AS TO THE ADMISSIBILITY OF
Application No. 11287/84
by Carl-Erik SANDBERG
against Sweden
The European Commission of Human Rights sitting in private
on 9 December 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 July 1984 by
Carl-Erik Sandberg against Sweden and registered on 10 December 1984
under file N° 11287/84.
Having regard to:
- the first report provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the Commission's decision of 8 October 1985 to communicate
the application to the Government and to adjourn the further
examination of the application pending the outcome of the
Leander case before the European Court of Human Rights;
- the second report provided for in Rule 40 of the Rules of
Procedure.
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they appear from the applicant's
submissions, may be summarised as follows.
The applicant is a Swedish citizen, born in 1951 and resident
in Malmö. He is a storeman by trade. The applicant is represented by
Mr. Dennis Töllborg, a lecturer at the University of Gothenburg.
On 1 March 1972 the applicant was employed as a civil storeman
with the National Defence. The post is classified as a security
class post, which means that personnel control under the Personnel
Control Ordinance (personalkontrollkungörelsen) has to be carried out
prior to and during employment. The applicant has been subjected to
personnel control several times without any unfavourable outcome.
However, in the spring of 1983 a general personnel control was carried
out inter alia on the applicant and as a result thereof the applicant
was transferred to a post in which he has no contact with security
sensitive information. As a result of the transfer the applicant can
no longer be promoted and he cannot accompany his colleagues on
certain jobs.
The applicant has not been informed of the nature of the
information which prevents him from performing the work which he has
previously performed without criticism. A press officer has stated in
general terms that the reason is that the applicant is regarded as a
security risk.
Following the transfer, the applicant asked the Security
Police in a letter of 27 September 1983 whether he had been subjected
to a personnel control.
On 1 November 1983 the Security Police replied that a personnel
control had been carried out on the applicant at the request of the
Commander-in-Chief of the Armed Forces (överbefälhavaren). The
applicant was however, for reasons of secrecy, not informed of whether
any information about him had been supplied.
The applicant also appealed to the Government (Ministry of
Justice) which in a decision of 9 February 1984 decided not to examine
the appeal on its merits since the applicant was not the party who had
requested before the Security Police that information should be
supplied.
The applicant then applied to the Supreme Administrative Court
(regeringsrätten) for re-opening of the proceedings alleging inter
alia that the absence of a right of appeal for him was in conflict
with Article 13 of the Convention.
On 20 June 1984 the Supreme Administrative Court rejected the
application. One of the four judges dissented and wanted to grant the
application.
The applicant has subsequently issued civil proceedings
against the State before the District Court (tingsrätt) of Malmö
claiming inter alia that the Court declare his transfer to be void and
in breach of the labour agreement and of his contract of employment.
He also claimed that he be reinstated in his previous post.
The Court held a hearing at which the applicant, Captain L.,
formerly the applicant's superior and at present in the commmand of
the material department of the regiment, and Lieutenant-Colonel N.,
second to the regimental commander responsible for personnel
administration at the regiment, were heard. In its judgment of
22 April 1985 the Court rejected the applicant's claims. It held that
the decision to transfer the applicant was a work management decision
included in the right for the employing authority to direct the work
and based on the contract of employment. The Court also held that the
transfer decision could not be interpreted as a notice of resignation.
The Court finally considered that the applicant had not substantiated
that the State had acted in breach of any labour agreement or of his
contract of employment and that the investigation did not show that
the employing authority had set aside the requirements of objectivity
and impartiality laid down in the Instrument of the Government
(regeringsformen).
The applicant appealed to the Labour Court (arbetsdomstolen)
which on 12 March 1986 confirmed the District Court's judgment.
The applicant complained to the Parliamentary Committee on
Justice by a letter received on 4 May 1987. The Committee at its
meeting on 5 May 1987 decided not to take any measures on account of
the complaint since it has no powers to do so in individual cases.
In letters dated 27 April 1987 addressed to the Parliamentary
Ombudsman and the Chancellor of Justice respectively the applicant
requested an investigation of his case and that these authorities act
within their powers in order to change the transfer decision and to
compensate him for the suffering the decision had caused him.
The Chancellor of Justice on 8 May 1987 decided not to take
any measures because of the applicant's request since his complaints
concerning the decision to transfer him had been examined by the
courts and since the Chancellor of Justice has no powers to reconsider
a decision by a court or another authority.
By letter of 24 August 1987 the applicant received a similar
reply from the Parliamentary Ombudsman.
COMPLAINTS
1. The applicant complains that the fact that he has been denied
the right to appeal against the decision of the Security Police to
supply information on him constitutes a breach of Article 13 of the
Convention.
2. If it is not accepted that Article 13 has an independent role,
as implied in no. 1 above, the applicant submits that his transfer is
a result of information supplied about him in the context of a
personnel control. The applicant has not had the opportunity of
repudiating such information. The fact that secret information is
being registered on him is, in the applicant's view, a violation of
Articles 8 and 10 of the Convention. Since the applicant cannot
appeal against the relevant decision, Article 13 is also violated.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 July 1984 and registered
on 10 December 1984.
The Commission decided on 8 October 1985, in accordance with
Rule 42 para. 2 (b) of its Rules of Procedure, to communicate the
application to the Government, without requesting their written
observations at that stage, and to adjourn the examination of the case
pending the outcome of the Leander case (Application No. 9248/81)
before the European Court of Human Rights.
The judgment of the Leander case was delivered by the European
Court of Human Rights on 26 March 1987 (Eur. Court H.R., Leander
judgment of 26 March 1987, Series A No. 116).
The applicant was on 2 April 1987 requested to inform the
Commission of whether he wished to maintain his application and to
indicate in what way he considered that the facts of the present
application differ from the facts of the Leander case.
The applicant's written reply was received by letters dated
27 April and 9 June 1987. The applicant pointed out that his case
differs from the Leander case in so far as he has had recourse to all
the remedies which the Government in the Leander case claimed surround
the Swedish personnel control system, and which the Court accepted.
The applicant submits that the Court has overestimated the powers and
the qualities of the Parliamentary Ombudsman.
THE LAW
Article 8 (Art. 8) of the Convention
1. The applicant submits that his transfer was the result of
secret information being supplied about him in the context of a
personnel control. The applicant has had no opportunity of repudiating the
information. He claims that the fact that secret information is being
registered on him is a violation of Article 8 (Art. 8) of the
Convention, which reads:
"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 issues in this case are similar to those of the Leander
case. The Commission recalls its Report in the Leander case where the
Commission concluded that there had been no breach of Article 8 (Art.
8) of the Convention. This opinion was later confirmed by the Court
in its judgment (Leander v. Sweden, Comm. Report 17.5.85, para. 81
and Eur. Court H.R., Leander judgment of 26 March 1987, Series A No.
116, p. 27, para. 68).
The Commission and the Court found that the Leander case
disclosed an interference with Mr. Leander's right to respect for his
private life, as guaranteed by Article 8 para. 1 (Art. 8-1), both
because of the storing and of the release of information relating to
his private life, coupled with the refusal to allow him an opportunity
to refute the information.
However, the above Convention organs found that the
interference with Mr. Leander's private life was justified under the
terms of Article 8 para. 2 (Art. 8-2).
The operation of the personnel control system as applied to
the applicant was considered to pursue a legitimate aim, namely the
protection of national security. The interference was considered to
be "in accordance with the law" as it was found that Swedish law gives
citizens "an adequate indication as to the scope and the manner of
exercise of the discretion conferred on the responsible authorities to
collect, record and release information under the personnel control
system" (Eur. Court H.R., Leander judgment, loc. cit., p. 24, para. 56).
As regards the condition "necessary in a democratic society"
in Article 8 para. 2 (Art. 8-2), there can be no doubt as to the
necessity of laws empowering competent domestic authorities "to
collect and store in registers not accessible to the public,
information on persons" and "to use this information when assessing
the suitability of candidates for employment in posts of importance
for national security" (see above-mentioned Leander judgment, p. 25,
para. 59).
However, while States must be given a wide discretion in
chosing the means to protect their national security, there is a risk
that a system of secret surveillance can be abused and it must
therefore be surrounded with sufficient safeguards ensuring effective
control.
In the Leander case the Government invoked twelve different
safeguards. In the Court's opinion four of these were particularly
important, namely the presence of parliamentarians on the National
Police Board, the supervision of the Chancellor of Justice and the
Parliamentary Ombudsman as well as the Parliamentary Committee on
Justice.
The Court, like the Commission, concluded in that case that
the safeguards contained in the Swedish personnel control system met
the requirements of Article 8 para. 2 (Art. 8-2).
The Commission considers that the facts of the present case,
as submitted by the applicant, do not differ to such an extent that
the assessment of the legal issues under Article 8 (Art. 8) of the
Convention can be different from the conclusions in the Leander case.
In this context the Commission has taken into account the applicant's
allegation that in the Leander case the importance of the
Parliamentary Ombudsman as a safeguard has been wrongly assessed by
the Court and the Commission.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
Article 10 (Art. 10) of the Convention
2. The applicant further maintains that the same facts as
constitute the alleged violation of Article 8 (Art. 8) also give rise
to a breach of Article 10 (Art. 10) of the Convention, which reads:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers....... .
2. The exercise of these freedoms, since it carries with it
duties and responsibiities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary."
The Commission considers that the issues under Article 10
(Art. 10) in the present case are the same as in the Leander case i.e.
whether the facts of the case disclose an interference with the
applicant's right to freedom to express opinions and with the
applicant's right to freedom to receive information.
a. Freedom to express opinions
The right of recruitment to the public service is not
recognised by the Convention. However, it does not follow that in
other respects civil servants fall outside the scope of the Convention
and the protection of Article 10 (Art. 10) (Eur. Court H.R.,
Glasenapp and Kosiek judgments of 28 August 1986, Series A No. 104,
p. 26, paras. 49-50, and Series A No. 105, p. 20, paras. 35-36, and
Leander judgment, loc. cit., p. 28, para. 71).
In the Leander judgment the Court ascertained whether the
personnel control procedure to which Mr. Leander was subjected
amounted to an interference with the exercise of freedom of
expression, or whether the disputed measures lay within the sphere of
the right of access to the public service, by putting the measures in
the context of the facts of the case and the relevant legislation. The
Court held that it was clear that the purpose of the Personnel control
Ordinance was to ensure that persons holding posts of importance for
national security have the necessary personal qualifications and that
access to the public service therefore lay at the heart of the issue
in the Leander case. The Court went on to state that the Swedish
authorities took the relevant information on Mr. Leander into account
only to satisfy themselves as to whether or not Mr. Leander possessed
the necessary personal qualifications for the post in question. The
Court accordingly found that there had been no interference with Mr.
Leander's freedom to express opinions.
In the present case the applicant is not applying for a post
in the public service, and has not been dismissed from one, but has
been transferred from one post to another. The Commission considers
that the principles developed by the Court in the Glasenapp, Kosiek
and Leander cases must also apply in the present case.
The information concerning the applicant which was supplied
by the National Police Board to the Commander-in-Chief of the Armed
Forces was considered by the latter for the sole purpose of
establishing whether the applicant possessed one of the necessary
personal qualifications for the post he held. Accordingly the main
question in this case is appointment to a particular function in the
public service.
It follows that this complaint under Article 10 (Art. 10) is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
b. Freedom to receive information
In the Leander case, the Court held that Article 10 (Art. 10)
does not in circumstances such as those prevailing in that case
guarantee a right for an individual of access to a register
containing information on his personal position, nor does it embody
an obligation on the Government to impart such information to the
individual (above-mentioned Leander judgment, p. 29, para. 74).
It follows that the corresponding part of the present
application is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
Article 13 (Art. 13) in conjunction with Article 8 (Art. 8) of
the Convention.
3. The applicant complains that the fact that he has been denied
the right to appeal against the decision of the Security Police to
supply information on him constitutes a breach of Article 13 (Art. 13)
of the Convention.
If it is not accepted that Article 13 (Art. 13) has an
independent role the applicant submits that his rights under Articles
8 and 10 (Art. 8, 10) of the Convention have been infringed, and since
he had no effective remedy before a national authority in Sweden
concerning the decision to supply information on him, that his right
under Article 13 (Art. 13) has been infringed.
Article 13 (Art. 13) of the Convention reads:
"Everyone whose rights and freedoms as set forth in
this 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."
It is established case-law that Article 13 (Art. 13) cannot be
invoked as an independent right but only in conjunction with an
arguable claim of a violation of one or more of the rights and
freedoms set forth in the Convention (Eur. Court H.R., Klass and
Others judgment of 6 September 1978, Series A No. 28, p. 29 para.
64).
In the Leander case the alleged violation of Article 13 (Art.
13) was based on the fact that Mr. Leander had not been given the
right to receive and to comment upon the material on which the
appointing authority based its decision, and on the fact that he had
not had any right to appeal to an independent authority, with power
to render a binding decision, in regard to the correctness and release
of information kept on him.
The Commission and the Court considered that arguable claims
had been raised under the Convention at least in so far as Article 8
(Art. 8) was concerned and that Mr. Leander was entitled to an effective
remedy. They further considered, with reference to the case-law of
the Court, that for the purposes of the proceedings in question "an
effective remedy under Article 13 (Art. 13) must mean a remedy that is as
effective as can be having regard to the restricted scope for recourse
inherent in any system of secret surveillance" (Klass and Others
judgment, loc. cit., p. 31, para. 69).
The Court, having found the Swedish personnel control system
as such to be compatible with Article 8 (Art. 8) , found that "the
requirements of Article 13 will be satisfied if there exists domestic
machinery whereby, subject to the inherent limitations of the context,
the individual can secure compliance with the relevant laws" (see
above-mentioned Leander judgment, p. 30, para. 79). The Court went on
by examining the remedies available under Swedish law in order to see
if they were effective in this limited sense.
Among the remedies thus examined the following had already
been considered by the Commission to be sufficient for the purpose
of Article 13 (Art. 13):
(i) a formal application for the post and, if unsuccessful,
an appeal to the Government;
(ii) a request to the National Police Board for access to the
secret police register on the basis of the Freedom of the Press
Act, and if refused, an appeal to the administrative courts;
(iii) a complaint to the Chancellor of Justice;
(iv) a complaint to the Parliamentary Ombudsman
(Comm. Report 17.5.1985, para. 96)
To these remedies, which were never exercised by Mr. Leander,
the Court added the only remedy to which he had recourse, namely his
complaint to the Government, that the National Police Board, contrary
to the provisions of Section 13 of the Personnel Control Ordinance,
had omitted to invite him to comment on the information contained in
the secret police register.
The Court, as well as the Commission, found that the aggregate
of remedies available to Mr. Leander satisfied the conditions of
Article 13 (Art. 13) in the circumstances of the case and accordingly
found that there had been no breach of Article 13 (Art. 13).
In the present case the applicant claims that, except for the
remedy to the Government, he has had recourse to all the remedies
mentioned by the Court in the Leander judgment and that this fact
constitutes a significant difference between this case and the Leander
case.
The Commission notes that the complaint under Article 13
(Art. 13) is somewhat different in this case from the Leander case, as
the applicant is complaining mainly of the fact that he had no
effective remedy before a Swedish authority concerning the decision to
supply information on him.
Out of the five remedies considered by the Court to satisfy
the conditions of Article 13 (Art. 13) in the Leander case only four
could have been used by the applicant in this case. Since he already
held the post in question he could not apply for it and, if
unsuccessful, appeal to the Government. However, he had instead
another remedy which he used when he issued civil proceedings against
the State before the District Court of Malmö claiming inter alia to be
reinstated in his previous post.
The Commission notes that both the Chancellor of Justice and
the Parliamentary Ombudsman have the competence to receive individual
complaints and that they have the duty to investigate such complaints
in order to ensure that the relevant laws have been properly applied.
The Commission considers that the applicant's possibility to
issue civil proceedings against the State claiming to be reinstated in
his previous post must be considered to be of considerable
importance. In these proceedings an ordinary court has examined
important aspects of the applicant's grievance, and the judgment of
the Court was subject to appeal to the Labour Court, which also
examined the case.
The Commission notes that there is no remedy whereby the
applicant can appeal against the decision to supply information on
him. Considering that the scope of Article 13 (Art. 13) in the
circumstances is limited to making it possible for the individual to
"secure compliance with the relevant laws", the Commission finds that
the fact that the applicant could not appeal directly against the
decision to supply information on him, does not mean that the
aggregate of remedies available to him does not fulfill the
requirements of Article 13 (Art. 13).
In the light of the above considerations the Commission finds
the difference, which exists between the Leander case and the present
case, not to be of such importance that the legal issues under Article
13 (Art. 13) in the present case can be distinguished from those in
the Leander case. The Commission considers that also in this case did
the aggregate of remedies satisfy the conditions of Article 13 (Art.
13).
It follows that this part of the applicant's complaint is
manifestly ill-founded within the meaning of Article 27 para. 2 (Art.
27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)