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GRAND
CHAMBER
CASE OF GILLBERG v. SWEDEN
(Application
no. 41723/06)
JUDGMENT
STRASBOURG
3 April
2012
This
judgment is final but it may be subject to editorial revision.
In the case of Gillberg v. Sweden,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Nicolas
Bratza,
President,
Jean-Paul
Costa,
Françoise
Tulkens,
Nina
Vajić,
Dean
Spielmann,
Corneliu
Bîrsan,
Karel
Jungwiert,
Elisabeth
Steiner,
Elisabet
Fura,
Egbert
Myjer,
Danutė
Jočienė,
Päivi
Hirvelä,
Ledi
Bianku,
Mihai
Poalelungi,
Nebojša
Vučinić,
Kristina
Pardalos,
Paulo
Pinto de Albuquerque,
judges,
and
Erik Fribergh, Registrar,
Having
deliberated in private on 28 September 2011 and on 8 March 2012,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 41723/06)
against the Kingdom of Sweden lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Swedish national, Mr Christopher Gillberg (“the applicant”),
on 10 October 2006.
- The
applicant was represented by Mr Bertil Bjernstam, a Bachelor of Laws
from Gothenburg, and by Mr Clarence Crafoord and Ms Anna Rogalska
Hedlund, lawyers practising in Stockholm. The Swedish
Government (“the Government”) were
represented by their Agents, Mr Anders Rönquist,
Ms Charlotte Hellner and Ms Gunilla Isaksson, from the Ministry
for Foreign Affairs.
3. The
applicant complained in particular that in civil proceedings
concerning access to public documents, and in subsequent criminal
proceedings against him concerning misuse of office, his rights under
Articles 8 and 10 of the Convention had been breached.
4. The
application was allocated to the Third Section of the Court (Rule 52
§ 1 of the Rules of Court). On 2 November 2010 a Chamber
composed of J. Casadevall, President, E. Fura, B. M.
Zupančič, A. Gyulumyan, I. Ziemele, L. López
Guerra, A. Power, judges, and also of S. Quesada,
Section Registrar, delivered its judgment. It
unanimously declared the complaint under Articles 8 and 10 relating
to the criminal proceedings against the applicant admissible and the
remainder of the application inadmissible, and held, by five votes to
two, that there had been no violation of Article 8 of the Convention
and, unanimously, that there had been no violation of Article 10 of
the Convention. The joint dissenting opinion of A. Gyulumyan and I.
Ziemele was annexed to the judgment.
- On
11 April 2011, following a request by the
applicant received at the Court on 25 January 2011, the Panel of
the Grand Chamber decided to refer the case to the Grand Chamber
under Article 43 of the Convention.
6. The
composition of the Grand Chamber was determined according to the
provisions of Article 26 §§ 4 and 5 of the Convention and
Rule 24 of the Rules of Court.
7. The
applicant and the Government each filed further written observations
(Rule 59 § 1) on the merits.
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 28 September 2011 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr C. Ehrenkrona,
Counsel,
Mr A. Rönquist
Ms C. Hellner,
Ms G.
Isaksson,
Mr M. Säfsten,
Ms A. Stawarz, Advisers;
(b) for the applicant
Mr C.
Crafoord,
Mr E. Eriksson,
Ms A. Rogalska Hedlund,
Counsel,
Mr B. Bjernstam,
Mr S. Scheiman,
Advisers.
The
applicant was also present.
The
Court heard addresses by Mr Crafoord, Mr Eriksson and Mr Ehrenkrona,
as well as Ms Rogalska Hedlund’s and Mr Ehrenkrona’s
answers to questions put by judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Gothenburg.
- He
is a professor, specialising in child and adolescent psychiatry, at
the University of Gothenburg.
- In
the period between 1977 and 1992 a research project was carried out
at the University of Gothenburg in the field of neuropsychiatry,
focusing on cases of Attention Deficit Hyperactivity Disorder
(ADHD)
or Deficits in Attention, Motor
Control and Perception
(DAMP) in children. The aim was to elucidate the
significance thereof and associated problems from a long-term
perspective. Parents to a group of one hundred and forty one
pre school children volunteered to participate in the study,
which was followed up every third year. Certain assurances were made
to the children’s parents and later to the young people
themselves concerning confidentiality. The research file, called the
Gothenburg study, was voluminous and consisted of a large number of
records, test results, interview replies, questionnaires and video
and audio tapes. It contained a very large amount of
privacy-sensitive data about the children and their relatives.
Several doctoral theses have been based on the Gothenburg study. The
material was stored by the Department of Child and Adolescent
Psychiatry, of which the applicant was director. The project was
originally set up and started by other researchers but the applicant
subsequently took over responsibility for completing the study.
- The
applicant alleged that the Ethics Committee of the University of
Gothenburg had made it a precondition in their permits that sensitive
information about the individuals participating in the study would be
accessible only to the applicant and his staff and that he had
therefore promised absolute confidentiality to the patients and their
parents. That fact was disputed by the Government.
- Two
permits were issued by the Ethics Committee of the University of
Gothenburg, on 9 March 1984 and 31 May 1988
respectively, consisting of one page each and indicating, among other
things, the dates of application (respectively 26 January 1984 and 24
March 1988), the researchers involved in the project, the name of the
project and the date of approval; they bore the signatures of the
chairman and the secretary of the Ethics Committee. They contained no
specific requirements and no reference to “secrecy” or
“absolute secrecy”.
- In
a letter of 17 February 1984 to the parents of the children
participating in the study, the applicant stated, inter alia:
“All data will be dealt with in confidentiality
and classified as secret. No data processing that enables the
identification of your child will take place. No information has been
provided previously or will be provided to teachers about your child
except that when starting school she/he took part in a study
undertaken by Östra Hospital, and its present results will, as
was the case for the previous study three years ago, be followed up.”
- A
later undated letter from the applicant to the participants in the
study included the following wording:
“Participation is of course completely voluntary
and as on previous occasions you will never be registered in public
data records of any kind and the data will be processed in such a way
that nobody apart from those of us who met you and have direct
contact with you will be able to find out anything at all about you.”
A. Proceedings concerning access to the research
material
- In
February 2002 a sociologist, K, requested access to the background
material. She was a researcher at Lund University and maintained that
it was of great importance to have access to the research material
and that it could, without risk of damage, be released to her with
conditions under Chapter 14, section 9, of the Secrecy Act
(Sekretesslagen; SFS 1980:100). She had no interest in the
personal data as such but only in the method used in the research and
the evidence the researchers had for their conclusions. Her request
was refused by the University of Gothenburg on 27 February 2002
because K had not shown any connection between the requested material
and any research, and on the ground that the material contained data
on individuals’ health status which, if disclosed, might harm
an individual or persons related to that individual. An appeal
against the decision was lodged with the Administrative Court of
Appeal (Kammarrätten i Göteborg), which referred the
matter to the University of Gothenburg to examine whether the
material could be released after removal of identifying information
or with a condition restricting K’s right to pass on or use the
data. The University of Gothenburg again refused the request on
10 September 2002, on the ground that the data requested
was subject to secrecy, that there was no possibility of releasing
the material after removal of identifying information, nor was there
sufficient evidence to conclude that the requested material could be
released with conditions. K again appealed against the decision to
the Administrative Court of Appeal.
- In
the meantime, in July 2002, a paediatrician, E, also requested access
to the material. He submitted that he needed to keep up with current
research, that he was interested in how the research in question had
been carried out and in clarifying how the researchers had arrived at
their results, and that it was important to the neuropsychiatric
debate that the material should be exposed to independent critical
examination. His request was refused by the University of Gothenburg
on 30 August 2002, for the same reasons as its refusal to K, a
decision against which E appealed to the Administrative Court of
Appeal.
- By
two separate judgments of 6 February 2003, the Administrative Court
of Appeal found that K and E had shown a legitimate interest in
gaining access to the material in question and that they could be
assumed to be well acquainted with the handling of confidential data.
Therefore, access should be granted to K and E, but subject to
conditions made by the University of Gothenburg in order to protect
the interests of the individuals concerned in accordance with various
named provisions of the Secrecy Act.
- The
University of Gothenburg’s request to the Supreme
Administrative Court (Regeringsrätten) for relief for
substantive defects (resning) was refused on 4 April 2003.
- In
vain the applicant and some of the individuals participating in the
study also applied to the Supreme Administrative Court for relief for
substantive defects. Their requests were refused on 4 April, 16 May
and 22 July 2003 respectively, because they were not considered
to be party to the case (bristande talerätt).
- In
the meantime, on 7 April 2003 the University of Gothenburg decided
that, “provided that the individuals concerned gave their
consent”, the documents would be released to K and E with
conditions specified in detail in the decisions.
- K
and E appealed against certain of the conditions imposed by the
University of Gothenburg. They also reported the University of
Gothenburg’s handling of the case to the Parliamentary
Ombudsman, which in decisions of 10 and 11 June 2003 criticised the
University of Gothenburg, notably regarding the delays in replying to
the request for access.
- In
two separate judgments of 11 August 2003, the Administrative Court of
Appeal lifted some of the conditions imposed by the university. It
pointed out that in the judgments of 6 February 2003 K and E had
already been given the right of access to the requested documents and
that the only matter under examination was the conditions of access,
which could only be imposed if they were designed to remove a given
risk of damage, and that a condition should be framed to restrict the
recipient’s right of disposal over the data. Thereafter, six
conditions were set regarding K’s access, including that the
data was only to be used within the Swedish Research Council funded
research project called “The neurological paradigm: on the
establishment of a new grand theory in Sweden” which K had
specified before the Administrative Court of Appeal, that she was not
allowed to remove copies from the premises where she was given access
to the documents, and that transcripts of released documents
containing data on psychological, medical or neurological
examinations or treatment, or concerning the personal circumstances
of individuals, and notes concerning such examinations, treatment or
circumstances from a document released to her, would be destroyed
when the above research project was completed and at the latest by 31
December 2004. Six similar conditions were also imposed on E,
including that data in the released documents referring to
psychological, medical, psychiatric or neurological examinations or
treatment, and data in the released documents concerning the personal
circumstances of an individual, was to be used for examination of how
the researchers who participated in the research project in which the
documents had been used had arrived at their results and conclusions,
and so that E could generally maintain his competence as a
paediatrician.
- The
University of Gothenburg did not have a right to appeal against the
judgments and on 5 November 2003 the applicant’s request to the
Supreme Administrative Court for relief for substantive defects was
refused because he was not considered to be a party to the case.
- In
the meantime, in a letter of 14 August 2003 to the applicant, the
Vice Chancellor of the university stated that, by virtue of the
judgments of the Administrative Court of Appeal, K and E were
entitled to immediate access to the documents on the conditions
specified. Furthermore, by decision of the university, K and E were
to be given access to the documents on the university’s
premises on a named street and the documents therefore had to be
moved there from the Department of Child and Adolescent Psychiatry
without delay. The letter stated that the transportation of the
documents was to begin on 19 August 2003 at 9 a.m. The applicant was
requested to arrange for the documents to be available for collection
at that time and, if necessary, to ensure that all the keys to the
rooms where the material was kept were delivered to a person P.
- The
applicant replied in a letter of 18 August 2003 that he did not
intend to hand over either the material or the keys to the filing
cabinets to P. On the same day the Vice-Chancellor had a meeting with
the applicant.
- On
instruction by the Vice-Chancellor, on 19 August 2003 P visited the
Department of Child and Adolescent Psychiatry. He was met by
controller L, who handed him a document showing that L had been
instructed by the applicant not to release either the material in
question or the keys to the filing cabinets.
- By
letter of 1 September 2003 the Vice-Chancellor of the University of
Gothenburg informed K and E that since the applicant refused to
transfer the material for the present he could not help them any
further and that he was considering bringing the applicant before the
Public Disciplinary Board (Statens ansvarsnämnd) on
grounds of disobedience.
- On
18 October 2003 the applicant had a meeting with the Vice-Chancellor
of the University of Gothenburg about the case. Moreover, in
autumn 2003 the applicant and various persons corresponded with the
Vice Chancellor, including a professor of jurisprudence and
Assistant Director General of the Swedish Research Council who
questioned the judgments of the Administrative Court of Appeal, which
prompted the Vice-Chancellor to consider whether it would be possible
to impose new conditions on K and E. The case was discussed within
the University Board and subsequently, by decision of 27 January
2004, the University of Gothenburg decided to refuse to grant access
to K because, in the light of a memorandum drawn up on 12 March 2003
by the Swedish Research Council, there was no connection between K’s
research and the research project that she had specified before the
Administrative Court of Appeal. Likewise, in a decision of 2 February
2004 the university decided to impose a new condition on E before
giving him access. It stated that it had reason to believe that E’s
activities and position did not justify giving him access to the
material, even subject to restrictions. E thus had to
demonstrate that his duties for the municipality included reviewing
or otherwise acquiring information about the basic material on which
the research in question was based.
- The
decisions were annulled by the Administrative Court of Appeal by two
separate judgments of 4 May 2004.
- The
applicant’s request to the Administrative Supreme Court for
relief for substantive defects was refused on 28 September 2004
and 1 July 2005, because he was not considered to be party
to the case.
- In
the meantime, according to the applicant, the research material was
destroyed during the weekend of 7 and 9 May 2004 by three of his
colleagues.
B. Criminal proceedings against the applicant
- On
18 January 2005 the Parliamentary Ombudsman decided to initiate
criminal proceedings against the applicant and by a judgment of
27 June 2005 the District Court (Göteborgs
Tingsrätt) convicted the applicant of misuse of office
pursuant to Chapter 20, Article 1 of the Penal Code (Brottsbalken).
The applicant was given a suspended sentence and ordered to pay fifty
day-fines of 750 Swedish kronor (SEK), amounting to a total of
SEK 37,500, (approximately 4,000 Euros (EUR).
- The
Vice-Chancellor of the university was also convicted of
misuse of office for having disregarded, through negligence, his
obligations as Vice-Chancellor by failing to ensure that the
documents were available for release as ordered in accordance with
the judgments of the Administrative Court of Appeal. The
Vice-Chancellor was sentenced to forty day fines of SEK 800,
amounting to a total of SEK 32,000 (approximately EUR 3,400).
- The
Parliamentary Ombudsman also decided to initiate criminal proceedings
against the Chair of the Board of Gothenburg University, but the
charges were later dismissed.
- Finally,
by a judgment issued on 17 March 2006, the three officials who had
destroyed the research material were convicted of the offence of
suppression of documents and given a suspended sentence and fined.
- On
appeal, on 8 February 2006 the applicant’s conviction and
sentence were upheld by the Court of Appeal (Hovrätten för
Västra Sverige) in the following terms:
General observations on the university’s
management of the case
“In its two initial judgments of 6 February 2003
the Administrative Court of Appeal held that K and E were entitled to
have access to the documents requested. In its two subsequent
judgments of 11 August 2003 the Administrative Court of Appeal
decided on the conditions that would apply in connection with the
release of the documents to them. The judgments of the Administrative
Court of Appeal had therefore settled the question of whether the
documents were to be released to K and E once and for all.
At the hearing in the Administrative Court of Appeal,
the university had the opportunity to present reasons why the
documents requested should not be released to K and E. Once the
judgments, against which no appeal could be made, had been issued in
February 2003, whether or not the university considered that they
were based on erroneous or insufficient grounds had no significance.
After the February judgments the university was only required to
formulate the conditions it considered necessary to avoid the risk of
any individuals sustaining harm through the release of the documents.
Subsequently the university had the opportunity to present its
arguments to the Administrative Court of Appeal for the formulation
of the conditions it had chosen. After the Administrative Court of
Appeal had determined which conditions could be accepted, the
question of the terms on which [K and E] could be allowed access to
the documents requested was also settled once and for all. There was
then no scope for the university to undertake any new appraisal of
K’s and E’s right of access to the documents.
Therefore, in the period referred to in the indictment
[from 11 August 2003 until 7 May 2004] it was no longer the
secrecy legislation that was to be interpreted but the judgments of
the Administrative Court of Appeal. Their contents were clear. [The
Vice-Chancellor’s] letters of 14 August 2003 to [the applicant]
and of 1 September 2003 to K and E show that the university
administration had understood that it was incumbent on the university
to release the documents without delay.
The promptness required by the Freedom of the Press Act
in responding to a request for access to
a public document should in itself have caused the university to
avoid measures leading to further delay in releasing the documents.
Despite this, in its interpretation of the conditions and in laying
down additional conditions, the university made it more difficult for
K and E to gain access to the documents.”
The applicant’s liability
“The prosecutor has maintained that after the
judgments of the Administrative Court of Appeal of 11 August 2003 and
until 7 May 2004, when the material is said to have been destroyed,
[the applicant] in his capacity as head of the Department of Child
and Adolescent Psychiatry, wilfully disregarded the obligations of
his office by failing to comply with the judgments of the
Administrative Court of Appeal and allow [E and K] access to the
documents. According to the indictment, [the applicant] in so doing
not only refused to hand over the documents in person but also
refused to make them available to the university administration.
The research material was the property of the university
and hence to be regarded as in the public domain. It was stored in
the Department of Child and Adolescent Psychiatry, where [the
applicant] was the head. [The Vice-Chancellor’s] letter of
14 August 2003, to which copies of the judgments of the
Administrative Court of Appeal relating to the conditions were
attached, made it clear to [the applicant] that the material in
question must be released. As head of the department, [the applicant]
was responsible for making the material available to [K and E]. [The
applicant’s] awareness of his immediate responsibility is
revealed not least by the instructions that he gave to [L] before the
visit of [P] not to allow the university administration access to the
material. It is also shown by [the applicant’s] written reply
on 18 August 2003 to [the Vice-Chancellor].
Through [the Vice-Chancellor] the university had
instructed [the applicant] to release the material to the university,
so that it could be moved to premises where K and E could examine it.
In view of this, the Court of Appeal, like the District Court, does
not consider that [the applicant] can be held culpable because he
refused to hand over the documents in person. However, it was
incumbent upon him to make the documents available for removal in
accordance with the instructions he had received from the university.
[The applicant] has protested that he did not consider
that there was any serious intent behind the instruction he received
from the [Vice-Chancellor] on 14 August 2003. Here he has
referred in particular to the meeting on 18 August 2003 and to the
fact that P did not follow up his visit to the department and that he
received no new directive to make the material available.
[The Vice-Chancellor], however, has stated that on no
occasion did he withdraw the instructions issued on 14 August 2003,
and that it must have been quite clear to [the applicant] that they
continued to apply, even though they were not explicitly repeated.
According to the Vice-Chancellor, nothing transpired at the meeting
on 18 August 2003 that could have given [the applicant] the
impression that these instructions no longer applied or that they
were not intended seriously. [The Vice-Chancellor’s] statement
in this respect has been confirmed by the Director at the
Vice-Chancellor’s office, W. It is further borne out by the
fact that after the meeting on 18 August 2003 W was given the
task of drawing up a complaint to the Government Disciplinary Board
for Higher Officials on the subject of [the applicant’s]
refusals and that the latter was aware that a complaint of this kind
was being considered. In addition, it can be seen from a number of
e-mails from [the applicant] to [the Vice-Chancellor] that during the
entire autumn he considered that he was required to hand over the
documents and that he maintained his original refusal to obey his
instructions. It has also been shown that when the Board met on 17
December 2003, [the Vice-Chancellor] was still considering making a
complaint to the Disciplinary Board. Finally, [a witness, AW] has
testified that at a meeting with [the applicant] shortly after the
beginning of 2004, when asked whether he still persisted in his
refusal, he confirmed that this was the case.
All things considered, the Court of Appeal finds that it
has been shown that [the applicant] was aware that the instructions
to make the material available to the administration applied during
the entire period from when he learnt about the judgments of the
Administrative Court of Appeal on 14 August 2003. It was incumbent on
him to take the action required to comply with the judgments.
[The applicant] has stated that he was never prepared to
participate in the release of the documents to K and E. His actions
were, in other words, intentional and their result was that K and E
were categorically denied a right that is guaranteed by the
Constitution and that is also of fundamental importance in principle.
All things considered, the Court of Appeal finds that [the
applicant’s] conduct means that he disregarded the obligation
that applied to him as head of department in such a manner that the
offence of misuse of office should be considered. [The applicant] has
however also objected that his conduct should be regarded as
excusable in view of the other considerations that he had to bear in
mind.
He has thus claimed that in the situation that had
arisen he was prevented by medical ethics and research ethics from
disclosing information about the participants in the study and their
relatives. He referred in particular to international declarations
drawn up by the World Medical Association and to the Convention.
The nature of the international declarations agreed on
by the World Medical Association is not such as to give them
precedence over Swedish law. [The applicant’s] objections on
the basis of the contents of these declarations therefore lack
significance in this case.
Article 8 of the Convention lays down that everyone has
the right to respect for his or her private and family life, and that
this right may not be interfered with by a public body except in
certain specified cases. The provisions of the Secrecy Act are
intended, in accordance with Article 8 of the Convention, to protect
individuals from the disclosure to others of information about their
personal circumstances in cases other than those that can be regarded
as acceptable with regard to the right to insight into the workings
of the public administration. These regulations must be considered to
comply with the requirements of the Convention, and the judgments of
the Administrative Court of Appeal lay down how they are to be
interpreted in this particular case. [The applicant’s]
objection that his conduct was excusable in the light of the
Convention cannot, therefore, be accepted.
[The applicant] has also asserted that he risked
criminal prosecution for breach of professional secrecy if he
released the documents to [K and E]. However, the judgments of the
Administrative Court of Appeal determined once and for all that the
secrecy Act permitted release of the documents. For this reason there
was of course no possibility of prosecution for breach of
professional secrecy, which, in the opinion of the Court of Appeal,
[the applicant] must have realised.
[The applicant] has also stated that he was bound by the
assurances of confidentiality he had given to the participants in the
study in accordance with the requirements established for the
research project. The assurances were given in 1984, in the following
terms: “All data will be dealt with in
confidence and classified as secret. No data processing that enables
the identification of your child will take place. No information has
been provided previously or will be provided to teachers about your
child except that when starting school she/he took part in a study
undertaken by Östra Hospital and its present results
will, as was the case for the previous study three years ago, be
followed up.” A later assurance of
confidentiality had the following wording: “Participation is of
course completely voluntary and as on previous occasions you will
never be registered in public data records of any kind and the data
will be processed in such a way that nobody apart from those of us
who met you and have direct contact with you will be able to find out
anything at all about you.”
The assurances of confidentiality
given to the participants in the study go, at least in some respects,
further than the Secrecy Acts permits. The Court of Appeal notes that
there is no possibility in law to provide greater secrecy than
follows from the Secrecy Act and that it is not possible to make
decisions on issues concerning confidentiality until the release of a
document is requested. It follows therefore that the assurances of
confidentiality cited above did not take precedence over the law as
it stands or a court’s application of the statutes. [The
applicant’s] objections therefore have no relevance in
assessing his criminal liability.
Finally, [the applicant] has claimed that his actions
were justifiable in view of the discredit that Swedish research would
incur and the decline in willingness to participate in medical
research projects that would ensue if information submitted in
confidence were then to be disclosed to private individuals. The
Court of Appeal notes that there are other possibilities of
safeguarding research interests, for example by removing details that
enable identification from research material so that sensitive
information cannot be divulged. What [the applicant] has adduced on
this issue cannot exonerate him from liability.
[The applicant’s] actions were therefore not
excusable. On the contrary, for a considerable period he failed to
comply with his obligations as a public official arising from the
judgments of the Administrative Court of Appeal. His offence cannot
be considered a minor one. [The applicant] shall therefore be found
guilty of misuse of office for the period after 14 August 2003, when
he was informed of the judgments of the Administrative Court of
Appeal. The offence is a serious one as [the applicant] wilfully
disregarded the constitutional right of access to public documents.
On the question of the sentence, the Court of Appeal concurs with the
judgment of the District Court.
- Leave
to appeal to the Supreme Court was refused on 25 April 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The right of public access to official documents
- The
principle of public access to official documents
(offenlighetsprincipen) has a history of more than two hundred
years in Sweden and is one of the cornerstones of Swedish democracy.
One of its main characteristics is the constitutional right for
everyone to study and be informed of the contents of official
documents held by the public authorities. This principle allows the
public and the media to exercise scrutiny of the State, the
municipalities and other parts of the public sector which, in turn,
contributes to the free exchange of opinions and ideas and to
efficient and correct management of public affairs and, thereby, to
maintaining the legitimacy of the democratic system (see Govt. Bill
1975/76:160 pp. 69 et seq.). The principle of public access to
official documents is enshrined in Chapter 2, Sections 1 and 12, of
the Freedom of the Press Act. Thus, every Swedish citizen is entitled
to have free access to official documents, in order to encourage the
free exchange of opinion and the availability of comprehensive
information (Chapter 2, Section 1; foreign nationals enjoy the same
rights in this respect as Swedish citizens, Chapter 14, Section
5).
- A
document is official if it is held by and is regarded as having been
received or “drawn up” by a public authority (Chapter 2,
Sections 3 and 6-7, of the Freedom of the Press Act). A document is
“drawn up”
when it is dispatched by
an authority. A document that is not dispatched is “drawn up”
when the matter to which it relates is finally settled by the
authority in question. If the document does not relate to any
specific matter, it is “drawn up” when it has been
finally checked or has otherwise received its final form. As research
is considered to be an activity in its own right (faktiskt
handlande)
(see,
for example, the Chancellor of Justice, 1986 p. 139), it cannot be
said to relate to any specific matter. This means, in turn, that
research material, as a rule, is “drawn up” and thereby
official, as soon as it has been finally checked or otherwise
received its final form.
It could be added that
preliminary outlines, drafts, and similar documents enumerated in
Chapter 2, Section 9, of the Freedom of the Press Act are not deemed
to be official unless they introduce new factual information or have
been accepted for filing. Finally, there is no general requirement
that a document be filed in order to be considered official, and
registration does not affect the issue of whether a document is
official or not (cf. Chapter 15, Section 1, of the Secrecy Act).
- An
official document to which the public has access shall be made
available on request forthwith, or as soon as possible, at the place
where it is held, and free of charge, to any person wishing to
examine it, in such form that it can be read, listened to, or
otherwise comprehended; a document may also be copied, reproduced or
used for sound transmission (Chapter 2, Section 12). Such a decision
should normally be rendered the same day or, if the public authority
in question has to consider whether the requested document is
official or whether the information is public, within a few days
(see, for example, the Parliamentary Ombudsman’s decision of
23 November 2007 in case no. 5628-2006). A certain delay may
also be acceptable if the request concerns very extensive material.
If a document cannot be made available without disclosure of such
part of it as constitutes classified material, the rest of the
document shall be made available to the person requesting access in
the form of a transcript or copy (Section 12). A public authority is
under no obligation to make a document available at the place where
it is held if this presents serious difficulty.
B. Restrictions on the right of public access to
official documents
42. An
unlimited right of public access to official documents could,
however, result in unacceptable harm to different public and private
interests. It has therefore been considered necessary to provide
exceptions. These exceptions are laid down in Chapter 2, Section 2
(first paragraph), of the Freedom of the Press Act, which reads as
follows:
The right of access to official documents may be
restricted only if restriction is necessary having regard to
1.
the security of the State or its relations with another State or an
international organisation;
2. the central fiscal, monetary or
currency policy of the State;
3. the inspection, control or other
supervisory activities of a public authority;
4. the interest of
preventing or prosecuting crime;
5. the economic interest of the
public institutions;
6. the protection of the personal or
economic circumstances of private subjects;
7. the preservation
of animal or plant species.
- According
to paragraph 2 of the same provision, restrictions on the right of
access to official documents shall be scrupulously specified in a
provision of a special act of law or, if this is deemed more
appropriate in a particular case, in another act of law to which the
special act refers (see, for example, Govt. Bill 1975/76:160 pp. 72
et seq. and Govt. Bill 1979/80:2, Part A, pp. 48 et seq.). The
special act of law referred to is the Secrecy Act. Pursuant to such a
provision, the Government may issue more detailed provisions for its
application in an ordinance (förordning). Since the
mandate to restrict the right of public access to official documents
lies exclusively with the Swedish Parliament (Riksdag), it is
not possible for a public authority to enter into an agreement with a
third party exempting certain official documents from the right of
public access, or to make similar arrangements.
- The
Secrecy Act contains provisions regarding the duty to observe secrecy
in the activities of the community and regarding prohibitions against
making official documents available (Chapter 1, Section 1). The
latter provisions limit the right of access to official documents
provided for in the Freedom of the Press Act
(Tryckfrihetsförordningen, SFS 1949:105). They relate to
prohibitions on disclosing information, irrespective of the manner of
disclosure. The question of whether secrecy should apply to
information contained in an official document cannot be determined in
advance, but must be examined each time a request for access to a
document is made. Decisive for this issue is whether making a
document available could imply a certain risk of harm. The risk of
harm is defined in different ways in the Secrecy Act, having regard
to the interests that the secrecy is intended to protect. Thus, the
secrecy may be more or less strict depending on the interests
involved. The secrecy legislation has been elaborated in this way in
order to provide sufficient protection, for example, for the personal
integrity of individuals, without the constitutional right of public
access to official documents being circumscribed more than is
considered necessary. In the present case, the Administrative Court
of Appeal, in its judgments of 6 February 2003, found that
secrecy applied to the research material under Chapter 7, Sections 1,
4, 9 and 13, of the Secrecy Act (Chapter 7 deals with secrecy with
regard to the protection of the personal circumstances of
individuals).
- If
a public authority deems that such a risk of loss, harm, or other
inconvenience which, pursuant to a provision on secrecy, constitutes
an obstacle to information being communicated to a private subject,
can be removed by imposing a restriction limiting the private
subject’s right to re-communicate or use the information, the
authority shall impose such a restriction when the information is
communicated (Chapter 14, Section 9, of the Secrecy Act). As an
example of such a restriction, the preparatory notes mention
prohibiting the dissemination of the content of a document or the
publication of secret information contained in a document (see Govt.
Bill 1979/80:2, Part A, p. 349). An individual who has been granted
access to a document subject to a restriction limiting the right to
use the information may be held criminally liable if he or she does
not respect that restriction (see Chapter 20, Section 3, of the Penal
Code).
C. Procedure concerning requests for public access to
official documents
- A
request to examine an official document must be made to the public
authority which holds the document (Chapter 2, Section 14, of the
Freedom of the Press Act and Chapter 15, Section 6, of the Secrecy
Act). As mentioned above, there are specific requirements of
promptness regarding the handling of such requests. A decision by an
authority other than the Swedish Parliament or the Government to
refuse access to a document is subject to appeal to the courts –
as a general rule, an administrative court of appeal – and,
further, to the Supreme Administrative Court (Chapter 2, Section 15,
of the Freedom of the Press Act; Chapter 15, Section 7, of the
Secrecy Act and Sections 33 and 35 of the 1971 Administrative Court
Procedure Act (Förvaltningsprocesslagen; SFS 1971:291)).
Leave to appeal is required in the last-mentioned court. Only the
person seeking access has a right of appeal. Thus, if the
Administrative Court of Appeal – contrary to the public
authority holding the document in question – decides that a
document must be made available, its judgment is not open to appeal
by the public authority in question, or by private subjects who
consider that harm would be inflicted on them as a consequence of
access to the document being granted (see RÅ 2005 note 1 and RÅ
2005 ref. 88). The reason why the right of appeal has been narrowly
limited is that once the competing interests have been considered by
a court the legislator has given priority to the principle of public
access to official documents over other private and public interests
(see, for example, Govt. Bill 1975/76:160 p. 203 and RÅ 2003
ref. 18, which concerned an institution’s request for relief
for substantive defects).
D. Responsibility of public officials and criminal
provisions
- The
principle of public access to official documents is applicable to all
activities within the public sector and every public official is
obliged to be acquainted with the laws and regulations in this area.
This is in particular the case where a certain official –
following a special decision or otherwise – has the duty
to examine requests for access to official documents (Chapter 15,
Section 6, second paragraph of the Secrecy Act). Formally, the head
of the public authority has the primary responsibility to ensure that
such requests are duly examined. However, the task may be delegated
to other office holders within the authority and this is what is
usually done in practice for the purposes of the authority’s
daily activities. Such delegation has to be in accordance with the
regulations of the authority (Section 21 of the former
Government Agencies and Institutes Ordinance, Verksförordningen
SFS 1995:1322, applicable at the relevant time). Irrespective of a
public official’s particular competence or power under the
regulations of the authority in question, he or she has a general
duty to perform the tasks that are part of his or her official
duties. As previously mentioned, this duty involves the obligation to
assist in making official documents available forthwith, or as soon
as possible, to persons who are considered to have the right of
access to them under the legislation described above.
- By
virtue of Chapter 20, Article 1, of the Penal Code a person who, in
the exercise of public authority, by act or by omission,
intentionally or through carelessness, disregards the duties of his
office, will be sentenced for misuse of office (tjänstefel).
The provision reads as follows:
Chapter 20, Article 1:
“A person who, in the exercise of public
authority, by act or by omission, intentionally or through
carelessness, disregards the duties of his office, shall be sentenced
for misuse of office to a fine or a maximum term of imprisonment of
two years. If, having regard to the perpetrator’s official
powers or the nature of his office considered in relation to his
exercise of public power in other respects or having regard to other
circumstances, the act may be regarded as petty, punishment shall not
be imposed. If an offence mentioned in the first paragraph has been
committed intentionally and is regarded as serious, the perpetrator
shall be sentenced for gross misuse of office to a term of
imprisonment of at least six months and at most six years. In
assessing whether the crime is serious, special attention shall be
given to whether the offender seriously abused his position or
whether the crime occasioned serious harm to an individual or the
public sector or gave rise to a substantial improper benefit. A
member of a national or municipal decision-making assembly shall not
be held responsible under the provisions of the first or second
paragraphs of this Article for any action taken in that capacity. Nor
shall the provisions of the first and second paragraphs of this
Article apply if the crime is punishable under this or some other
Law.”
- A
suspended sentence may be imposed by the courts for an offence for
which a fine is considered an inadequate penalty, and such a sentence
is, as a general rule, combined with day-fines. A maximum total of
200 day-fines may be imposed. When determining the amount, account is
taken of the economic circumstances of the accused, but a day fine
may not exceed 1,000 Swedish kronor (SEK) (Chapter 25, Section 2,
Chapter 27, Sections 1 and 2, and Chapter 30, Section 8 of the
Penal Code).
- In
Sweden a suspended sentence does not refer to any specific
number of days of imprisonment. Under Chapter 27 of the
Penal Code a suspended sentence is always subject to a probationary
period of two years. A suspended sentence may be linked to
specific conditions. If the person convicted
commits a new crime during the probationary period the courts may,
having due regard to the nature of the new crime, revoke the
suspended sentence and impose a joint sanction for the crimes
(Chapter 34 of the Penal Code).
E. The Parliamentary Ombudsmen
- The
functions and powers of the four Parliamentary Ombudsmen are laid
down in particular in Chapter 12, Section 6 of the Instrument of
Government (Regeringsformen) and in the Act with Instructions
for the Parliamentary Ombudsmen (Lagen med instruktion för
Riksdagens ombudsmän; SF5 1986:765). Their main task is to
supervise the application of laws and other regulations in the public
administration. It is their particular duty to ensure that public
authorities and their staff comply with the laws and other statutes
governing their actions. An Ombudsman exercises supervision, either
on complaint from individuals or of his or her own motion, by
carrying out inspections and other investigations which he or she
deems necessary. The examination of a matter is concluded by a
decision in which the Ombudsman states his or her opinion whether the
measure taken by the authority contravenes the law or is otherwise
wrongful or inappropriate. The Ombudsmen may also make pronouncements
aimed at promoting uniform and proper application of the law. An
Ombudsman’s decisions are considered to be expressions of his
or her personal opinion. They are not legally binding upon the
authorities. However, they do have persuasive force, command respect
and are usually followed in practice. An Ombudsman may, among many
other things, institute criminal proceedings against an official who
has committed an offence by departing from the obligations incumbent
on him or her in his or her official duties (for example, as in the
present case, misuse of office). The Ombudsman may also report an
official to the competent authority for disciplinary measures. The
Ombudsman may attend deliberations of the courts and the
administrative authorities and is entitled to have access to their
minutes and other documents.
III. THE HELSINKI DECLARATION
- The
Helsinki Declaration, adopted by the 18th World Medical Association’s
General Assembly in Finland in June 1964, with later amendments,
states, inter alia:
INTRODUCTION
1. The World Medical Association (WMA) has
developed the Declaration of Helsinki as a statement of ethical
principles for medical research involving human subjects, including
research on identifiable human material and data. The Declaration is
intended to be read as a whole and each of its constituent paragraphs
should not be applied without consideration of all other relevant
paragraphs.
2. Although the Declaration is addressed
primarily to physicians, the WMA encourages other participants in
medical research involving human subjects to adopt these principles.
3. It is the duty of the physician to promote
and safeguard the health of patients, including those who are
involved in medical research. The physician’s knowledge and
conscience are dedicated to the fulfilment of this duty.
4. The Declaration of Geneva of the WMA binds
the physician with the words, "The health of my patient will be
my first consideration," and the International Code of Medical
Ethics declares that, "A physician shall act in the patient’s
best interest when providing medical care."
5. Medical progress is based on research that
ultimately must include studies involving human subjects. Populations
that are underrepresented in medical research should be provided
appropriate access to participation in research.
6. In medical research involving human
subjects, the well-being of the individual research subject must take
precedence over all other interests.
...
10. Physicians should consider the ethical,
legal and regulatory norms and standards for research involving human
subjects in their own countries as well as applicable international
norms and standards. No national or international ethical, legal or
regulatory requirement should reduce or eliminate any of the
protections for research subjects set forth in this Declaration.
BASIC PRINCIPLES FOR ALL MEDICAL RESEARCH
11. It is the duty of physicians who
participate in medical research to protect the life, health, dignity,
integrity, right to self-determination, privacy, and confidentiality
of personal information of research subjects.
...
14. The design and performance of each
research study involving human subjects must be clearly described in
a research protocol. The protocol should contain a statement of the
ethical considerations involved and should indicate how the
principles in this Declaration have been addressed. The protocol
should include information regarding funding, sponsors, institutional
affiliations, other potential conflicts of interest, incentives for
subjects and provisions for treating and/or compensating subjects who
are harmed as a consequence of participation in the research study.
The protocol should describe arrangements for post-study access by
study subjects to interventions identified as beneficial in the study
or access to other appropriate care or benefits.
15. The research protocol must be submitted
for consideration, comment, guidance and approval to a research
ethics committee before the study begins. This committee must be
independent of the researcher, the sponsor and any other undue
influence. It must take into consideration the laws and regulations
of the country or countries in which the research is to be performed
as well as applicable international norms and standards but these
must not be allowed to reduce or eliminate any of the protections for
research subjects set forth in this Declaration. The committee must
have the right to monitor ongoing studies. The researcher must
provide monitoring information to the committee, especially
information about any serious adverse events. No change to the
protocol may be made without consideration and approval by the
committee.
...
23. Every precaution must be taken to protect
the privacy of research subjects and the confidentiality of their
personal information and to minimize the impact of the study on their
physical, mental and social integrity.
24. In medical research involving competent
human subjects, each potential subject must be adequately informed of
the aims, methods, sources of funding, any possible conflicts of
interest, institutional affiliations of the researcher, the
anticipated benefits and potential risks of the study and the
discomfort it may entail, and any other relevant aspects of the
study. The potential subject must be informed of the right to refuse
to participate in the study or to withdraw consent to participate at
any time without reprisal. Special attention should be given to the
specific information needs of individual potential subjects as well
as to the methods used to deliver the information. After ensuring
that the potential subject has understood the information, the
physician or another appropriately qualified individual must then
seek the potential subject’s freely-given informed consent,
preferably in writing. If the consent cannot be expressed in writing,
the non-written consent must be formally documented and witnessed.
...
THE LAW
I. THE SCOPE OF THE CASE BEFORE THE GRAND CHAMBER
- From
the outset, the Grand Chamber reiterates that the content and scope
of the “case” referred to it are delimited by the
Chamber’s decision on admissibility (see, inter alia,
K. and T. v. Finland [GC], no. 25702/94, §§ 140-141,
ECHR 2001-VII; Göç v. Turkey [GC],
no. 36590/97, §§ 35-37, ECHR 2002-V; Perna v.
Italy [GC], no. 48898/99, §§ 23-24,
ECHR 2003-V; and D.H. and Others v. the Czech Republic [GC],
no. 57325/00, § 109, ECHR-2007-IV). Thus the Grand
Chamber may only examine the case in so far as it has been declared
admissible; it cannot examine those parts of the application which
have been declared inadmissible. Therefore, if an applicant before
the Grand Chamber raises a complaint which has been declared
inadmissible by the Chamber, this complaint will be declared outside
the scope of the case before the Grand Chamber (see, inter alia,
Sisojeva and Others v. Latvia [GC], no. 60654/00,
§§ 61-62, ECHR 2007-I).
- Furthermore,
under Article 35 § 4 of the Convention the Grand Chamber may
dismiss applications it considers inadmissible “at any stage of
the proceedings”. Thus, even at the merits stage the Court may
reconsider a decision to declare an application admissible if it
concludes that it should have been declared inadmissible for one of
the reasons given in the first three paragraphs of Article 35 of the
Convention (see, inter alia, Azinas v. Cyprus [GC],
no. 56679/00, § 32, ECHR 2004-III).
- In
these circumstances the Grand Chamber has jurisdiction to examine
only the merits of the case as declared admissible by the Chamber in
its judgment of 2 November 2010. This means, in particular,
that the applicant’s complaints concerning the outcome of the
civil proceedings before the administrative courts cannot be examined
as they were declared inadmissible as being lodged out of time.
- In
conclusion, the Grand Chamber has jurisdiction to examine only
whether the criminal conviction of the applicant for misuse of office
infringed his rights under Articles 8 and 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The Government’s preliminary objection
1. The Government’s submissions
- By
way of a preliminary objection, the Government contended that the
applicant’s complaint fell outside the scope of Article 8 of
the Convention and should therefore be declared incompatible with the
Convention ratione materiae.
- More
specifically, they contested that a
criminal conviction could constitute an interference with the right
to respect for private life under Article 8, unless there were
special circumstances in a particular case calling for a different
conclusion (see, for example, Laskey, Jaggard and
Brown v. the United Kingdom, 19 February 1997, Reports of
Judgments and Decisions 1997 I).
- Furthermore,
recalling that the applicant was convicted of a crime related to his
professional duties as a public official, the Government contended
that the applicant had failed to show how such a conviction had
affected his “private life” or any other aspects of
Article 8, in order for his complaint to fall within the ambit of the
said Article.
2. The applicant’s submissions
- The
applicant first claimed that he had a right under Article 8 of the
Convention not to impart confidential information and that this right
had been breached by his criminal conviction.
- He also contended that his moral integrity, his
reputation and his honour had been affected by the conviction to a
degree falling within the scope of Article 8, and that he had
suffered personally, socially, psychologically and economically. On
this last point, he had lost income because he had been dismissed by
the Norwegian Institute of Public Health and because he could have
written at least five books during the time that had been taken up by
the case.
- The
applicant submitted that the national authorities had put him in the
impossible dilemma of having either to breach his promise of secrecy
to the participants in the study by complying with the Administrative
Court of Appeal’s judgments, which in his opinion was wrong, or
to refuse to comply with the said judgments and run the risk of being
convicted for misuse of office. He chose to keep his promise of
secrecy and received massive support for that decision from numerous
renowned and highly respected scientists.
3. The Chamber’s decision
- In
its judgment of 2 November 2010 the Chamber left open whether the
applicant’s complaint fell within the scope of Article 8 and
whether there had been an interference with his right to respect for
his “private life”, because even assuming that there had
been an interference, it found that there had been no violation of
the provision concerned.
4. The Grand Chamber’s assessment
- The
Court recalls that the applicant was a public
official researcher exercising public authority at a public
institution, namely the University of Gothenburg. He was not the
children’s doctor or psychiatrist and he did not represent the
children or the parents. In their judgment convicting the
applicant, the criminal courts found him guilty of misuse of office
from 14 August 2003 to 7 May 2004 because he had refused to
make the research material belonging to the University of Gothenburg
available in compliance with the final judgments of the
Administrative Court of Appeal. The criminal courts did not, however,
decide on whether K and E should have had access to the research
material before it was destroyed in May 2004, because that question
had already been determined by the Administrative Court of Appeal in
its judgments of 6 February and 11 August 2003.
Whether or not the latter judgments breached a right under Article 8
of the Convention not to impart confidential information, as the
applicant claims, falls outside the scope of the Grand Chamber’s
jurisdiction (see paragraphs 53-56 above).
- It
therefore remains to be examined whether the applicant’s
criminal conviction for misuse of office, on account of having
disregarded his duties as a public official, amounted to an
interference with his “private life” within the meaning
of Article 8 of the Convention.
- The
concept of “private
life”
is a broad term not susceptible to exhaustive definition. It covers
the physical and psychological integrity of a person. It can
therefore embrace multiple aspects of the person’s physical and
social identity. Article 8 protects in addition a right to personal
development, and the right to establish and develop relationships
with other human beings and the outside world (see, for example, S.
and Marper v. the United Kingdom [GC], nos. 30562/04 and
30566/04, § 66, ECHR 2008).
- The
applicant maintained that the criminal conviction in itself affected
the enjoyment of his “private life” by prejudicing his
honour and reputation. The Court reiterates in this regard that
Article 8 cannot be relied on in order to complain of a loss of
reputation which is the foreseeable consequence of one’s own
actions such as, for example, the commission of a criminal offence
(see, inter alia, Sidabras and DZiautas v. Lithuania,
nos. 55480/00 and 59330/00, § 49, ECHR 2004 VIII, and
Mikolajová v. Slovakia, no. 4479/03,
§ 57, 18 January 2011).
- The
applicant also contended that the criminal conviction had adversely
affected his moral and psychological integrity and that he had
suffered personally, socially, psychologically and economically. The
Court observes that the protection of an individual’s moral and
psychological integrity is an important aspect of Article 8 of
the Convention. It notes, however, that there is no Convention
case-law in which the Court has accepted that a criminal conviction
in itself constitutes an interference with the convict’s right
to respect for private life. The Court does not ignore that such a
criminal conviction may entail personal, social, psychological and
economic suffering for the convicted person. In the Court’s
view, though, such repercussions may be foreseeable consequences of
the commission of a criminal offence and can therefore not be relied
on in order to complain that a criminal conviction in itself amounts
to an interference with the right to respect for “private life”
within the meaning of Article 8 of the Convention.
- The
Court is aware that Article 8 of the Convention was found applicable
to convictions in Laskey, Jaggard and Brown (cited
above). Nevertheless, in that case the applicants complained that
their convictions were the result of an unforeseeable application of
a provision of the criminal law to their consensual sado-masochistic
activities between adults. The Court expressed doubt as to whether
those activities fell entirely within the notion of “private
life” in the particular circumstances of that case, but saw no
reason to examine the issue of its own motion since that point was
not disputed by the parties (Laskey, Jaggard and
Brown, § 36).
- In
the present case, the applicant was convicted of misuse of office in
his capacity as a public official, pursuant to Chapter 20,
Article 1 of the Penal Code (Brottsbalken). His conviction
was not the result of an unforeseeable application of that provision
and the offence in question has no obvious bearing on the
right to respect for “private life”. On the contrary, it
concerns professional acts and omissions by public officials in the
exercise of their duties. Nor has the applicant pointed to any
concrete repercussions on his private life which were directly
and causally linked to his conviction for that specific
offence.
- Moreover,
the applicant has not further defined or elaborated on the nature and
extent of his suffering connected to the criminal conviction. He did
point out, though, that he had found himself in a dilemma and that he
had chosen to refuse to comply with the judgments of the
Administrative Court of Appeal, with the risk that he would be
convicted of misuse of office. This confirms, in the Court’s
opinion, that the applicant’s conviction and the suffering it
may have entailed were foreseeable consequences of his having
committed the criminal offence.
- The
applicant also contended that he had lost income because he was
dismissed by the Norwegian Institute of Public Health and could have
written at least five books during the time taken up by the case. To
the extent that this is to be understood as a claim that the
applicant’s conviction affected the enjoyment of his “private
life” because of its bearing on his professional activities
(see, among other authorities, Turán v. Hungary,
no. 33068/05, 6 July 2010; Sidabras and DZiautas
(cited above); Halford v. the United Kingdom, 25 June
1997, Reports 1997 III; and Niemietz v. Germany,
16 December 1992, Series A no. 251 B), the Court
considers this form of economic suffering to be a foreseeable
consequence of the commission of a criminal offence by the applicant
in respect of which Article 8 cannot be relied on (see paragraph 68
above).
- At
any rate, the Court observes that the criminal conviction of the
applicant had no negative bearing on his maintaining his position as
professor and head of the Department of Child and Adolescent
Psychiatry at the University of Gothenburg. Furthermore, even if the
applicant’s allegation that he was dismissed by the Norwegian
Institute of Public Health is an established fact, the Court notes
that the applicant failed to show that there was any causal link
between the conviction and the dismissal. Moreover, the applicant’s
claim that he had lost income from at least five books which he had
planned to write, but had been unable to because his time was taken
up by the case, remains wholly unsubstantiated. Finally, according to
the applicant, he had support from numerous renowned and highly
respected scientists who agreed with the conduct for which he was
convicted. There is therefore no indication that the impugned
conviction had any repercussions on the applicant’s
professional activities which went beyond the foreseeable
consequences of the criminal offence for which he was convicted.
- In
conclusion, the Court finds, in light of the facts of the present
case, that the applicant’s rights under Article 8 of the
Convention have not been affected. Accordingly, this provision does
not apply in the instant case and the Government’s preliminary
objection must be upheld.
III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The Government’s preliminary objection
1. The Government’s submissions
- By
way of a preliminary objection, the Government contended that the
applicant’s complaint fell outside the scope of Article 10 and
therefore should be declared incompatible with the Convention ratione
materiae.
- They
disputed that a right to negative freedom of expression could apply
in the context of a criminal conviction of a public official for
failure as an employee to assist in disclosing official documents as
ordered by a court of law.
- The
Government noted in this regard that there was no case-law supporting
the view that the right to receive information set out in Article 10
should be interpreted as including a general right of access to case
files and other documents held by public authorities, especially if
these were not of a general character. Thus, it was difficult to
conclude that its negative counterpart, namely the right to refuse
access to official documents, could be considered to enjoy the
protection of Article 10.
- Nor
did the Government find that the applicant’s situation could be
compared to that of journalists protecting their sources or that of
lawyers protecting the interest of their clients (see, for example,
Goodwin v. the United Kingdom, 27 March 1996, Reports
1996 II, and Niemietz, cited above).
2. The applicant’s submissions
- In
the applicant’s view, he had a negative right within the
meaning of Article 10 of the Convention not to impart the
disputed research material.
- He
pointed out that he had given a promise of confidentiality to the
participants in the research and had attempted to protect their
integrity, in spite of being ordered by a court to reveal the
confidential data. For that he had been convicted and punished, a
situation very similar to that in the Goodwin case (cited
above). He also found that his situation could be compared to the
duty of confidentiality by which lawyers were bound.
3. The Chamber’s decision
- In
its judgment of 2 November 2010 the Chamber left open whether the
applicant’s complaint fell within the scope of Article 10 and
whether there had been an interference with his right to freedom of
expression, because even assuming that there had been an
interference, it found that there had been no violation of the
invoked provision.
4. The Grand Chamber’s assessment
- Freedom of expression constitutes one of the essential
foundations of a democratic society and one of
the basic conditions for its progress and for each individual’s
self-fulfilment. Subject to paragraph 2 of Article 10,
it is applicable not only to “information” or “ideas”
that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or
disturb. Such are the demands of pluralism, tolerance and
broadmindedness without which there is no “democratic society”.
As set forth in Article 10,
this freedom is subject to exceptions, which must, however, be
construed strictly, and the need for any restrictions must be
established convincingly. Moreover, Article 10
protects not only the substance of the ideas and information
expressed but also the form in which they are conveyed (see among
other authorities, Palomo Sánchez and Others v. Spain
[GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06,
§ 53, 12 September 2011).
- The
right to receive and impart information explicitly forms part of the
right to freedom of expression under Article 10. That right basically
prohibits a Government from restricting a person from receiving
information that others wish or may be willing to impart to him (see,
for example, Leander v. Sweden, 26 March 1987, § 74,
Series A no. 116, and Gaskin v. the United Kingdom, 7 July
1989, § 52, Series A no. 160).
- In
the present case the applicant was not prevented from receiving and
imparting information or in any other way prevented from exercising
his “positive” right to freedom of expression. He argued
that he had a “negative” right within the meaning of
Article 10 to refuse to make the disputed research material
available, and that consequently his conviction was in violation of
Article 10 of the Convention.
- The
Court observes that case-law on the “negative” right
protected under Article 10 is scarce. Referring to
K. v. Austria (16002/90, Commission Report of
13 October 1992, § 45), the former Commission stated in
Strohal v. Austria (no. 20871/92, Commission decision of
7 April 1994) that “the right to freedom of
expression by implication also guarantees a “negative right”
not to be compelled to express oneself, that is, to remain silent”.
Article 10 was also invoked in Ezelin v. France (judgment
of 26 April 1991, Series A no. 202, § 33)
where the Court stated that a refusal to give evidence was an issue
“which in itself does not come within the ambit of Articles 10
and 11 ...”.
- The
Court does not rule out that a negative right to freedom of
expression is protected under Article 10 of the Convention, but finds
that this issue should be properly addressed in the circumstances of
a given case.
- It
notes that in the present case it was the Department of Child and
Adolescent Psychiatry of the University of Gothenburg which carried
out the research from 1977 to 1992. The project was originally set up
and started by other researchers, but the applicant subsequently took
over responsibility for completing the study. The material belonged
to the University and was stored at the Department of Child and
Adolescent Psychiatry of which the applicant was head. Accordingly,
the material consisted of public documents subject to the principle
of public access under the Freedom of the Press Act and the Secrecy
Act. That entailed, among other things, that secrecy could not be
determined until a request for access was submitted, and it was
impossible in advance for a public authority to enter into an
agreement with a third party exempting certain official documents
from the right to public access (see paragraphs 43 and 44).
Nevertheless, in his letter of 17 February 1984 to the parents of the
children participating in the research project, the applicant stated,
inter alia: “All
data will be dealt with in confidentiality and classified as secret.
No data processing that enables the identification of your child will
take place. No information has been provided previously or will be
provided to teachers about your child except that when starting
school she/he took part in a study undertaken by Östra Hospital,
and its present results will, as was the case for the previous study
three years ago, be followed up.” In a later, undated, letter
to the participants, the applicant submitted:
“Participation is of course completely voluntary and as on
previous occasions you will never be registered in public data
records of any kind and the data will be processed in such a way that
nobody apart from those of us who met you and have direct contact
with you will be able to find out anything at all about you.”
- In
its judgment of 8 February 2006 convicting the applicant, the Court
of Appeal held that “[these] assurances of confidentiality
given to the participants in the study go further, at least in some
respects, than the Secrecy Act permits” and that “there
is no possibility in law to provide greater secrecy than follows from
the Secrecy Act or to make decisions on issues concerning
confidentiality until the release of a document is requested. It
follows therefore that the assurances of confidentiality cited above
did not take precedence over the law as it stood or a court’s
application of the statutes”. Equally important, in the period
referred to in the indictment, namely from 11 August 2003 to 7 May
2004, it was no longer the secrecy legislation that was to be
interpreted by the criminal courts but rather the judgments of the
Administrative Court of Appeal, which had settled once and for all
the question of whether and on what conditions the documents were to
be released to K and E.
89. The
Court of Appeal also found that the nature of the
international declarations agreed on by the World Medical Association
was not such that they took precedence over Swedish law. In this
regard it is noteworthy that the applicant in the present case was
not mandated by the participants in the research and that, as a
consequence, he was not bound by professional secrecy as if he were
their doctor or psychiatrist, or by virtue of the Helsinki
Declaration adopted by the World Medical Association’s General
Assembly.
- Moreover,
the national courts dismissed the applicant’s allegation that
his assurances of confidentiality to the
participants had been a requirement of the Ethics Committee of the
University of Gothenburg for approving the research project. Nor has
the applicant submitted any convincing evidence to that effect before
this Court.
- Accordingly,
the applicant was not prevented from complying with the
judgments of the Administrative Court of Appeal by any statutory duty
of secrecy or any order from his public employer. Rather, his refusal
to make the research material available was motivated by his personal
belief that for various reasons the outcome of the judgments of the
Administrative Court of Appeal was wrong.
- Taking
these circumstances into account, the Court considers that the
crucial question can be narrowed down to whether the applicant, as a
public employee, had an independent negative right within the meaning
of Article 10 of the Convention not to make the research
material available, although the material did not belong to him but
to his public employer, the University of Gothenburg, and despite the
fact that his public employer – the university – actually
intended to comply with the final judgments of the Administrative
Court of Appeal granting K and E access to its research material on
various conditions, but was prevented from so doing because the
applicant refused to make it available.
- In
the Court’s view, finding that the applicant had such a right
under Article 10 of the Convention would run counter to the property
rights of the University of Gothenburg. It would also impinge on K’s
and E’s rights under Article 10, as granted by the
Administrative Court of Appeal, to receive information in the form of
access to the public documents concerned, and on their rights under
Article 6 to have the final judgments of the Administrative Court of
Appeal implemented (see, mutatis mutandis, Loiseau v.
France (dec.) no. 46809/99, ECHR 2003-XII, extracts; Burdov
v. Russia, no. 59498/00, § 34, ECHR 2002-III; and
Hornsby v. Greece, judgment of 19 March 1997, § 40,
Reports 1997-II).
- Accordingly,
the Court cannot endorse the applicant’s view that he had a
“negative” right within the meaning of Article 10 to
refuse to make the research material belonging to his public employer
available, thereby denying K and E their right to access to it as
determined by the Administrative Court of Appeal.
- It
appears that the applicant also maintained that his complaint fell
within the ambit of Article 10 of the Convention because his
situation was similar to that of journalists protecting their
sources. The Court notes, however, that the pertinent case law
on this subject concerns journalists’ positive right to freedom
of expression (see, inter alia, Goodwin (cited above);
Fressoz and Roire v. France [GC], no. 29183/95, ECHR
1999 I; and Roemen and Schmit v. Luxembourg,
application no. 51772/99, ECHR 2003-IV). Moreover, the information
diffused by a journalist based on his or her source generally belongs
to the journalist or the media, whereas in the present case the
research material was considered to
belong to the University of Gothenburg,
and thus to be in the public domain. The disputed research material
was therefore subject to the principle of public access to official
documents under the Freedom of the Press Act and the Secrecy Act,
which specifically allowed for the public, and the media, to exercise
control over the State, the municipalities and other parts of the
public sector, and which in turn contributed to the free exchange of
opinions and ideas and to the efficient and correct administration of
public affairs. By contrast, the applicant’s refusal in the
present case to comply with the judgments of the Administrative Court
of Appeal, by denying K and E access to the research material,
hindered the free exchange of opinions and ideas on the research in
question, notably on the evidence and methods used by the researchers
in reaching their conclusions, which constituted the main subject of
K’s and E’s interest. In these circumstances the Court
finds that the applicant’s situation cannot be compared to that
of journalists protecting their sources.
- Finally,
in so far as the applicant contended that his complaint fell within
the scope of Article 10 of the Convention because his situation was
comparable to that of lawyers protecting information obtained in
confidence from their clients, the Court reiterates that the relevant
case-law thereon, including access to correspondence with legal
advisers, concerns Article 8 of the Convention (see, for
example, Niemietz, cited above, and Foxley
v. The United Kingdom, no. 33274/96, 20 June 2000). In any
event, referring to its finding above (paragraph 89), the Court notes
that since the applicant had not been mandated by the research
participants as their doctor, he had no duty of professional secrecy
towards them. Moreover, the applicant was never asked to give
evidence and there are no elements indicating that, had he complied
with the Administrative Court of Appeal’s
judgments, there would have been repercussions on other
proceedings as may be the case when a lawyer’s professional
secrecy has been disregarded (see Niemietz, § 37 and
Foxley, § 50, both cited above). In these circumstances
the Court finds that the applicant’s situation cannot be
compared to that of a lawyer bound by a duty of professional secrecy
vis-à-vis his clients.
- In
conclusion, the Court finds, in light of the facts of the present
case, that the applicant’s rights under Article 10 of the
Convention have not been affected. Accordingly, this provision does
not apply in the instant case and the Government’s preliminary
objection must be upheld.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that Article 8 of the Convention does not
apply in the instant case;
- Holds that Article 10 of the Convention does not
apply in the instant case.
Done in English and in French, and delivered at
a public hearing in the Human Rights Building, Strasbourg, on 3 April
2012.
Erik Fribergh Nicolas Bratza
Registrar President
