CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 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. 34621/97                       by Chiara CONSTANTINI                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 16 April 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     F. MARTINEZ                  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 2 April 1996 by Chiara COSTANTINI against Sweden and registered on 28 January 1997 under file No. 34621/97;         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 applicant, an Italian citizen born in 1913, resides in Maglie, Italy.   Before the Commission she is represented by her son, Mr Antonio Meleleo, Göteborg.         The facts of the case, as submitted by the applicant, may be summarised as follows.   a.     The particular circumstances of the case         The applicant's son is the father of a boy, A, born in 1987, of whom the mother, L.E., has custody.   For several years, the applicant's son and L.E. were unable to agree on the question of the former's access to A.   Consequently, the applicant's son instituted access proceedings in the ordinary courts.   By judgment of 21 December 1995, the Court of Appeal (hovrätten) for Western Sweden decided that the applicant's son's access to A should be limited to eight hours every second week in the presence of a so-called contact person (kontaktperson) appointed by the social authorities.   In so deciding, the court had regard to, inter alia, A's statement that he wished that some other person be present when he met his father but that he would rather not have any meetings at all before he had grown up.         Apparently, as from the end of May 1996 the applicant's son has had access to A in accordance with the appellate court's judgment.         By letter of 29 September 1996, claiming that L.E. refused her access to A - her grandson - the applicant requested the Social District Council (stadsdelsnämnden) of Tuve-Säve, Göteborg, to institute court proceedings in order that she be awarded such access. She invoked Chapter 6, Section 15, subsection 3 of the Parental Code (Föräldrabalken).         The Council replied on 19 November 1996, saying that, according to L.E., the applicant was welcome to visit A in Sweden.   Following a further letter from the applicant, the Council, on 11 February 1997, reiterated its position that L.E. did not refuse the applicant access to A and that the Council therefore, at that point in time, found no reason to institute any access proceedings.   Represented by her son, the applicant, by letter of 19 February 1997, stated that she was too old and ill to travel to Sweden.   Instead, she should be allowed to meet A in Italy.   The applicant's son would accompany A to Italy and access should be given for a period long enough to make the trip meaningful, in the beginning at least two weeks on each occasion.   The applicant requested the Council to take a formal decision whether to institute proceedings regarding her access and - should that decision be negative - give her directions on how to appeal.   On 19 March 1997 the Council informed the applicant that it would investigate the matter.         The applicant's son lodged an application with the Commission (No. 31050/96), complaining, inter alia, that the access awarded to him by the Court of Appeal on 21 December 1995 was insufficient and constituted a violation of his right to respect for his family life under Article 8 of the Convention.   By decision of 21 May 1997, the Commission declared the application inadmissible, finding that, in the circumstances of the case, the access restrictions were in accordance with the law and were justified as being necessary in a democratic society for the protection of the rights and freedoms of A.   b.     Relevant domestic law         Swedish law does not afford grandparents any rights over their grandchildren.   The rights over a child are normally vested in its parents or custodians who, according to Chapter 6, Section 15, subsection 1 of the Parental Code, shall see to it that the child's need of access to a person who is particularly close to the child is satisfied to the utmost possible extent.   As concerns the possibility of instituting court proceedings, subsection 3 provides that such proceedings may be brought by the Social Council, if access requested by somebody else than the natural parents is denied by the child's custodians.   The court shall determine the question of access in keeping with the child's best interests.     COMPLAINTS   1.     The applicant claims that she has been denied access to A and, consequently, that her right to respect for her family life under Article 8 of the Convention has been violated.   2.     The applicant complains further that she cannot bring this issue before a court.   In this respect, she invokes Article 6 of the Convention.     THE LAW   1.     The applicant claims that she has been denied access to A and, consequently, that her right to respect for her family life has been violated.   She invokes Article 8 (Art. 8) of the Convention which provides the following:         "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 and morals, or for the protection of the rights and       freedoms of others."         As has been stated by the European Court of Human Rights (Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 21, para. 45), "family life" within the meaning of Article 8 (Art. 8) of the Convention includes at least the ties between close relatives, since such relatives may play a considerable part in family life.   By way of example, the Court mentioned the relationship between grandparents and grandchildren.   The Commission recalls, however, that the existence or not of family ties falling within the scope of Article 8 (Art. 8) will depend on a number of factors and on the particular circumstances of each case (cf., e.g., No. 12763/87, Dec. 14.7.88, D.R. 57, p. 216).         In the present case, the Commission finds that it can be left open whether the relationship between the applicant and A concerns "family life" which has been interfered with within the meaning of Article 8 para. 1 (Art. 8-1) because, even assuming this to be the case, the Commission considers that the interference was permissible under para. 2 of that provision.   In reaching this conclusion, the Commission notes that the applicant may meet A in Sweden on those occasions when her son - A's father - has access to A.   In this connection, it is recalled that the applicant's son's access to A was restricted mainly due to the wishes expressed by A himself.   In its decision of 21 May 1997, the Commission found that, in the circumstances of the case, these restrictions were justified under Article 8 para. 2 (Art. 8-2).   A's attitude towards meetings with the applicant is unknown.   However, according to the applicant's statements to the Social District Council, the applicant's son would be present at the proposed meetings which would last for at least two weeks on each occasion.   The Commission finds that this arrangement clearly runs counter to A's wishes.   Thus, the failure to award the applicant a separate right of access to A does not entail a violation of the applicant's rights under Article 8 (Art. 8) 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.   2.     The applicant complains further that she cannot bring the access issue before a court.   In this respect, she invokes Article 6 (Art. 6) of the Convention which, in so far as relevant, provides as follows:         "1.   In the determination of his civil rights and       obligations ..., everyone is entitled to a ... hearing by       [a] ... tribunal ..."         The Commission recalls that in order for Article 6 para. 1 (Art. 6-1) to apply to the proceedings in question it must be ascertained whether there was a dispute over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law (cf., e.g., Eur. Court HR, W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121-A, p. 32-33, para. 73).   Under Swedish law the applicant has no right of access to A, her grandson.   Thus, she cannot claim on any arguable ground that she has a right under domestic law. Consequently, Article 6 para. 1 (Art. 6-1) does not apply in the present case (cf. No. 12763/87, referred to above).         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention 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