CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 25622/94                       by Johnny FUNCH                       against Sweden        The European Commission of Human Rights (Second Chamber) sitting in private on 17 January 1996, the following members being present:              Mrs.   G.H. THUNE, Acting President            MM.    H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 7 July 1993 by Johnny Funch against Sweden and registered on 9 November 1994 under file No. 25622/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:        THE FACTS        The applicant, a Swedish citizen born in 1952, is a student. He resides at Malmö.        The facts of the case, as submitted by the applicant, may be summarised as follows.        Between 1982 and 1991, the applicant cohabited with M.T. They had two sons, J, born in 1984, and A, born in 1987, of whom they had joint custody. After the applicant and M.T. had separated in March 1991, M.T. filed an application for custody of the children.        The District Court (Tingsrätten) of Trelleborg held a preparatory hearing in the case on 26 June 1991. The applicant claimed, in the first place, that he should be awarded custody and, in the second place, that he should have access to the children every second week.        On 26 June 1991 the District Court decided provisionally to award M.T. custody and the applicant access every second weekend. It further ordered the social authorities at Trelleborg and Svedala to investigate the questions of custody and access. The Court held a second preparatory hearing on 10 December 1991 and granted the applicant further provisional access to the children.        Apparently, however, the applicant did not meet the children after the decision in December 1991, as, allegedly, M.T. refused him access. At the end of December, M.T. moved with the children to Molde, Norway.        At a further preparatory hearing on 3 June 1992, at which M.T. and her representative did not appear, the District Court decided provisionally to transfer custody of the children to the applicant in view of M.T.'s conduct. On 21 August the decision was, however, reversed on appeal by the Court of Appeal (Hovrätten) of Skåne and Blekinge.        On 11 September 1992 the District Court requested a custody investigation from the social authorities at Molde. On 8 February 1993 it held the main hearing in the case, during which it heard the parties and several witnesses. It further had at its disposal reports from the above-mentioned social authorities and written statements concerning J by school teachers and a psychologist.        By judgment of 2 March 1993, the District Court awarded M.T. custody of the children and granted the applicant access to them every fourth weekend, every second major holiday and five weeks during the summer. The Court found that both parents were suitable as custodians. Noting that M.T. had had the main responsibility for the children at the time when the parties were living together and that she had custody of the children's half-brothers, the Court considered that M.T. was more suitable to take care of the children than the applicant. It further took into account that J, who was slightly retarded, should not be removed from his home in Norway where he had been living for fourteen months. The Court finally stated that it could not be ruled out that the previous problems as regards the applicant's access, to some extent, were due to the applicant's own behaviour.        The applicant appealed to the Court of Appeal. It held an oral hearing, during which it heard the parties and some of the witnesses heard by the District Court.        On 14 September 1993 the Court of Appeal, with some slight alterations as to the dates of the applicant's access, upheld the District Court's judgment. The Court of Appeal considered, with some hesitation due to further access problems created by M.T., that custody should remain with her. The main reasons for this conclusion were the children's long stay in Norway and their need of stability.        On 7 July 1994 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal.        The applicant maintains that he has met his children on only 6-7 occasions since he and M.T. separated. Further access has allegedly been refused by M.T. In the beginning of 1992, the applicant applied to the County Administrative Court (Länsrätten) of the County of Malmöhus for an enforcement order regarding his right of access. The Court dismissed his request on 2 March 1992, finding that it lacked jurisdiction as M.T. and the children, at the time, were living in Norway. The applicant later requested the Romsdal Court of Enforcement (Romsdal namsrett) at Molde to enforce his right of access during the Christmas and New Year holidays of 1993/94 and during the summer of 1994. The applications were granted and the applicant, apparently, had access to his children during these periods.   COMPLAINTS   1.    The applicant contends that the authorities have not given him sufficient assistance in arranging meetings between him and the children. He claims that this constitutes inhuman and degrading treatment in violation of Article 3 of the Convention.   2.    He further alleges that his right to respect for his family life has been violated. In this respect, he invokes Article 8 of the Convention.   THE LAW   1.    The applicant complains that he has been subjected to treatment contrary to Article 3 (Art. 3) of the Convention, which reads as follows:        "No one shall be subjected to torture or to inhuman or      degrading treatment or punishment."        The Commission, however, considers that the applicant's submissions fail to disclose any appearance of treatment attaining the minimum level of severity required for the application of Article 3 (Art. 3).        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further complains of a violation of his right to respect for family life as guaranteed by Article 8 (Art. 8) of the Convention, which provides the following:        "1. Everyone has the right to respect for his private and      family life, his home and his correspondence.        2. There shall be no interference by a public authority      with the exercise of this right except such as is in      accordance with the law and is necessary in a democratic      society in the interests of national security, public      safety or the economic well-being of the country, for the      prevention of disorder or crime, for the protection of      health and morals, or for the protection of the rights and      freedoms of others."        In so far as the applicant complains of the fact that custody was awarded to the mother, the Commission recalls that the national courts are always faced with the problem of making a choice between the parents. Their decisions in this respect will not as such disclose any lack of respect for the family life of the parent who is not awarded custody. In the circumstances of the present case, the Commission has not found any elements which could lead to another conclusion.        As regards the question of access, the Commission recalls that the courts granted the applicant access every fourth weekend, every second major holiday and five weeks during the summer. In view of this, the Commission considers that the access decisions do not disclose any disrespect for the applicant's family life.        The applicant states that he has met his children on only a few occasions and claims that the authorities have not given him sufficient assistance in arranging meetings. Noting that the present application is directed against Sweden, the Commission, however, finds that the applicant's submissions fail to disclose any failure of the Swedish authorities in this respect.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission unanimously        DECLARES THE APPLICATION INADMISSIBLE.               Secretary                        Acting President       to the Second Chamber               of the Second Chamber           (M.-T. SCHOEPFER)                       (G.H. THUNE)