AS TO THE ADMISSIBILITY OF
Application no. 62332/00
by Ingrid SEGERSTEDT-WIBERG and Others
The European Court of Human Rights (Second Section), sitting on 20 September 2005 as a Chamber composed of:
Mr J.-P. Costa, President,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović, judges,
and Mr S. Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 7 October 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the comments submitted by the Swedish Government,
Having deliberated, decides as follows:
The present application has been brought by five applicants, all of whom are Swedish nationals: (1) Ms Ingrid Segerstedt-Wiberg (born in 1911), (2) Mr Per Nygren (1948); (3) Mr Staffan Ehnebom (1952) (4) Mr Bengt Frejd (1948) and (5) Mr Herman Schmid (1939). The first applicant lives in Gothenburg, the second applicant lives in Kungsbacka and the third and fourth applicants live in Västra Frölunda, Sweden. The fifth applicant lives in Copenhagen, Denmark. They are represented before the Court by Mr D. Töllborg, Professor of Law, practising as a lawyer in Västra Frölunda. The Swedish Government (“the Government”) are represented by their Agent Mrs E. Jagander, 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.
1. The first applicant
The first applicant, Mrs Ingrid Segerstedt-Wiberg, is the daughter of a well-known publisher and anti-Nazi activist, Mr Torgny Segerstedt. From 1958 to 1970 she was a Liberal Member of Parliament. During that period she was a member of the Standing Committee on the Constitution (konstitutionsutskottet). She has also been the Chairperson of the United Nations Association of Sweden. She is a prominent figure in Swedish political and cultural life.
On 22 April 1998 the first applicant, relying on section 9A of the Police Register Act (lag om polisregister m.m. 1965:94), made a request to the Minister of Justice for access to her Security Police records. She said that she had become aware of certain material held by the foreign service of the United States of America from which it appeared that since the Second World War she and others had been under continuous surveillance, particularly because of her work for the United Nations Association of Western Sweden. That information had originated from Sweden and had apparently been communicated by the USA to other countries in order to damage her and her work for the protection of refugees. She further referred to the spreading of rumours that she was “unreliable” in respect of the Soviet Union. Those rumours had started during the 1956 parliamentary elections but had not prevented her, a couple of years later, from being returned to Parliament or from sitting on its Standing Committee on the Constitution.
By a decision of 17 June 1998 the Ministry of Justice refused her request. It reiterated that absolute secrecy applied not only to the content of the police register but also to whether or not a person was mentioned in the register. The Government did not find that the reasons relied on by the first applicant, with reference to section 9A of the Police Register Act, could constitute special grounds for derogation from the rule of absolute secrecy.
Appended to the refusal was a letter signed by the Minister of Justice, pointing out that neither the first applicant’s previous access to material indicating that she had been the subject of secret surveillance nor the age of any such information (40 to 50 years old) could constitute a special reason for making a derogation under section 9A of the Act. Moreover, the Minister stated:
“As you may be aware, the Government some time ago submitted a proposal to Parliament as to the manner in which the Security Police register should be made more accessible to the public. It may be of interest to you to know that a few weeks ago Parliament adopted the bill, which means that absolute secrecy will be abolished. The bill provides that the Security Police must make an assessment of the need for secrecy on a case-by-case basis, which opens up new possibilities for individuals to see records that are today covered by absolute secrecy. It is first of all historical material that will be made accessible.”
On 28 April 1999, following the amendment of Chapter 5, section 1, sub-section 2 of the Secrecy Act 1980 (sekretesslagen 1980:100), the first applicant submitted a new request to the Security Police to inform her whether or not her name was in the Security Police register.
On 17 September 1999 the Security Police decided to grant the first applicant authorisation to view “17 pages from the Security Police records with the exception of information about Security Police staff and information concerning the Security Police’s internal [classifications]”. Beyond that, her request was rejected, pursuant to Chapter 5, section 1, sub-section 2 of the Secrecy Act 1980 (sekretesslagen 1980:100) on the ground that further “information could not be disclosed without jeopardising the purpose of measures taken or anticipated or without harming future operations”.
On 4 October 1999 the first applicant visited the headquarters of the Security Police in Stockholm to view the records in question. They concerned three letter bombs which had been sent in 1990 to Sveriges Radio (National Radio Corporation of Sweden) to her and another well-known writer (Hagge Geigert) because of their commitment against Nazism and xenophobia and in favour of the humanitarian treatment of refugees in conformity with international treaties ratified by Sweden. The Security Police had gathered some police reports, photographs and newspaper cuttings and had reached the conclusion that there was nothing to confirm the suspicion that there was an organisation behind the letter bombs. That was all the information the first applicant was allowed to view.
On 8 October 1999 the first applicant instituted proceedings before the Administrative Court of Appeal (kammarrätten) in Stockholm requesting authorisation to view the entire file on her and other entries concerning her that had been made in the register. In a judgment of 11 February 2000 the Court rejected her request. Its reasoning included the following:
“The Administrative Court of Appeal considers that, beyond what emerges from the documents already released, it is not clear that information about whether or not [the first applicant] is on file in the Security Police records regarding such activities as are referred to in Chapter 5, section 1 (2), could be disclosed without jeopardising the purpose of measures taken or anticipated or without harming future operations.”
On 28 February 2000 the first applicant appealed to the Supreme Administrative Court (Regeringsrätten). She submitted that the rejection of her request had left her with the impression of being accused of involvement in criminal activities. In order to counter these accusations, she requested permission to see all files concerning her.
On 10 May 2000 the Supreme Administrative Court refused the first applicant leave to appeal.
During the proceedings before the Court, the Government provided the following information.
The first applicant was registered for the first time in 1940. The Security Police were interested in her because of her environment, which, during the war in Europe, was legitimately targeted by the Security Service. In accordance with the legislation in force at the relevant time, additional entries were made to her file until 1976, in part on independent grounds and in part to supplement records entered previously.
Between 1940 and 1976, information and documents regarding the first applicant had been collected in the filing system that existed at the time. While those documents were microfilmed, no documents concerning her had been microfilmed since 1976. The documents contained in the file were probably weeded some time before 1999. However, while backup copies on microfiche had been retained, they were not accessible in practice without the entry notations that had already been “deactivated”.
A new filing system was introduced in 1980-1982. As the first applicant became the object of a bomb threat in 1990, a new file on her was opened under the new system. It included a reference to the previous file under the old system and the microfilm number required to retrieve the microfiche. The Security Service’s register was also updated with the new information regarding the first applicant. The 1990 file had also been weeded. It was not destroyed but transferred to the National Archives.
Again in 2001 the first applicant was registered by the Security Service because of a new incident that could be interpreted as a threat against her.
2. The second applicant
The second applicant, Mr Per Nygren, is an established journalist at Göteborgs-Posten, one of the largest daily newspapers in Sweden. He is the author of a number of reports published by that paper on Nazism and on the Security Police that attracted wide public attention.
On 27 April 1998 the Security Police rejected a request by the applicant for access to their quarterly reports on Communist and Nazi activities for the years 1969 to 1998 and for information on which authorities had received those reports.
By a letter of 7 June 1999 addressed to the Security Police, the second applicant stated that, having received one of the quarterly reports from the police in Karlskrona, he had become aware that he had been of interest to the Security Police; he therefore wished “to read his file and all other documents at [their] disposal where [his] name might occur”. In addition the second applicant made a similar request in respect of his recently deceased father, in accordance with the latter’s wishes.
In a decision of 11 November 1999 the Security Police accepted the applicant’s request in part by responding that his father did not appear in any files or entries in the register and rejected the remainder of his request. It stated:
“As from 1 April 1999 the treatment of personal data by the Security Police of the kind referred to in your request is governed in the first place by the Police Data Act (1998:622).
According to Chapter 5, section 1(2), of the Secrecy Act (1980:100), secrecy applies to information relating to undercover activities under section 3 of the Police Data Act or that otherwise falls within the Security Police’s remit in preventing or revealing crimes committed against the security of the Realm or in preventing terrorism, if it is not clear that the information may be imparted without jeopardising the purpose of the decision or measures planned or without harm to future activities. The implied starting point is that secrecy applies as the main rule irrespective of whether the information, for example, appears in a file or emanates from a preliminary investigation or undercover activities.
In the preparatory work for the relevant provision of the Secrecy Act (prop. 1997/98:97 p. 68), it is stated that even information about whether a person is mentioned in a secret intelligence register should be classified in accordance with Chapter 5, section 1, of the Secrecy Act. It is further stated that in view of the nature of undercover activities only in special circumstances can there be a question of disclosing information. If there are no such circumstances, the Government assume in accordance with the preparatory work that even the information that a person is not registered is classified as secret under the Act.
In the present case the Security Police consider that ... the fact that your father was born in 1920 and has recently passed away satisfies the kind of conditions in which information can be disclosed that a person is not registered..
In so far as your request concerns yourself, it is rejected for the reasons given in the preparatory work and the relevant provisions of the Secrecy Act.”
According to the applicant, the above reasons given for the rejection of the request made for access to his own records were identical to those given in all other rejection cases.
In their pleadings to the Court, the Government stated that at the time of the Security Police’s decision on 11 November 1999 it had not been possible to find the file owing to the fact that the second applicant had not been the subject of a personal record in connection with the report.
On 25 November 1999 the second applicant appealed to the Administrative Court of Appeal in Stockholm, requesting authorisation to view his file and all other entries made on him by the Security Police. He relied on certain written evidence to the effect that he had been mentioned in the records of the Security Police, notably on the cover page and page 7 of a secret report, dating back to the third quarter of 1967 and emanating from Section (byrå) A of the Security Police, that had been released by the Karlskrona City Police shortly beforehand. The report was entitled “Presentation on Communist and Nazi activities in Sweden during July-September 1967”. Page 7 contained the following statement:
“On 18-20 September a meeting was held within the DUV [Demokratisk Ungdoms Världsfederation - World Federation of Democratic Youth] in Warsaw. A youngster, probably [identifiable as] Mr Per Rune Nygren from Örebro, participated as a representative for the VUF [Världsungdomsfestivalen – World Youth Festival].”
The second applicant requested in particular access to quarterly reports for the years 1969-1998 and information regarding the authorities to which those reports had been communicated. He stressed that since he had never been convicted, charged or notified of any suspicion of crime and had never taken part in any illegal, subversive or terrorist activity, refusing him full access to the files could not be justified. The wishes of the Security Police to maintain secrecy about their work should have been balanced against his interest in clarifying the extent of the violation that he had suffered, not only through their efforts to collect information about him but also through their disclosure of such information.
In accordance with standard procedure, the appeal was brought to the attention of the Security Police, who then decided, on 20 December 1999, to release the same two pages of the 1967 report referred to above, while maintaining their initial refusal regarding the remainder of the second applicant’s initial request. The reasons given were largely the same as in the first decision, with the following addition:
“In the Security Police archives there are a number of documents which contain information both about different subject-matter and individuals. The fact that such documents exist in the Security Police’s archives does not mean that all information in the documents is registered and therefore searchable. Information which is not registered can only be retrieved if details have been submitted about the document in which the information is contained. Since you provided us with such details it was possible for us to find the document that you solicited in your request.”
After receipt of the above decision, the second applicant had a telephone conversation with Ms Therese Mattsson, Officer of the Security Police (who had signed the decision of 27 April 1998). According to the applicant, she explained that when dealing with requests such as he had made, only documents that were searchable by computer would be verified, which was the reason why the original application had been rejected in its entirety and access had been granted to the two pages of the 1967 report.
In his appeal to the Administrative Court of Appeal the applicant pointed out that from the above telephone conversation it emerged, firstly, that since 1969 several hundred thousand personal files in the Security Police’s register had been destroyed. Secondly, information about persons whose files had been erased could still be found in the Security Police’s archives but could not be searched under names or personal identity numbers. Thirdly, the so-called destruction lists, comprising several hundred thousand names, was what remained of the erased files. The second applicant complained that the Security Police had failed to search those lists (assuming that the files no longer existed).
On 14 February 2000 the Administrative Court of Appeal rejected the appeal in its entirety giving essentially the same reasons as the Security Police, with the following further considerations:
“In connection with the introduction of [section 3 of the Police Data Act] the Government stated that even the information that a person is not registered by the Security Police is such that it should be possible to keep it secret under the said provision (prop. 1997/98:97 p. 68). According to the Government Bill, the reason is the following. A person who is engaged in criminal activity may have a strong interest in knowing whether the police have information about him or her. In such a case it could be highly prejudicial to the investigation for the person concerned to be informed whether or not he or she is of interest to the police. It is therefore important for a decision on a request for information from the register not to have to give information on whether the person appears in the register or not. The nature of secret intelligence is such that there can only be disclosure of information in special cases.
The Administrative Court of Appeal finds that it is not clear that information, beyond that which emerges from the disclosed documents, about whether [the second applicant] has been the subject of any Secret Police activity falling under Chapter 5, section 1(2), of the Secrecy Act, can be disclosed without jeopardising the purpose of measures taken or anticipated or without harming future operations.”
On 25 July 2000 the Supreme Administrative Court refused to grant the second applicant leave to appeal.
3. The third applicant
The third applicant, Mr Staffan Ehnebom, has been a member of the KPML(r) (Kommunistiska Partiet Marxist-Leninisterna - Party Marxists-Leninists (revolutionaries)) since 1978. He is an engineer and since 1976 has been employed by the Ericsson Group.
The Ericsson Group is under entirely private ownership and does to some extent work with national defence under, inter alia, a so-called SUA-agreement with Försvarets Materialverk (an authority responsible for procuring equipment for the Swedish Army – hereinafter referred to as “the FMV”). The FMV was subordinate to the Supreme Commander of the Armed Forces and had the right and duty to carry out vetting of staff, both those employed by the FMV itself and, whenever applicable, managers and staff of companies bound by an SUA-agreement. Under such an agreement the company in question would authorise the purchaser, normally in co-operation with the Security Police, to vet staff employed to deal with matters related to the purchase.
The third applicant was employed by Ericsson to work on the construction of radar equipment. He was the subject of three personnel security checks, two in 1974 and 1975 in connection with his recruitment, and the third in 1980, by which time he had become a member of the KPML(r) (Communist Party). Following the 1980 check, the FMV, referring to the SUA agreement, demanded without giving reasons that the third applicant no longer be provided with classified information or participate in any classified work for the FMV. As a result of this demand, Ericsson proposed to the third applicant that he should resign of his own accord. As he refused, the company considered itself obliged to transfer him to another place of work. This was done against his wishes in late 1980, early 1981. At the same time Ericsson told him that he could no longer be considered for promotion within the company.
In the present case, the absence of prior consultation by the National Police Board and the Security Police of a labour-market representative under section 12 of the Personnel Security Check Ordinance 1969 (personalkontrollkungörelsen, 1969:446) gave rise to a complaint by the third applicant’s trade union to the Parliamentary Ombudsperson and criticism by the latter in a decision (no. 684/1983). The Parliamentary Ombudsperson also expressed the opinion (JO 1984/85, page 155) that the transfer had had a great impact both because of its nature and its consequences.
The Swedish Industrial Salaried Employees’ Association (Svenska Idustritjänstemannaförbundet, SIF), of which the third applicant was a member, complained to the Government requesting that he be assigned to work classified for national defence. On 10 September 1981 the Government rejected the request.
On 10 April 1999, after the absolute secrecy requirement applying to information held in the records of the Security Police had been lifted on 1 April 1999, the third applicant submitted a request to the Security Police to see all files that might exist on him. In a decision dated 17 November 1999 the Security Police granted him access to thirty pages, two of which could only be read on the Security Police’s premises and could not be copied by technical means. Copies of the twenty-eight remaining pages were sent to his home. Twenty-five of these consisted of the decision by the Parliamentary Ombudsperson concerning the above-mentioned matter and the three remaining pages were copies of press articles, two dealing with the applicant and a third, not mentioning him, consisting of a notice from the paper Proletären about a forthcoming 1993 KPML(r) party congress. Thus, all of the said twenty-five pages contained publicly available, not classified, material. The two pages which the third applicant was permitted to see on the Security Police’s premises consisted of two security checks concerning him dating from 1980. These were copies of forms used by the FMV to request a personnel check (nowadays register check) concerning the third applicant. The registered information contained the following text in full:
“In September 1979 it was revealed that [THE THIRD APPLICANT] was/is a member of the Frölunda cell of the KPML(r) in Gothenburg. At this time he was in contact with leading members of the KPML(r) regarding a party meeting in the Frölunda town square.”
The third applicant submitted that the above information about his membership of the KPML(r) was the real reason for the FMV’s demand that he be removed from his post, although every authority involved would deny this. He pointed out that the KPML(r) was a registered and lawful political party that took part in elections.
On 24 November 1999 the third applicant appealed against the decision of the Security Police to the Administrative Court of Appeal, maintaining his request to see all the material that the Security Police might have on him. He disputed inter alia that the material released to him revealed that he constituted a security risk. By a judgment of 14 February 2000 the Administrative Court of Appeal rejected his request, giving the same type of reasons as in the cases of the first and second applicants above.
On 13 April 2000 the Supreme Administrative Court refused to grant the third applicant leave to appeal.
4. The fourth applicant
The fourth applicant, Mr Bengt Frejd, has since 1972 been a member of the KPML(r) and since 1974 the Chairman of Proletären FF, a sports club which has about 900 members. He is renowned within sports circles in Sweden and has actively worked with children and young people in sport, both nationally and internationally, to foster international solidarity and facilitate social integration through sport.
On 23 January 1999 the fourth applicant requested access to information about him contained in the Security Police register, which he suspected had been entered because of his political opinions. On 4 February 1999 the Security Police rejected his request under the rules on absolute secrecy.
The fourth applicant renewed his request after the abolition of the rule on 1 April 1999. On 8 February 2000 the Security Police granted the fourth applicant permission to see parts of his file.
This comprised, firstly, fifty-seven pages of paper cuttings and various information concerning him and other athletes and sports leaders, their participation in conferences, meetings and tournaments, and about sport and the promotion of social integration through sport, particularly involving international exchanges and solidarity in co-operation with the African National Congress (“the ANC”) in South Africa. There was information about a much publicised sports project in 1995, where representatives of several sports such as basketball, football, and handball had left Sweden for South Africa with the aim of helping young people in black townships. A number of people from within the Swedish sports movement whom the fourth applicant had met, many of whom were unrelated to political organisations, had been mentioned in his file. These included, for example, a prominent sports leader, Mr Stefan Albrechtson, who had himself been subjected to Security Police surveillance.
The file further included a number of items dealing with sports organisations and events, such as an appeal (in the file from as late as 1993) from all the sports clubs in Gothenburg demanding lower fees for the use of sports fields, a document with the names of some one hundred people including that of the fourth applicant and in some instances their telephone numbers. A list of the participants at a spring meeting of the Gothenburg Handball League could also be found.
In addition to the above material the fourth applicant was granted access on 28 February 1999 to two pages from his file, provided that they were read on the Security Police’s premises and not reproduced by technical means. The pages contained the following information:
“1 January 1973. F is a member of the KPML(r) and has been working actively for half a year. He is responsible for propaganda in the Högsbo-Järnbrott group of the KPML(r) on 4 March 1975. According to an article in the Göteborgs Tidningen of 4 March 1975, F is the Chairman of Proletären FF 9 June 1977. According to an article in Stadsdelsnytt/Väster, F is one of the leaders of the youth section of Proletären FF 6 September 1979. F is No. 19 on the KPML(r) ballot for the municipal elections in the fourth constituency of Gothenburg. Not elected.”
On 1 March 2000 the fourth applicant appealed to the Administrative Court of Appeal against the decision of the Security Police, requesting to see his file in its entirety and all other records that might have been entered concerning him. He disputed the Security Police’s right to store the information that had already been released to him and stressed that none of it justified considering him a security risk.
On 12 May 2000 the Administrative Court of Appeal rejected the fourth applicant’s appeal, basically on the same grounds as those stated in the judgments pertaining to the first, second and third applicants.
On 29 August 2000 the Supreme Administrative Court refused the fourth applicant leave to appeal.
5. The fifth applicant
The fifth applicant, Mr Herman Schmid, was from 1999 to 2004 a member of the European Parliament, belonging to the GUE/NGL Group and sitting for the Swedish Left Party (Vänsterpartiet).
On 9 December 1997 the fifth applicant filed a request with the Ministry of Defence to have access to the data files and all entries about him that may have been made in the Security Police registers. On 20 January 1998 the Ministry of Defence informed him that the request had been transmitted to the Defence Authority (Försvarsmakten) for decision. On the same date the fifth applicant was informed about another Government decision to remove secrecy regarding certain information contained in an attachment B to a report entitled “The Military Intelligence Service, Part 2” (Den militära underrättelsetjänsten. Del 2). In this research document, which had previously been released to two journalists, it was stated:
“One document (...) contains the information that among the teachers listed in the Malmö ABF [Arbetarnas Bildningsförbund – Workers’ Association of Education] study programme for the autumn of 1968 are sociologists Schmid and Karin Adamek. It was stated that both of them had previously been reported in different contexts.”
On 19 March 1998 the National Police Authority sent a duplicate letter to the fifth applicant and an unknown number of other claimants announcing that their requests for access to registered information had been rejected.
On 29 October 1999 the Security Police took a new decision granting the fifth applicant access to “eight pages from the Security Police archives with the exception of information regarding the Security Police staff and ... internal classifications”, on the condition that the documents be consulted on the Security Police’s premises and not copied by technical means. As far as all other information was concerned the former rejection of his request remained, with the following standard reasoning:
“All information about whether or not you are reported in other security cases filed by the Security Police is subject to secrecy according to Chapter 5, section 1(2), of the Secrecy Act. Thus such information cannot be released without jeopardising the purpose of actions taken or planned, or without detriment to future activity.”
On the above-mentioned date the fifth applicant visited the police headquarters in Malmö in order to have access to the eight pages in question. While under surveillance, he read out loud the text on each page and tape-recorded the reading, for later transcription. According to a transcript provided by the applicant, the entries bore various dates between 18 January 1963 and 21 October 1975.
The above-mentioned entries concerned mostly political matters such as participation in a campaign for nuclear disarmament and general peace movement activities, including public demonstrations and activities related to membership of the Social-Democratic Student Association. According to one entry dated 12 May 1969, the fifth applicant had extreme left-wing leanings and had stated that during demonstrations one should proceed with guerrilla tactics in small groups and if necessary use violence in order to stage the demonstration and achieve its purposes. There were also some notes about job applications he had made for university posts and a report he had given to the Norwegian police with his comments in connection with the murder of a Moroccan citizen, Mr Bouchiki, in Lillehammer on 21 July 1973. Finally, the documents contained entries on the opening of a boarding school for adults (folkhögskola) in 1984 in which the fifth applicant had played a major role.
The fifth applicant, for his part, challenged the allegation that he had advocated violence, saying that it was totally against his principles and emphasising that since 1960 he had been active in the peace movement in Skåne and was a well-known pacifist who had been imprisoned three times on account of his conscientious objection to military service.
On 29 November 1999 the applicant appealed to the Administrative Court of Appeal against the Security Police’s refusal to give him access to all the information about him registered in their archives. He disputed their right to store the information to which he had had access. The appeal was rejected by a judgment of 15 May 2000 on the same grounds as those given to the other applicants in the present case.
On 27 June 2000 the Supreme Administrative Court refused the fifth applicant leave to appeal.
B. Relevant domestic law and practice
Domestic provisions of relevance to the present case are found in a number of instruments. Certain constitutional provisions regarding freedom of opinion, expression and association found in the Instrument of Government (regeringsformen) provide the starting point. This is also the case with regard to the principle of free access to official documents enshrined in the Freedom of the Press Ordinance (tryckfrihetsförordningen) and the restrictions on that freedom imposed by the Secrecy Act (sekretesslagen; 1980:100). The Security Police’s handling of personal information is regulated in the Police Data Act (polisdatalagen; 1998:602), the Police Data Ordinance (polisdataförordningen, 1999:81), the Personal Data Act (personuppgiftslagen, 1998:204) and the Personal Data Ordinance (personuppgiftsförordningen, 1998:1191).
1. Constitutional guarantees
Chapter 2, section 1, subsection 1, of the Instrument of Government (“the Constitution”) guarantees the freedom to form opinions, the right to express them and the right to join others in the expression of such opinions. The freedoms and rights referred to in Chapter 2, section 1, subsection 1, may be restricted by law to the extent provided for in sections 13-16. Restrictions may only be imposed to achieve a purpose which is acceptable in a democratic society. A restriction may never exceed what is necessary having regard to its purpose, nor may it be so onerous as to constitute a threat to the free expression of opinion, which is one of the foundations of democracy. No restriction may be imposed solely on grounds of political, religious, cultural or other such opinions (Chapter 2, section 12).
According to Chapter 2, section 13, freedom of expression may be restricted, for instance, “having regard to the security of the Realm”. However, the second paragraph of the latter provision states that “[i]n judging what restraints may be imposed by virtue of the preceding paragraph, particular regard shall be had to the importance of the widest possible freedom of expression and freedom of information in political, religious, professional, scientific and cultural matters”. The term “security of the Realm” covers both external and internal security.
With regard to freedom of association, fewer limitations are provided for. It follows from Chapter 2, section 14, that it may be restricted “only in respect of organisations whose activities are of a military or quasi-military nature, or which involve the persecution of a population group of a particular race, skin colour or ethnic origin”.
Chapter 2, section 3, provides that no entry regarding a citizen in a public register may be based, without his or her consent, exclusively on that person’s political opinion. The prohibition is absolute.
Under Chapter 2, section 2, of the Freedom of the Press Ordinance (tryckfrihetsförordningen), everyone is entitled to have access to an official document unless, within defined areas, such access is limited by law.
2. Security intelligence
The Security Police forms part of the National Police Board (Rikspolisstyrelsen). The Security Police is engaged in four major fields of activity. Three of them – protection of the Constitution, counter-espionage and counter-terrorism – fall under the common heading of security intelligence. The fourth area concerns security protection.
(i) Legal basis for registration
The legal basis for the register kept by the Security Police before 1999 has been described in the Leander v. Sweden judgment of 26 March 1987 (Series A no. 116, pp. 12-13, paragraphs 19-22). For the period thereafter the matter is governed by the 1999 Police Data Act and Ordinance. The Police Data Act is a lex specialis in relation to the 1998 Personal Data Act. The Security Police’s own rules of procedure (arbetsordning) contain more detailed rules on the registration and use of personal information, which is not public in its entirety.
Section 5 of the Police Data Act (under the heading “Processing of sensitive personal data”) provides:
“Personal information may not be processed merely on the ground of what is known about the person’s race or ethnic origin, political opinions, religious or philosophical conviction, membership of a trade union, health or sexual orientation.
If personal information is processed on another ground, the information may be completed with such particulars as are mentioned in the first sub-section if it is strictly necessary for the purposes of the processing.”
Section 32 reads:
“The Security Police shall keep a register (SÄPO-registret) for the purposes of:
1. facilitating investigations undertaken in order to prevent and uncover crimes against national security;
2. facilitating investigations undertaken in order to combat terrorist offences under section 2 of the Act; or
3. providing a basis for security checks under the Security Protection Act (säkerhetsskyddslagen 1996:627). The Security Police are responsible (personuppgiftsansvarig) for the processing of personal data in the register.”
Section 33 of the Police Data Act reads:
“The Security Police’s register may contain personal information only if:
1. The person concerned by the information is suspected of having engaged in or of intending to engage in criminal activity that entails a threat to national security or a terrorist offence;
2. The person concerned has undergone a security check under the Security Protection Act; or
3. Considering the purpose for which the register is kept, there are other special reasons therefor.
The register shall indicate the grounds for data entry. The Government may lay down further regulations on the type of data that may be entered (Act 2003:157).”
The Government submitted that the fact that an individual’s name had been included in the register did not necessarily mean that he or she was suspected of an offence or other incriminating activities. For instance, for the sake of crime prevention, a person against whom threats had been made could be included in the register. The following further examples illustrated when the need to register a person may arise without that person having been incriminated in any way:
- he or she is in contact with someone suspected of a crime;
- he or she is in contact with personnel from a foreign mission;
- he or she has attracted the attention of a foreign intelligence service or is used by such a service;
- he or she is engaged in a circle that has attracted the attention of a foreign intelligence service;
- he or she is used by an organisation whose activities are the subject of an investigation regarding threats to security;
- he or she is the referee of a foreign citizen seeking a visa;
- he or she has contacted the Security Police and provided information;
- he or she is contacted by the Security Police.
Information in respect of the person in question may be needed in order to make a chart of the interests of an entity (state, organisation or individual) constituting a threat to Swedish security, and the extent and development of that threat.
Section 34 of the Police Data Act provides:
“The Security Police register may only contain:
information for identification;
information on the grounds for registration; and
references to the files where information concerning the registered person can be found.”
Under section 3 of the Personal Data Act, the treatment of personal information includes every operation or series of operations carried out with respect to personal information, whether automatic or manual. Examples of such treatment are the gathering, entry, collation, storage, processing, use, release and destruction of personal information. Personal information is defined by the same provision as all kinds of information that relates directly or indirectly to a physical, living person. The Personal Data Act applies to the processing of personal information that is wholly or partially automated. It also applies to all other processing of personal data if the information is or is intended to be part of a structured collection of personal information that can be accessed by means of a search or compilation according to certain criteria (section 5).
(ii) Registration and filing
Documents that contain information are collected in files. Depending on its content, a document may, when needed, either be placed in a file on a certain individual, a personal file (personakt), or in a so-called thematic file (sakakt). It may also be added to both kinds of files.
A thematic registration is made, and a thematic file opened, whenever there is a need to collect and compile documents systematically. The documents may concern a matter or a subject that the Security Police has a duty to supervise or cover, or on which the Security Police needs to have access to relevant information for any other reason. A thematic file may be started to collect documents that concern the relations between states and organisations. It may also be started in order to collect a certain type of document, for instance a series of reports. It should be observed that thematic registration as such does not mean that names are entered into the Security Police’s register, even though names may be found in the documents in the thematic file. Thus, a search for a person who has been mentioned in a thematic file cannot be made unless, for independent reasons, that person has also been registered in a personal file. Moreover, the name of a person who has been registered personally may occur in a thematic file but may still not show up in a search for the name in the latter file if, for instance, the name in the thematic file lacks relevance for the Security Police.
(iii) Correction and destruction of registered information
The Data Inspection Board (Datainspektionen) monitors compliance with the Personal Data Act (unlike the Records Board which supervises the Security Police’s compliance with the Police Data Act). The Data Inspection Board is empowered to deal with individual complaints and, if it finds that personal information is not processed in accordance with the Personal Data Act, it is required to call attention to that fact and request that the situation be corrected. If the situation remains unchanged, the Board has the power to prohibit, on penalty of a fine (vite), the person responsible for the register (for instance the official designated as responsible for the Security Police’s register) from continuing to process the information in any other way than by storing it (section 45 of the Personal Data Act).
The Data Inspection Board may request a county administrative court to order the erasure of personal information that has been processed in an unlawful manner (section 47 of the Act).
(iv) Removal of registered information
Registered information in respect of an individual suspected of committing or of being liable to commit criminal activities that threaten national security or a terrorist offence, shall as a rule be removed no later than 10 years after the last entry of information concerning that person was made (the Police Data Act, section 35). The same applies to information that has been included in the register for other special reasons connected with the purpose of the register. The information may be kept for a longer period if justified by particular reasons. More detailed rules concerning the removal of information are to be found in the regulations and decisions issued by the National Archives (Riksarkivet) and in the Security Police’s own rules of procedure. All documents removed by the Security Police are transferred to the National Archives.
3. Access to official documents
The limitations on access in this particular field before 1 April 1999 have been described in detail in the above-cited Leander judgment (see paragraphs 41 to 43). With regard to access to information kept by the Security Police, absolute secrecy was thus the principal rule prior to 1 April 1999. The only exceptions made were for the benefit of researchers. From 1 July 1996 it was also possible to allow exemptions (dispens) if the Government held the view that there were extraordinary reasons for an exemption to be made from the main rule of absolute secrecy.
The absolute secrecy of files kept exclusively by the Security Police was abolished by an amendment to Chapter 5, section 1, subsection 2, of the Secrecy Act, made at the same time as the Police Data Act entered into force on 1 April 1999. According to the amended provision, information concerning the Security Police’s intelligence activities referred to in section 3 of the Police Data Act, or that otherwise concerns the Security Police’s activities for the prevention and investigation of crimes against national security, or to prevent terrorism, was to be kept secret. However, if it was evident that the information could be revealed without detriment to the aim of measures that had already been decided upon or that were anticipated, or without harm to future activities, the information should be disclosed. When submitting the relevant Bill to Parliament, the Government stressed that the nature of the intelligence service was such that information could only be disclosed in special cases. They presumed that in other cases the fact that a person was not registered would also remain secret (Government Bill 1997/98:97, p. 68).
A fourth subsection was added to section 1 of Chapter 5 on 1 March 2003, under which a person may upon request be informed of whether or not he or she can be found in the Security Police’s files as a consequence of registration in accordance with the Personnel Security Check Ordinance that was in force until 1 July 1996 or corresponding older regulations. However, the Government were still of the view that there were in principle no reasons for the Security Police to reveal whether or not there was any information concerning an individual in its files and registers:
“The Government acknowledge that it may appear unsatisfactory not to be given a clear answer from the Security Police as to whether an individual is registered in its files or not. There are, however, valid reasons for the Security Police not to disclose in certain cases whether a person appears in Security Police records. This point of view was also taken in the preparatory notes to the Police Data Act (Government Bill 1997/98:97 p. 68) where it was stated that a person linked to criminal activities may have a strong interest in knowing whether the police have any information regarding him or her. In such a case, it could be very damaging for an investigation if it was revealed to the person in question either that he or she was of interest to the police or that he or she was not. It is therefore essential that the information whether a person appears [in the files] or not may be kept secret.” [Government Bill 2001/02:191, pp. 90-91]
The Security Police apply the Secrecy Act directly. There are thus no internal regulations that deal with the issue of access to official documents since that would be in breach of the Secrecy Act. Under the Secrecy Act Chapter 5, section 1, sub-section 2, there is a presumption of secrecy, meaning that whenever it is uncertain whether the disclosure of information in an official document is harmful or not, such information shall not be disclosed.
A request for access to official documents kept by the Security Police would give rise to a search to ascertain whether or not the person in question appears in the files. If there is no information, the person who has made the request is not informed thereof and the request is rejected. A few exceptions have been made from this practice in cases where the person concerned has died and the request has been made by his or her children (as in the second applicant’s case). However, if information is found, the Security Police make an assessment of whether or not all or part of it can be disclosed. It is not indicated whether the disclosed information is all that exists in the files.
4. Review bodies
(i) The Records Board
The Records Board was established in 1996 and has replaced the National Police Board (described in paragraphs 19 to 34 of the above-mentioned Leander judgment). It is entrusted with the task of determining whether information kept by the Security Police may be disclosed in security checks, to monitor the Security Police’s registration and storage of information and the Service’s compliance with the Police Data Act, in particular section 5. In order to carry out its supervisory function, the Board is entitled to have access to information held by the Service. It presents an annual report to the Government on its activities. The report is made public.
Under sections 2 and 13 of the Ordinance containing instructions for the Records Board, the Board consists of a maximum of eight members, including a chairperson and a vice-chairperson, all appointed by the Government for a fixed term. The chairperson and the vice-chairperson have to be or to have been permanent judges. The remaining members include parliamentarians. The Records Board’s independence is guaranteed by, inter alia, Chapter 11, section 7, of the Constitution, from which it follows that neither Parliament nor the Government nor any other public authority may interfere with the manner in which the Board deals with a particular case.
(ii) The Data Inspection Board
Under section 1 of the Ordinance containing instructions for the Data Inspection Board (1998:1192), that Board’s main task is to protect individuals from violations of their personal integrity through the processing of personal data. The Board is competent to receive complaints from individuals. Its independence is guaranteed, inter alia, by Chapter 11, Article 7, of the Constitution.
In order to carry out its monitoring function, the Data Inspection Board is entitled to have access to the personal data that is being processed, to receive relevant additional information and documentation pertaining to the processing of personal data and to the safety measures in respect of the processing and, moreover, to have access to the premises where the processing takes place (the Personal Data Act, section 43). If the Board should encounter any problems in this regard and is unable to receive the information needed in order to ensure that the processing of personal data is lawful, the Board may prohibit, on penalty of a fine, the person responsible for the register from continuing to process the information in any way other than merely storing it (section 44 of the Act). Moreover the Data Inspection Board may request a county administrative court to order the erasure of personal data that has been processed in an unlawful manner (section 47 of the Act).
(iii) Other review bodies
The Security Police, the Records Board and the Data Inspection Board and their activities come under the supervision of the Parliamentary Ombudspersons and the Chancellor of Justice. Their functions and powers are described in the above-mentioned Leander judgment (pp. 16-18, paragraphs 36-39).
Unlike the Parliamentary Ombudspersons, the Chancellor of Justice may award compensation in response to a claim from an individual that a public authority has taken 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 under several provisions of the Tort Liability Act (skadeståndslagen, 1972:207), notably Chapter 3, section 2, pursuant to which the State shall be liable to 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 (Chapter 5, section 1, and Chapter 1, section 3).
A decision by the Chancellor of Justice to reject a claim for damages in full or in part may not 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. In the alternative, such proceedings may be instituted immediately without any previous decision by the Chancellor. Before the courts, the State is represented by the Chancellor.
Under section 48 of the Personal Data Act, a person responsible for a register shall pay compensation to a data subject for any damage or injury to personal integrity caused by the processing of personal data in breach of the Act.
The applicants complained under Article 8 of the Convention about the storage of information relating to them on the Security Police register, the refusal to grant them access to all information kept about them on the register and the personnel security check, based on the registration of information by the Security Police, which had adversely affected their careers. These measures amounted to unjustified interference with their right to respect for private life.
The applicants moreover complained that the storage of secret information about them entailed violations of Articles 10 and 11 of the Convention.
In addition the applicants complained that, contrary to Article 13, no effective remedy existed under Swedish law against the above violations.
A. The complaints under Article 8 of the Convention
Article 8 of the Convention 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 Court notes that the applicants’ complaints under Article 8 of the Convention fell into three parts.
The first concerned the storage in the Security Police files of the information that had been released to them and which in their view constituted an unjustified interference with their right to respect for private life under Article 8 of the Convention.
The second concerned the refusal to impart to the applicants the full extent to which information about them was kept on the Security Police register.
The third related to their allegation that information kept on the register had been used in a way that had adversely affected their respective careers.
1. Storage of the information that had been released to the applicants
(i) Whether the complaints are inadmissible for failure to observe the six-month rule
An issue arises with respect to the first part of the applicants’ Article 8 complaints, in that each applicant gained access to the information in question more than six months before the introduction of their application under the Convention.
One approach would be to regard the applicants’ complaints relating to the continued retention of the information on the Security Police register as a continuing situation suspending the six-month time-limit under Article 35 § 1 of the Convention (see Isabel Hilton v. the United Kingdom, (dec.) no. 12015/86, decision of 6 July 1988).
The Government invited the Court to follow a different approach and declare this part of the application inadmissible for failure to observe the six-month rule. They relied on Rosanna Schaller Volpi v. Switzerland ((dec.), no. 25147/94, Decisions and Reports, 84, p. 106).
However, the Court does not find it necessary to resolve the issue in this case. It observes that, after being granted access to some information kept about them on the Security Police register, all the applicants disputed before the Administrative Court of Appeal and the Supreme Administrative Court the refusal to grant them full access to any such information. In this connection, the third, fourth and fifth applicants challenged the justification for the storage of the information that had been released to them. While their pleas were rejected with the same type of standardised reasoning as for the first and second applicants, whose appeals were limited to the refusal to grant full access to any information kept on them, it has not been suggested that it fell outside the administrative courts’ jurisdiction to deal with the matter. In the Court’s view, it was reasonable in the circumstances for the applicants to await the outcome of their appeals to the Administrative Court of Appeal and the Supreme Administrative Court under Swedish law (as amended on 1 July 1999) before lodging their complaints under Article 8 of the Convention about the justification for keeping the information that had been released to them.
Accordingly, the Court finds that the applicants’ complaints about the storage of information cannot be declared inadmissible on formal grounds.
ii. Whether the complaints about the storage of information are inadmissible as being manifestly ill-founded
The Government requested, in the alternative, that the Court declare the complaints inadmissible as being manifestly ill-founded. They questioned whether the information released to the applicants could be said to fall within the scope of the notion of private life for the purposes of Article 8 § 1. They stressed that the information that had been released to the first applicant did not concern her own activities but the activities of other persons, namely those responsible for the letter bombs that had been sent to her and others. The information kept on the other applicants that was subsequently released to them appeared to a large extent to have emanated from open sources, such as observations made in connection with their public activities (the second applicant’s participation in a meeting abroad and the fifth applicant’s participation in a demonstration in Stockholm). In addition, the main bulk of the information was already in the public domain since it consisted of newspaper articles (the third, fourth and fifth applicants), radio programmes (the fifth applicant) or of decisions by public authorities (decision by the Parliamentary Ombudspersons with regard to the third applicant). None of them had alleged that the released information was false or incorrect.
Should the Court conclude that the information concerned the applicants’ private life for the purposes of Article 8 § 1, the Government acknowledged that its storage amounted to interference with their right to respect for private life under Article 8 of the Convention.
The alleged interference in this respect was “in accordance with the law” within the meaning of Article 8 § 2 of the Convention, and pursued one or more legitimate aims; the prevention of crime, in so far as the first applicant’s own safety was concerned by the bomb threats, and interests of national security with regard to all the applicants.
As regards the question of lawfulness, the Government submitted that not only did the impugned interference have a basis in domestic law but that the law was also sufficiently accessible and foreseeable to meet the quality requirement under the Court’s case-law. They referred notably to the law described in the above-mentioned Leander judgment and, for the period after 1999, to the terms of sections 5, 32 and 33 of the Police Data Act.
As to the issue of necessity, the Government submitted that they were at a loss to understand the reason why the first applicant should claim at all that the Security Police’s registration and filing of information concerning threats against her were not in her best interests but, on the contrary, entailed a violation of her rights under the Convention. The information that had been released to the other four applicants was highly varied in nature. Most of it appeared to have been found in the public domain, such as the media. The Government were unaware of the origins of each and every piece of information and therefore could not comment on that particular aspect. They noted, however, that from today’s perspective the information seemed either fairly old or quite harmless and was proportionate to the legitimate aim pursued, namely the protection of national security.
As to the second applicant, considering that it related to the Cold War period, it could not be deemed unreasonable for the Security Police to have kept themselves informed about a meeting in 1967 of left-wing sympathizers in Poland that he may have taken part in. He had not been the subject of personal data registration in connection with the report and the information had been carefully phrased (with the use of the word “probably”).
The third and the fourth applicants had since the 1970s been members of the KPML(r), a political party which advocated the use of violence in order to bring about a change in the existing social order. One of the Security Police’s duties was to protect the Constitution, namely, to prevent and uncover threats against the nation’s internal security. It was evident that persons who were members of political parties like the KPML(r) would attract the attention of the Security Police.
The case of the fifth applicant should also be seen against the background of the Cold War and he too seemed to have advocated violence as a means of bringing about changes in society. According to one of the entries in the records released to him, he was said to have stated that violence could be resorted to in order to carry out demonstrations and to achieve their goals.
The Court, having regard to the parties’ submissions, considers that the complaint about the storage of the information that was released to the applicants raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the complaint. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 1 of the Convention. No other grounds for declaring the said complaint inadmissible have been established.
2. The refusals to advise the applicants of the full extent to which information was kept about them on the Security Police register
The applicants submitted that the respective refusals to grant full access to all information kept about them on the Security Police register amounted to unjustified interference with their right to respect for private life under Article 8 of the Convention.
In the applicants’ view, the interference was not “in accordance with the law” as the relevant national law failed to fulfil the requirements as to quality under the Convention. It had not been foreseeable what kind of information might be stored or what considerations governed the decisions by the Security Police or the courts on each applicant’s requests for access to information kept on file in respect of him or her.
Nor was the interference “necessary in a democratic society”. The applicants pointed to the absence of any specific information recorded by the Security Police that could substantiate any assumption of risk that the applicants might be connected with terrorism, espionage or other relevant criminal activities. Moreover, the lack of access to declassified data collected for mainly historical or political reasons only could not be viewed as strictly necessary.
In this connection the applicants argued that the relevant law did not offer adequate safeguards against abuse. They stressed that the Records Board, a body established in 1996, had failed to review their files following their request for access. The Board had no power to order the destruction of files or the suppression or rectification of information therein. Nor was it empowered to award compensation. The Data Inspection Board had never carried out a substantial review of the files kept by the Security Police. The Parliamentary Ombudsperson could not grant the applicants access to their files and was not empowered to correct false or irrelevant information therein. The Chancellor of Justice was the Government’s lawyer and was not independent of the Government.
The Government acknowledged that, at some point in time, the Swedish Security Police had kept some information about the applicants but, referring to their above-mentioned arguments, questioned whether the applicants had shown that there was at least a reasonable likelihood that the Security Police retained personal information about them and that there had consequently been an interference.
However, were the Court to conclude that there was interference with the applicants’ rights under Article 8 § 1 in this context, the Government submitted that it was justified under Article 8 § 2; it was “in accordance with the law”, pursued a legitimate aim and was “necessary in a democratic society” in order to achieve that aim.
As to the issue of necessity the Government argued that under Swedish law there were adequate safeguards against abuse:
(i) The discretion afforded the Security Police was subject to limitations set out in the more general Personal Data Act, which dealt with the processing of personal information wherever it took place, and the more specific Police Data Act, which in positive terms obliged the Security Police to keep a register and specified its aims and laid down the conditions under which personal information could be included in the register.
(ii) Both the Constitution and the Police Data Act expressly provided that certain sensitive information could only be registered in exceptional circumstances, that is to say when it was “unavoidably necessary”. Under no circumstances could a person be registered by the Security Police simply because of his or her political views or affiliations.
(iii) The Data Inspection Board was an important safeguard considering its mandate with respect to the overall treatment of personal information. It was empowered to take various measures to protect personal integrity, such as prohibiting all processing of personal data (other than merely storing it) pending the rectification of illegalities. It could also institute judicial proceedings in order to have registered information erased.
(iv) The Records Board, another important safeguard, had two functions. It monitored the Security Police’s filing and storage of information and the Service’s compliance with the Police Data Act. It also determined whether information held by the Security Police could be disclosed in security checks.
(v) The Parliamentary Ombudspersons supervised the application of laws and other regulations not only by the Security Police themselves but also by the bodies monitoring them (the Data Inspection Board and the Records Board). The Ombudspersons were empowered to carry out inspections and other investigations, to institute criminal proceedings against public officials and report officials for disciplinary action. It was to be recalled that the third applicant’s trade union had in fact lodged a complaint with the Parliamentary Ombudspersons, arguing that there had been a breach of the Personnel Security Check Ordinance in connection with the security check carried out with regard to the third applicant, and that the Ombudspersons had voiced some criticism about the manner in which the matter had been handled.
(vi) The Chancellor of Justice had a role similar to that of the Parliamentary Ombudspersons, was competent to report public servants for disciplinary action, to institute criminal proceedings against them and to award compensation.
In addition, damages could also be claimed under the Tort Liability Act in direct judicial proceedings. The Personal Data Act moreover contained a separate ground for damages that was of relevance in the context of the present case.
The Government argued that, in view of the absence of any evidence or indication that the system was not functioning as required by domestic law, the framework of safeguards achieved a compromise between the requirements of protecting a democratic society and the rights of the individual which was compatible with the provisions of the Convention (David Esbester v. the United Kingdom (dec.), no. 18601/91, 12 April 1993). Against this background the Government invited the Court to hold that this part of the application was manifestly ill-founded.
The Court, having regard to the parties’ submissions, considers that the complaints about the refusals to advise the applicants of the full extent to which information was kept about them on the Security Police register raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 1 of the Convention. No other grounds for declaring the said complaints inadmissible have been established.
3. Alleged adverse effects of personnel security checks on the applicants’ careers
The applicants complained under Article 8 of the Convention that the personnel security checks, based on the registration of information by the Security Police, had adversely affected their careers. This was certainly true for the third and fifth applicants and could not be excluded for the first, second and fourth applicants.
The third applicant argued that he had not had real and effective access to a court to challenge his employer’s decision to transfer him to another post. His lawyer had prepared a writ to bring proceedings before the Employment Tribunal. However, his trade union, which under Chapter 2, section 5, of the Code of Judicial Procedure in Labour Disputes enjoyed an exclusive right to take legal action, had refused to let the case be brought before the courts and had instead opted to complain to the Parliamentary Ombudsperson.
The Government submitted that no personnel security checks had been carried out with respect to the first, second, fourth and fifth applicants and requested the Court to declare their complaints inadmissible for lack of standing as victims. The third applicant, on the other hand, had been subjected to personnel security checks but had failed to exhaust domestic remedies with regard to the ensuing transfer decision.
The Court is not convinced that the above-mentioned provision referred to by the third applicant would have prevented him from bringing judicial proceedings of his own accord against the disputed transfer. The second sub-section of section 5 made it clear that it would have been possible for the applicant to bring an action before the ordinary courts. He has therefore failed to exhaust domestic remedies. In any event, his application was brought more than six months after the disputed employment transfer. This part of the application should therefore be rejected under Article 35 §§ 1 and 4 of the Convention.
In so far as the other applicants are concerned, the Court finds that their complaints are unsubstantiated. It follows that their applications must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
B. The complaints under Articles 10 and 11 of the Convention
The applicants complained that in so far as the storage of secret information was used as a means of surveillance of political dissidents, as was particularly noticeable with regard to the first and fourth applicants, it entailed a violation of their rights under Article 10 of the Convention. That Article provides:
“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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, 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.”
They further complained that, for each of them, membership of a political party had been a central factor in the decision to file secret information on them. This state of affairs constituted unjustified interference with their rights under Article 11, which provides:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
The Government argued that no separate issues arose under either Article 10 or Article 11 in the circumstances of the present case in so far as the first, second, fourth and fifth applicants were concerned. They had not been the subject of personnel security checks. The information on them held by the Security Police was apparently never consulted by third parties. In fact, it seemed only to have been released to the applicants themselves following their own requests for access. Furthermore, their suspicions that the Security Police kept information on them – suspicions that were confirmed when information was indeed released to them – appeared not to have had any impact on their opportunities to exercise their rights under either Article 10 or Article 11. They had at all times been free to hold and express their political or other opinions. It was not supported by the facts of the present case that their opportunities to enjoy freedom of association had in any way been impaired. Therefore the Government maintained that there had been no interference with their rights under Articles 10 and 11 and requested the Court to declare their complaints under those Articles inadmissible as being manifestly ill-founded.
As regards the third applicant, in respect of whom security checks had resulted in his transfer to another post within the same company, the Government reiterated that he had failed to exhaust domestic judicial remedies as stated above. In any event, the Government invited the Court to follow the same approach as in the above-cited Leander judgment (pp. 28-29, paragraphs 72-73) and to hold that the repercussions on the applicant’s employment situation lay at the heart of the case and did not amount to a restriction of either his freedom to express his opinions or his freedom of association. On that basis, they asked the Court to reject this part of the application as being manifestly ill-founded.
The Court, for its part, considers that the applicants’ complaints under Articles 10 and 11, as submitted under the Convention, relate essentially to the adverse effects on their political freedoms caused by the storage of information on them in the Secret Police register. Having regard to the parties’ submissions, it considers that these complaints raise complex issues of law and fact 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 § 1 of the Convention. No other grounds for declaring the said complaints inadmissible have been established.
C. The complaints under Article 13 of the Convention
The applicants further complained that no effective remedy existed under Swedish law with respect to the above violations. This was contrary to Article 13 of the Convention which provides:
“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.”
Apart from arguing that the relevant Swedish law on data registration was vague and that the safeguards against improper data entry were inadequate, the applicants submitted, in particular, that Swedish law did not provide for a judicial remedy enabling aggrieved parties to have the files destroyed. They further alleged that the standardised reasoning the national courts gave when rejecting their request for full access to their respective files had been arbitrary and even stigmatising.
The Government disputed that the applicants had an arguable claim for the purposes of Article 13 and requested the Court to declare their complaints in this respect inadmissible ratione materiae. In the alternative, were the Court to come to a different conclusion, they invited it to declare this part of the application inadmissible as being manifestly ill-founded.
In so far as the applicants could be deemed to have arguable claims when it came to the correction and destruction of information held by the Security Service, the Government had already pointed out the available remedies. They could have complained – but had failed to do so – to the Data Inspection Board in order to obtain appropriate measures.
In so far as the applicants had also complained of a lack of opportunity to seek compensation for any grievances resulting from the storage of information on them by the Security Service, they had had the opportunity to (1) lodge complaints with the Chancellor of Justice, (2) institute judicial proceedings under the Tort Liability Act or (3) claim – also within the framework of judicial proceedings – damages under the Personal Data Act. None of the applicants appeared to have made use of any of those remedies.
The Court, having regard to the parties’ submissions, considers that these complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the complaints. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 1 of the Convention. No other grounds for declaring the said complaints inadmissible have been established.
For these reasons, the Court unanimously
Declares inadmissible the complaints about the alleged adverse effects of personnel security checks on the applicants’ careers.
Declares the remainder of the application admissible, without prejudging the merits of the case.
S. Naismith J.-P. Costa
Deputy Registrar President
SEGERSTEDT-WIBERG AND OTHERS v. SWEDEN DECISION
SEGERSTEDT-WIBERG AND OTHERS v. SWEDEN DECISION