Gillberg v. Sweden [GC]

Information Note on the Court’s case-law No. 151

April 2012

Gillberg v. Sweden [GC] - 41723/06

Judgment 3.4.2012

Article 8

Article 8-1

Respect for private life

Conviction of university professor for refusing to comply with court order requiring him to grant access to research materials: Article 8 inapplicable; inadmissible

Article 10

Article 10-1

Freedom of expression

Conviction of university professor for refusing to comply with court order requiring him to grant access to research materials: Article 10 inapplicable; inadmissible

Facts – The applicant, a university professor, was responsible for a research project on hyperactivity and attention-deficit disorders in children that was carried out between 1977 and 1992. According to the applicant, the university’s ethics committee had made it a precondition for the project that sensitive information about the participants would be accessible only to him and his staff, and he had therefore promised absolute confidentiality to the patients and their parents. In 2002 a researcher from another university and a paediatrician requested access to the research material. After their requests were refused by the university they appealed to the administrative court of appeal, which found that they had shown a legitimate interest and should be granted access to the material on conditions which included restrictions on its use and a ban on removing copies from the university premises. The applicant refused to hand over the material, however, and it was eventually destroyed by colleagues. The applicant was subsequently prosecuted and convicted of misusing his office. He was given a suspended sentence and a fine of the equivalent of EUR 4,000. His conviction was upheld by the court of appeal, which held that he had wilfully disregarded the obligations of his office by failing to comply with the judgments of the administrative court of appeal.

In a judgment of 2 November 2010 (see Information Note no. 135) a Chamber of the Court held by five votes to two that there had been no violation of Article 8 of the Convention and no violation of Article 10. In reaching that conclusion it left open the question whether the complaint fell within the scope of Article 8 and Article 10.

Law – The applicant’s complaints that his rights under Articles 8 and 10 of the Convention had been violated by the administrative court of appeal’s judgments requiring him to make the research material available to the two researchers had been declared inadmissible by the Chamber as being out of time. Accordingly, the Grand Chamber’s jurisdiction was confined to his complaints concerning his criminal conviction for misuse of office for refusing to comply with those orders.

Article 8: The Court had to determine whether the applicant’s conviction for misuse of office amounted to interference with his “private life” within the meaning of Article 8. In that connection, it noted that the applicant was a public official exercising public authority at a public institution. He was not the children’s doctor or psychiatrist and did not represent the children or the parents.

In response to the applicant’s allegations that his conviction had prejudiced his honour and reputation and adversely affected his moral and psychological integrity, the Court reiterated that Article 8 could not be relied on in order to complain of a loss of reputation or other repercussions that were the foreseeable consequences of one’s own actions and, in particular, the commission of a criminal offence. There was no Convention case-law in which the Court had accepted that a criminal conviction in itself constituted interference with the right to respect for private life.

The applicant’s conviction had not been the result of an unforeseeable application of the domestic law and the offence of which he was convicted (misuse of office) had no obvious bearing on the right to respect for “private life” but, on the contrary, concerned professional acts and omissions by public officials in the exercise of their duties. Nor was there any indication that the conviction had had any repercussions on the applicant’s professional activities that went beyond the foreseeable consequences of the offence of which he was convicted. His conviction had had no negative bearing on his position at the university and he had not established any causal link between his conviction and his dismissal by the Institute of Public Health. In any event, any economic loss he may have suffered as a result of the loss of that job or of not being able to pursue his book-publishing activities for want of time while the criminal proceedings were pending also constituted foreseeable consequences of the commission of the offence. Accordingly, the applicant’s rights under Article 8 had not been affected and that provision was not applicable.

Conclusion: preliminary objection upheld (unanimously).

Article 10: The Court did not rule out that a “negative” right to freedom of expression was protected under Article 10. It noted, however, that the material the applicant had refused to make available belonged to the university and consisted of public documents subject to the principle of public access under the Freedom of the Press Act and the Secrecy Act. Under the legislation, it was impossible for a public authority to enter into an agreement with a third party in advance exempting official documents from the right to public access. For this reason, the criminal courts had held when convicting the applicant that the assurances of confidentiality he had given to the participants in the study had gone further than was permitted by law. The criminal courts had, in any event, been bound by the administrative courts’ judgments, which had settled the question of whether and on what conditions the documents were to be released to the two researchers. The applicant had not submitted any convincing evidence to support his allegation that his assurances of confidentiality to the research participants had been a requirement of the university’s ethics committee. In reality, the applicant had not been prevented from complying with the administrative courts’ judgments by any statutory duty of secrecy or any order from his public employer, but rather by his personal belief that the judgments of the administrative courts were wrong.

In these circumstances, the crucial question was whether the applicant, as a public employee, had an independent negative right under Article 10 not to make the research material available, even though it belonged not to him but to the university and despite the fact that the university had intended to comply with the administrative court’s judgments. In the Court’s view, finding that the applicant had such an independent “negative” right would run counter to the university’s property rights and also impinge on the two researchers’ rights to receive information (Article 10) and to have a final court judgment implemented (Article 6). The Court noted also that the applicant’s situation could not be compared to that of journalists protecting their sources as the information diffused by a journalist based on his or her source generally belonged to the journalist or the media, whereas in the applicant’s case the research material was owned by the university and was in the public domain. Nor, since he had not been mandated by the research participants as their doctor, had the applicant owed any duty of professional secrecy towards them.

In sum, the applicant’s rights under Article 10 had not been affected and that provision was not applicable.

Conclusion: preliminary objection upheld (unanimously).

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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