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STROMBLAD v. SWEDEN - 3684/07 [2012] ECHR 592 (5 April 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/592.html
Cite as:
[2012] ECHR 592
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FIFTH
SECTION
CASE OF STRÖMBLAD v. SWEDEN
(Application
no. 3684/07)
JUDGMENT
STRASBOURG
5 April
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In
the case of Strömblad v. Sweden,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Ann Power-Forde,
Ganna
Yudkivska,
Angelika Nußberger,
André
Potocki, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 6 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 3684/07) against the Kingdom
of Sweden lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Swedish national, Mr Einar Strömblad
(“the applicant”), on 15 January 2007.
The
applicant was represented by R. Harrold-Claesson, a lawyer practising
in Olofstorp. The Swedish Government (“the Government”)
were represented by their Agent, Mr B. Sjöberg, of the Ministry
for Foreign Affairs.
The
applicant complained that the Swedish courts’ protracted
custody proceedings, including their handling of his request for the
return of his daughter under the Hague Convention, and the Tax
Authority’s decision to remove his daughter from the population
register, violated Articles 6, 8 and 13 of the Convention.
On
26 June 2008 the President of the Third Section
decided to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
On
1 February 2011 the Court changed the composition of its Sections
(Rule 25 § 1 of the Rules of Court) and the above application
was assigned to the newly composed Fifth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1950 and lives in Kristianstad.
In
1999 the applicant married L., a Ukrainian national holding permanent
residence permits in the Czech Republic and in Sweden. In February
2004 she obtained Swedish nationality. In August 2003 their daughter,
N., was born. She is also a Swedish national.
Between
May and August 2005 L. visited her parents in Prague together with N.
Upon their return, the applicant’s relationship with L. quickly
deteriorated and, in September 2005, she returned to her parents’
home in Prague with N. They have remained there ever since.
A. The proceedings relating to custody and rights of contact
In
September 2005 the applicant submitted an application for divorce
from L. to the District Court (tingsrätten) in
Kristianstad. He further requested sole custody of N. or, if the
court decided that the parties should have joint custody, that N.
should live with him. In any event, if the court were to decide that
N. should live with her mother, he wanted contact rights to be
exercised on a regular basis according to a specific schedule.
L.
agreed to the divorce but opposed the applicant’s requests in
relation to their daughter. She wanted sole custody of N. but agreed,
pending the final outcome of the proceedings, that the applicant
could visit N. in Prague for a few hours every other weekend with her
or her mother (N.’s maternal grandmother) present.
On
14 November 2005, after having held an oral hearing, the District
Court decided that, pending the final outcome of the proceedings, the
applicant and L. should have continued joint custody of N. but that
she should live with her mother and see her father for four hours
every other weekend in the presence of L. or a person of her choice.
The court further ordered the Kristianstad Social Council to carry
out an investigation into the custody of N., her place of residence
and contact to her. In its interim decision, the court noted that
neither the applicant nor L. appeared to be unsuitable as guardians
for N. Therefore, despite their difficulties in co-operating and the
distance between their places of residence, there were not enough
reasons to dissolve the joint custody of N. Moreover, having regard
to N.’s young age and the fact that the main responsibility for
her daily care had rested with L., the court found it to be in the
child’s best interest to live with L. even though L., by moving
to Prague, had made it more difficult for N. to see her father. In
this respect, the court emphasised that L. had a great responsibility
to ensure that N. would be able to see the applicant. The parties
were left to agree on where it would be best for N. and the applicant
to meet.
The
applicant appealed against the decision to the Court of Appeal
(hovrätten) of Skåne and Blekinge, maintaining his
requests for sole custody of N. and for her to live with him. In the
alternative, he wanted his right of contact with N. to be exercised
in southern Sweden.
L.
opposed any changes to the District Court’s decision.
On
13 December 2005 the Court of Appeal upheld the lower court’s
decision in full. It found that no circumstances had been presented
which indicated that the District Court’s decision was not in
the best interests of the child. This decision was final.
Subsequently,
the applicant requested the District Court to change its interim
decision, inter alia, in respect of N.’s place of
residence and the contact rights. He claimed that the interim
decision in force had made it impossible for him to create meaningful
contact with N., since it was too expensive for him to travel to
Prague every other weekend. Moreover, he wanted to be able to spend
time with his daughter alone.
As
L. opposed any changes to the interim decision, the District Court
held an oral hearing, at which the applicant, his representative and
L.’s representative were present. L. did not attend.
In
an interim decision of 23 January 2006, the District Court altered
its previous decision by granting the applicant a right of contact to
N. every other weekend for four hours on both Saturday and Sunday.
For the rest, the court found it to be in the best interests of N. to
keep the interim arrangements until final judgment was delivered in
the case.
The
applicant appealed to the Court of Appeal, demanding that N.’s
permanent place of residence should be in Sweden.
On
28 February 2006 the Court of Appeal rejected the appeal, noting that
it was not legally possible for it to decide where a child should
live; it could only decide with whom. No appeal lay against the
decision.
In
2006 the Social Council made an investigation concerning the custody
of N., her place of residence and contact to her, but the District
Court did not find the results satisfactory. Thus, by decision of 2
July 2007, the District Court mandated a company, Access Borders SE,
to investigate N.’s living conditions in the Czech Republic.
The report was to be submitted to the court at the latest on 15
October 2007. Moreover, the court decided that N. should meet with
the applicant for four hours on 8 December 2007 and for four hours on
9 December 2007 in Sweden. Furthermore, the date for the main hearing
in the case was fixed for 11 and 12 December 2007.
The
hearing was cancelled and, apparently, the applicant and N. did not
therefore meet as scheduled in Sweden.
In
a report faxed to the District Court on 18 December 2007, Access
Borders SE informed the court of its efforts to carry out an
investigation into N.’s living conditions in Prague but stated
that this had not been possible because L.’s representative in
Prague had acted in a manner which obstructed the impartial
investigation.
On
13 March 2008 the District Court took a number of procedural
decisions, inter alia, rejecting L.’s request to have
all documents in the case-file translated into Czech and deciding
that the parties should finalise their pleadings by 21 April 2008 so
that the main hearing could take place. Moreover, it rejected a
request by the applicant to order further investigations into N.’s
situation in the Czech Republic while maintaining the assignment
given to Access Borders SE. In this respect, the District Court noted
that a new investigation would be very time-consuming and therefore
not appropriate but that it would take into consideration when
deciding the case that L. had refused to co-operate in the
investigation by Access Borders SE ordered by the court.
On
2 March 2010 the District Court took further procedural decisions,
inter alia, rejecting a request by the applicant to hear a new
witness. Moreover, it rejected the applicant’s request for
edition of certain documents.
On
27 July 2010 the District Court, after having held an oral hearing,
delivered its judgment. The court decided that L. should have the
sole custody of N. and granted the applicant a right of contact with
N. four days in a row on a monthly basis, which should gradually be
increased.
The
District Court held that both the applicant and L. were suitable
parents. It further concluded that the fact that N. had not seen her
father for the last five years was to a large extent caused by L.’s
behaviour and that it was to be feared that N. would not have any
future contact with the applicant if she stayed with L. in Prague.
However, the court held that, despite invitations from L., the
applicant had not even once gone to Prague. In the court’s view
he had thus not made sufficient efforts to enforce his rights of
contact in respect of N. Lastly, the court concluded that the
advantages of a change of N.’s domicile would not outweigh the
drawbacks, inter alia, since N. had not seen the applicant for
several years and no longer spoke Swedish.
The
applicant appealed against the judgment to the Court of Appeal, which
refused leave to appeal on 29 September 2010.
On
8 December 2010 the Supreme Court refused leave to appeal.
B. Proceedings relating to the Hague Convention
In
December 2005 the applicant applied to the Swedish Ministry for
Foreign Affairs for assistance for the return of N. to Sweden in
accordance with the Hague Convention of 25 October 1980 on
the Civil Aspects of International Child Abduction (“the Hague
Convention”). The Ministry for Foreign Affairs, which is the
Swedish Central Authority in charge of matters falling under the
Hague Convention, forwarded the applicant’s request to its
Czech counterpart.
As
there was no real progress in the case, the applicant contacted the
Ministry for Foreign Affairs in May 2006 expressing his concern and
requesting that the Ministry put some pressure on the Czech Central
Authority.
Following
correspondence between the authorities, the Czech Central Authority
requested, in accordance with Article 15 of the Hague Convention,
that the applicant obtain a decision from the Swedish courts to the
effect that the removal of N. by her mother had been wrongful within
the meaning of Article 3 of the Hague Convention. In June 2006 the
Ministry for Foreign Affairs forwarded this request to the District
Court in Kristianstad since the latter was dealing with the custody
case.
By
judgment of 10 October 2006 the District Court declared that L.’s
retention of N. in the Czech Republic was not unlawful within the
meaning of Article 3 of the Hague Convention. In reaching this
conclusion, it had regard to the fact that, in November 2005 when it
had taken its interim decision that N. should live with her mother,
it had known that they were staying in Prague. Thus, it had accepted
that N. was not in Sweden but in Prague with L. for which reason the
retention was not unlawful.
The
applicant appealed to the Court of Appeal, claiming that the District
Court should have focused on the actual removal of N. from Sweden by
L. and not on the retention. In his view, the removal had been
unlawful and the Hague Convention was therefore applicable. Later
decisions by the Swedish courts could not justify the removal
retroactively.
On
19 December 2006 the Court of Appeal rejected the applicant’s
appeal, finding that neither the removal nor the retention of N. by
L. was unlawful. This judgment was final.
However,
the applicant applied to the Supreme Court (Högsta domstolen)
for re-opening of the case as he considered that he had suffered a
miscarriage of justice. On 1 February 2007 the Supreme Court rejected
the application.
C. Proceedings relating to N.’s removal from the population
register
In
June 2006 L. sent a notification of change of address to the Swedish
Tax Authority (Skatteverket) on N.’s behalf. Since
parents who have joint custody of a child need to agree on a change
of address for the child, the Tax Authority forwarded the
notification to the applicant for comments. The applicant opposed the
change of N.’s place of residence in the Swedish population
register (folkbokföringen) since he considered the
removal of N. to be unlawful and the custody proceedings were still
ongoing.
On
11 September 2006 the Tax Authority dismissed L.’s notification
of N.’s change of address because notification had to be made
jointly by both guardians. However, at the same time it decided, on
its own initiative, to remove N. from the population register as
having emigrated, since it was clear that N., since 10 September
2005, had no longer lived at the registered address in Sweden but
with L. in Prague. In reaching this conclusion, it had regard to the
District Court’s interim decision of 14 November 2005 that N.
should be living with her mother.
The
applicant appealed against the decision to the County Administrative
Court (länsrätten) of the County of Skåne,
demanding that the Tax Authority’s decision be repealed and
that N.’s registered place of residence should not be changed
until a final decision in the custody case had been reached.
On
10 October 2006 the County Administrative Court dismissed the appeal
on the ground that both parents, since they had joint custody, had to
agree on the appeal. Thus, since L. did not support the applicant’s
appeal, the court could not consider it on the merits.
Upon
further appeal by the applicant, the Administrative Court of Appeal
(kammarrätten) in Gothenburg refused leave to appeal.
However, the applicant lodged a further appeal to the Supreme
Administrative Court (Regeringsrätten), maintaining his
claims and invoking Articles 8 and 13 of the Convention. He
considered that since the custody case and the proceedings relating
to his demand under the Hague Convention were still pending, the Tax
Authority should not prejudge those proceedings by removing N. from
the population register as having emigrated. This was a violation of
his rights under Article 8 and, consequently, he had a right under
Article 13 of the Convention to have an effective remedy, that is,
the national courts were under an obligation to try his appeal on the
merits.
On
18 December 2006 the Supreme Administrative Court refused leave to
appeal.
II. RELEVANT LAW AND PRACTICE
A. The population register
According
to the National Registration Act (folkbokföringslagen,
1991:481 –hereafter “the Act”), the general rule is
that a person is registered in the population register at the address
where he or she has his or her regular place of residence (Sections 6
and 7 of the Act).
However,
Section 20 of the Act states that a person who can be assumed in his
or her daily life, regularly to spend the night out of the country
for a period of at least one year, shall be removed from the
population register as having emigrated.
A
change of address or a move abroad of a child shall be reported to
the Tax Authority by the child’s guardian (Section 30 of the
Act). If the parents have joint custody, both have to consent to the
reported change (judgment by the Supreme Administrative Court, RÅ
1995 ref. 74). Still, the Tax Authority may decide to register
a change of address or move abroad on its own initiative if there are
reasons for it (Section 34 of the Act).
B. The Hague Convention
The
Articles of the Hague Convention, relevant for the present case, read
as follows:
Article 3
The removal or the retention of a child is to be
considered wrongful where –
a) it is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly or alone,
under the law of the State in which the child was habitually resident
immediately before the removal or retention; and
b) at the time of the removal or retention those rights
were actually exercised, either jointly or alone, or would have been
so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a)
above, may arise in particular by operation of law or by reason of a
judicial or administrative decision, or by reason of an agreement
having legal effect under the law of that State.
Article 11
The judicial or administrative authorities of
Contracting States shall act expeditiously in proceedings for the
return of children.
If the judicial or administrative authority concerned
has not reached a decision within six weeks from the date of
commencement of the proceedings, the applicant or the Central
Authority of the requested State, on its own initiative or if asked
by the Central Authority of the requesting State, shall have the
right to request a statement of the reasons for the delay. If a reply
is received by the Central Authority of the requested State, that
Authority shall transmit the reply to the Central Authority of the
requesting State, or to the applicant, as the case may be.
Article 15
The judicial or administrative authorities of a
Contracting State may, prior to the making of an order for the return
of the child, request that the applicant obtain from the authorities
of the State of the habitual residence of the child a decision or
other determination that the removal or retention was wrongful within
the meaning of Article 3 of the Convention, where such a decision or
determination may be obtained in that State. The Central Authorities
of the Contracting States shall so far as practicable assist
applicants to obtain such a decision or determination.
C. Domestic practice and ongoing legislative work concerning
compensation for violations of the Convention
In
a judgment of 9 June 2005 (NJA 2005 p. 462) concerning a claim for
damages brought by an individual against the Swedish State, inter
alia, on the basis of an alleged violation of Article 6 of the
Convention on account of the excessive length of criminal
proceedings, the Supreme Court held that the plaintiff’s right
under Article 6 of the Convention had been violated. Based on this
finding, and with reference, inter alia, to Articles 6 and 13
of the Convention, the Supreme Court concluded that the plaintiff was
entitled to compensation under Swedish law for both pecuniary and
non-pecuniary damage.
In
a judgment of 21 September 2007 (NJA 2007 p. 584), the Supreme Court
held that the plaintiffs’ right to respect for their private
life under Article 8 of the Convention had been violated because a
police decision on a medical examination of some of them had not been
“in accordance with the law”. Having found that
compensation for the violation could not be awarded directly on the
basis of the Tort Liability Act, the Supreme Court held that there
was no reason to limit the scope of application of the principle
established in the above-mentioned two cases to violations of
Articles 5 and 6 of the Convention and concluded that the plaintiffs
should be awarded non-pecuniary damages for the violation of Article
8.
Furthermore,
the Chancellor of Justice has delivered decisions concerning
compensation to individuals for violations of the Convention. In a
decision of 23 June 2009, the Chancellor of Justice awarded an
individual damages for violations found under, inter alia,
Articles 8 and 13. The case concerned, inter alia, storage of
certain personal information concerning the applicants in the data
bases of the Swedish Security Service.
In
May 2009 the Government decided to set up a working group on tort
liability and the Convention to study the current legal situation. In
December 2010 the working group submitted its report (Skadestånd
och Europakonventionen, SOU 2010:87) to the Government. In the
report it is proposed that the Tort Liability Act be amended in order
to allow natural and legal persons to obtain damages from the State
or a municipality for violations of the Convention. Such an action
against public authorities would be examined by a general court which
would need first to establish that a right provided by the Convention
has been violated. The aim of the proposal is to provide a legal
basis for granting non-pecuniary damages arising from disregard of
the Convention, and to fulfil, together with the other already
existing legal remedies, Sweden’s obligations under Article 13
of the Convention.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that the Swedish courts’ protracted
custody proceedings, including their handling of his request under
the Hague Convention, and the Tax Authority’s decision to
remove N. from the population register, constituted a violation of
his and his daughter’s right to family life as provided in
Article 8 of the Convention. He also relied on Article 6 of the
Convention.
The
Court considers that this complaint should be examined under Article
8 of the Convention, which 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.”
50. The
Government contested the claim.
A. Admissibility
The
Government maintained that the application was inadmissible because
the applicant had not exhausted the domestic remedies in respect of
claiming damages from the state due to the alleged violation of
Article 8 of the Convention. They referred to, inter alia, the
Swedish Supreme Court’s decisions and judgments of 9 June 2005
and 21 September 2007 as well as the Chancellor of Justice’s
decision of 23 June 2009 (see paragraphs 45-47), in which
individuals had been awarded compensation for pecuniary and
non-pecuniary damage due to the violation of different Articles of
the Convention. They also pointed out that the Svea Court of Appeal
had, in a judgment dated 12 January 2006, concluded that there had
been a violation of Article 8 and that non-pecuniary damages should
be awarded on the basis of the principle established in the Supreme
Court’s judgment NJA 2005 p. 462. In the Government’s
opinion, Swedish law thus provided a remedy in the form of
compensation for both pecuniary and non-pecuniary damage in respect
of any violation of the Convention, including under Article 8, at the
time when the application was lodged with the Court. The application
was lodged with the Court one and a half years after the delivery of
the first of the mentioned Supreme Court judgments and one year after
the Svea Court of Appeal’s judgment concerning Article 8 in
particular. Accordingly, the legal position under domestic law had to
be considered to have been sufficiently clear at the time when the
present application was introduced before the Court.
The
applicant disagreed and maintained that the domestic remedies had
been exhausted.
The
Court reiterates that the purpose of the requirement of exhaustion of
domestic remedies under Article 35 § 1 of the Convention is to
afford the Contracting States the opportunity to prevent or put right
the violations alleged against them before those allegations are
submitted to the Court. Consequently, States are dispensed from
answering for their acts before an international body before they
have had an opportunity to put matters right through their own legal
system.
54. Turning to the present case, the Court notes that the early
judgments referred to by the Government concerned matters under
Articles 6 and 13 of the Convention and that a Supreme Court judgment
awarding damages under Article 8 was delivered after the application
at issue was lodged with the Court. While the Court welcomes the
development in Swedish law concerning the possibility to claim
compensation on the basis of alleged violations of the Convention, it
must be kept in mind that this development is a rather recent one.
Consequently, it cannot generally be required of an individual
applicant to pursue a compensation claim in respect of Convention
issues that have not been determined by the domestic courts or are
not closely related to issues that have been so determined. The
reason for this is that, in many of these cases, the existence of the
remedy cannot yet be considered as sufficiently certain (see, for
example, Bladh v. Sweden (dec.), no. 46125/06, §§
23-27, 10 November 2009 and Fexler v. Sweden,
no. 36801/06, § 44, 13 October 2011).
In
these circumstances, in the Court’s view, it has not been shown
with sufficient clarity that, at the time of the applicant’s
lodging the present application, there existed a remedy which was
able to afford redress in respect of the violation alleged by the
applicant and which he should be required to have pursued. The
Government’s objection as to the exhaustion of domestic
remedies must therefore be dismissed.
The
Court consequently notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
Merits
The submissions of the parties
(a) The applicant
The
applicant maintained that his and N.’s right to family life was
violated by the District Court’s protracted handling of the
custody proceedings as well as by the national courts’ and the
Ministry for Foreign Affairs’ failure to handle his request
under the Hague Convention in a correct and timely manner. He
likewise contended that the Tax Authority’s decision to remove
N. from the population register violated their right to family life.
The
applicant stressed that the time-factor was crucial in cases like the
present one and that he was not in any way to blame for the delay in
the proceedings before the District Court. He stated that the
District Court’s interim decision in November 2005 had had a
great impact on the subsequent proceedings. In his view, the District
Court did not even at an early stage of the proceedings consider how
N.’s right to contact with both her parents could be ensured.
He
also noted that Swedish courts have unlimited powers to decide on
procedural matters in cases concerning custody and that the District
Court had approved L.’s requests for time extensions on several
occasions.
Moreover,
he alleged that the Swedish courts had ignored the core purpose of
the Hague Convention, that is, discouraging child abduction by
removing any legal advantage a parent may believe he or she gains by
fleeing to another country.
He
further claimed that the main reason why he had not been able to
exercise his contact rights to N. was that he could not afford to
travel to Prague. Moreover, during the Hague Convention proceedings
he was recommended not to go to the country to which N. had been
abducted.
The
applicant further held that the Tax Authority’s decision to
remove N. from the population register implied an approval of L.’s
removal of N. to the Czech Republic and thereby a prejudgment of the
proceedings relating to custody and the Hague Convention. He also
reiterated that the Tax Authority’s decision was used by L. as
an argument for not returning N. to Sweden in the proceedings before
the Swedish courts.
(b) The Government
The
Government held that the national authorities had taken all necessary
steps to facilitate a reunion between the applicant and his daughter
that could reasonably be demanded in the special circumstances of the
case. They further stated that there were several reasons why the
proceedings before the District Court had been protracted.
They
emphasized that the Swedish social services had carried out an
investigation concerning the custody and contact with L. However,
since this investigation was not considered satisfactory, the
District Court had mandated a company, Access Borders SE, to
investigate N.’s living conditions in the Czech Republic and
had requested a report by 15 October 2007. The report was however not
completed within the set time and the District Court therefore had to
cancel the scheduled main hearing. In December 2007 Access Borders SE
had informed the court that it had been impossible to carry out an
investigation because L.’s representative in Prague had acted
in a manner which obstructed the impartial investigation.
The
Government further pointed out that a decision concerning contact had
been taken by the District Court already a few weeks after the case
had been brought to the court. Moreover, they held that the
applicant’s behaviour was one factor contributing to the
lengthy proceedings.
In
the Government’s opinion the applicant had failed to take all
possible steps to exercise his provisional rights of contact. He had,
for example, never travelled to Prague in order to visit his
daughter. They furthermore held that the applicant had refrained from
using the possibility of applying to a Swedish Court for a
declaration of enforceability in the Czech Republic pursuant to the
Brussels II regulation of the provisional rights of contact granted
to him by the Swedish courts.
The
Government concluded that, taking into account the margin of
appreciation enjoyed by the competent authorities, the Swedish State
had complied with its positive obligation to ensure respect for the
applicant’s right to respect for his family life in accordance
with Article 8 of the Convention.
As
regards the proceedings pursuant to the Hague Convention, the
Government stated that an application for the return of N. had been
received by the Swedish Central Authority (the Ministry for Foreign
Affairs) on 23 December 2005 and had been forwarded to the Czech
Central Authority on 14 February 2006. They further underlined that
the applicant initially had wished to investigate whether such
proceedings were the most effective way for him to return his
daughter to Sweden and that the Czech Central Authority had reported
to the Swedish Central Authority that the mother opposed a voluntary
return of the girl to Sweden. The application for an Article 15
Declaration was not sent to the District Court until 21 June 2006 and
on 10 October 2006 the court delivered a decision saying that the
retention of N. was not to be regarded as wrongful under Article 3 of
the Hague Convention. The Court of Appeal upheld the decision in
December 2006. The total length of these proceedings was thus less
than one year, including the handling of the case by the Swedish
Central Authority and two Swedish courts.
The
Government thus held that there was no doubt that the length of the
court proceedings relating to the Hague Convention was fully
compatible with the Convention.
They
further contended that the removal of N. from the population register
did not constitute a violation of the applicant’s rights set
forth in the Convention. In their view, the applicant’s
complaint in this regard seemed to be directed towards the
legislation as such and not towards its application in the present
case. The Government stated that the legislation in the present case
was clear and the decision was based on the direct application of the
relevant law. The information that N.’s actual place of
residence was abroad had been communicated to the Tax Agency over a
long period of time, both by the applicant and later also by L. The
Tax Agency was required to take its decision based on the actual
circumstances and the criterion of “regular place of residence”
was fulfilled regardless of the applicant’s allegation that
L.’s removal of N. from Sweden was unlawful. Thus, the decision
to remove N. from the population registration was correct and in
accordance with the applicable law.
The
Court’s assessment
(a) General principles
The
mutual enjoyment by parent and child of each other’s company
constitutes a fundamental element of family life even when the
relationship between the parents has broken down (see Keegan v.
Ireland, 26 May 1994, § 50, Series A no. 290).
Domestic measures hindering enjoyment of family
life such as a decision granting custody over children to a parent
constitutes an interference with the right to respect for family life
(see, for example, Hoffmann v. Austria, judgment of 23 June
1993, Series A no. 255-C, p. 58, § 29, and Palau-Martinez
v. France, no. 64927/01, § 30, ECHR 2003-XII).
Any
such interference constitutes a violation of this Article unless it
is “in accordance with the law”, pursues an aim or aims
that are legitimate under paragraph 2 and can be regarded as
“necessary in a democratic society”. Necessity implies
that the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued
(see W. v. the United Kingdom, 8 July 1987, § 60,
Series A no. 121).
Although
the essential object of Article 8 is to protect the individual
against arbitrary interference by the public authorities, there may
in addition be positive obligations inherent in an effective
“respect” for family life. These obligations may involve
the adoption of measures designed to secure respect for family life
even in the sphere of relations between individuals, including both
the provision of a regulatory framework of adjudicatory and
enforcement machinery protecting individuals’ rights and the
implementation, where appropriate, of specific steps (see Zawadka
v. Poland, no. 48542/99, § 53, 23 June 2005).
The
Court has repeatedly held that Article 8 includes a right for parents
to have measures taken with a view to their being reunited with their
children, and an obligation on the national authorities to take such
measures. This also applies to cases where contact and residence
disputes concerning children arise between parents (see Kosmopoulou
v. Greece, no. 60457/00, § 44, 5 February 2004).
In
both the negative and positive contexts, regard must be had to the
fair balance which has to be struck between the competing interests
of the individual and the community, including other concerned third
parties, and the State’s margin of appreciation (see W. v.
the United Kingdom, cited above, § 59, and Keegan,
cited above, § 49).
The
margin of appreciation to be accorded to the competent national
authorities will vary in accordance with the nature of the issues and
the importance of the interests at stake. Thus, the Court recognises
that the authorities enjoy a wide margin of appreciation when
deciding on custody (see, inter alia, C. v. Finland,
no. 18249/02, § 53, 9 May 2006 and Wildgruber v. Germany,
(dec.) nos. 42402/05 and 42423/05, 29 January 2008). However, a
stricter scrutiny is called for in respect of any further
limitations, such as restrictions placed by those authorities on
parental rights of contact, and of any legal safeguards designed to
secure an effective protection of the right of parents and children
to respect for their family life. Such further limitations entail the
danger that the family relations between the parents and a young
child would be effectively curtailed (see T.P. and K.M. v. the
United Kingdom [GC], no. 28945/95, § 71, ECHR 2001-V
(extracts).
Where
the measures in issue concern parental disputes over their children,
it is not for the Court to substitute itself for the competent
domestic authorities in regulating contact and residence disputes,
but rather to review under the Convention the decisions that those
authorities have taken in the exercise of their power of
appreciation. Undoubtedly, consideration of what lies in the best
interest of the child is of crucial importance (see Zawadka,
cited above, § 54, and Hokkanen v. Finland, 23 September
1994, § 55, Series A no. 299-A). Moreover, lack of cooperation
between separated parents is not a circumstance which can by itself
exempt the authorities from their positive obligations under Article
8. It rather imposes on the authorities an obligation to take
measures to reconcile the conflicting interests of the parties,
keeping in mind the paramount interests of the child (see Zawadka,
cited above, § 67) which, depending on their nature and
seriousness, may override those of the parent (see Hoppe v.
Germany, no. 28422/95, § 49, 5 December 2002).
Article
8 contains no explicit procedural requirements, but this is not
conclusive of the matter. The local authority’s decision-making
process clearly cannot be devoid of influence on the substance of the
decision, notably by ensuring that it is based on relevant
considerations and is not one-sided, and, hence, neither is nor
appears to be arbitrary. Accordingly, the Court is entitled to have
regard to that process to determine whether it has been conducted in
a manner that, in all the circumstances, is fair and affords due
respect to the interests protected by Article 8 (see W. v. the
United Kingdom, cited above, §§ 62 and 64 in fine).
Furthermore,
the Court has repeatedly found that in cases concerning a person’s
relationship with his or her child, there is a duty to exercise
exceptional diligence in view of the risk that the passage of time
may result in a de facto determination of the matter. This
duty is decisive in assessing whether a case concerning contact to
children had been heard within a reasonable time
as required by Article 6 § 1 of the Convention
and also forms part of the procedural requirements implicit in
Article 8 (see, inter alia, Hoppe v.
Germany, no. 28422/95, § 54, 5 December 2002 and Nuutinen
v. Finland, no. 32842/96, § 110,
ECHR 2000-VIII).
(b) Application of the above principles to the
present case
The
Court finds, and this is common ground between the parties, that the
relationship between the applicant and his daughter amounted to
“family life” within the meaning of Article 8 § 1 of
the Convention.
The
Court reiterates that it is not for it to say how the domestic courts
should have decided on the applicant’s requests. However, in
the present case, it must be determined whether there has been a
failure to respect the applicant’s family life, in particular
whether the respondent State has complied with its positive
obligations under Article 8 of the Convention.
(i) The custody proceedings
The Court observes that pursuant to the District Court’s
interim decision of 14 November 2005, which was upheld by the Court
of Appeal, the applicant and L. should have joint custody of N. and
the applicant should have right of contact with N. every other
weekend for four hours.
The
Court further notes that the applicant stated already in the
beginning of the process in October 2005 that L. had moved to Prague
with N. without his permission and that he feared that the separation
between him and N. would become permanent if the court decided in
favour of L. Moreover, in January 2006,
the applicant requested the District Court to alter its previous
interim decision since it was practically impossible for him to
exercise the contact rights that he had been granted in November
2005.
The
Government argued that other factors than the District Court’s
inactivity had had an adverse impact on the length of the
proceedings. They also stressed that a
decision concerning contact had been taken by the District Court
already a few weeks after the case had been brought to the court.
While
the Court accepts that several factors, inter alia, the
parties’ behaviour, contributed to the protracted proceedings
before the District Court, it reiterates that the lack of cooperation
between separated parents is not a circumstance which can by itself
exempt the authorities from their positive obligations under Article
8. Having examined the materials submitted by the parties, the Court
also notes that there were lengthy periods of limited activity on the
part of the District Court (for instance, the period between March
2008 and March 2010; see §§ 23-24 above). The Court points
out that the case was pending for almost five years before the
District Court and that the applicant had made the court aware of the
practical difficulties for him to exercise his rights of contact
already in October 2005. The Court also notes that the applicant had
a considerable interest in the outcome of the proceedings.
Furthermore, the passage of time certainly had an adverse effect on
his relationship with his daughter because she had been left at a
very young age in the factual custody of her mother in another
country.
In
its judgment of 27 July 2010, the District Court held that both the
applicant and L. were suitable parents. It further concluded that the
fact that N. had not seen her father for the last five years was to a
large extent caused by L.’s behaviour. However, the court
concluded that the advantages of a change of N.’s domicile
would not outweigh the drawbacks, inter alia, since N. had not
seen the applicant for several years and no longer spoke Swedish.
In
the Court’s opinion, it is thus clear from the District Court’s
judgment that the passage of time and the practical difficulties
faced by the applicant in exercising the provisional rights of
contact had an impact on the outcome of the case.
In
view of the foregoing, the Court cannot find that the domestic courts
dealt diligently with the applicant’s request to grant him
custody of his daughter. The Court, therefore, finds that the
procedural requirements implicit in Article 8 were not complied with.
There
has accordingly been a violation of Article 8 of the Convention in
this regard.
(ii) The Hague
Convention proceedings
In
so far as the complaint about the outcome of the Hague Convention
proceedings is concerned, the Court reiterates that, according to
Article 19 of the Convention, its duty is to ensure the observance of
the engagements undertaken by the Contracting Parties to the
Convention as interpreted in the light of the requirements of the
Hague Convention. However, it is not its function to deal with errors
of fact or law allegedly committed by a national court unless and in
so far as they may have infringed rights and freedoms protected by
the Convention.
In
the instant case, the Court notes that there is no appearance of
arbitrariness in the proceedings pursuant to the Hague Convention.
Furthermore, there is no indication of arbitrariness or
unreasonabless in the decisions of the Swedish courts.
As
regards the length of the Hague Convention proceedings, the Court
notes that they commenced on 23 December 2005 and ended on 19
December 2006. The total length of these proceedings was thus less
than one year, including the handling of the case by the Swedish
Central Authority and two Swedish courts.
Having
examined the materials submitted by the parties, the Court cannot
find any lengthy periods of inactivity on the part of Swedish
authorities in these proceedings. Moreover, the Court does not
consider the overall duration of these proceedings unreasonable, in
particular taking into account that the applicant initially had
wished to investigate whether an application pursuant to the Hague
Convention was the most effective way for him to return his daughter
to Sweden. The Court thus finds that the Hague Convention proceedings
do not, in themselves, raise any issues under Articles 8 of the
Convention. However, in so far as these proceedings might have
delayed the custody proceedings, the Court has paid regard to them
when considering the custody proceedings above.
(iii) The
proceedings relating to N.’s removal from the population
register
Lastly,
as concerns the Tax Authority’s decision to remove N. from the
population register, the Court notes that such decisions are
administrative, the purpose of which is to reflect an actual
situation. In the Court’s view, there is nothing to suggest
that a child’s registration at a specific address affects
issues of custody or rights of contact and in the present case there
is no indication that the Tax authority’s decision had any
bearing on the outcome of the custody case or the Hague Convention
proceedings. Accordingly, there is no violation of Article 8 in this
regard.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant further complained that the proceedings relating to the
removal of N. from the population register violated his right to an
effective remedy under Article 13 of the Convention, which reads as
follows.
“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.”
The
Government contested that argument.
The
Court notes that this complaint is linked to complaint under Article
8 and should, for the reasons set forth in paragraphs 53-56, be
declared admissible. The Court further observes that it has already,
under Article 8 above, examined the applicant’s complaint that
the Tax Authority’s decision prejudged the proceedings relating
to custody and the Hague Convention. Accordingly, the Court considers
that it is not necessary to examine his complaint under Article 13.
IV. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Non-pecuniary damage
The
applicant claimed 1,200,000 Swedish kronor (SEK) (approximately
EUR 128,800)
in respect of non-pecuniary damage.
The
Government considered the claim excessive.
The
Court accepts that the lengthy custody proceedings have caused the
applicant non-pecuniary damage, which cannot be made good by the mere
finding of a violation. The Court therefore, making its assessment on
an equitable basis, awards the applicant EUR 7,000 in respect of
non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed, as far as can be ascertained, SEK 77,439
(approximately EUR 8,310) for the costs and expenses incurred
before the domestic courts and SEK 150 000 (approximately EUR
16,000) for those incurred before the Court. Furthermore, he claimed
SEK 1,400,000 (approximately EUR 150,270) for “future
costs”.
The
Government fully rejected the claim concerning “future costs”
on the ground that this claim had not been specified within the
meaning of Rule 60 of the Rules of Court. They further found the
claims regarding costs and expenses before the domestic courts and
for those incurred before the Court, to be excessive. Moreover, they
held that the applicant had failed to specify these claims and
concluded that reasonable compensation for costs incurred in the
proceedings before the Court should not exceed EUR 3,000.
The Court reiterates that compensation for costs
incurred in the domestic proceedings may only be granted insofar as
they were necessary in trying to prevent the violation found (König
v. Germany judgment of 10 March 1980 (Article 50),
Series A no. 36, p. 17, § 20). In the present case only the
possible increased costs due to the District Court’s inactivity
in the custody proceedings fulfil this condition. Since the applicant
received legal aid which covered 80 % of the costs before the
domestic courts in the custody proceedings, the Court finds that he
has already been adequately compensated in this regard. This part of
the claim must therefore be rejected.
According
to the Court’s case-law, an applicant is entitled to
reimbursement of costs and expenses before the Court only
in so far as it has been shown that these have been actually and
necessarily incurred and are reasonable as to quantum. In the present
case, the Court notes that the applicant has failed to specify
his claims regarding costs and expenses as stipulated in Rule 60 of
the Rules of Court. Regard being had to this fact, as well as to the
documents in its possession and the above criteria,
the Court considers it reasonable to award the sum of EUR 3,000
(value added tax included) for the proceedings before the Court.
C. Default interest
The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT
Declares the application admissible unanimously;
Holds unanimously that there has been a
violation of Article 8 of the Convention in regard to the protracted
custody proceedings;
Holds by 5 votes to 2 that there has been no
violation of Article 8 of the Convention in regard to the remainder
of the application;
Holds unanimously that there is no need to
examine the complaint under Article 13 of the Convention;
Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Swedish kronor at the rate applicable
at the date of settlement:
(ii) EUR
7,000, plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(iii) EUR
3,000, plus any tax that may be chargeable to the applicant, in
respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 5 April 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Power-Forde and Nußberger is annexed to this judgment.
D.S.
C.W.
JOINT PARTLY DISSENTING OPINION OF JUDGES POWER-FORDE
AND NUSSBERGER
We
disagree with the majority in finding no violation of Article 8 in
relation to the applicant’s complaint concerning the domestic
courts’ assessment of his claim under the Hague Convention
on the Civil Aspects of International Child Abduction (herein
after “the Hague Convention”). Whilst we accept that the
Hague proceedings were dealt with expeditiously (September 2005 to
October 2006), we cannot accept the reasoning of the District Court’s
finding that the retention of the child in the Czech Republic was not
to be regarded as wrongful pursuant to Article 3 of the Hague
Convention. In our view, there is an obvious lacuna in the judgment
of the District Court insofar as the applicant’s complaint
about the wrongfulness of the child’s removal from Sweden is
concerned.
The
basic idea enshrined in the Hague Convention is to prohibit the
wrongful action of one party from predetermining or having a bearing
upon later decisions taken on custody and contact rights.
Essentially, illegal actions should not ‘pay’ and no
parent or guardian should win any legal advantage for having
wrongfully removed a child from the jurisdiction in which he or she
was habitually resident immediately prior thereto: Ex iniuria ius
non oritur. It is for this reason that the Hague Convention
requires Contracting States to act expeditiously in proceedings for
the return of children whose removal is considered to be wrongful.
The
respondent State submits that since the retention of the child in the
Czech Republic was found to be lawful, the matter of whether her
removal from Sweden was wrongful “lacked relevance”.
How can a complaint under the Hague Convention concerning the
wrongful removal of a child lack relevance? It appears to us that the
Swedish court did not assess, in any meaningful way, the alleged
wrongfulness of the applicant’s child’s removal
from Sweden but focused instead only upon the issue of her retention
in the Czech Republic. The reason given by the District Court for
not deeming that retention to be wrongful was that shortly after her
initial removal from Sweden that same Court had made an interim order
that the child should reside permanently with her mother.
Herein lies the core of the problem in this case.
An
interim decision on custody and residence cannot have the effect of
circumventing a State’s obligations under the Hague Convention
nor can it displace the entire philosophy and rationale upon which
that Convention is founded. In our view, the District Court in
determining the application under the Hague Convention ought to have
taken into account the legal situation that prevailed as of September
2005 (namely, at the time of her removal from Sweden) and not the
situation that existed in October 2006. The Hague Convention is very
clear in this respect. The alleged wrongfulness of a removal has to
be assessed in the light of the circumstances present at the time of
the removal and not with regard to subsequent developments. If the
Swedish courts had ordered the prompt return of the applicant’s
child to Sweden in 2005/2006 then all issues in relation to custody
or residence could have been determined within that jurisdiction
having regard to what was in her best interests. Having failed
entirely so to do, it proceeded to assess the custody proceedings,
some five years later, in the light of the passage of time and of the
practical difficulties faced by the applicant in exercising his
provisional rights of contact. On this basis, it concluded that the
advantages of a change in the child’s domicile would not
outweigh the disadvantages since she had not seen the applicant for
several years and spoke no Swedish. This approach, in our view,
stands in marked contrast to the entire philosophy upon which the
Hague Convention is founded, namely, the prevention of a later
decision on a matter being influenced by a change of circumstances
brought about through the unilateral action of one of the parties.
We
consider that no criticism, express or implied, can be made of the
applicant for the rupture in the relationship with his child. We
accept that the costs involved in visiting the Czech Republic were
prohibitive having regard to his financial circumstances. We also
note that he was expressly advised against such a visit by the
Swedish authorities for so long as the proceedings under the Hague
Convention were pending.
In
the light of the principles laid down in Neulinger and Shuruk v.
Switzerland
we can accept that the return of the applicant’s child to
Sweden some five years after her removal from that jurisdiction may
not have been in her best interests. However, it does not follow that
the failure of the Swedish courts to assess, at the relevant time,
the alleged wrongfulness of her initial removal and, if necessary, to
order her return, did not violate the applicant’s rights under
Article 8.
We
find that there has been a violation of the applicant’s rights
to respect for his family life based not solely upon the procedural
aspect of Article 8 but also, substantively, on the basis of the
domestic courts’ failure to consider his claim in relation to
the wrongful removal of his daughter from Sweden. That failure, in
our view, contributed significantly to the situation in which the
applicant finds himself today.
