P.B. and A.O. v. SWEDEN



AS TO THE ADMISSIBILITY OF

Application No. 11996/86

by P.B. and A.O.

against Sweden

The European Commission of Human Rights sitting in private

on 4 May 1987 the following members being present:

MM. C. A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

G. BATLINER

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

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 24 October 1985

by P.B. and A.O. against Sweden and registered on

13 February 1986 under file N° 11996/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicants,

may be summarised as follows.

The applicants are Swedish citizens born in 1953 and 1949

respectively. The first applicant lives at Spånga and the second

applicant lives in Stockholm.

The applicants have previously brought two applications before

the Commission. Application No. 8811/79 was declared inadmissible on

13 May 1982 (No. 8811/79, Dec. 13.5.82, D.R. 29 p. 104). Application

No. 10925/84 was declared inadmissible on 9 July 1985 (No. 10925/84,

Dec. 9.7.85, unpublished). Both applications concerned the same

factual and legal background, namely the effects in Sweden of the Code

of Parenthood (föräldrabalken) as amended on 1 January 1979 which

prohibits all corporal punishment of children.

From the applicants' two previous applications it appears that

they belong to a protestant free church congregation in Stockholm and

that they believe in "traditional" means of bringing up their

children. In particular as an aspect of their religious doctrine they

believe in the necessity of physical punishment of their children.

None of the applicants have been prosecuted under the present

Swedish law for any incident of corporal punishment nor have any of

them lost the custody of their children for this reason. Nevertheless

they express fears that they may be prosecuted for assault of their

children following any incident of corporal punishment and that this

could influence the authorities in their consideration of their

suitability to bring up their children.

In Application No. 8811/79 the applicants invoked Articles 8

and 9 of the Convention as well as Article 2 of Protocol No. 1 to the

Convention. After having obtained from the Swedish Government

observations on the admissibility and merits of the application, the

Commission found that the applicants' complaints were manifestly

ill-founded. In its decision the Commission wrote inter alia:

"The exact practical effects of the provision about which the

applicants complain remain obscure. The applicants have not

been directly subjected to any enforcement or other procedure

arising from their disagreement with the Code which might

constitute an interference with their rights. Nor have they

provided any examples of its interpretation or application by

the Swedish authorities in other cases. They have further

contended that the provisions of the Code may be relied

upon in deciding questions as to the custody of children, but

again they have not illustrated this submission and the

Commission must therefore find from the facts before it that

this has not actually occurred. Furthermore the information

provided by the Swedish Government tends to confirm that this

incomplete law is without any direct practical effect beyond

that of attempting to encourage the reappraisal of the

treatment of children."

In their second Application No. 10925/84 the applicants

provided examples of cases involving the corporal punishment of

children. The applicants contended that the cases referred to

provided evidence of the matters of which they complained.

In its decision of 9 July 1985 the Commission stated

inter alia:

"The applicants provide information relating to various

criminal prosecutions concerning parents who have corporally

punished their children. They claim that these cases

indicate that the Amendment to the Code of Parenthood

(Föräldrabalken), now Chapter 6, Section 3 of the Code,

has been enforced by the Swedish courts through increasing

criminal prosecutions for minor incidents of corporal

punishment of children by their parents. However, the

Commission notes that the individuals prosecuted in the

cases to which the applicants have made reference were

prosecuted pursuant to Chapter 3, Section 5 of the

Penal Code for a minor assault ('misshandel'). This

provision of the Penal Code is independent and distinct

from Chapter 6, Section 3 of the Code of Parenthood, about

which the applicants complain. Moreover, the Swedish courts

make no reference to Chapter 6, Section 3 of the Code of

Parenthood in the transcripts which have been submitted to

the Commission. In these circumstances the Commission does

not consider that it has been established that Chapter 6,

Section 3 of the Code of Parenthood is the legal authority

for any of the cases to which the applicants refer and the

cases referred to do not therefore appear to be 'relevant'

information such as to permit the Commission to examine the

present complaint in accordance with Article 27 para. 1 (b)

of the Convention."

The Commission accordingly concluded that it was prevented by

Article 27 para. 1 (b) of the Convention from dealing with the

application.

In the present case the applicants have pointed out that it is

correct when the Commission in its above decision stated that the

Swedish courts made no reference to Chapter 6, Section 3 of the Code

of Parenthood in the transcripts which had been submitted to it. In

1983 however, the Code of Parenthood was amended and the content of

the previous Chapter 6, Section 3 is now to be found in Chapter 6,

Section 1 of the Code. The court transcripts submitted to the

Commission in the previous application referred to Chapter 6,

Section 1 of the Code of Parenthood. The Commission's decision was

accordingly based on a misunderstanding caused by the change of the

Code of Parenthood in 1983. It was not correct, therefore, when the

Commission stated that "moreover, the Swedish courts make no reference

to Chapter 6, Section 3 of the Code of Parenthood in the transcripts

which have been submitted to the Commission".

The applicants find that it has now been established that the

Code of Parenthood was the legal authority for convicting the persons

mentioned in the cases submitted by them.

COMPLAINTS

The applicants repeat the complaints contained in their two

previous applications, namely that the amendment to the Swedish law

relating to the corporal punishment of children violates their right

to respect for family life, to freedom of religion, and to respect for

their right to ensure that their children's education and teaching is

in conformity with their own religious and philosophical convictions,

in breach of Articles 8 and 9 of the Convention and Article 2 of

Protocol No. 1 to the Convention.

THE LAW

The applicants' present application is identical to their two

previous applications. They have pointed out, however, that the

Commission's decision in Application No. 10925/84 was based on

information that was not consistent with the correct factual

circumstances. They refer in this respect to the fact that the

Commission in its decision stated that the Swedish courts had made no

reference to Chapter 6, Section 3 of the Code of Parenthood in the

court transcripts. The applicants have pointed out that this is

correct. However, the Code of Parenthood was amended in 1983 and the

relevant text is now contained in Chapter 6, Section 1 which was in

fact referred to in the court transcripts.

Under Article 27 para. 1 (b) (Art. 27-1-b) the Commission shall not

deal with any petition submitted under Article 25 (Art. 25) which is

substantially the same as a matter which has already been examined by

the Commission or has already been submitted to another procedure of

international investigation or settlement and if it contains no

relevant new information. As stated above the Commission finds that

the present application is identical to the previous applications

introduced by the applicants. The only remaining question is

therefore whether the present application contains any new information

which may be regarded as relevant to the Commission's examination of

the application under the Convention.

As pointed out by the applicants it is correct that reference

to Chapter 6, Section 1 of the Code of Parenthood is made in the court

transcripts submitted by them. However, it remains a fact that the

individuals in the cases referred to were prosecuted pursuant to

Chapter 3, Section 5 of the Swedish Penal Code for minor assault and

that this provision of the Penal Code is independent and distinct from

the Code of Parenthood. The reference to Chapter 6, Section 1 of the

Code of Parenthood does not change that position. Accordingly the

matters to which the applicants now refer do not constitute new

relevant information such as might distinguish their present

application from Applications Nos. 8811/79 and 10925/84 which the

Commission has already examined.

The Commission therefore concludes that the present

application must be rejected in accordance with Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention.

For this reason, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)