FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 59403/00
by Anders T. JONASSON
against Sweden
The European Court of Human Rights (Fourth Section), sitting on 30 March 2004 as a Chamber composed of:
SirNicolas Bratza, President,
MrM. Pellonpää,
MrsV. Strážnická,
MrJ. Casadevall,
MrS. Pavlovschi,
MrJ. Borrego Borrego,
MrsE. Fura-Sandström, judges,
Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 5 July 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Anders T. Jonasson, is a Swedish national, who was born in 1964 and lives in Tenhult, Sweden. He is represented before the Court by Kurt Junesjö, a lawyer practising in Stockholm, Sweden. The respondent Government are represented by their Agent, Mrs Inger Kalmerborn of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In February 1995 the applicant was hired as a cook by a private limited company, Air Inn Aktiebolag, hereafter referred to as Air Inn, which runs a restaurant in Jönköping Airport in premises located in the terminal building containing, among others, the arrival and the departure halls. Air Inn rented the premises in 1990 from the Civil Aviation Administration (Luftfartsverket) hereinafter referred to as the CAA, which is a public body responsible for airports, air-traffic control and air safety in Sweden. The rental agreement stipulated that the premises were to be used for the serving of food for passengers, the public and the staff at the airport and catering for the aeroplanes. According to the agreement Air Inn undertook to follow the CAA's regulations relating to order and safety at the airport.
When hired, the applicant was provided with an access document giving him access to sensitive areas at the airport. He had not beforehand been subjected to a security check. Among his tasks, he packed catering food to be taken on board the aeroplanes.
On 1 July 1996 the Security Protection Act (Säkerhetsskyddslagen 1996:627) and the Security Protection Ordinance (Säkerhetsskyddsförordningen 1996:633) entered into force.
According to the Security Protection Ordinance, the CAA was to issue further regulations concerning the application of the Act within its sphere of activities. On that basis the CAA issued inter alia regulations on security checks for protection against terrorism for Jönköping Airport. According to those regulations a security check should be performed on people who were to be provided with an access document authorising them to move around freely in the apron adjacent to the terminal building, in the aeroplanes including their cargo compartments, and in areas where passengers were allowed to enter only after having passed through an airport security control. A security check should also be performed on persons who handled or came into contract with luggage, post and packages that had been handed in at the airport. Finally, a security check should be performed on persons who packed catering food that was to be taken on board aeroplanes. A security check should be performed both on people already working at the airport and on new staff. Moreover, an application for an access document should be accompanied by written information showing that the person in question had passed a security check.
In 1998 Air Inn requested that the CAA run a security check on the applicant. Pursuant to section 13 of the Security Protection Act, the security check had to include a check of registers since the applicant participated in activities, which were specially classified. Thus, the CAA requested that the National Police Board (Rikspolisstyrelsen) run a check of registers. In its request the CAA stated that the applicant, in accordance with section 19 of the Security Protection Act, had consented to the check of registers, and that the reason for the check was that he was authorised to have access to particularly sensitive areas at the airport. It also stated the applicant's occupation. The applicant maintains that neither Air Inn, nor the CAA obtained his consent to the check of registers.
After having checked various registers as set out in section 12 of the Security Protection Act, the National Police Board turned over the case, including the information found to the Records Board (Registernämnden).
Thereafter, the Records Board decided to inform CAA about two judgments concerning the applicant. The decision included the date of the judgments, the case numbers, the name of the district court, the criminal offences of which the applicant had been found guilty and the sentences imposed on him. The judgments, which were public and available at the relevant district court, were not enclosed with the decision. The Records Board noted in its decision that the applicant had been informed by telephone of the information found. It appears that the telephone conversation referred to took place in July 1998.
The said judgments revealed that the applicant had been convicted of assault twice by a district court in 1979 and on 12 March 1998, respectively. The applicant had not lodged an appeal against either of the judgments to the Court of Appeal.
The former conviction related to an incident when the applicant was 15 years old and played with an airgun. He was fined for having intentionally wounded a friend, who was hit in the leg.
The latter conviction concerned an incident that took place on 7 November 1997 when the applicant was taking his stepson, born in 1990, to school. The boy suffered from a psychiatric handicap, DAMP (deficit in attention, motor-function and perception). Having arrived at the school, the boy refused to enter the building, whereupon the applicant bit him in the cheek. During the criminal proceedings the applicant explained that he had had a “black-out”. The District Court concluded that, in spite of the strong provocation the applicant might have felt due to the boy's behaviour, the act could not be considered a minor offence in view of the fact that it was directed towards a child with a behavioural handicap and with whom the applicant had a close relationship. A fine was imposed on the applicant for this offence in addition to a suspended sentence.
In November 1998 the applicant attended a meeting with Air Inn and the Director of the Airport. The applicant submits that the Director described an extract from a register that referred to the applicant's two convictions and that the applicant explained the background to his convictions.
By decision of 27 November 1998 the CAA found the applicant unsuitable from a security point of view. It appears that the CAA performed its security check on the basis of the extract from the register that the Records Board had sent to the CAA, and that the latter was not in possession of the full text of the judgments.
The CAA's decision was sent to Air Inn exclusively and enclosed a letter of the same date ordering Air Inn to exempt the applicant from participating in activities for which personnel needed to pass a police record check and to ensure that the applicant's airport access document be handed in to the Director of the Airport by 20 December 1998. It was stated that the decision was based both on the information gained through the check of registers and from the meeting between the applicant and Air Inn. Also, it was stated in the letter that CAA's decision could not be appealed against.
Apparently Air Inn had no opportunities to transfer the applicant to another work location for which reason he was given notice and suspended from work as from 1 February 1999.
Subsequently, on the applicant's behalf his trade union, the Hotel and Restaurant workers' Union, instituted proceedings against Air Inn before the Labour Court claiming that the dismissal be declared void as being unjustified, and that compensation for non-pecuniary damage be granted in the amount of 2 Swedish kronor (SEK). Air Inn and the Hotel and Restaurant workers' Union agreed that Air Inn had no possibility of transferring the applicant to other duties, and that no objective grounds existed for dismissing the applicant other than his loss of access to his workplace.
The trade union's additional request that as an interim measure the suspension be declared void was refused on 19 March 1999 by the Labour Court, which at the same time found that the employment should end at the conclusion of the notice of the termination period, or if this moment had already passed, at the close of the date of the decision. Thus, the applicant's employment ended on 18 May 1999.
By judgment of 16 February 2000 the Labour Court found against the applicant. In its judgment it stated in as far as relevant:
“... In its decision of 19 March 1999...[the Labour Court] stated inter alia the following [as to the relevant legislation]. The Security Protection Act (1996:627) applies not only to activities within the public sector, but also to activities within private companies in so far as such influence the safety of the State or require protection against terrorism (section 1, subsection 3). According to the Act, entailed in the notion “terrorism” are crimes which involve the use of force, threats or compulsion as means to achieve political aims even if the security of the State is not as such threatened (section 6, subsection 3). The security protection required depends on the character and extent of the activities and on other circumstances (section 5). Furthermore, pursuant to the Act a security check which entails both a check of registers and a procurement of a personal statement on the individual must be performed in order to clarify whether a person participating in activities covered by the Act is reliable from a security point of view (section 11). A check of registers must be part of any security check performed with respect to personnel hired to participate in activities, which are specially classified (section 13), but also when such a check is found necessary in order to protect against terrorism and when special circumstances so require (section 14). The security check must be based on the knowledge of the individual to be examined, the information emerging from the check of registers and the statement of the individual, the character of the relevant activities, and other circumstances (section 27). Moreover, pursuant to section 14 of the Act a check of registers may include obtaining information from the National Police Board concerning convictions or suspicions of criminal offences...
The Security Protection Ordinance (1996:633) contains special rules concerning the check of registers at inter alia airports. Such control is performed by the Civil Aviation Administration (section 27)...
From the above legislation it appears that a company running a business at an airport, and which is covered by the security protection rules is not entitled to make its own security check of individuals employed. The Civil Aviation Administration, being the authorised authority, decides whether to make a check of registers and decides independently whether the person in question can be hired. However, the Civil Aviation Administration shall consult the employer about the measures to be applied as part of the security check, except when it comes to the checking of registers and to the procurement of a statement of the individual (section 14 of the Ordinance)...
Neither the Act nor the Ordinance contains any rules on appeal against decisions taken pursuant to these statutes. In the preparatory notes to the Security Protection Act (prop 1995/96:129 p. 64 et seq.) in the beginning it is stated that since a decision to obtain information [about an individual] - even if police records are divulged - is only part of a preliminary procedure there is no reason to enact any special rules regarding appeals in this matter. As to a subsequent decision taken as a consequence of a security check or a decision to hire someone, it was likewise considered unnecessary to introduce special rules on appeal, because within the public sector such a decision can usually be appealed against to the superior authority or to the Government, and because, within the sector in which the right to engage employees is unrestricted (anställningsrätten är fri), by the nature of the case such a decision cannot be appealed against. Moreover, it follows from the preparatory notes that at the material time a decision to dismiss an employee from a position already held could be reviewed by the courts upon the petition of the employee.”
The Labour Court then turned to the question of whether it had authority to review the decision of the CAA, as claimed by the Hotel and Restaurant Workers' Union. The court – still citing its decision from 19 March 1999 - stated in as far as relevant:
“In the [the Hotel and Restaurant Workers' Union's] view the legislator referred in the preparatory notes to the courts as a means of appeal against a decision taken pursuant to the Security Protection Act. However, the Labour Court notes that the reference quoted concerns dismissals from the whole sector in which security checks are performed, where most commonly the employer itself, being a municipality, a county council or another, decides to perform a security check on one of its employees, or decides to dismiss an employee as a consequence of the security check. However, the situation at hand is not referred to specifically in the preparatory notes.
None of the parties have questioned that the Civil Aviation Administration's decision is authorised by the above legislation, according to which at the discretion of the Civil Aviation Administration all employees in Air Inn may be submitted to a security check. It appears that it was at the request of [Air Inn] that the Civil Aviation Administration performed the security check on [the applicant]. After the security check, which entailed an interview with the employer and [the applicant] the Civil Aviation Administration decided that [the applicant] was unsuitable from a security point of view.
On the material before it, the Labour Court can draw no other conclusion than the Civil Aviation Administration's decision was taken pursuant to the applicable rules that in the Security Protection Act and the Security Protection Ordinance. Accordingly, [Air Inn] was obliged to comply with the decision.
In the Labour Court's opinion, it has no reason under these proceedings to examine the question whether the decision is based on legislation contravening the Swedish Instrument of Government (Regeringsformen) or whether it is otherwise unlawful and thus not binding on [Air Inn]. Even if the legality of the decision may be challenged elsewhere - on formal reasons or on the merits - evidently the circumstances are such that Air Inn nevertheless had to comply with it. [The applicant's] loss of access to the workplace as a consequence of the decision amounts to such a legal hindrance that the employer may invoke it in order to be released from the employment agreement...”
The Labour Court then assessed the merits of the case, stating inter alia:
“...No new issues have arisen since the court's decision of ...19 March 1999... In assessing whether the dismissal of [the applicant] was justified, in the court's view decisive weight must be given to the question whether [Air Inn] had any alternative than to comply with the Civil Aviation Administration's decision...
The court ... finds that the circumstances were such that [Air Inn] was obliged to comply with the decision...”
As to the Convention on Human Rights the applicant invoked before the Labour Court Articles 6, 8 and 13 of the Convention, and Article 2 of Protocol 4 to the Convention. The court found:
“As to the right to respect for private life and to freedom of movement, in so far as these rights are interfered with at all by the Civil Aviation Administration's decision, the court considers that the limitation was in accordance with the law and justified being in the interest of public safety. Moreover, the court finds that [the applicant] did not lack effective remedies cf. Article 13 of the Convention with regard to the articles just mentioned. In this respect, the court refers to the Leander v. Sweden judgment of 26 March 1987, Series A no. 116.
As to Article 6 of the Convention, which is part of Swedish law, the individual has a right to access to court in questions relating to inter alia civil rights. A dispute concerning a private employer's dismissal of an employee is such a civil right. Pursuant to the Convention not only is access required, but there must also be an actual and effective examination of the dispute.
In the Labour Court's opinion is it not quite clear what the right to a complete examination by the courts entails in a dispute like the present, relating to legislation for the protection of national security, and where it cannot be excluded that the decision in question is based on information unknown even to the individual concerned.
In addition, the decision as such from the State to [Air Inn] would remain, even if the Labour Court on the material before it concluded that [the applicant] in his job as a cook did not constitute a safety risk at the airport. Thus, the court finds that only in the situation where [Air Inn] was entitled to ignore the [Civil Aviation Administration's] decision can [Air Inn] be found to lack justification for the dismissal of [the applicant]. However, as the court has already stated, this is not the situation in the present case.
In conclusion, as to [the applicant's] invoked rights under the Convention the Labour Court finds no reason to alter its above assessment of the case.”
B. Relevant domestic law
The Swedish Instrument of Government
Chapter 8, section 3 of the Swedish Instrument of Government (Regeringsformen) stipulates that provisions concerning the relations between private subjects and the public administration which relates to obligations incumbent on private subjects or which otherwise encroach upon the personal and economic affairs of private subjects shall be laid down by law enacted by parliament.
However, upon authorisation by law, the Government may issue regulations by statutory instrument (genom förordning meddela) concerning a wide variety of subject‑matters, such as the protection of life, health and personal safety (chapter 8, section 7). If authorised by law, the Government may delegate such power to a subordinate public authority (chapter 8, section 11).
Without authorisation from the parliament, the Government may issue regulations by statutory order (genom förordning besluta) concerning enforcement of laws. It may delegate this task to a subordinate public authority (chapter 8, section 13).
The Act on Judicial Review of Certain Administrative Decisions
Decision by administrative authorities against which no ordinary appeal lies to a court of law may, on certain conditions by reviewed by an Administrative Court of Appeal and provided leave to appeal is granted – by the Supreme Administrative Court in accordance with the 1988 Act on Judicial Review of Certain Administrative Decisions (lag 1988:205 om rättsprövning av vissa förvaltningsbeslut). The review of the merits of a case concerns essentially questions of law but it has the power to re-examine facts upon which the application of law has been based. The court shall examine whether the challenged decision is compatible with the constitutional principles set out in chapter 1, section 9 of the Instrument of Government, i.e. the objectivity, impartiality and equality before the law. In case the authority responsible for the challenged decision has had the discretion to make a choice between several options, all of which must be considered lawful, the court's examination should be restricted to the question of whether the challenged decision falls within the discretion thus afforded under the law in question. The court may also consider whether there are any procedural errors which may have affected the outcome of the case. If the court finds that the impugned decision is unlawful, it shall quash it, and where necessary, refer the case back to the relevant administrative authority.
Normative competence as regards protection against terrorism at
civil airports
There are three levels of norms which concern protection against terrorism at civil airports, namely the Security Protection Act, the Security Protection Ordinance, and regulations decided by the CAA.
The Security Protection Ordinance is issued by the Government pursuant to sections 14 and 33 of the Security Protection Act.
According to section 27, subsection 1 of the Security Protection Ordinance the CAA shall decide on checks of registers as regards, inter alia, civil airports. It follows from section 45 of the Security Protection Ordinance that the relevant authorities, among them the CAA, shall issue further regulations concerning the application of the Act within the sphere of activities. On the basis of these provisions the CAA has issued regulations concerning security check for protection against terrorism. At the material time, the relevant regulations were found in LFS 1998:8, and in special regulations concerning Jönköping Airport. The latter is still in force, while the former have been replaced by LFS 2000:97).
Security protection
Pursuant to section 6 of the Security Protection Act, the concept of security protection embodies protection against espionage, sabotage, and other crimes that may threaten the security of the State. Furthermore, it includes protection of information covered by the Secrecy Act (Sekretsslagen; 1980:100) concerning national security. Finally, it includes protection against crimes which involve the use of violence, threats or coercion for political purposes (terrorism) even if the crimes as such do not threaten the security of the State. Pursuant to the preparatory notes (Government Bill 1995/96:129, p. 25) all kinds of terrorist acts imply an attack upon the democratic rules of society, and the protection against terrorism is therefore linked to the protection of national security. Accordingly, security protection covers terrorism regardless of whether or not it constitutes a threat to national security. In addition Sweden is obliged to combat terrorism as a consequence of various international undertakings.
The rules concerning security protection are applicable not only to activities within the public sector but also to activities within the private sector which are of significance to national security or which require special protection against terrorism (section 1 of the Security Protection Act). The necessary scope of security protection in a particular case depends on the nature and extent of the activities as well as other circumstances (section 5 of the Security Protection Act). The aim of security protection as defined in section 7 of the Security Protection Act is, inter alia, to prevent individuals who are unreliable from a security point of view from participating in activities of significance to national security and to afford protection against terrorism in general.
Security checks including checks of registers
A security check shall be carried out before a person participates, through his employer or otherwise, in activities of significance to national security or is engaged to perform work of importance to protection against terrorism. Usually a security check is carried out before a person is employed. It may also occur, however, that a security check is performed on someone who is already in employment. The aim of the security check is to clarify whether the person can be considered loyal to the interests protected by Security Protection Act and reliable from a security point of view (section 11 of the Security Protection Act). A security check may include a check of registers and a special investigation into the financial and, if necessary, also the personal circumstances of the individual (ibid). A security check must involve a check of registers if it is performed on persons who may participate in activities, which are specially classified (section 13 of the Security Protection Act). A check of registers may also be performed in other cases if this is necessary in order to secure protection against terrorism and special circumstances exist (section 14 of the Security Protection Act).
Pursuant to section 12 of the Security Protection Act, a check of registers entails obtaining information from the criminal register (belastningsregistret), the register of suspects (misstankeregistret) and the register of the Swedish Security Service (SÄPO-registret). In addition, personal information, which is not contained in a register, may be obtained from the National Police Board and the Swedish Security Service (Säkerhetpolisen).
When a security check is to be carried out and the person in question is employed inter alia at a civil airport, it is the CAA which decides whether or not the check shall include a check of registers (sections 26 and 27 of the Security Protection Ordinance). The CAA is under an obligation to assess carefully the need for a check of registers before it is carried out, since it may only be performed if the need for protection cannot be satisfied in any other way (ibid). A check of registers may not be carried out unless the person concerned has given his or her consent (section 19 of the Security Protection Act and section 28 of the Security Protection Ordinance).
When the CAA decides in favour of a check of registers it forwards its request to the National Police Board, which after having checked the relevant registers, hands over the case and the information found to the Records Board (Registernämnden).
Pursuant to section 28 of the Security Protection Ordinance the task of the Records Board is to decide whether the information obtained should be handed over to the requesting authority. Only information which is expected to have significance to the security assessment may be imparted (section 24 of the Security Protection Act and section 31 of the Security Protection Ordinance). Normally, the Board shall give the person concerned an opportunity to comment on the information. The decision-making process of the Board requires that at least one meeting be held at which the chairperson and a minimum of three other members must be present in order for the Board to be competent to make a decision. The Board's decision must be unanimous. Should a member oppose the disclosure of certain information, the chairperson may refer the case to the Government (see sections 7 – 9 of the Ordinance prescribing Instructions for the Records Board; förordningen med instruktion för Registernämnden; 1996:730).
Following the Records Board's decision and reply, it is for the requesting authority – in the present case the CAA – to decide independently whether the engagement of the individual concerned can be allowed for security reasons.
The Security Protection Act does not include any rules on appeal against decisions taken in accordance with the Act. Pursuant to section 50 of the Security Protection Ordinance, decisions made in accordance with the Ordinance cannot be appealed against.
The Records Board
The Records Board was established in 1996 in connection with the introduction of new legislation concerning security protection in order to strengthen civil and parliamentary insight into the activities of the Swedish Security Service. The Board is an independent body in relation to the authorities which decide on security checks and make the security assessment. According to chapter 11, section 7 of the Instrument of Government, neither the Parliament nor the Government nor any other public authority may interfere with the manner in which the Board deals with a particular case. Pursuant to sections 2 and 13 of the Ordinance prescribing Instructions for the Records Board, the Board shall consist of a maximum of eight members, including a chairperson and a vice‑chairperson, all of whom are appointed by the Government for a fixed term (sections 2 and 13 of the Ordinance prescribing Instructions for the Records Board). It is required that the chairperson and the vice-chairperson be or have been permanent judges. In practice, the Records Board has consisted of five members since its establishment in 1996. The present chairperson is president for the Administrative Court of Appeal in Göteborg and the former was chief judge of the City Court of Stockholm. The present and the former vice-chairman had both been senior judges at a district court. Of the three remaining present members, one is a member of the bar Association and two are parliamentarians from different political parties.
The Parliamentary Ombudsmen
The functions and powers of the Parliamentary Ombudsmen, an institution that dates back to 1809, are laid down in particular in Chapter 12, section 6, of the Constitution, and in the Act Prescribing Instruction for the to the Parliamentary Ombudsmen (lagen med instruktion för Riksdagens ombudsman, 1986:765). The four holders of the office of Parliamentary Ombudsman are elected by the Parliament. Their main task is to supervise the application, within the public administration, of laws and other regulations. Both the CAA and the Records Board and their activities come under the supervision of the Ombudsmen. It is the particular duty of an Ombudsman to ensure that courts and administrative authorities observe the provisions of the Instrument of Government regarding objectivity and impartiality and that the fundamental rights and freedoms of citizens are not encroached upon in the processes of public administration.
An Ombudsman exercises supervision either on complaints from individuals or of his own motion by carrying out inspections and other investigations which he deems necessary. The examination of a matter is concluded by a decision in which the Ombudsman states his opinion on whether the measure of the authority contravenes the law or is otherwise wrongful or inappropriate. The Ombudsman 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 own personal opinion. They are not legally binding upon the authorities. However, in practice, they are usually followed.
An Ombudsman may institute criminal proceedings against an official who has committed an offence by departing from the obligations incumbent upon him in his official duties (e.g. misuse of office). He may also report an official for disciplinary measures to those who have the competence to decide on such measures. He may be present at the deliberations of the courts and the administrative authorities and is entitled to have access to their minutes and other documents.
The Chancellor of Justice
The Office of the Chancellor of Justice has a long tradition. It was set up in 1713. His functions and powers are set out in the 1975 Act on Supervision by the Chancellor of Justice (lagen om Justitiekanslerns tillsyn; 1975:1339) and the Ordinance Prescribing Instruction to the Chancellor of Justice (förordning med instruktion för justitiekanslern; 1975:1345).
The Chancellor of Justice is appointed by the Government. According to chapter 11, section 6 of the Instrument of Government he is subordinate to the Government. However, it follows from section 7 of the same Chapter that, like other authorities subordinate to the Government, he is entirely independent of all public authorities, including the Government, when making a decision in a particular case concerning the exercise of public authority against a private subject or concerning the application of law.
The duties of the Chancellor of Justice, as laid down by Parliament, include supervising the public authorities and their officials in order to ensure that they exercise their powers in accordance with the applicable laws and regulations and fulfil their obligations in all other respects. Thus, he performs more or less the same functions as the Parliamentary Ombudsmen. Like the Ombudsmen he has no power to alter a decision taken by an authority but he is free to make statements about actions that he deems to be contrary to the law or inappropriate.
The activities of both the CAA and the Records Board come under the supervision of the Chancellor of Justice.
Like the Parliamentary Ombudsmen, the Chancellor of Justice may, in hiss supervisory capacity, institute criminal proceedings against public servants and he may report them for disciplinary measures. He has the right to attend all deliberations held by the courts and administrative authorities, and he is entitled to have access to minutes and other documents.
In addition to his supervisory role, the Chancellor of Justice performs other functions. He assists the Government with advice and investigations in legal matters, and he acts on the Government's behalf in order to safeguard the rights of the State.
Unlike the Parliamentary Ombudsmen, the Chancellor of Justice may award compensation for damages following a claim from an individual that a public authority has made a wrongful decision or omitted to take a decision. This power of the Chancellor of Justice is laid down in the Ordinance concerning the Administration of Claims for Damages against the State (förordningen om handläggning av skadeståndsanspråk mot staten; 1995:1301). The Chancellor may examine claims based on several provisions of the Tort Liability Act (skadeståndslagen; 1972: 95), inter alia chapter 3, section 2, according to which the State shall be liable to a pay compensation for financial loss caused by a wrongful act or omission in connection with the exercise of public authority. Compensation for non‑pecuniary damage may be awarded in connection with the infliction of personal injury or the commission of certain crimes, such as defamation.
A decision by the Chancellor of Justice whereby a claim for damages is rejected or not fully granted cannot be appealed against. The individual may, however, institute civil proceedings against the state before a district court, with the possibility of appealing to a higher court. Such proceedings may also be instituted immediately without any previous decision by the Chancellor of Justice. Before the courts, the state is represented by the Chancellor.
The Labour Disputes (Judicial Procedure) Act and the Employment Protection Act.
The Labour Disputes Act (lagen om rättegången i arbetstvister; 1974:371) contains provisions concerning the judicial procedure to be followed in disputes relating to the relationship between employers and employees. Provided the employer is assisted by his or her trade union, the Labour Court (Arbetsdomstolen) is the first and only instance in these matters. Otherwise the employee may bring the case before a district court with the possibility of appealing to the Labour Court.
Rules on dismissal from employment are contained in the Employment Protection Act (lagen om anställningsskydd; 1982:80). Section 7 stipulates that dismissal of an employee must be based on objective grounds. Such grounds do not exist inter alia if it may reasonably be required that the employer provide other work for the employee.
COMPLAINTS
I. With regard to the Civil Aviation Administration's decision of 27 November 1998, the applicant complains under Article 6 of the Convention that he did not have access to a court.
II. Moreover, he complains under Article 8 of the Convention that as a result of the Civil Aviation Administration's decision of 27 November 1998, his right to support himself was impaired and his stepson was stigmatised. In addition, being forced to hand in his access card and being classified as a security risk allegedly violated the applicant's personal integrity.
III. Also, the applicant complains under Article 13 of the Convention that he did not have an effective remedy with respect to the alleged violation of the Convention.
IV. Finally, the applicant complains that forcing him to hand in his access card and classifying him as a security risk limited his personal freedom of movement needed to conduct his profession in breach of Article 2 of Protocol 4 to the Convention
THE LAW
I. The applicant invokes Article 6 which in so far as relevant reads as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
The Government submit that the CAA's decision of 27 November 1998 did not involve a determination of the applicant's civil rights. Admittedly the right to keep employment with a private employer is considered a civil right within the said provision, but the issues that the CAA had to determine concerned the isolated question of whether or not the applicant could be regarded as suitable from a security point of view to take part in those activities which required that he should have access to sensitive areas in the airport. It was not incumbent on the CAA to decide whether the applicant should have a right to keep his job.
Also, noting that the applicant has not contended that there were any procedural irregularities in the CAA's handling of the matter, the Government point out that a review of the CAA's decision would, in essence, have dealt with the isolated question whether the CAA had made a correct assessment regarding the applicant's suitability. In the Government's opinion, the CAA, being the authority responsible for maintaining safety and security at airports, is in a very good position to judge whether or not a person shall be considered suitable from a security point of view when it comes to performing work of relevance to the security of the State and protection against terrorism. Such assessment is based exclusively on security concerns and is so removed from the normal judicial function that the safeguards in Article 6 of the Convention cannot be taken as covering resultant disagreement and therefore there was no “dispute” within the meaning of the said provision.
Moreover, the Government maintain, the applicant's “civil right” i.e. of keeping his employment was only indirectly affected by the CAA's decision. In this respect, they note, among other things, that the security check was performed at the request of Air Inn; that the applicant was not a party to the proceedings before the CAA; and that it was for Air Inn to assess, in its capacity as employer, what concrete measures were to be taken vis-à-vis the applicant in order to prevent him from participating in those parts of the company's activity for which a security clearance was required. As to the latter argument the Government recall that it has not been examined by an independent body whether it was in fact possible for Air Inn to transfer the applicant to other duties since before the Labour Court, the Air Inn and the Hotel and Restaurant workers' Union agreed that Air Inn had no such possibility.
In the event that the Court does not consider the applicant's complaint incompatible ratione materiae, the Government find that it must be dismissed for being manifestly ill-founded, since although the applicant could not lodge an appeal against the CAA's decision before a tribunal as such, nevertheless the remedies available against the CAA' decision guaranteed access to court in conformity with Article 6 of the Convention. Thus, the Government note that the Labour Court in fact did examine the merits of the applicant's case; it did examine whether the dismissal of the applicant was based on objective grounds within the meaning of section 7 of the Employment Act; and it did make a summary examination of the CAA's decision in relation to certain Articles of the Convention, which the applicant had invoked.
Furthermore, the employer, Air Inn, could have appealed against the CAA's decision pursuant to Act regarding Judicial Review of Certain Administrative Decisions, a review which the applicant could have benefited from. Admittedly, however, the applicant had no means of compelling his employer to make use of this remedy.
The Government contend that several other remedies were available to the applicant: he could have complained to the Parliamentary Ombudsmen and to the Chancellor of Justice; and he could have brought a claim against the State concerning compensation for damages under the Tort Liability Act before the Chancellor or the District Court.
The applicant points out that the CAA's decision to revoke his access card had the direct effect of automatically terminating his employment, since Air Inn could not offer him a job at any other location. Thus, he maintains, his civil rights were directly affected.
The applicant maintains that the CAA's decision of 27 November 1998 was directly decisive for his loss of employment and concerned his civil rights within the meaning of Article 6 of the Convention. He notes, as to the Government questioning whether Air Inn had a possibility of transferring the applicant to other work location, that had that been the case, obviously his trade union would have invoked such a fact before the Labour Court, as his dismissal would thereby have been declared void.
The applicant finds that none of the remedies suggested by the Government could have provided him access to court in respect of the CAA's decision. Firstly, he recalls that the Labour Court did not examine the legality of the CAA's decision or the underlying facts on which the decision was based. Thus, the Labour Court neither conducted an objective review nor examined the lawfulness of the grounds on which he lost his job.
As to the remedy provided by the Act regarding Judicial Review of Certain Administrative Decisions, the applicant recalls, as also pointed out by the Government, that this remedy was not available to him, only to his employer.
With regard to the Parliamentary Ombudsmen, the applicant submits that their decisions are not binding on the responsible authorities and they have no legal remedy for reversing a wrongful decision. Thus, they do not meet the criteria set out in Article 6 of the Convention.
Furthermore, the applicant submits that the Chancellor of Justice cannot be described as an independent legal institution, since he acts as the opposing party on behalf of the State in the type of action for damages that the Government claim that the applicant could have availed himself of. Admittedly, the Chancellor can award damages based on a claim of an individual, but such measures would be no different from what the State can do in terms of reaching a reconciliation agreement before bringing the proceedings before the ordinary courts.
Finally, the applicant maintains, since the officials of the Records Board and the CAA as well as the judges in the Labour Court all acted in accordance with the relevant national legislation (apart from the CAA's failure to obtain the applicant's consent to the check of registers and the authorities alleged violation of the invoked provisions of the Convention), none of them breached chapter 3, section 2 of the Tort Liability Act, thereby occasioning liability for damages on the part of the State. Thus, despite the fact that the Convention has been incorporated into Swedish law, the latter does not permit effective actions for damages when as in the present case, the officials or authorities have adhered as such to the provision of domestic legislation.
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of facts and law under the Convention, the determination of which should depend on an examination of the merits.
The Court concludes therefore that this part of the application is not manifestly ill–founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established
II. The applicant invokes Article 8 which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government contest that the measures taken by the authorities amount to an interference with the applicant's private life within the meaning of Article 8 of the Convention. They note in this respect that the applicant has abstained from submitting that the storing of information regarding his criminal convictions and the security check per se infringed upon his private life.
With regard to the allegation that the applicant's right to support himself was impaired due to the CAA's decision of 27 November 1998, the Government recall that the Convention does not guarantee, as such socio-economic rights, including the right to work. In any event, the applicant has failed to substantiate his alleged difficulties to support himself or to explain how his private life has been affected in this respect.
Also, the Government maintain that any impact that the CAA's decision might have had on the applicant's stepson is too remote to bring Article 8 into play.
As regards the complaint that being forced to hand in his access card and being classified as a security risk violated the applicant's personal integrity, the Government note that activities of a professional nature may be included in the notion of “private life”. The Government contend, however, that the fact that a person, who is working at sensitive areas at an airport, must possess access documents does not mean that he can claim a right to such documents. Thus, being provided with an access card and being obliged to hand in the card upon leaving the job cannot in their view come within the scope of “private life”.
Finally, the Government consider that the applicant has failed to explain in what way being classified as a security risk adversely affected his honour so as to infringe upon his right to respect for his private life.
Should the Court conclude that there has been an interference, the Government submit that such was in accordance with the law; that not only were there effective safeguards against arbitrariness and abuse within the security protection system, but also effective external supervision; that it was taken in the interest of “public safety” and thereby pursued a legitimate aim; and finally that it was proportionate to the legitimate aim pursued and thus necessary in a democratic society.
The applicant maintains that as a direct result of the CAA's decision he was deprived of the ability to support himself and his stepson could easily have felt that he was to blame for the fact that the family's life had become insecure and chaotic.
Moreover, the applicant submits that being forced to hand in his access card and being classified as a security risk violated his personal integrity. He maintains that this complaint entails a complaint that the storing of information regarding his criminal convictions and the security check per se impinged upon his private life, notably in that the Records Board selected and released information from the registers that allegedly had no importance to the security check to be carried out. Thus, the Records Board communicated information concerning a youthful misdemeanour that had occurred more that twenty years earlier and a conviction that had stemmed from an incident within the applicant's family at a time when the applicant and his family had been under a great deal of stress due to the boy's behaviour. He recalls that his stepson was diagnosed subsequently and as a result of the said incident. In the applicant's opinion, the two judgments had no relevance to the performance of the security check to be carried out on him. Moreover, since the CAA received only an extract from the register with the titles of the two convictions it must have been extremely difficult for the CAA officials to grasp that the incidents on which the report from the Records Board was based in fact concerned two petty offences.
As to the security check as such the applicant contests that he ever signed a consent form or gave his consent in any other manner. Thus, he maintains that the check of registers failed to comply with section 19 of the Security Protection Act and section 28 of the Security Protection Ordinance. In any event, he alleges that he would have had no choice but to grant his permission if it had been requested, since he would have lost his job otherwise.
As regards dignity and honour the applicant points out that although the judgments were public, no one in his proximity was aware of the incidents in question. However, it was impossible to keep his dismissal secret from his co-workers, friends and acquaintances. The fact that in addition he was regarded as a security risk constituted a serious defamation in the eyes of those around him.
In the applicant's view the interference was not “in accordance with the law” since the lack of a right to appeal against the CAA's decision was issued by means of an ordinance i.e. Section 50 of the Security Protection Ordinance, but should have been enacted into a law pursuant to chapter 8, section 3 of the Instrument of the Government.
Finally, the applicant submits that the interference was disproportionate to the legitimate aim pursued i.e. to prevent terrorist attacks on civil air navigation, and he notes in this respect that the Government have failed to demonstrate any connection between the type of offences that he had been convicted of and the purpose for which the security check was conducted.
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of facts and law under the Convention, the determination of which should depend on an examination of the merits.
The Court concludes therefore that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established
III. The applicant invokes Article 13 which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Should the Court find that the applicant's complaint under Article 8 can be regarded as “arguable” in terms of the Convention, the Government consider that an aggregate of remedies provided for by Swedish law satisfy the requirement set out in Article 13 of the Convention.
Furthermore, the Government contend, should the Court conclude that Article 6 is applicable in the present case, it is in any event unnecessary to examine the case also under Article 13 of the Convention.
The applicant disputes that the Swedish legal system provides effective remedies for rectifying the interference with his private life to which he has been subjected.
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of facts and law under the Convention, the determination of which should depend on an examination of the merits.
The Court concludes therefore that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established
IV. The applicant considers that the measures i.e. forcing him to hand in his access card and classifying him as a security risk, constitute a limitation of his personal freedom of movement needed to conduct his profession in breach of Article 2 of Protocol 4 to the Convention, which reads as follows:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
The Court notes that the applicant, having been considered a “security risk”, had to hand over the document that had given him free access to various sensitive areas at Jönköping Airport. No elements in the case suggest, however, that the applicant is banned from the airport, or that he is left in any different position than other passengers, who make use of the airport for travel purposes.
Nevertheless, even assuming that the interference may come within the scope of Article 2 of Protocol 4 to the Convention, the Court has examined this part of the application as submitted by the applicant. In the light of all the material in its possession, the Court finds that this does not disclose any appearance of a violation of the rights and freedoms set out in the invoked Article of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the complaint under Article 2 of Protocol 4 to the Convention inadmissible.
Declares the remainder of the application admissible, without prejudging the merits of the case.
Michael O'BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy