Eva och Alexander Aminoff v. Sweden

EUROPEAN COMMISSION OF HUMAN RIGHTS

In the Application Eva och Alexander Aminoff v. Sweden. Report

INTRODUCTION

1. This report relates to Application No. 10554/83 lodged against Sweden by Mrs. Eva Aminoff on 10 April 1981 under Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms. The application was registered on 7 September 1983.

The applicant was represented by Mr. Lennart Hane, a lawyer practising in Stockholm.

The Government were represented by their Agent, Ambassador Hans Corell, Ministry for Foreign Affairs, and, as advisers,

Mr. Karl-Ingvar Rundqvist, Chief Legal Adviser, Ministry of Health and Social Affairs, Mr. Staffan Duhs, Counsellor, Ministry for Foreign Affairs, Mrs. Gertrud Holmquist, Legal Adviser, Ministry of Health and Social Affairs, Mr. Håkan Berglin, Legal Adviser, Ministry for Foreign Affairs, and Mrs. Ilse Wetter, Legal Adviser, Lidingö Municipality.

2. On 15 May 1985 the European Commission of Human Rights declared the application admissible.* The Commission then proceeded to carry out its task under Article 28 (art. 28) of the Convention which provides as follows:

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* This decision is public and can be obtained from the Commission's Secretary. The decision will be published in the Commission's official publication entitled Decisions and Reports.

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"In the event of the Commission accepting a petition referred to it:

(a) it shall, with a view to ascertaining the facts, undertake together with the representatives of the parties an examination of the petition and, if need be, an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities, after an exchange of views with the Commission;

(b) it shall place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights as defined in this Convention."

3. The Commission found that the parties had reached a friendly settlement of the case and on 10 October 1986 it adopted this Report, which, in accordance with Article 30 (art. 30) of the Convention, is confined to a brief statement of the facts and of the solution reached.

The following members of the Commission were present when the Report was adopted:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

PART I: Statement of Facts

4. The applicant, Mrs. Eva Aminoff, is a Finnish citizen born in1919. When introducing the present application the applicant resided at Lidingö in Sweden. She now resides in Finland. The applicant has an adoptive son, Alexander, who was born in March 1969 of Finnish parents.

5. By decision of 11 October 1979 the Southern Social DistrictCouncil (södra sociala distriktsnämnden) of Lidingö decided to take Alexander into public care pursuant to Sections 25 (a) and 29 of the 1960 Act on Child Welfare (barnavårdslagen). It was decided that the decision should be executed immediately irrespective of the fact that it had not yet acquired legal force. As reason for the decision it was invoked that Alexander was treated at home in a manner which subjected his health to danger and that his development was jeopardised as a result of the applicant's unsuitability and inability to foster Alexander.

As the applicant did not consent to the enforcement of the decision, it was submitted to the Regional Administrative Court (länsrätten) of Stockholm for determination. By a decision of 30 October 1979 the Court ordered that the decision could be enforced prior to the case having been finally determined by the Court.

6. In November 1979, the Social Council placed Alexander at a hospital for an examination. However, it appears that Alexander disappeared from the hospital on 12 November. He then appeared in Finland where a child psychiatric examination of him was sought at the Helsinki University Central Hospital.

On 14 November 1979, however, two Swedish social workers and two Swedish male nurses came to the hospital, fetched Alexander and brought him back to Sweden. These events were subsequently examined by the Parliamentary Ombudsman (justitieombudsmannen), who, in a decision of 24 March 1982, found that the decision to have Alexander returned to Sweden and the enforcement of that decision were not in accordance with the applicable provisions. However, since the head of the social administration of Lidingö could not be held responsible for unlawful deprivation of liberty due to lack of intent and since he could not be held responsible for misuse of office, no action was taken by the Ombudsman.

7. On 16 January 1980 the Regional Administrative Court held a hearing in the case concerning public care, and by judgment of 13 February 1980 the Court confirmed the decision to take Alexander into public care.

8. Prior to this decision, by a decision of 23 November 1979, the Social Council decided that the applicant should not have any right of access to Alexander, while he was in public care, and that his place of residence should not be disclosed to the applicant. The applicant appealed against this decision to the Regional Administrative Court, which by judgment of 6 February 1981 rejected the appeal.

9. The applicant appealed to the Administrative Court of Appeal (kammarrätten) of Stockholm, against both the judgment concerning public care of Alexander and the judgment concerning access to him.

The Administrative Court of Appeal rejected the appeals by two separate judgments dated 18 September 1981.

10. The applicant appealed to the Supreme Administrative Court (regeringsrätten) which by a decision of 24 February 1982 refused to grant leave to appeal.

11. On 17 December 1979 Alexander was placed in a foster home, situated on an island in the lake of Mälaren outside Stockholm. He stayed in the foster home until 8 May 1984. The foster parents were Mr. SS, born in 1936, and Miss MÅ, born in 1948. They were not married, but had lived together since 1969. It appears that as from 1972 they started to take care of children. In 1982 problems arose in the relationship between the two, and in the spring of 1983 the relationship broke up.

Alexander was almost eleven years old when he came to the foster home. As regards his "siblings" in the foster home, it appears that when Alexander came to the foster home there were at least two boys there of twenty years of age, both drug addicts. They left the foster home in the autumn of 1980. A fourteen year old girl arrived in August 1980 and stayed until the beginning of 1982. Another girl of fourteen was in the foster home from 1981 to 1983. A boy arrived in the autumn of 1981 and left one and a half years later. A teenage girl was there from autumn 1982 to spring 1983. A boy of eleven to twelve years arrived in the autumn of 1982 and left in spring 1983. He was violent and drank alcohol. An adopted Chilean boy arrived at Christmas 1983 (age eleven) and has stayed in the foster home since then.

It also appears that in the spring of 1983, at the same time as the relationship broke up between the foster parents, there was a problem with one of the girls staying there. As a result, representatives of three social councils made a visit to the foster home and thereafter one boy and one girl chose to leave the foster home. As from June 1983 it appears that Alexander was alone with the foster father up to Christmas 1983 when the Chilean boy arrived.

In the course of his stay in the foster home Alexander did not receive normal schooling. During substantial periods, inter alia the spring of 1980 and of 1983, Alexander received education only in the foster home and partly only for a few hours per week. Moreover, during the spring semester of 1984 Alexander attended the school only for short periods. In the school he was not called by his own name of Aminoff, but was called by his foster father's family name.

12. On 8 May 1984, Alexander disappeared from the foster home to Finland, where he has since then been staying together with the applicant.

13. On 1 October 1984 the Social Council decided that the public care should be discontinued.

14. Before the Commission the applicant complained that the Swedish authorities subjected her son and herself to inhuman treatment and that the decisions to take her child into public care and to stop all access to him while in public care as well as the refusal to disclose his whereabouts and his treatment in the foster home constituted violations of Articles 3, 6, 8 (art. 3), (art. 6), (art. 8) and 10 (art. 10) of the Convention and Article 2 of Protocol No. 1 (P-1-2) to the Convention.

Part II: Solution reached

15. Following its decision on the admissibility of the application, the Commission placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with Article 28 (b) (art. 28-b) of the Convention and invited the parties to submit any proposals they wished to make.

In accordance with the usual practice the Secretary, acting on the Commission's instructions, contacted the parties in order to explore the possibilities of reaching a friendly settlement. Following an exchange of letters the Secretary and Mr. Erik Fribergh of the Commission's Secretariat had separate discussions with the parties in Stockholm on 11 and 12 September 1986. Following these separate discussions the parties agreed on the terms of a friendly settlement.

16. By letter of 24 September 1986 the Agent of the Government confirmed the agreement by submitting the following declaration of the Government:

"In view of the Commission's decision to declare Application No. 10554/83 admissible, the Government are prepared to make the following offer in order to terminate the proceedings before the Commission:

a. The Government will pay to the applicant the sum of two hundred thousand (200 000) Swedish Crowns to be used for her son Alexander.

b. The Government will pay the applicant's legal costs in the proceedings before the Commission in the amount of one hundred twenty-five thousand (125 000) Swedish Crowns."

17. In his letter of 30 September 1986 the applicant's representative, Mr. Lennart Hane, made the following declaration on behalf of the applicant:

"With reference to Application No. 10554/83 pending before the European Commission of Human Rights in Strasbourg, and in view of the offer made by the Swedish Government in their letter 24th of September 1986, I hereby accept the offer and declare Application No. 10554/83 to be settled.

This declaration is being made in view of the settlement within the meaning of Article 28 (b) (art. 28-b) of the European Convention on Human Rights which has been reached in co-operation with the European Commission of Human Rights in the proceedings concerning this application."

18. The Commission, at its session on 10 October 1986, noted that the parties had reached an agreement regarding the terms of a settlement. The Commission further found, having regard to Article 28 (b) (art. 28-b) of the Convention, that a friendly settlement had been secured on the basis of respect for Human Rights as defined in the Convention.

For these reasons, the Commission adopted this Report.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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