ended, according to the Government, with the Supreme Court's decision of 17 January 1995.         Should the Commission consider that the period to be taken into consideration started at the time of the applicant's birth, the State cannot in the Government's view be held responsible for the mother's and V's failure to attend certain meetings organised by the Social Council. Furthermore, it proved difficult to reach R and to have him deliver the necessary blood sample. Even after the result of the legal genetic blood test had ruled him out as the applicant's father, the applicant's mother delayed the Social Council's work by insisting that he was the father. The mother's refusal to admit that A could be the father made the Social Council inquire into other alternatives.         In any event, so the Government argue, the duration of the proceedings was not unreasonable in the light of the particular features which complicated the case. No fewer than four men were at one point or other considered the applicant's potential father. Although R was ruled out at an early stage of the Social Council's inquiry, the inquiry in respect of him meant that when the court proceedings began the Social Council had not yet obtained any blood test regarding V. That test therefore had to be ordered by the District Court itself. Moreover, due to a conflict of interests the applicant's mother and the Social Council could no longer represent the applicant jointly in the appeal proceedings. The appointment of a new counsel at his mother's request necessitated more work on the part of the Court of Appeal.         As regards the applicant's conduct during the court proceedings, the Government consider that he must be held accountable for his mother's unwillingness or inability to disclose as early as possible the names of all the potential fathers, including A. Specific delays were also caused by counsel's difficulties in reaching the mother, which led to certain adjournments of the proceedings before the District Court. Moreover, before the Court of Appeal the applicant through his mother initially withdrew his paternity claim against A. His subsequent change of mind created more work for the Court of Appeal.         Finally, as regards the conduct of the defendants, the Government recall that V's refusals to present himself for the necessary blood tests required that the District Court issue him with a fine and seek police assistance for enforcement purposes. This procedure lasted in itself one year and four months.         The applicant refutes the Government's preliminary objection. The remedy open to him under the Code of Judicial Procedure would not have prevented the delays in the proceedings effectively and cannot thus be considered a remedy within the meaning of Article 26 (Art. 26).         The applicant considers that the period to be taken into consideration began with the opening of the Social Council's inquiry in August 1987 and ended with the Supreme Court's decision in January 1995. The proceedings thus lasted more than seven years. Even if the period were considered to have started in February 1991 the proceedings lasted about four years, which is in any case excessive for the examination of a paternity action.         The applicant furthermore argues that the case was not particularly complex and the delays in the proceedings cannot be attributable to his mother. She did not deliberately conceal the names of his potential fathers and was simply not aware of having had sexual intercourse with A. Her statement that she had been the victim of a sexual offence possibly after having been drugged was not taken seriously. Furthermore, before the District Court A had been unable to say with certainty whether he had had sexual intercourse with the applicant's mother. In these circumstances she could not reasonably be expected to waive her right to appeal against the judgment establishing that A was the father.         The Commission reiterates that in civil proceedings the period to be taken into account in the assessment of the length of the proceedings normally begins to run from the moment the court action was instituted. It is conceivable, however, that in certain circumstances the period may begin to run earlier. Thus, the period may commence already with the lodging of an objection in preliminary administrative proceedings, if the applicant is unable to seise the competent court before the matter has been examined by the administrative authority (see Eur. Court HR, König v. the Federal Republic of Germany judgment of 28 June 1978, Series A no. 27, pp. 33-34, para. 98).         In the present case the Commission notes that under domestic law the Social Council was under a duty to inquire without delay into the paternity and to institute court proceedings on behalf of the applicant to have the paternity confirmed. Nevertheless, together with the applicant's mother the Social Council lodged a paternity action on the applicant's behalf only in February 1991.         The Commission notes, however, that domestic law did not prevent the applicant's mother from lodging a paternity action on her son's behalf in her capacity as his custodian. This course of action she could have opted for independently of the Social Council and thus without awaiting the outcome of its inquiries. In these circumstances the Commission can accept that the period to be taken into consideration for the purpose of assessing the length of the proceedings under Article 6 para. 1 (Art. 6-1) of the Convention began when the paternity action was lodged jointly by the Social Council and the applicant's mother, i.e. on 14 February 1991. It ended on 17 January 1995, when the Supreme Court refused leave to appeal. The proceedings thus lasted some three years and eleven months.         The reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities and the importance of what is at stake for the applicant in the litigation (see, e.g., Eur. Court HR, Duclos v. France   judgment of 17 December 1996, Reports 1996-VI, no. 25, pp. 2180-2081, para. 55). Special diligence is required in cases concerning civil status (see, e.g., Eur. Court HR, Taiuti v. Italy judgment of 27 February 1992, Series A no. 229-I, p. 93, para. 18; Bock v. the Federal Republic of Germany judgment of 23 March 1989, Series A no. 150, p. 23, para. 49).         The Commission considers that the present case was somewhat complex on the facts, considering the number of potential fathers named by the applicant's mother both before and during the court proceedings. As for the conduct of the authorities, the Commission notes that the case was pending before the District Court for two years and seven months. The applicant's appeal was pending for a little more than one year, whereas the Supreme Court refused leave to appeal within two months. However, the Commission cannot detect any important delay at any of the three court levels for which the authorities could be held responsible. It notes, in particular, that one of the potential fathers and defendants, V, on two occasions attempted to obstruct the proceedings before the District Court by refusing to undergo the necessary blood tests. This led the District Court to impose a fine on him and to seek police assistance. However, neither in that connection nor more generally was there any significant period of inactivity which could be imputed to the District Court or the Court of Appeal.         As for the applicant's own conduct, the Commission accepts that he must be held accountable for what appears to have been his mother's unwillingness to accept that A be found to be his father in spite of the convincing expert evidence adduced. The Commission finds it particularly striking that at the appeal stage the applicant's mother, though speaking in the name of her son, first sought to have A's paternity quashed and the case struck off and, when not succeeding in this, stated the name of yet another purported father. The Commission has not ignored the mother's allegation that, having possibly been under the influence of drugs, she could not be aware of all potential fathers of the applicant. On the other hand, there is no substantiation of this alleged offence against her. In these circumstances any delay in the proceedings can reasonably be held against the applicant due to his mother's behaviour.         It is true that what was at stake for the applicant was of considerable importance to him in view of his young age and his relation with A, who was eventually found to be his father. Indeed A, seeking to establish bonds with the applicant, contacted the Social Council to express his concern about the duration of the proceedings. There is no indication, however, that as a party to the same proceedings he made any attempt to have the court proceedings speeded up.         Making an overall assessment, the Commission therefore considers that the length of the proceedings was not excessive in the specific circumstances of this case.         It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant complains that he did not receive a fair trial due to the manner in which the courts applied domestic law.         The Commission recalls that it is unable to deal with a complaint that errors of law 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 by the Convention (see, e.g., No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77). It is in principle within the discretionary powers of the domestic courts to evaluate the evidence before them. In the applicant's case the courts placed decisive weight on the results from the extended legal genetic blood test involving him, his mother and A and on the expert interpretations of those results. The Commission finds nothing to suggest that the courts' assessment of evidence was arbitrary or otherwise not legally justified. Accordingly, there is no indication of a violation of Article 6 para. 1 (Art. 6-1) in this respect.         It follows that this complaint is also 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.      M.-T. SCHOEPFER                                J.-C. GEUS       Secretary                                    President to the Second Chamber                       of the Second Chamber