Résolution CM/ResDH(2012)222[1]
Segerstedt-Wiberg et autres contre Suède
Exécution de l’arrêt de la Cour européenne des droits de l’homme
(Requête no 62332/00, arrêt du 6 juin 2009, définitif le 6 septembre 2009)
Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit qu’il surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées « la Convention » et « la Cour »),
Vu l’arrêt définitif, qui a été transmis par la Cour au Comité dans l’affaire ci-dessus et les violations constatées (voir document DH-DD(2012)1064E) ;
Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe 1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire :
- de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par restitutio in integrum ; et
- de mesures générales permettant de prévenir des violations semblables ;
Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer aux obligations susmentionnées ;
Ayant examiné le bilan d’action fourni par le Gouvernement indiquant les mesures adoptées afin d’exécuter l’arrêt y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour (voir document DH-DD(2012)1064E) ;
S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées ;
DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans cette affaire et
DECIDE d’en clore l’examen.
Action report[2]
Segerstedt-Wiberg and others v Sweden
(application 62332/00) Judgment of 6 June 2009, final on 6 September 2009
Case description: Unjustified storage by the Swedish Security Service of information on the applicants’ former political activities in violation of their right to privacy, and to freedom of expression and association (violations of Art. 8, 10 and 11). The case also concerns the lack of any effective remedy with respect to these violations (violation of Art. 13). The applicants took varied steps to obtain the information held on their files from the earliest in 1997, eventually resulting in decisions of the Supreme Administrative Court in 2000.
In relation to Article 8, the European Court considered that storage of the information was provided by law and pursued a legitimate aim. In respect of the first applicant, the Court concluded that the information held was relevant and sufficient as regards the aim of preventing disorder or crime and therefore its retention was not disproportionate (§ 89 of the judgment). However, in respect of the remaining four applicants the Court concluded that storage of the information did not correspond to any national security risks and the interference was disproportionate (§§ 90–92 of the judgment). The Court also found that storing personal data related to political opinion, affiliations and activities that had been deemed unjustified for the purposes of Article 8§2 ipso facto constituted an unjustified interference with the rights protected by Articles 10 and 11.
In respect of Article 13, the European Court noted that the relevant monitoring body – the Records Board – had no competence to order the destruction of files or the erasure or rectification of information kept in the files. The Data Inspection Board had wider powers and could apply to the County Administrative Court for the erasure of unlawfully stored information but the European Court was not provided with any information showing effectiveness of the Data Inspection Board in practice. Further, the applicants had no direct access to any legal remedy as regards the erasure of the information in question (see §§ 120–121 of the judgment).
Individual measures:
The European Court awarded all of the applicants just satisfaction for non-pecuniary damage. The damages awarded have been paid.
The information in question has been eliminated from the records of the Swedish Security Service and is therefore neither searchable nor accessible to Swedish Security Service personnel.
No further individual measures seem necessary.
General measures:
The judgment of the European Court was sent out to the Supreme Administrative Court, all administrative courts of appeal, the parliamentary Ombudsman and the Chancellor of Justice with a memorandum on 15/01/2007 analysing the judgment. Relevant officers from the Swedish Security Service also received information about the implications of the judgment for the activities of the Swedish Security Service.
A new agency, the Swedish Commission on Security and Integrity Protection (hereinafter the Commission), was established partly as a response to the European Court’s judgment in this case. It began operating in January 2008 in order to supervise the use by crime-fighting agencies of secret surveillance and qualified assumed identities and associated activities as well as the processing of personal data by the Swedish Security Service. Since March 1, 2012 the Commission supervises the processing of personal data by the Swedish Police, including the Swedish Security Service.
The Commission took over the functions previously held by the Records Board. It also acquired a new supervisory and control function aimed at improving individual access to a national legal remedy in cases involving secret surveillance and processing of personal data by the Swedish Security Service. At the request of an individual the Commission is required to check, inter alia, whether he or she has been subject to secret surveillance or subject to processing of personal data by the Swedish Security Service and whether it was in accordance with laws and other regulations. If, in the course of its activities, the Commission notices circumstances that may constitute a criminal offence, the Commission shall report this to the Swedish Prosecution Authority or another competent authority. If the Commission notices any irregularities that may entail tort liability for the state towards a natural or legal person, the Commission shall report this to the Chancellor of Justice. If the Commission discovers circumstances that the Swedish Data Inspection Board should be made aware of, the Commission shall report this to the Board. The Data Inspection Board may then intervene, and if it turns out to be impossible to remedy the situation in any other way, or if the matter is urgent, the Board may prohibit the controller of personal data, i.e. the Swedish Security Service, from continuing to process the personal data in any way (other than storing it) and may attach a conditional financial penalty to this prohibition. As a last resort, the Board may apply to the county administrative court for erasure of such personal data which has been processed in an unlawful manner.
Bearing in mind that the processing of personal data by the Police Service can be of a very sensitive nature in relation to the right to privacy, the Swedish Data Inspection Board has a declared policy to always initiate supervision procedures in the event of a complaint from an individual, unless it is clear from the information contained in the complaint that the processing of personal data has followed the regulations in force. In recent years there have only been a couple of complaints from individuals per year. In cases, however, in which the Board has found, following a complaint, that incorrect processing of personal data has occurred within the police service, the authority keeping the records has promptly remedied the situation or else appealed against the Board’s decision. The Board has therefore not needed to take any further-reaching measure other than ordering the police to discontinue certain processing, eliminate certain data or take other similar measures.
Also from 1 January 2007, an appeal may be made to a general administrative court against a decision by the Swedish Security Service not to correct or eliminate personal data that the complainant asserts is being processed in contravention of legislation.
As of 30 June 2012, individuals have requested the Commission to check whether he or she has been subject to secret surveillance by crime-fighting agencies or subject to processing of personal data by the Swedish police (including the Swedish Security Service) in 977 cases. 17 of those cases had not yet been concluded and were still awaiting examination. The Commission has in two of the concluded cases found that personal data may have been processed by the Swedish Security Service in a way that may entail tort liability for the state towards the requesting person. The Chancellor of Justice has in both cases decided that these persons will receive compensation.
The Government’s assessment of these statistics is that the Commission’s supervision and control of the processing of personal data by the Swedish Security Service is now fully operational, as required by the new regulatory framework.
On 1 March 2012, a new Police Data Act [Polisdatalag (2010:361)] entered into force.
One general purpose of the new legislation is to protect people from violation of their personal privacy when personal data is processed in the course of law enforcement activities.
The new Police Data Act contains a special chapter regulating the processing of personal data by the Swedish Security Service. The provisions in the new Police Data Act largely agree with the previous legislation but provide clearer and more detailed regulations in certain areas, including the provisions on removal of data. In preparing the new legislation, the deliberations of the European Court of Human Rights in the case of Segerstedt-Wiberg have been taken into account.
Publication and dissemination:
The judgment is available on the Government’s human rights website, , along with a detailed summary.
Conclusion
The Government considers that the measures adopted have remedied the consequences for the applicants of the violation of the Convention found by the European Court in these cases and that these measures will prevent similar violations. Thus, the Government considers that Sweden has complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adoptée par le Comité des Ministres le 6 décembre 2012 lors de la 1157e réunion des Délégués des Ministres.
[2] En anglais uniquement.
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