Hudoc reference
REF00001413 Document type DECISION (Final) Title PERSSON v. SWEDEN Application number 00014451/88 Date 02/07/1993 Respondent Sweden Conclusion Partly admissible ; Partly inadmissible Keywords Respect for private life ; Respect for family life ; Access to court ; Effective remedy ; Deprivation of property ; Victim
AS TO THE ADMISSIBILITY OF
Application No. 14451/88
by Kjell and Gärdh PERSSON
against Sweden
The European Commission of Human Rights sitting in private on
2 July 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mmes. G.H. THUNE
J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
Mr. H.C. KRÜGER, Secretary to the Commission
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 September 1988
by Kjell and Gärdh PERSSON against Sweden and registered on 8 December
1988 under file No. 14451/88;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the written observations submitted by the
Government on 29 July 1991 and the applicants' written observations in
reply submitted on 22 September 1991 and 11 February 1992;
Having regard to the further information submitted by the
Government on 5 January 1993 and the applicants' comments in reply on
5 February 1993;
Having regard to the parties' further submissions at the hearing
on 2 July 1993;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, Kjell Persson, was a Swedish citizen born
in 1965. He died in 1992. The second applicant, Gärdh Persson, is a
Swedish citizen born in 1937 and resident at Spånga. She was Kjell
Persson's mother and appointed guardian (god man) and is now the
administrator of his estate.
The application was initially lodged by both applicants.
Following Kjell Persson's death Gärdh Persson declared that she wished
to pursue the application both on his and her own behalf.
Before the Commission the applicants are represented by Mrs. Siv
Westerberg, a lawyer practising in Gothenburg.
The facts of the case, as they appear from the parties'
submissions, may be summarised as follows.
Particular circumstances of the case
a. The care order
Kjell Persson was seriously disabled from birth, both mentally
and physically. He was born, inter alia, with his tongue grown to his
palate, resulting in a lack of faculty of speech and great eating
difficulties, for which reason he needed to be fed. He was somewhat
mobile, but only with assistance.
In 1983 several physicians found that Kjell Persson was extremely
underweight and that Gärdh Persson had not satisfactorily managed to
nourish him in their home. His severe mental retardation combined with
his physical disablement and the feeding problems therefore warranted
his placement in compulsory care in accordance with the 1967 Act on the
Care of Certain Mentally Handicapped Persons (lag 1967:940 angående
omsorger för vissa psykiskt utvecklingsstörda; hereinafter "the 1967
Act").
On 20 December 1983 the Chairman of the Administrative Board
(beslutsnämnden) of the County Council (landstinget) of Stockholm
provisionally placed Kjell Persson in compulsory care pursuant to
Section 35, subsection 1 (b) of the 1967 Act.
On 28 December 1983 the Administrative Board confirmed the
Chairman's decision, having found that Kjell Persson was mentally
retarded, that as a consequence of his retardation he was unable to
take care of himself, and that, in view of the degree of his
retardation, care in a nursing home was absolutely necessary.
On 29 December 1983 Kjell Persson was admitted to the Rosenhill
nursing home in Stockholm.
b. Kjell Persson's stay at the Rosenhill nursing home from 29 December
1983 to 21 March 1988
aa. The conditions in the nursing home
The applicants allege that in the Rosenhill nursing home Kjell
Persson lived in a very small room with large windows facing a
corridor, where other patients and visitors would pass frequently. The
window lacked curtains. The only reason for his placement in this room
was allegedly that the staff members were lazy and found it more
comfortable to glance through the window than to supervise his state
of health more closely. The fact that the window had no curtains was
allegedly not necessitated by the need to keep him under constant
supervision in view of his bad state of health, as his room was
situated quite far away from the nurses' room and hours could pass
without anybody attending to him.
The applicants further allege that they could only meet inside
the nursing home, either in Kjell Persson's room or in the living room
or dining room in the company of other patients, visitors and staff
members. The dining room had a large window towards the kitchen, from
where staff members would supervise the applicants. Staff members would
further enter into the dining room for the same reason.
The applicants also allege that when Gärdh Persson would see her
son in his own room the manager of the nursing home would
demonstratively enter the room and embrace him. Kjell Persson disliked
this so much that he was struck by panic and started screaming.
The applicants finally allege that Gärdh Persson would be
slandered by staff in her absence, but in the presence of Kjell
Persson.
The Government submit that the Rosenhill nursing home was
originally designed for children placed in public care due to their
parents' social problems. Such children needed considerable
supervision. This was the reason for the windows in the doors to the
patients' rooms. During the period when Kjell Persson was placed at
Rosenhill the nursing home accommodated twelve young and severely
retarded persons. Four persons would share a living room and a
kitchenette. Their private rooms measured 8-10 square metres.
The Government submit that the applicants could meet in the
nursing home without being disturbed. They contend that Kjell Persson's
state of health was very poor, necessitating around the clock
supervision. They further contend that the window in the door to Kjell
Persson's room did have curtains. These could be opened whenever he was
ill and needed to be attended to during the night. This enabled staff
to supervise his health by glancing through the window.
The Government further contend that Kjell Persson was in no way
confined to his room. He needed to rest somewhat during the day, but
was otherwise engaged in a number of activities in the school room, the
living room or in the garden.
bb. The administration and spending of Kjell Persson's pension
On 31 January 1984 a decision authorising, as from 1 February
1984, the collection of Kjell Persson's pension payments in accordance
with the 1962 Ordinance on the Right in Certain Cases of a Municipality
or Other Body to Collect Pension Payments (kungörelse 1962:393 om rätt
i vissa fall för kommun eller annan att uppbära folkpension;
hereinafter "the 1962 Ordinance") was made by the local Social
Insurance Office (allmänna försäkringskassan), thereby authorising the
County Council to deduct the fees for Kjell Persson's care at Rosenhill
from his pension and to pay the remainder to his bank account. The
decision was not appealed against.
Gärdh Persson alleges that when Kjell Persson was provisionally
discharged on 21 March 1988 she was given some 2.000 SEK by the manager
of the nursing home, who claimed that to be the remaining amount of the
pension paid out to Kjell Persson. She was further shown a bankbook
showing that staff members of the nursing home had regularly withdrawn
considerable sums of money from his account. She then stated that she
had never consented to those withdrawals and reported the matter to the
Mental Welfare Committee (styrelsen för omsorger om psykiskt
utveckingsstörda) of the County Council.
In a letter of 5 December 1988 the Acting Director of Mental
Welfare Services (vårdchefen) and the Head of the Finance Department
of the Mental Welfare Committee informed Gärdh Persson that the
administration of the patients' means had been subjected to regular
audits by the auditors of the Mental Welfare Committee as well as to
random audits by external auditors. It was further noted that from 1
January 1984 to 31 March 1988 41.847 SEK, corresponding to some 25 per
cent of the total amount of his pension payments for that period, had
been paid out to Kjell Persson. For the years 1986 to 1988 an account
was given of how this money had been used. Due to the closing down of
Rosenhill in the summer of 1988 it had not been possible to find the
verifications pertaining to the administration of Kjell Persson's means
in 1984 and 1985. The remainder, 3.438,20 SEK, had been handed over to
Gärdh Persson when Kjell Persson had been provisionally discharged from
Rosenhill.
Gärdh Persson then lodged a complaint with the police alleging
that a large part of Kjell Persson's pension payments had been stolen
by nursing staff.
The police investigation, including a control of the
verifications available, disclosed nothing to support Gärdh Persson's
allegations, and on 20 December 1988 the Public Prosecutor decided to
close the investigation. The decision was upheld by the Regional
Prosecutor of Stockholm and Gotland (regionåklagaren) on 14 April 1989
and by the Prosecutor-General (riksåklagaren) on 27 April 1989.
cc. The restriction on Gärdh Persson's visiting rights
The applicants allege that in the beginning of January 1984 Gärdh
Persson was orally informed by the nursing staff at Rosenhill that her
right to visit Kjell Persson would be restricted to two hours twice a
week. Soon after this her visiting rights were restricted to two hours
once a week. Kjell Persson was not allowed to leave the nursing home
to see her. The restriction was confirmed in writing on 27 June 1984.
The Government submit that the restriction was imposed by the
Director of Mental Welfare Services, together with other officials, and
notified to Gärdh Persson in writing on 27 June 1984. It did not enter
into force until 2 July 1984, it was to be applied until the end of
August 1984 and allowed the applicant to visit the nursing home twice
a week, i.e. Thursdays and Sundays from 1 p.m. to 3 p.m. According to
the notification the restriction was imposed in view of the
difficulties caused by Gärdh Persson's daily visits at Rosenhill, her
lack of confidence in the nursing staff and her frequent questioning
of his care there. It was not aimed at limiting her possibility of
following Kjell Persson's care, but to improve the conditions for
providing him with adequate care. It appears from the notification that
the matter had been discussed with her on 8 June 1984.
c. The discharge proceedings
Following the applicants' request for a discharge of Kjell
Persson the Discharge Board (utskrivningsnämnden) of Southern Stockholm
on 25 February 1988 held a hearing, at which an inspection of his
conditions in the nursing home was carried out. The Director of Mental
Welfare Services, the manager of the nursing home and the Senior
Medical Officer, Dr. M. B., were heard as well as Mr. K.-E. G. at the
applicants' request. The Board found no reason to question the
conditions at the nursing home or the manner in which Kjell Persson's
care was being implemented.
Following a further hearing on 14 March 1988 the Discharge Board
found no grounds for finally discharging Kjell Persson, but granted him
a provisional discharge as from 16 March 1988 for a period of six
weeks.
On 21 March 1988 Kjell Persson returned to the applicants' home.
His provisional discharge was subsequently extended.
d. Kjell Persson's admission to the Björnkulla nursing home and his
stay there (from 27 December 1988 to 29 September 1989)
aa. The revocation of Kjell Persson's provisional discharge
During the summer and autumn of 1988 Kjell Persson's condition
deteriorated continuously.
Following a hearing on 15 December 1988 the Discharge Board
revoked his provisional discharge.
On 27 December 1988 he was taken to the Björnkulla nursing home
in Stockholm.
bb. The restrictions on Gärdh Persson's visiting rights
The applicants allege that upon Kjell Persson's admission to
Björnkulla Gärdh Persson was orally informed by a nurse that her
visiting rights would be restricted to two hours on Wednesdays and two
hours on Sundays. She received no written confirmation of the
restriction.
The Government submit that the restriction was imposed in a
letter of 22 February 1989 from a representative of the Mental Welfare
Committee to the Discharge Board. According to the letter Gärdh
Persson's visiting rights had been restricted to two hours on
Wednesdays and two hours on Sundays. It appears from the letter that
the aim of the restriction was to give the staff members in charge of
Kjell Persson's care a possibility to acquaint themselves properly with
him. Moreover, Gärdh Persson had attempted to interfere with his care,
e.g. by objecting to him undergoing dental treatment when he had been
suffering from tooth ache.
cc. The administration and spending of Kjell Persson's pension
On 7 February 1989 the Social Insurance Office again decided to
authorise the collection of Kjell Persson's pension payments pursuant
to the 1962 Ordinance. The decision was reviewed on 6 March 1989 and
upheld.
The decision was upheld on appeal by the Regional Social
Insurance Court for Central Sweden (försäkringsrätten för Mellan-
sverige) on 24 April 1990. That decision was not appealed against.
e. Kjell Persson's final discharge from Björnkulla
On 29 September 1989 Kjell Persson was finally discharged from
Björnkulla. As from then on he lived with Gärdh Persson until 21 June
1992, when he died at a hospital in Stockholm, where he had been taken
for emergency treatment.
Relevant domestic law
a. The 1967 Act
aa. General provisions
The 1967 Act, in force up to 1 July 1986, related to the care of
mentally handicapped persons (Section 1).
Nursing homes were to be provided for mentally handicapped in
need of special care. In certain circumstances care could be given in
their own homes (Section 4, subsections 1 and 2).
The management of the care rested with a Mental Welfare Committee
of the County Council. In each County Council at least one
Administrative Board was to be established (Section 6, subsections 1
and 5).
Each Mental Welfare Committee appointed a Chief Education Officer
(särskolchef), a Director of Mental Welfare Services and a Senior
Medical Officer (Section 7).
Every nursing home was to have an appointed manager and physician
(Section 11, subsections 1 and 2).
The National Board of Education (skolöverstyrelsen) and the
National Board of Health and Welfare (socialstyrelsen) were to
supervise the activities carried out under the 1967 Act (Section 13,
subsection 1).
bb. Admission to and discharge from a nursing home
A mentally handicapped person who had attained the age of fifteen
could be given compulsory care in a nursing home, if such care was
absolutely necessary in view of the degree of his mental handicap and
the fact that due to this handicap he was, inter alia, incapable of
taking care of himself (Section 35, subsection 1).
A person admitted to a nursing home under the provisions of
Section 35 was to be immediately and finally discharged, if the
conditions under which care could be provided no longer existed
(Section 40).
cc. Right of appeal
Under Section 44, subsection 1 an appeal could be lodged with the
Psychiatric Council (psykiatriska nämnden) referred to in the 1966 Act
on Mandatory Institutional Psychiatric Care in Certain Cases (lag
1966:293 om beredande av sluten psykiatrisk vård i vissa fall,
hereinafter "the 1966 Act") against, inter alia, decisions whereby a
person had been admitted to a nursing home.
Under Section 45, subsection 1 no appeal lay against a decision
of the Psychiatric Council or a decision pursuant to Section 44 of the
chief supervisory authority.
b. The 1985 Act on Special Care of Mentally Handicapped Persons and
Others and the Transitional Act
The 1985 Act on Special Care of Mentally Handicapped Persons and
Others (lag 1985:568 om särskilda omsorger om psykiskt
utvecklingsstörda m.fl.) and the Transitional Act to that Act (lag
1985:569 om införande av lagen 1985:568 om särskilda omsorger om
psykiskt utvecklingsstörda m.fl.) entered into force on 1 July 1986.
The 1985 Act does not provide for any committal to an institution
irrespective of consent. Upon its entry into force, the 1967 Act was
repealed with certain exceptions provided for in the Transitional Act.
As regards nursing homes, Section 6 of the Transitional Act provided
that Section 35 and some related provisions - Sections 36-37a and 39-54
- of the 1967 Act were to remain in force. This meant that care in a
nursing home could still be imposed on a person without his consent
where the conditions laid down in Section 35 of the 1967 Act were
satisfied.
According to Section 7 of the Transitional Act, the duties which
had been incumbent upon the Senior Medical Officer and the Director of
Mental Welfare Services under the 1967 Act were to be carried out by
officials appointed by the County Council. Decisions which had been
taken by an Administrative Board under the 1967 Act were now to be
taken by a Discharge Board under the 1966 Act in certain cases. Appeals
could still be lodged with the Psychiatric Council.
As from 1 January 1992 the tasks of the Discharge Boards and the
Psychiatric Board have been transferred to the County Administrative
Courts (länsrätter) and the Administrative Courts of Appeal (kammar-
rätter).
c. The legislation and directives governing the administration of
patients' means
If a patient entitled to pension payments stays in a nursing home
for at least a whole month, the provider of the care may collect his
pension payment for that month (Chapter 10, Section 3 of the 1962
Social Security Act; lag 1962:381 om allmän försäkring, and Section 2
of the 1962 Ordinance).
The collector of the pension payments shall hand over a certain
amount of the payments received to the patient. However, if the patient
himself is unable, due to his state of health, to make use of the
money, it shall be used to improve his comfort or otherwise be spent
for his personal benefit (Section 4 of the 1962 Ordinance).
A decision allowing for a person's pension payments to be
collected is to be taken by the competent Social Insurance Office. The
decision could, under the rules in force at the relevant time, be
appealed to a Regional Social Insurance Court (försäkringsrätten) and,
ultimately, to the Supreme Social Insurance Court (försäkrings-
överdomstolen).
In a circular letter by the National Board of Health and Social
Welfare of 4 January 1972 (socialstyrelsens cirkulär om medel för
pensionsberättigade psykiskt utvecklingsstördas personliga behov, MF
1972:5) it is confirmed that a patient who is capable of administering
cash has an absolute right to spend the money received as he wishes.
A deduction from this sum of money to be spent on the general comfort
in the nursing home can, thus, only take place with his consent. While
there are no formal requirements for such a consent it shall, on the
other hand, not be assumed to exist for certain purposes. Under no
circumstances shall money be deducted for a purpose which the patient
cannot benefit from.
The circular letter further prescribes that even those patients
who are incapable of administering cash themselves shall receive a
certain amount of money to be spent on their behalf in order to improve
their comfort or otherwise for their personal benefit. In these cases
it is, in principle, up to the manager of the nursing home to
administer the patient's means, provided that he can benefit from any
money being spent. It is "important" (angeläget) that, whenever
possible and expedient, the administration and spending of money is
based on consultations with the parents, the custodian or the guardian
of the patient.
A general directive issued by the National Board of Health and
Social Welfare on 31 January 1983 (socialstyrelsens allmänna råd om
förvaltning av privata medel m.m. inom socialtjänsten, sjukvården och
omsorgerna om psykiskt utvecklingsstörda, SOSFS 1983:4) prescribes
that the administration of a patient's private means shall be governed
by a written agreement between the provider of the care and the patient
or his legal representative. Such an agreement may include a consent
to withdrawals from the patient's bank account and may at any stage be
renounced by the patient or his representative. Private means shall be
registered, kept and administered in an adequate manner. Staff shall
not keep private possessions on a patient's behalf, except when
necessary for the purpose of his social training.
d. Control mechanisms, civil and criminal liability, etc.
The activities carried out under the 1967 Act are subject to
supervision by the National Board of Health and Welfare which may carry
out inspections of, inter alia, nursing homes. This applies equally to
activities carried out before 1 July 1986 and, by virtue of the 1985
Transitional Act, after that date.
Medical care provided by, or under the responsibility of, a
physician of a nursing home falls under the 1980 Act on the Supervision
of Health and Medical Care Staff and Others (lag 1980:11 om tillsyn
över hälso- och sjukvårdspersonalen m.fl.; hereinafter "the 1980 Act").
The 1980 Act contains provisions on the duties of such staff, as well
as on disciplinary sanctions that may be imposed in case of a failure
to comply with those duties. Questions concerning disciplinary
sanctions are to be determined by the Disciplinary Board of Health and
Medical Care. A decision of this Board may be appealed to an
Administrative Court of Appeal and, ultimately, to the Supreme
Administrative Court (regeringsrätten).
An incident shall, for the purpose of criminal charges being
brought, be reported to the police either by the National Board of
Health and Social Welfare or the Disciplinary Board in cases where an
official can reasonably be suspected of having committed an offence for
which imprisonment is prescribed.
The authorities responsible for, and public officials carrying
out, activities under the 1967 Act and the 1985 Transitional Act are
subject to supervision also by the Parliamentary Ombudsman (riksdagens
justitieombudsman). The task of the Ombudsman is to ensure that public
authorities and officials comply with their duties and, in particular,
that fundamental rights and freedoms are not violated. As a last
resort, the Ombudsman is empowered to institute criminal proceedings,
or disciplinary proceedings where disciplinary sanctions are provided
for, against an official who has, by act or omission, wilfully or
through negligence disregarded his duties.
The State, a municipality or a similar public organ such as a
County Council is liable for, inter alia, pecuniary damages caused by
a fault or negligence committed by an official when carrying out an
activity for which the organ is responsible (Chapter 3, Section 2 of
the 1972 Tort Liability Act; skadeståndslag 1972:207).
COMPLAINTS
Following the Commission's partial decision on admissibility of
3 May 1993 (see below) the applicants' remaining complaints are as
follows:
1.(a) Kjell Persson complains under Article 8 of the Convention of the
alleged lack of privacy in the Rosenhill nursing home, in particular
due to the fact that the window of the room in which he was staying had
no curtains and was facing a corridor in frequent use by patients and
visitors.
(b) At the hearing before the Commission Gärdh Persson, also invoking
Article 8 of the Convention, specified that she also complains in her
own name of the deprivation of Kjell Persson's privacy in the Rosenhill
nursing home, as the alleged lack of privacy also interfered with her
private and family life during her visits.
(c) Gärdh Persson further complains under Article 8 of the Convention
of the restrictions on her right to visit Kjell Persson in the nursing
homes.
2. Under Articles 6 and 13 of the Convention Gärdh Persson also
complains that she could not obtain a court review of the restriction
on her visiting rights in both nursing homes.
3. The applicants finally complain that during Kjell Persson's stay
at the Rosenhill nursing home money was withdrawn from his bank account
without their consent and spent mostly for unknown purposes. They
invoke in this respect Article 1 of Protocol No. 1 to the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 September 1988 and registered
on 8 December 1988.
On 15 April 1991 the Commission decided to communicate the
application to the respondent Government, with the exception of the
complaint regarding the justification of the care order.
The Government's observations were submitted on 29 July 1991 and
the applicants' observations in reply were submitted on 22 September
1991. Additional observations were submitted by the applicants on 11
February 1992.
On 13 September 1991 the Commission granted the applicants legal
aid.
On 9 November 1992 the Commission was informed of the death of
Kjell Persson and Gärdh Persson's wish to pursue the application both
in her personal capacity and on his behalf.
On 11 December 1992 the Government were invited to submit further
information. The information was submitted on 5 January 1993. The
applicants' comments in reply were submitted on 5 February 1993.
On 3 May 1993 the Commission adjourned its examination of the
complaint under Article 8 of the Convention relating to Kjell Persson's
alleged lack of privacy at the Rosenhill nursing home, the complaint
under Article 8 of the Convention relating to the alleged restrictions
on Gärdh Persson's visiting rights, the complaints under Article 6
para. 1 and Article 13 of the Convention relating to the absence of a
right to a court review of the restriction of Gärdh Persson's visiting
rights as well as the complaint under Article 1 of Protocol No. 1
relating to the administration and spending of Kjell Persson's pension
income. The remainder of the application, as submitted under Articles
3, 5, 6 and 8 of the Convention, was declared inadmissible. The
Commission further invited the parties to a hearing on the
admissibility and merits of the adjourned complaints.
At the hearing, which was held on 2 July 1993, the parties were
represented as follows:
The Government
Ms. Eva Jagander Agent, Ministry for Foreign Affairs
Ms. Eva Hammar Adviser, Ministry of Health and
Social Affairs
The applicants
Mrs. Siv Westerberg Counsel
Ms. Birgitta Hellwig Assistant
The second applicant, Mrs. Gärdh Persson, was also present.
THE LAW
1. (a) Kjell Persson complains under Article 8 (Art. 8) of the
Convention of the alleged lack of privacy in the Rosenhill nursing
home, in particular due to the fact that the window of the room in
which he was staying had no curtains and was facing a corridor in
frequent use by patients and visitors.
The Commission observes that Kjell Persson died in 1992, but that
Gärdh Persson has expressed the wish to pursue the complaint on his
behalf.
The Government argue that the complaint is not transferable, as
the alleged lack of privacy directly affected only Kjell Persson
himself. Gärdh Persson cannot therefore claim that Kjell Persson's
original interest in having the alleged violation of the Convention
established may be considered as an interest now vested in her.
Gärdh Persson contends that, as Kjell Persson's alleged lack of
privacy also affected her when the applicants met in the nursing home,
the complaint is so closely linked to her own person that it must be
considered transferable.
The Commission recalls that under Article 25 (Art. 25) of the
Convention "the Commission may receive petitions ... from ...
individuals claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in [the] Convention ...".
An heir of a deceased applicant may not claim any general right to have
the examination of a complaint brought by the deceased continued. The
essential point is whether the particular nature of the complaint
allows it to be, in the circumstances of the case, considered as
transferable (cf. No. 10828/84, Dec. 6.10.88, D.R. 57 p. 5).
The Commission observes that the complaint now at issue relates
to the factual conditions affecting exclusively the privacy of the late
Kjell Persson in the Rosenhill nursing home. In these circumstances the
Commission considers the complaint to be so closely related to his own
person that Gärdh Persson does not have a sufficient legal interest in
pursuing it on his behalf (cf. Kofler v. Italy, Comm. Report 9.10.82,
D.R. 30 p. 5).
It follows that this complaint is incompatible ratione personae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2).
(b) As regards the alleged lack of respect for the applicants'
private and family life Gärdh Persson further submits that the total
deprivation of Kjell Persson's privacy in the Rosenhill nursing home
also interfered with her private and family life during her visits. The
Commission accepts that Gärdh Persson's complaint of the conditions in
the Rosenhill nursing home during her visits also falls to be
considered.
The Commission has proceeded to a preliminary examination of this
complaint in the light of the parties' submissions. It considers that
the complaint raises questions of fact and law of such a complex nature
that their determination requires an examination on the merits. The
complaint cannot therefore be declared inadmissible as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other reason for declaring the complaint inadmissible
has been established.
(c) The next complaint under Article 8 (Art. 8) of the Convention
relates to the restrictions on Gärdh Persson's right to visit her son
in the nursing homes. In this respect the Commission notes the
Government's objection that the complaint is inadmissible for non-
exhaustion of domestic remedies, as Kjell Persson did not avail himself
of the possibility under Section 44 of the 1967 Act of requesting
permission to leave the nursing home in order to meet Gärdh Persson.
The Commission recalls that under Article 26 (Art. 26) of the
Convention, it may only deal with a complaint after all domestic
remedies have been exhausted, according to the generally recognised
rules under international law. An applicant must make normal use of
remedies likely to be effective and adequate in respect of the matters
complained of (cf. No; 10978/84, Dec. 14.10.86, D.R. 49 pp. 149, 155).
The burden of proving the existence of available and sufficient
remedies lies upon the State (Eur. Court H.R., Deweer judgment of 27
February 1980, Series A no. 35, p. 15, para. 26).
The Commission notes that the object of the present complaint is
the alleged interference with Gärdh Persson's visiting rights under
Article 8 (Art. 8) of the Convention. The remedy referred to by the
Government would therefore not have been an adequate one as regards the
substance of the complaint. It follows that the Government's
preliminary objection must be rejected.
The Commission has proceeded to a preliminary examination of the
complaint in the light of the parties' submissions. It considers that
it raises questions of fact and law of such a complex nature that their
determination requires an examination on the merits. The complaint
cannot therefore be declared inadmissible as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other reason for declaring the complaint inadmissible
has been established.
2. The Commission has also proceeded to a preliminary examination
of the complaint under Articles 6 and 13 (Art. 6, 13) of the Convention
relating to the absence of a right to a court review of the restriction
of Gärdh Persson's visiting rights. It considers that it raises
questions of fact and law of such a complex nature that their
determination requires an examination on the merits. The complaint
cannot therefore be declared inadmissible as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other reason for declaring the complaint inadmissible
has been established.
3. As regards the complaint relating to the administration and
spending of Kjell Persson's pension income in the Rosenhill nursing
home the Government argue that domestic remedies have not been
exhausted, as the substance of the complaint could have been raised in
civil proceedings for the purpose of claiming that the money withdrawn
and spent be restored. The applicants did not avail themselves of this
possibility, nor did they institute private prosecution proceedings
against those suspected of embezzlement.
The applicants contend that civil proceedings or private
prosecution would lack any prospect of success, as it is impossible for
them to know which of the staff members in the nursing home embezzled
part of Kjell Persson's pension. The County Council in charge of the
nursing home could only be held responsible for paying damages, if it
could be established that one of its officials had committed an
offence. The police and the prosecutors refused, however, to conduct
an effective investigation. Finally, some of the book-keeping is no
longer to be found. The remedies invoked by the Government would
therefore not be effective within the meaning of Article 26 (Art. 26)
of the Convention.
The Commission again recalls that under Article 26 (Art. 26) of
the Convention, it may only deal with a complaint after all domestic
remedies have been exhausted, according to the generally recognised
rules under international law (see para. 1 b above). Where doubts exist
as to the effectiveness of a remedy, that remedy must be tried (No.
10148/82, Dec. 14.3.85, D.R. 42 p. 98; cf. also Eur. Court H.R., Cardot
judgment of 19 March 1991, Series A no. 200, p. 18, para. 34).
The Commission observes that the applicants failed to institute
civil damage proceedings against the County Council in order to claim
the restoration of part of Kjell Persson's pension.
The Commission therefore concludes that the applicants have not
exhausted the remedy available to them under Swedish law. Moreover, an
examination of the complaint does not disclose the existence of any
special circumstance which might have absolved the applicants,
according to the generally recognised rules of international law, from
exhausting the domestic remedy at their disposal.
It follows that this complaint must be rejected for non-
exhaustion of domestic remedies under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES ADMISSIBLE, without prejudging their merits,
Gärdh Persson's complaint under Article 8 (Art. 8) of the
Convention relating to the conditions in the Rosenhill nursing
home during her visits to Kjell Persson;
her complaint under Article 8 (Art. 8) of the Convention relating
to the restrictions on her right to visit Kjell Persson in the
Rosenhill and Björnkulla nursing homes; and
her complaint under Article 6 para. 1 and Article 13
(Art. 6-1, 13) of the Convention of the absence of a right to a
court review of the restrictions on her visiting rights; and
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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