Applicant name X.
Applicant type Natural Person
Country Sweden
Decision no. 172/56
Date 20/12/1957
Institution Commission (Plenary)
Type Decision
Outcome Art. 8 Inadmissible
Reason ratione materiae; ratione temporis; exhaustion of domestic remedies
Type of privacy Family Privacy
Keywords Immigrant; Custody;
Facts of the case Latvian mother and Polish father, of which the mother has obtained a residence permit in Sweden. Father requests residence permit, but that request is denied, as well as his subsequent request to be admitted in order to see the mother and child. Subsequently, the mother breaks all contact with the father. Mother starts divorcement proceedings in Sweden; court calls father to appear in order to see whether the couple can be reconciled, but the father is denied entry by the Swedish authorities. A subsequent court referred to the de facto separation of the couple for years and not only accepted the mother’s request for a divorce, but also granted her full custody. Father than turned to a Polish court, who also awarded the divorce, but granted the custody to the father. He then turns to the Swedish courts to obtain full custody under Swedish law and requests a visa, in order to be present for the proceedings with the Supreme Court, but such was denied. The Supreme Court subsequently denied his request.
Analysis The ECmHR first stresses that, with the exception of one application for an entry permit in May, 1956, the facts complained of refer to a period prior to 3rd September, 1953, date of the entry into force of the ECHR with regard to Sweden and must therefore be rejected ratione temporis.

The right to enter a country is not, as such, included among the rights and freedoms set forth in the Convention; as far as the applicants request would entail such a claim, such will be rejected ratione materiae.

The matters with respect to the fairness of proceedings are discussed under Article 6 ECHR, and not, as will be the case in later jurisprudence of the ECtHR, under Article 8 ECHR, to the extent that the proceedings regard matters that fall under the material scope of the right to privacy. The claims are dismissed under Article 6 ECHR, because the lawyer of the claimant made several mistakes that led to the problems the applicant is complaining of. The ECHR only applies in vertical relationships.

The Commission repeats that the ECmHR and the ECtHR will not act as courts of fourth instance, as they are not set up as a higher courts to hear cases of alleged errors of law or fact committed by the domestic courts of the Contracting Parties but, to ensure the observance of the engagements undertaken by the Parties in the Convention.

With respect to Article 8 ECHR, the Commission makes clear that the right of one particular parent to the custody of an infant as against the other parent is not, as such, included among the rights and freedoms set forth in the Convention, and that such a claim must consequently be dismissed ratione materia.

The appreciation of the question which parent should be given the custody of an infant is, in principle, governed by the law of the domestic courts.

Interestingly, the Commission added that it did not appear in the present case that the Swedish law in the matter in itself violates the Convention. Although in later times, the ECmHR has refused to assess the validity or quality of laws as such (in abstracto), it does not seem to exclude that possibility here.

The ECmHR continues by discussing the question whether the fact that one parent is deprived of the custody of an infant entails not in itself but in its effects, a prima facie violation, with regard to that parent and the infant in question. The applicant argued that the decision meant that his infant son would be brought up in ignorance of his Polish nationality, in his being educated in a way contrary to the teachings of the Roman Catholic Church in which he was baptised, and in his being ignorant of his father’s existence. The Commission underlined that it was the question whether this limitation of his rights as protected under Article 8 para 1 abided by the requirements of Article 8 para 2, but that it could not deal with this question because the domestic remedies had not been exhausted.

Documents Decision