PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 28 May 1996, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 20022/92) against the Kingdom of Sweden lodged with the Commission under Article 25 by a Swedish citizen, Mrs Anne-Marie Andersson, on 11 February 1992. The Commission's request referred to Articles 44 and 48 and to the declaration whereby Sweden recognised the compulsory jurisdiction of the Court (Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6 § 1 and 13 of the Convention.

In response to the enquiry made in accordance with Rule 35 § 3 (d) of Rules of Court B, the applicant designated the lawyer who would represent her (Rule 31).

The Chamber to be constituted included ex officio Mrs E. Palm, the elected judge of Swedish nationality (Article 43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule 21 § 4 (b)). On 10 June 1996, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr B. Walsh, Mr R. Macdonald, Mr J. De Meyer, Mr A.N. Loizou, Sir John Freeland, Mr A.B. Baka and Mr J. Casadevall (Article 43 in fine of the Convention and Rule 21 § 5). Subsequently Mr K. Jungwiert, the first substitute judge, replaced Mr Macdonald, who was unable to take part in the further consideration of the case (Rules 22 § 1 and 24 § 1).

On 22 July 1996, the Agent of the Swedish Government (“the Government”) wrote to the Registrar to inform him that it was the opinion of the Government that the present case and the case of M.S. v. Sweden (no. 74/1996/693/885) should be considered by the same Chamber and that both cases should be considered by a Grand Chamber in accordance with Rule 53 § 1. On 13 August 1996 the Registrar informed the Agent that, before drawing lots in the two cases, Mr Ryssdal had considered whether to constitute a single Chamber. However, bearing in mind, inter alia, that none of those taking part in the proceedings had asked that the case be examined by the same Chamber, he decided to constitute a separate Chamber for each case. On 25 August 1996 the Chamber decided not to relinquish jurisdiction in favour of a Grand Chamber.

As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Government, the applicant's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 39 § 1 and 40). Pursuant to the order made in consequence on 25 August 1996, the Registrar received the applicant's and the Government's memorials on 13 and 16 December 1996 respectively.

The applicant died on 20 November 1996. On 15 January 1997 her lawyer informed the Registrar that the applicant's son, Mr Stive Andersson, wished to continue with the case. By letters of 28 January and 10 February 1997, the Government objected to his being allowed to do so.

In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 18 March 1997. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a) for the Government Ms E. Jagander, Director, Ministry of Foreign Affairs, Agent, Mr G. Schäder, Director-General of Legal Affairs, Ministry of Justice, Mr B. Reuterstrand, Director-General of Legal Affairs, Ministry of Health and Social Affairs, Ms H. Jäderblom, Legal Adviser, Ministry of Justice, Advisers; (b) for the Commission Mrs G.H. Thune, Delegate; (c) for the applicant Mrs S. Westerberg, Lawyer, Counsel, Mrs C. Bokelund, Lawyer, Mr M. Eliasson, Lawyer, Mrs R. Harrold-Claesson, Lawyer, Advisers, Mrs B. Hellwig, Assistant. The Court heard addresses by Mrs Thune, Mrs Westerberg and Ms Jagander.

AS TO THE FACTS

I. circumstances of the case

The applicant, Mrs Anne-Marie Andersson was a Swedish citizen. She was born in 1943 and died in 1996 (see paragraph 6 above). She lived in Göteborg, where she worked as a taxi driver.

At the time of the events in question, Mrs Andersson was divorced and living with her youngest son, who was born in 1981. From May 1988 onwards, Mrs Andersson was unable to work as a result both of dental problems which caused her severe pain and anxiety about a dispute with her landlord.

In April 1989 she contacted a psychiatric clinic in Göteborg in order to receive a medical certificate which would enable her to claim sickness benefit from the Health Insurance Office. From 20 August 1991 the applicant was treated by the chief psychiatrist who drew her attention to the possible detrimental effect her situation might have on her son and advised her to seek support for him from the children's psychiatric clinic or the social authorities. Mrs Andersson, however, considered that her son was a normal child who was not in need of any particular help.

In January 1992 the psychiatrist informed Mrs Andersson that since the child's health might be at risk, she (the psychiatrist) had an obligation under Swedish law to contact the social authorities (see paragraphs 16–17 below). Accordingly, she telephoned a social-welfare officer at the Social Council (socialnämnden) and informed her of the applicant's health problems. At the request of that officer the psychiatrist submitted the following written statement on 16 January 1992: “Anne-Marie Andersson has had a polyclinical contact with a psychiatrist at [the clinic] since 19 April 1989, from 20 August 1991 with the undersigned. The reason has been a pain condition in connection with dental problems and this has caused her being on sick-leave as from May 1988. The patient does not consider herself to be mentally ill but she has accepted the contact with us solely due to her need to be put on the sick-list. In my opinion she has an extreme personality and her thoughts are, in conversations here, occupied by her severe pain condition and her dissatisfaction with the treatment she has received. She has once in a while had her son with her. He seemed quiet and sensitive. The undersigned, as well as others in the medical service with whom the patient has been in contact, have worried about the possible effect of her severe pain condition on the son whom she cares for alone. I have on several occasions drawn her attention to this, inter alia in letters (please see copy), and asked her to contact [the children's psychiatric clinic] or the social authorities. As, apparently, this has not been done, I called you today and I now send a written account of the case as agreed. As I do not find that, from a psychiatric point of view, we can do more for the patient, who does not consider herself to be mentally ill, I have referred her to the district medical officer and she will, thus, have no further contact with me.”

By letter the same day, the psychiatrist notified the applicant of the information imparted to the Council. The relevant part of the letter read as follows: “As you know, I have several times asked you to seek support for your son who, naturally, cannot remain unaffected by your severe pains. As I have not been able to convince you that this is necessary, I have called [a] social-welfare officer and expressed my concern. Unfortunately, I find myself obliged under the law to take this action in an attempt to reduce future problems for the boy (and thereby also for you).”

The psychiatrist's concern for the applicant's son was shared by the headmaster and a teacher at the school he attended. In October 1991 they had contacted the Social Council and expressed concern about his learning difficulties and his general state of health. Following this, the Council commenced an investigation which, with Mrs Andersson's agreement, led to the placement of her son in a non-residential therapeutic school on 2 March 1992.