Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger

The applicant , Mr ORG - PERSON , is a NORP national who was born in DATE and lives in PERSON . He is represented before the ORG by Mr PERSON - Cosack , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON , PERSON , of ORG .

The applicant had been practising as a lawyer since DATE and as a notary since DATE .

On DATE the President of ORG ( Oberlandesgericht ) opened formal disciplinary proceedings against him on suspicion of official misconduct involving a large number of failures to honour his notarial duties DATE .

Consequently , on DATE the President of ORG provisionally removed the applicant from the office of notary . Given the nature and seriousness of the alleged misconduct , the President considered that there was a risk that the interests of individuals in need of legal advice would be adversely affected if the applicant continued to pursue his notarial activities . On DATE the applicant challenged that decision before ORG . On DATE that court confirmed his provisional removal from office . On DATE ORG ( ORG ) dismissed the applicant 's appeal against this decision .

DATE and DATE the President of ORG heard CARDINAL witnesses . On DATE the applicant was informed that the taking of evidence was terminated and granted a DATE time - limit to submit comments , which was later extended on the applicant 's request until DATE . On DATE the report on the preliminary investigations was finalised .

On DATE the President of ORG finalised the charges and accused the applicant of CARDINAL violations of his professional duties , inter alia , of falsely certifying contracts , of creating an appearance of partiality and dependence in certifying a great number of contracts and of assisting in activities with clearly dishonest aims .

On DATE the applicant suggested that the disciplinary proceedings be suspended pending criminal investigations .

On DATE the President of ORG requested the court to decline to suspend the proceedings .

On DATE ORG stayed the disciplinary proceedings in accordance with LAW of ORG ( see “ Relevant domestic law ” below ) with respect to the then ongoing criminal proceedings concerning the same facts .

In criminal proceedings , on DATE , the prosecution filed the bill of indictment with ORG ( Amtsgericht ) .

On DATE the President of ORG requested ORG to resume the disciplinary proceedings , arguing that the applicant 's ongoing provisional removal from office since ORG could infringe the principle of proportionality .

On DATE the applicant requested ORG to annul its decision regarding his provisional removal from office . He further requested the court not to resume the suspended proceedings .

On DATE ORG rejected the President 's request to resume the proceedings .

On DATE ORG found for the applicant . It held that , in view of the length of the proceedings ( DATE and DATE so far ) and the unlikelihood that permanent removal from office would be imposed as a disciplinary penalty , the ongoing provisional removal from office was disproportionate .

On DATE the ORG convicted the applicant of CARDINAL counts of abetment to fraud and imposed a fine of QUANTITY ( ORG ) per day for DATE , taking into account as a mitigating factor that the applicant had lost his office as a notary and hence his source of income .

The applicant continued to practise as a notary until DATE when ORG quashed ORG decision of DATE . ORG found that the disciplinary proceedings had not been protracted . The fact that the proceedings came to a standstill on DATE had been the result of ORG obligation under LAW of ORG to suspend the disciplinary proceedings while the criminal proceedings were pending . Even taking into account the considerable duration of the still pending criminal proceedings , ORG refusal to resume the suspended disciplinary proceedings did not yet overstep that court 's margin of appreciation . The duration of the proceedings , which had been pending for DATE and DATE , did not justify as such the conclusion that the continuation of the provisional removal was disproportionate . Given the gravity of his alleged misconduct and the great number of accusations , the applicant 's conduct had severely endangered the sound administration of justice . The applicant , who had admitted the facts , continued to maintain that his behaviour had been compatible with his notarial duties . Therefore , it could not be ruled out that he would continue to breach his duties if he was allowed to pursue his official functions as a notary . Finally , the court considered that it was very likely that the disciplinary proceedings would end with the applicant 's permanent removal from office .

By way of a separate decision , also issued on DATE , ORG rejected the President of ORG complaint against the refusal to resume the disciplinary proceedings as inadmissible . The court considered , however , that the length of the proceedings obliged ORG to observe special diligence . It considered that the disciplinary proceedings had to be resumed without awaiting the outcome of the criminal proceedings if the latter proceedings on the applicant 's appeal were not terminated by DATE .

On DATE ORG ( Bundesverfassungsgericht ) refused to admit the applicant 's constitutional complaint against ORG decision on his provisional removal from office as there had been no appearance of a violation of the applicant 's fundamental rights .

On DATE ORG ordered the continuation of the disciplinary proceedings .

On DATE following a hearing , ORG decided to permanently remove the applicant from office as he had been found guilty of misconduct , partly through negligence and partly intentional , which involved numerous failures to comply with his professional obligations DATE .

The reasoned judgment with a volume of CARDINAL pages was submitted to the court 's registry on DATE .

On DATE the Lübeck Regional Court ( Landgericht ) , in the criminal proceedings , upon the applicant 's appeal , modified the criminal sentence imposed by ORG , and issued a formal admonishment ( PERSON ) to the applicant while reserving its right to impose a fine . The court considered as mitigating factors that the delays in the criminal proceedings – even taking into account the thorough examination of the facts and the necessity to hear extensive evidence in the first instance proceedings DATE fell within the judiciary 's responsibility .

On DATE the applicant , in order to avoid losing his license to practice as a lawyer , filed a request that he be permanently removed from notary office ; the request was granted on DATE .

Therefore , on DATE ORG discontinued the proceedings in accordance with LAW , CARDINAL of ORG as in force at the material time ( see “ Relevant domestic law ” below ) .

Section CARDINAL of LAW in conjunction with LAW of ORG provides that if criminal proceedings are brought against a notary , disciplinary proceedings instituted on account of the same facts shall be suspended until such time as the criminal proceedings have been concluded . The factual finding of a final judgment in criminal proceedings is binding on the disciplinary panel ( LAW ) .

Section CARDINAL of LAW in conjunction with LAW provides that the authority which institutes disciplinary proceedings against a notary can provisionally remove the latter from office as soon as formal disciplinary proceedings are opened .

According to section CARDINAL of LAW in conjunction with Articles CARDINAL , DATE and DATE of LAW , as in force at the material time , ORG discontinues the disciplinary proceedings if the notary has resigned or has been dismissed .


Violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient

The facts of the case may be summarised as follows .

In DATE , Mr. PERSON , a GPE citizen born in DATE , was convicted in GPE of robbery with violence and was sentenced to DATE imprisonment . In DATE , PERSON was serving his sentence in FAC on LOC .

On TIME of CARDINAL DATE , a serious disturbance occurred in a recreation area of the prison where PERSON happened to be .

On DATE , a prison officer , Mr. PERSON , who had taken part and been injured in quelling the disturbance , made a statement identifying his assailants , in the course of which he declared : " PERSON was screaming ... and PERSON , PERSON and another prisoner whom I know by sight , I think his name is PERSON ... were swinging vicious blows at me . "

On DATE , together with other prisoners suspected of having participated in the disturbance , was segregated from the main body of prisoners . On CARDINAL and DATE , PERSON was interviewed by police officers . At the second of these interviews he was informed that it had been alleged that he had assaulted a prison officer ; he was warned that " the facts would be reported in order that consideration could be given whether or not he would be prosecuted for assaulting a prison officer causing bodily harm " .

PERSON wrote to his Member of ORG on DATE and DATE , and to a Chief Constable on DATE , about the disturbance of DATE and the ensuing hardships it had entailed for him ; the prison governor stopped these letters since PERSON had failed to raise the subject - matter thereof through the authorised channels beforehand .

In a second statement , made on DATE , PERSON qualified as follows what he had said earlier :

" When I mentioned the prisoner PERSON , I said ‘ I think it was Golder’ , who was present with PERSON , PERSON and PERSON , when the CARDINAL latter were attacking me .

" If it was PERSON and I certainly remember seeing him in the immediate group who were screaming abuse and generally making a nuisance of themselves , I am not certain that he made an attack on me .

" Later when PERSON and PERSON grabbed me , PERSON was also present but I can not remember who the other inmate was , but there were several there one of whom stood out in particular but I can not put a name to him . "

On DATE , another prison officer reported that :

" ... during the riot of that night I spent the majority of the time in the T.V. room with the prisoners who were not participating in the disturbance .

DATE , PERSON was in this room with me and to the best of my knowledge took no part in the riot .

His presence with me can be borne out by officer ... who observed us both from the outside . "

PERSON was returned to his ordinary cell DATE .

lCARDINAL . Meanwhile , the prison authorities had been considering the various statements , and on DATE prepared a list of charges which might be preferred against prisoners , including PERSON , for offences against prison discipline . Entries relating thereto were made in PERSON ’s prison record . No such charge was eventually preferred against him and the entries in his prison record were marked " charges not proceeded with " . Those entries were expunged from the prison record in DATE during the examination of the applicant ’s case by ORG .

On DATE , PERSON addressed a petition to the Secretary of ORG for ORG , that is , the ORG Secretary . He requested a transfer to some other prison and added :

" I understand that a statement wrongly accusing me of participation in the events of DATE , made by Officer PERSON , is lodged in my prison record . I suspect that it is this wrong statement that has recently prevented my being recommended by the local parole board for parole .

" I would respectfully request permission to consult a solicitor with a view to taking civil action for libel in respect of this statement .... Alternatively , I would request that an independent examination of my record be allowed by Mrs. PERSON who is magistrate . I would accept her assurance that this statement is not part of my record and be willing to accept then that the libel against me has not materially harmed me except for DATE I spent in the separate cells and so civil action would not be then necessary , providing that an apology was given to me for the libel .... "

In GPE the matter of contacts of convicted prisoners with persons outside their place of detention is governed by LAW , as amended and subordinate legislation made under LAW .

Section CARDINAL , sub - section I , of FAC provides that " the Secretary of ORG may make rules for the regulation and management of prisoners ... and for the ... treatment ... discipline and control of persons required to be detained .... "

The rules made by the Home Secretary in the exercise of this power are the Prison Rules DATE , which were laid before ORG and have the status of a ORG . The relevant provisions concerning communications between prisoners and persons outside prison are contained in Rules DATE and DATE as follows :

" Letters and visits generally

Rule CARDINAL

( CARDINAL ) The Secretary of ORG may , with a view to securing discipline and good order or the prevention of crime in the interests of any persons , impose restrictions , either generally or in a particular case , upon the communications to be permitted between a prisoner and other persons .

( CARDINAL ) Except as provided by statute or these Rules , a prisoner shall not be permitted to communicate with any outside person , or that person with him , without the leave of the Secretary of ORG .

Personal letters and visits

Rule CARDINAL

( CARDINAL) A prisoner shall not be entitled under this Rule to communicate with any person in connection with any legal or other business , or with any person other than a relative or friend , except with the leave of the Secretary of ORG .

Legal advisers

Rule CARDINAL

( CARDINAL ) The legal adviser of a prisoner in any legal proceedings , civil or criminal , to which the prisoner is a party shall be afforded reasonable facilities for interviewing him in connection with those proceedings , and may do so out of hearing but in the sight of an officer .

( CARDINAL ) A prisoner ’s legal adviser may , with the leave of the Secretary of ORG , interview the prisoner in connection with any other legal business in the sight and hearing of an officer . "

On DATE , ORG directed the prison governor to notify ORG reply to his petition of DATE as follows :

" The Secretary of ORG has fully considered your petition but is not prepared to grant your request for transfer , nor can he find grounds for taking any action in regard to the other matters raised in your petition . "

Before the Commission , PERSON submitted CARDINAL complaints relating respectively to the stopping of his letters ( as mentioned above at paragraph CARDINAL ) and to the refusal of the Home Secretary to permit him to consult a solicitor . On DATE , the Commission declared the first complaint inadmissible , as all domestic remedies had not been exhausted , but accepted the second for consideration of the merits under Articles CARDINAL para . CARDINAL and CARDINAL ( article DATE , article CARDINAL) of the Convention .

PERSON was released from prison on parole on DATE .

In their report , the ORG expressed the opinion :

- unanimously , that LAW para . CARDINAL ( article CARDINAL ) guarantees a right of access to the courts ;

- unanimously , that in LAW CARDINAL ( article CARDINAL ) , whether read alone or together with other Articles of the LAW , there are no inherent limitations on the right of a convicted prisoner to institute proceedings and for this purpose to have unrestricted access to a lawyer ; and that consequently the restrictions imposed by the present practice of the GPE authorities are inconsistent with Article CARDINAL para . CARDINAL ( article CARDINAL ) ;

- by CARDINAL votes to CARDINAL , that Article CARDINAL para . CARDINAL ( article LAW ) is applicable to the facts of the present case ;

- that the same facts which constitute a violation of LAW para . CARDINAL ( article CARDINAL ) constitute also a violation of LAW article CARDINAL) ( by CARDINAL votes to one , as explained to the ORG by ORG on DATE ) .

The ORG furthermore expressed the opinion that the right of access to the courts guaranteed by Article CARDINAL para . CARDINAL ( article CARDINAL ) is not qualified by the requirement " within a reasonable time " . In the application bringing the case before ORG , the Government made objection to this opinion of the Commission but stated in their memorial that they no longer wished to argue the issue .

The following final submissions were made to ORG at the oral hearing on DATE in the afternoon .

- for the Government :

" ORG respectfully submit to ORG that Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW does not confer on the applicant a right of access to the courts , but confers only a right in any proceedings he may institute to a hearing that is fair and in accordance with the other requirements of the paragraph . The ORG submit that in consequence the refusal of ORG to allow the applicant in this case to consult a lawyer was not a violation of LAW ) . In the alternative , if the ORG finds that the rights conferred by LAW ) include in general a right of access to courts , then ORG submit that the right of access to the courts is not unlimited in the case of persons under detention , and that accordingly the imposing of a reasonable restraint on recourse to the courts by the applicant was permissible in the interest of prison order and discipline , and that the refusal of ORG to allow the applicant to consult a lawyer was within the degree of restraint permitted , and therefore did not constitute a violation of LAW .

ORG further submit that control over the applicant ’s correspondence while he was in prison was a necessary consequence of the deprivation of his liberty , and that the action of ORG was therefore not a violation of Article CARDINAL para . CARDINAL ( article LAW ) , and that the action of ORG in any event fell within the exceptions provided by Article CARDINAL para . CARDINAL ( article LAW ) , since the restriction imposed was in accordance with law , and it was within the power of appreciation of the Government to judge that the restriction was necessary in a NORP society for the prevention of disorder or crime .

In the light of these submissions , Mr. President , I respectfully ask this honourable ORG , on behalf of ORG , to hold that ORG have not in this case committed a breach of LAW CARDINAL ( article CARDINAL) of ORG . "

- for the Commission :

" The questions to which the ORG is requested to reply are the following :

( CARDINAL ) Does Article CARDINAL para . CARDINAL ( article CARDINAL ) of LAW secure to persons desiring to institute civil proceedings a right of access to the courts ?

( CARDINAL ) If Article CARDINAL para . CARDINAL ( article CARDINAL ) secures such a right of access , are there inherent limitations relating to this right , or its exercise , which apply to the facts of the present case ?

( CARDINAL ) Can a convicted prisoner who wishes to write to his lawyer in order to institute civil proceedings rely on the protection given in DATE ( article CARDINAL) of the LAW to respect for correspondence ?

( CARDINAL ) According to the answers given to the foregoing questions , do the facts of the present case disclose the existence of a violation of LAW CARDINAL ( article CARDINAL , article CARDINAL) of ORG ? "


Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in FAC . He is represented before ORG by Odvetniška Družba Matoz D.O.O. , a law firm practising in PERSON .

ORG ( “ the Government ” ) are represented by their Agent , PERSON , ORG Attorney .

The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant has been serving a sentence in the closed section of Dob Prison since DATE .

As regards the facilities available to the applicant in the cells and common areas , as well as the health care regime in the prison , the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world in general , see the ORG ’s decision in the case of PERSON and PERSON v. GPE ( dec . ) , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , ORG , CARDINAL/CARDINAL , ORG , CARDINAL , ORG , CARDINAL/CARDINAL and DATE .

DATE and DATE the applicant was held in a cell no CARDINAL , Block CARDINAL which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space available to each inmate ) . Afterwards he was moved to a single cell no CARDINAL , Block CARDINAL which measured QUANTITY .

The applicant had his initial psychological examination on DATE where he was informed of the option to ask for psychological help at any time . Since then he was treated by a psychologist on DATE and DATE . According to the report by the prison clinic dated CARDINAL DATE the applicant was from CARDINAL DATE treated on CARDINAL occasions for different health problems . According to the medical report dated DATE he received psychiatric assistance on CARDINAL occasions from DATE to DATE and was receiving antidepressants due to his chronic depression ; however he refused to attend an examination on DATE . He often underwent psychiatric control due to his suicidal thoughts . As he was suspected of being a suicide risk , he was intensively monitored in DATE , invited to a session with a psychologist and was referred to a psychiatrist . He was offered to be placed in a clinic room , however he refused that . According to the Government ’s submissions dated DATE he never asked for a dental examination .

For the relevant domestic law and practice , see paragraphs CARDINAL and CARDINAL - CARDINAL of the ORG ’s judgment in the case of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL , CARDINAL DATE ) , and paragraphs CARDINAL of ORG and PERSON GPE ( nos . CARDINAL/CARDINAL and CARDINAL , DATE ) , PERSON and Others , cited above , as well as PERSON v. GPE ( no . CARDINAL/CARDINAL , CARDINAL DATE ) and PERSON v. GPE ( no . MONEY , DATE ) .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant was born in DATE and lives in PERSON .

In DATE the applicant 's legal predecessor , his great - grandfather Mr PERSON , lodged an application under LAW of DATE on real property in GPE for temporary ownership of a plot of land situated in GPE . This application remained unanswered .

In DATE ORG declared that the applicant had acquired CARDINAL of his late great - grandfather 's estate and had thereby become his legal successor .

On DATE the applicant , together with his mother , Ms Z. Berent - Derda , another legal successor of PERSON , reiterated the request submitted in DATE .

In DATE ORG of GPE ( Zarząd Związku Dzielnic - PERSON ) , by a decision of DATE , declared that ownership of the property concerned had been acquired by GPE . The applicant and PERSON appealed , pointing out that the decision was unlawful because the request submitted in DATE and reiterated in DATE had already been pending before the authorities at that time .

On DATE ORG of GPE found that it was not competent to examine the case . The case file was subsequently transmitted , on DATE , to ORG . Warszawy ) .

On DATE the Board of GPE examined the request and dismissed it in its part concerning a surface area of QUANTITY . Apparently the plot had been divided , on an unspecified DATE , into CARDINAL parts , the other part covering QUANTITY , with ORG listed as its owner in the local land register . The applicant appealed . On DATE ORG ( PERSON ) quashed the contested decision and remitted the case .

On DATE the applicant and his mother complained to ORG about ORG failure to issue a decision regarding the plot of QUANTITY . On DATE they submitted an identical complaint , concerning the area of QUANTITY . On DATE ORG , in reply to the complaint of DATE , fixed a time - limit for a decision on the merits to be given by ORG within DATE . On DATE the applicant and his mother reiterated their complaint .

NORP On DATE ORG of Appeal quashed the decision of DATE ( see paragraph CARDINAL above ) by which the ownership of the plot had been given to GPE . On DATE the Mayor requested the ORG to reconsider the case .

By a decision dated DATE , ORG found that the applicant 's complaint of DATE about the excessive length of the proceedings in the part concerning the establishing of ownership of the plot was unfounded as the first - instance authority was conducting investigatory proceedings .

On DATE ORG dismissed the applicant 's complaint concerning the GPE 's ORG failure to issue a decision .

On DATE PERSON complained to ORG about the authorities ' failure to give a decision on the merits of the case . On DATE the ORG fixed the time - limit for giving a decision on the merits of the case for DATE .

On DATE ORG scheduled for DATE a hearing to be held in the proceedings instituted by the complaint about the authorities ' failure to give a decision on the merits .

On DATE ORG ( ORG st . ORG ) stayed the proceedings , having regard to the fact that the proceedings to establish the owner of the property were pending . The applicant appealed .

On DATE ORG examined the applicant 's mother 's complaint about the authorities ' failure to give a decision . It noted that as the proceedings had been stayed by a decision of DATE , it could not be said that the authorities had failed to act in the case . The proceedings instituted by the complaint were therefore discontinued .

Subsequently , the proceedings concerning the merits of the case were resumed on an unspecified date .

On DATE , CARDINAL DATE and DATE ORG of Appeal requested the Mayor to show that he had standing to be a party to the proceedings , concerning the ownership of the plot by FAC . There was no reply to these requests .

On DATE the Mayor withdrew his request for the case to be reconsidered . Accordingly , on DATE ORG discontinued the proceedings . The decision of DATE ( see paragraph CARDINAL above ) became final .

On DATE the applicant 's mother complained to ORG about the first - instance authority 's failure to issue a decision . She reiterated her complaint on DATE and CARDINAL DATE .

On DATE the Mayor of GPE again stayed the proceedings , having regard to the fact that in the absence of a valid land development plan for the city it was impossible to decide on the applicant 's request .

The applicant appealed . By decisions of CARDINAL and DATE ORG of Appeal quashed the decision to stay the proceedings , holding that the lack of the local land development plan was not a valid reason for the proceedings to be stayed . The Mayor appealed . On DATE ORG rejected his appeal .

On DATE the applicant and his mother submitted to ORG their request for a decision ordering the firstinstance authority to decide the case . On DATE they requested that court to impose a fine on the Mayor for her failure to act diligently in the case .

On DATE the Mayor dismissed the applicant 's motion for the property to be restored to the applicant , his mother and other heirs of Mr ORG .

On DATE ORG examined the complaints lodged with it on DATE and refused to impose a fine on the Mayor , having observed that in the meantime the decision on the merits had been given on DATE and that a fine should serve a disciplinary , not punitive , purpose .

NORP The Mayor 's decision on the merits of the case , given on DATE ( see paragraph CARDINAL above ) was quashed on DATE by ORG and the case remitted for reconsideration . ORG observed that the Mayor had obviously not shown any willingness to deal with the case in an appropriate manner and that the contested decision was in breach of LAW ( see paragraph CARDINAL above ) . The applicant appealed , arguing that the second - instance authority should have decided on the merits of the case and that the proceedings had lasted an unreasonably long period of time .

On DATE the applicant withdrew his complaint of DATE ( see paragraph CARDINAL above ) about the authorities ' failure to decide the case , having regard to the fact that after the decision on the merits of his request , given on DATE , the complaint about the failure to act had become devoid of purpose .

On DATE ORG dismissed the applicant 's appeal against the decision of DATE ( see paragraph CARDINAL above ) .

On DATE the applicant again complained to ORG about the Mayor 's failure to issue a decision on the merits of his request . On DATE the ORG found that the complaint was wellfounded and ordered the Mayor to give a decision within DATE .

On DATE the Mayor of GPE again refused to allow the applicant 's request to be granted the right of perpetual use in respect of the property concerned . The applicant appealed . On DATE ORG of Appeal quashed the contested decision , having noted again that it violated the substantive provisions of LAW , and ordered that the merits of the case be reexamined .

By a subsequent decision of DATE the Mayor granted the applicant and his mother a right to perpetual use in respect of the part of the plot concerning a surface area of QUANTITY . GPE appealed .

On DATE ORG found that the Enterprise had no standing in the proceedings . It held that therefore the decision of DATE was the final decision in the proceedings .

On DATE the Enterprise appealed against this decision to ORG .

On DATE ORG dismissed its appeal .

The relevant domestic law is summarised in detail in the judgment PERSON v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Inapplicable (Article 10-1 - Freedom of expression);Inapplicable (Article 8-1 - Respect for private life;Article 8-2 - Interference)

Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Jean-Paul Costa;Karel Jungwiert;Kristina Pardalos;Ledi Bianku;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

He is a professor , specialising in child and adolescent psychiatry , at ORG .

In the period DATE a research project was carried out at ORG in the field of neuropsychiatry , focusing on cases of ORG ) or Deficits in Attention , ORG ( DAMP ) in children . The aim was to elucidate the significance thereof and associated problems from a long - term perspective . Parents to a group of CARDINAL and fortyone preschool children volunteered to participate in the study , which was followed up DATE . Certain assurances were made to the children ’s parents and later to the young people themselves concerning confidentiality . The research file , called the GPE study , was voluminous and consisted of a large number of records , test results , interview replies , questionnaires and video and audio tapes . It contained a very large amount of privacy - sensitive data about the children and their relatives . Several doctoral theses have been based on the GPE study . The material was stored by ORG , of which the applicant was director . The project was originally set up and started by other researchers but the applicant subsequently took over responsibility for completing the study .

NORP The applicant alleged that ORG of ORG had made it a precondition in their permits that sensitive information about the individuals participating in the study would be accessible only to the applicant and his staff and that he had therefore promised absolute confidentiality to the patients and their parents . That fact was disputed by the Government .

Two permits were issued by ORG of ORG , on DATE and CARDINAL DATE respectively , consisting of CARDINAL page each and indicating , among other things , the dates of application ( respectively CARDINAL DATE and DATE ) , the researchers involved in the project , the name of the project and the date of approval ; they bore the signatures of the chairman and the secretary of ORG . They contained no specific requirements and no reference to “ secrecy ” or “ absolute secrecy ” .

In a letter of CARDINAL DATE to the parents of the children participating in the study , the applicant stated , inter alia :

“ All data will be dealt with in confidentiality and classified as secret . No data processing that enables the identification of your child will take place . No information has been provided previously or will be provided to teachers about your child except that when starting school she / he took part in a study undertaken by ORG , and its present results will , as was the case for the previous study DATE , be followed up . ”

A later undated letter from the applicant to the participants in the study included the following wording :

NORP In DATE a sociologist , K , requested access to the background material . She was a researcher at ORG and maintained that it was of great importance to have access to the research material and that it could , without risk of damage , be released to her with conditions under LAW , section CARDINAL , of LAW ( Sekretesslagen ; SFS CARDINAL:CARDINAL ) . She had no interest in the personal data as such but only in the method used in the research and the evidence the researchers had for their conclusions . Her request was refused by ORG on DATE because K had not shown any connection between the requested material and any research , and on the ground that the material contained data on ORG health status which , if disclosed , might harm an individual or persons related to that individual . An appeal against the decision was lodged with ORG ( ORG ) , which referred the matter to ORG to examine whether the material could be released after removal of identifying information or with a condition restricting ORG right to pass on or use the data . ORG again refused the request on DATE , on the ground that the data requested was subject to secrecy , that there was no possibility of releasing the material after removal of identifying information , nor was there sufficient evidence to conclude that the requested material could be released with conditions . K again appealed against the decision to ORG .

In the meantime , in DATE , a paediatrician , E , also requested access to the material . He submitted that he needed to keep up with current research , that he was interested in how the research in question had been carried out and in clarifying how the researchers had arrived at their results , and that it was important to the neuropsychiatric debate that the material should be exposed to independent critical examination . His request was refused by ORG on DATE , for the same reasons as its refusal to K , a decision against which E appealed to ORG .

By CARDINAL separate judgments of DATE , ORG found that K and E had shown a legitimate interest in gaining access to the material in question and that they could be assumed to be well acquainted with the handling of confidential data . Therefore , access should be granted to K and E , but subject to conditions made by ORG in order to protect the interests of the individuals concerned in accordance with various named provisions of LAW .

ORG request to ORG ( Regeringsrätten ) for relief for substantive defects ( resning ) was refused on DATE .

In vain the applicant and some of the individuals participating in the study also applied to ORG for relief for substantive defects . Their requests were refused on DATE , CARDINAL May and CARDINAL DATE respectively , because they were not considered to be party to the case ( bristande talerätt ) .

In the meantime , on DATE ORG decided that , “ provided that the individuals concerned gave their consent ” , the documents would be released to K and E with conditions specified in detail in the decisions .

K and E appealed against certain of the conditions imposed by ORG . They also reported ORG handling of the case to ORG , which in decisions of DATE criticised ORG , notably regarding the delays in replying to the request for access .

In CARDINAL separate judgments of CARDINAL DATE , ORG lifted some of the conditions imposed by the university . It pointed out that in the judgments of DATE K and E had already been given the right of access to the requested documents and that the only matter under examination was the conditions of access , which could only be imposed if they were designed to remove a given risk of damage , and that a condition should be framed to restrict the recipient ’s right of disposal over the data . Thereafter , CARDINAL conditions were set regarding ORG access , including that the data was only to be used within ORG funded research project called “ The neurological paradigm : on the establishment of a new grand theory in GPE ” which K had specified before ORG , that she was not allowed to remove copies from the LOC where she was given access to the documents , and that transcripts of released documents containing data on psychological , medical or neurological examinations or treatment , or concerning the personal circumstances of individuals , and notes concerning such examinations , treatment or circumstances from a document released to her , would be destroyed when the above research project was completed and at the latest by DATE . CARDINAL similar conditions were also imposed on E , including that data in the released documents referring to psychological , medical , psychiatric or neurological examinations or treatment , and data in the released documents concerning the personal circumstances of an individual , was to be used for examination of how the researchers who participated in the research project in which the documents had been used had arrived at their results and conclusions , and so that E could generally maintain his competence as a paediatrician .

ORG did not have a right to appeal against the judgments and on DATE the applicant ’s request to ORG for relief for substantive defects was refused because he was not considered to be a party to the case .

In the meantime , in a letter of CARDINAL DATE to the applicant , the NORP of the university stated that , by virtue of the judgments of ORG , K and E were entitled to immediate access to the documents on the conditions specified . Furthermore , by decision of the university , K and E were to be given access to the documents on the university ’s premises on a named street and the documents therefore had to be moved there from ORG without delay . The letter stated that the transportation of the documents was to begin on DATE at TIME The applicant was requested to arrange for the documents to be available for collection at that time and , if necessary , to ensure that all the keys to the rooms where the material was kept were delivered to a person P.

The applicant replied in a letter of CARDINAL DATE that he did not intend to hand over either the material or the keys to the filing cabinets to P. On DATE the Vice - Chancellor had a meeting with the applicant .

On instruction by the Vice - Chancellor , on DATE P visited ORG . He was met by controller L , who handed him a document showing that L had been instructed by the applicant not to release either the material in question or the keys to the filing cabinets .

By letter of DATE the Vice - Chancellor of ORG informed K and E that since the applicant refused to transfer the material for the present he could not help them any further and that he was considering bringing the applicant before ORG ( Statens ansvarsnämnd ) on grounds of disobedience .

On DATE the applicant had a meeting with the Vice - Chancellor of ORG about the case . Moreover , in DATE the applicant and various persons corresponded with the ORG , including a professor of jurisprudence and Assistant Director General of ORG who questioned the judgments of ORG , which prompted the Vice - Chancellor to consider whether it would be possible to impose new conditions on K and PERSON The case was discussed within ORG and subsequently , by decision of DATE , ORG decided to refuse to grant access to K because , in the light of a memorandum drawn up on DATE by ORG , there was no connection between ORG research and the research project that she had specified before ORG . Likewise , in a decision of DATE the university decided to impose a new condition on E before giving him access . It stated that it had reason to believe that E ’s activities and position did not justify giving him access to the material , even subject to restrictions . E thus had to demonstrate that his duties for the municipality included reviewing or otherwise acquiring information about the basic material on which the research in question was based .

The decisions were annulled by ORG by CARDINAL separate judgments of CARDINAL DATE .

The applicant ’s request to ORG for relief for substantive defects was refused on DATE and DATE , because he was not considered to be party to the case .

In the meantime , according to the applicant , the research material was destroyed during DATE of CARDINAL and CARDINAL DATE by CARDINAL of his colleagues .

On DATE ORG decided to initiate criminal proceedings against the applicant and by a judgment of DATE ORG ( ORG ) convicted the applicant of misuse of office pursuant to LAW , LAW ( ORG ) . The applicant was given a suspended sentence and ordered to pay CARDINAL day - fines of MONEY ( SEK ) , amounting to a total of SEK CARDINAL , ( MONEY ( ORG ) .

The Vice - Chancellor of the university was also convicted of misuse of office for having disregarded , through negligence , his obligations as Vice - Chancellor by failing to ensure that the documents were available for release as ordered in accordance with the judgments of ORG . The Vice - Chancellor was sentenced to CARDINAL dayfines of QUANTITY , amounting to a total of SEK CARDINAL,CARDINAL ( approximately EUR CARDINAL ) .

The Parliamentary Ombudsman also decided to initiate criminal proceedings against ORG , but the charges were later dismissed .

Finally , by a judgment issued on DATE , the CARDINAL officials who had destroyed the research material were convicted of the offence of suppression of documents and given a suspended sentence and fined .

On appeal , on DATE the applicant ’s conviction and sentence were upheld by ORG NORP ) in the following terms :

General observations on the university ’s management of the case

“ In its CARDINAL initial judgments of DATE ORG held that K and E were entitled to have access to the documents requested . In its CARDINAL subsequent judgments of CARDINAL DATE ORG decided on the conditions that would apply in connection with the release of the documents to them . The judgments of ORG had therefore settled the question of whether the documents were to be released to K and E once and for all .

At the hearing in ORG , the university had the opportunity to present reasons why the documents requested should not be released to K and E. Once the judgments , against which no appeal could be made , had been issued in DATE , whether or not the university considered that they were based on erroneous or insufficient grounds had no significance . After the DATE judgments the university was only required to formulate the conditions it considered necessary to avoid the risk of any individuals sustaining harm through the release of the documents . Subsequently the university had the opportunity to present its arguments to ORG for the formulation of the conditions it had chosen . After ORG had determined which conditions could be accepted , the question of the terms on which [ K and E ] could be allowed access to the documents requested was also settled once and for all . There was then no scope for the university to undertake any new appraisal of ORG and E ’s right of access to the documents .

Therefore , in the period referred to in the indictment [ from DATE until DATE ] it was no longer the secrecy legislation that was to be interpreted but the judgments of ORG . Their contents were clear . [ The Vice - Chancellor ’s ] letters of DATE to [ the applicant ] and of CARDINAL DATE to K and E show that the university administration had understood that it was incumbent on the university to release the documents without delay .

The promptness required by LAW in responding to a request for access to a public document should in itself have caused the university to avoid measures leading to further delay in releasing the documents . Despite this , in its interpretation of the conditions and in laying down additional conditions , the university made it more difficult for K and E to gain access to the documents . ”

The applicant ’s liability

“ The prosecutor has maintained that after the judgments of ORG of CARDINAL DATE and until DATE , when the material is said to have been destroyed , [ the applicant ] in his capacity as head of ORG , wilfully disregarded the obligations of his office by failing to comply with the judgments of ORG and allow [ E and K ] access to the documents . According to the indictment , [ the applicant ] in so doing not only refused to hand over the documents in person but also refused to make them available to the university administration .

The research material was the property of the university and hence to be regarded as in the public domain . It was stored in ORG , where [ the applicant ] was the head . [ The Vice - Chancellor ’s ] letter of DATE , to which copies of the judgments of ORG relating to the conditions were attached , made it clear to [ the applicant ] that the material in question must be released . As head of the department , [ the applicant ] was responsible for making the material available to [ K and E ] . [ The applicant ’s ] awareness of his immediate responsibility is revealed not least by the instructions that he gave to [ L ] before the visit of [ P ] not to allow the university administration access to the material . It is also shown by [ the applicant ’s ] written reply on DATE to [ the Vice - Chancellor ] .

Through [ the Vice - Chancellor ] the university had instructed [ the applicant ] to release the material to the university , so that it could be moved to premises where K and E could examine it . In view of this , ORG , like ORG , does not consider that [ the applicant ] can be held culpable because he refused to hand over the documents in person . However , it was incumbent upon him to make the documents available for removal in accordance with the instructions he had received from the university .

[ The applicant ] has protested that he did not consider that there was any serious intent behind the instruction he received from the [ Vice - Chancellor ] on DATE . Here he has referred in particular to the meeting on DATE and to the fact that P did not follow up his visit to the department and that he received no new directive to make the material available .

[ The Vice - Chancellor ] , however , has stated that on no occasion did he withdraw the instructions issued on DATE , and that it must have been quite clear to [ the applicant ] that they continued to apply , even though they were not explicitly repeated . According to the Vice - Chancellor , nothing transpired at the meeting on DATE that could have given [ the applicant ] the impression that these instructions no longer applied or that they were not intended seriously . [ The Vice - Chancellor ’s ] statement in this respect has been confirmed by the Director at the Vice - Chancellor ’s office , W. It is further borne out by the fact that after the meeting on DATE W was given the task of drawing up a complaint to ORG for Higher Officials on the subject of [ the applicant ’s ] refusals and that the latter was aware that a complaint of this kind was being considered . In addition , it can be seen from a number of e - mails from [ the applicant ] to [ the Vice - Chancellor ] that during the entire autumn he considered that he was required to hand over the documents and that he maintained his original refusal to obey his instructions . It has also been shown that when ORG met on DATE , [ the Vice - Chancellor ] was still considering making a complaint to ORG . Finally , [ a witness , AW ] has testified that at a meeting with [ the applicant ] shortly after DATE , when asked whether he still persisted in his refusal , he confirmed that this was the case .

All things considered , ORG finds that it has been shown that [ the applicant ] was aware that the instructions to make the material available to the administration applied during the entire period from when he learnt about the judgments of ORG on DATE . It was incumbent on him to take the action required to comply with the judgments .

[ The applicant ] has stated that he was never prepared to participate in the release of the documents to K and PERSON His actions were , in other words , intentional and their result was that K and E were categorically denied a right that is guaranteed by the LAW and that is also of fundamental importance in principle . All things considered , ORG finds that [ the applicant ’s ] conduct means that he disregarded the obligation that applied to him as head of department in such a manner that the offence of misuse of office should be considered . [ The applicant ] has however also objected that his conduct should be regarded as excusable in view of the other considerations that he had to bear in mind .

He has thus claimed that in the situation that had arisen he was prevented by medical ethics and research ethics from disclosing information about the participants in the study and their relatives . He referred in particular to international declarations drawn up by ORG and to the Convention .

The nature of the international declarations agreed on by ORG is not such as to give them precedence over NORP law . [ The applicant ’s ] objections on the basis of the contents of these declarations therefore lack significance in this case .

LAW lays down that everyone has the right to respect for his or her private and family life , and that this right may not be interfered with by a public body except in certain specified cases . The provisions of LAW are intended , in accordance with LAW , to protect individuals from the disclosure to others of information about their personal circumstances in cases other than those that can be regarded as acceptable with regard to the right to insight into the workings of the public administration . These regulations must be considered to comply with the requirements of the LAW , and the judgments of ORG lay down how they are to be interpreted in this particular case . [ The applicant ’s ] objection that his conduct was excusable in the light of the LAW can not , therefore , be accepted .

[ The applicant ] has also asserted that he risked criminal prosecution for breach of professional secrecy if he released the documents to [ K and E ] . However , the judgments of ORG determined once and for all that the secrecy LAW permitted release of the documents . For this reason there was of course no possibility of prosecution for breach of professional secrecy , which , in the opinion of ORG , [ the applicant ] must have realised .

[ The applicant ] has also stated that he was bound by the assurances of confidentiality he had given to the participants in the study in accordance with the requirements established for the research project . The assurances were given in DATE , in the following terms : “ All data will be dealt with in confidence and classified as secret . No data processing that enables the identification of your child will take place . No information has been provided previously or will be provided to teachers about your child except that when starting school she / he took part in a study undertaken by ORG and its present results will , as was the case for the previous study DATE , be followed up . ” A later assurance of confidentiality had the following wording : “ Participation is of course completely voluntary and as on previous occasions you will never be registered in public data records of any kind and the data will be processed in such a way that nobody apart from those of us who met you and have direct contact with you will be able to find out anything at all about you . ”

The assurances of confidentiality given to the participants in the study go , at least in some respects , further than the Secrecy Acts permits . ORG notes that there is no possibility in law to provide greater secrecy than follows from LAW and that it is not possible to make decisions on issues concerning confidentiality until the release of a document is requested . It follows therefore that the assurances of confidentiality cited above did not take precedence over the law as it stands or a court ’s application of the statutes . [ The applicant ’s ] objections therefore have no relevance in assessing his criminal liability .

Finally , [ the applicant ] has claimed that his actions were justifiable in view of the discredit that NORP research would incur and the decline in willingness to participate in medical research projects that would ensue if information submitted in confidence were then to be disclosed to private individuals . ORG notes that there are other possibilities of safeguarding research interests , for example by removing details that enable identification from research material so that sensitive information can not be divulged . What [ the applicant ] has adduced on this issue can not exonerate him from liability .

[ The applicant ’s ] actions were therefore not excusable . On the contrary , for a considerable period he failed to comply with his obligations as a public official arising from the judgments of ORG . His offence can not be considered a minor CARDINAL . [ The applicant ] shall therefore be found guilty of misuse of office for the period after DATE , when he was informed of the judgments of ORG . The offence is a serious one as [ the applicant ] wilfully disregarded the constitutional right of access to public documents . On the question of the sentence , ORG concurs with the judgment of ORG .

Leave to appeal to ORG was refused on DATE .

The principle of public access to official documents ( offenlighetsprincipen ) has a history of DATE in GPE and is CARDINAL of the cornerstones of NORP democracy . CARDINAL of its main characteristics is the constitutional right for everyone to study and be informed of the contents of official documents held by the public authorities . This principle allows the public and the media to exercise scrutiny of the ORG , the municipalities and other parts of the public sector which , in turn , contributes to the free exchange of opinions and ideas and to efficient and correct management of public affairs and , thereby , to maintaining the legitimacy of the democratic system ( see ORG . PERSON CARDINAL/CARDINAL:CARDINAL pp . CARDINAL et seq . ) . The principle of public access to official documents is enshrined in LAW , Sections CARDINAL and CARDINAL , of the Freedom of the Press Act . Thus , every NORP citizen is entitled to have free access to official documents , in order to encourage the free exchange of opinion and the availability of comprehensive information ( LAW , LAW ; foreign nationals enjoy the same rights in this respect as NORP citizens , LAW , LAW ) .

A document is official if it is held by and is regarded as having been received or “ drawn up ” by a public authority ( LAW , Sections CARDINAL and CARDINAL - CARDINAL , of the Freedom of the Press Act ) . A document is “ drawn up ” when it is dispatched by an authority . A document that is not dispatched is “ drawn up ” when the matter to which it relates is finally settled by the authority in question . If the document does not relate to any specific matter , it is “ drawn up ” when it has been finally checked or has otherwise received its final form . As research is considered to be an activity in its own right ( faktiskt handlande ) ( see , for example , the Chancellor of ORG , DATE p. CARDINAL ) , it can not be said to relate to any specific matter . This means , in turn , that research material , as a rule , is “ drawn up ” and thereby official , as soon as it has been finally checked or otherwise received its final form . It could be added that preliminary outlines , drafts , and similar documents enumerated in LAW , LAW , of the Freedom of the Press Act are not deemed to be official unless they introduce new factual information or have been accepted for filing . Finally , there is no general requirement that a document be filed in order to be considered official , and registration does not affect the issue of whether a document is official or not ( cf . LAW , LAW , of LAW ) .

An official document to which the public has access shall be made available on request forthwith , or as soon as possible , at the place where it is held , and free of charge , to any person wishing to examine it , in such form that it can be read , listened to , or otherwise comprehended ; a document may also be copied , reproduced or used for sound transmission ( LAW , LAW ) . Such a decision should normally be rendered DATE or , if the public authority in question has to consider whether the requested document is official or whether the information is public , within DATE ( see , for example , ORG decision of DATE in case no . DATE ) . A certain delay may also be acceptable if the request concerns very extensive material . If a document can not be made available without disclosure of such part of it as constitutes classified material , the rest of the document shall be made available to the person requesting access in the form of a transcript or copy ( Section CARDINAL ) . A public authority is under no obligation to make a document available at the place where it is held if this presents serious difficulty .

An unlimited right of public access to official documents could , however , result in unacceptable harm to different public and private interests . It has therefore been considered necessary to provide exceptions . These exceptions are laid down in LAW , LAW ( first paragraph ) , of the Freedom of the Press Act , which reads as follows :

The right of access to official documents may be restricted only if restriction is necessary having regard to CARDINAL . the security of the ORG or its relations with another ORG or an international organisation ; PERSON . the central DATE , monetary or currency policy of the ORG ; CARDINAL . the inspection , control or other supervisory activities of a public authority ; CARDINAL . the interest of preventing or prosecuting crime ; CARDINAL . the economic interest of the public institutions ; CARDINAL . the protection of the personal or economic circumstances of private subjects ; CARDINAL . the preservation of animal or plant species .

According to paragraph CARDINAL of the same provision , restrictions on the right of access to official documents shall be scrupulously specified in a provision of a special act of law or , if this is deemed more appropriate in a particular case , in another act of law to which the special act refers ( see , for example , Govt . PERSON pp . CARDINAL et seq . and Govt . PERSON , Part A , pp . CARDINAL et seq . ) . The special act of law referred to is LAW . Pursuant to such a provision , the Government may issue more detailed provisions for its application in an ordinance ( förordning ) . Since the mandate to restrict the right of public access to official documents lies exclusively with ORG ( PERSON ) , it is not possible for a public authority to enter into an agreement with a third party exempting certain official documents from the right of public access , or to make similar arrangements .

LAW contains provisions regarding the duty to observe secrecy in the activities of the community and regarding prohibitions against making official documents available ( LAW , LAW ) . The latter provisions limit the right of access to official documents provided for in the Freedom of the Press Act ( Tryckfrihetsförordningen , ORG ) . They relate to prohibitions on disclosing information , irrespective of the manner of disclosure . The question of whether secrecy should apply to information contained in an official document can not be determined in advance , but must be examined each time a request for access to a document is made . Decisive for this issue is whether making a document available could imply a certain risk of harm . The risk of harm is defined in different ways in LAW , having regard to the interests that the secrecy is intended to protect . Thus , the secrecy may be more or less strict depending on the interests involved . The secrecy legislation has been elaborated in this way in order to provide sufficient protection , for example , for the personal integrity of individuals , without the constitutional right of public access to official documents being circumscribed more than is considered necessary . In the present case , ORG , in its judgments of DATE , found that secrecy applied to the research material under LAW , DATE , DATE and DATE , of LAW ( Chapter CARDINAL deals with secrecy with regard to the protection of the personal circumstances of individuals ) .

If a public authority deems that such a risk of loss , harm , or other inconvenience which , pursuant to a provision on secrecy , constitutes an obstacle to information being communicated to a private subject , can be removed by imposing a restriction limiting the private subject ’s right to re - communicate or use the information , the authority shall impose such a restriction when the information is communicated ( LAW , LAW , of LAW ) . As an example of such a restriction , the preparatory notes mention prohibiting the dissemination of the content of a document or the publication of secret information contained in a document ( see Govt . PERSON , Part A , p. CARDINAL ) . An individual who has been granted access to a document subject to a restriction limiting the right to use the information may be held criminally liable if he or she does not respect that restriction ( see LAW , LAW , of LAW ) .

A request to examine an official document must be made to the public authority which holds the document ( LAW , LAW , of ORG , of LAW ) . As mentioned above , there are specific requirements of promptness regarding the handling of such requests . A decision by an authority other than ORG or the Government to refuse access to a document is subject to appeal to the courts DATE as a general rule , an administrative court of appeal – and , further , to ORG ( Chapter CARDINAL , LAW , of ORG ; LAW , LAW , of LAW CARDINAL and DATE LAW ( ORG ; SFS CARDINAL:CARDINAL ) ) . Leave to appeal is required in the last - mentioned court . Only the person seeking access has a right of appeal . Thus , if ORG – contrary to the public authority holding the document in question – decides that a document must be made available , its judgment is not open to appeal by the public authority in question , or by private subjects who consider that harm would be inflicted on them as a consequence of access to the document being granted ( see RÅ DATE note CARDINAL and RÅ DATE ref . CARDINAL ) . The reason why the right of appeal has been narrowly limited is that once the competing interests have been considered by a court the legislator has given priority to the principle of public access to official documents over other private and public interests ( see , for example , Govt . PERSON CARDINAL/CARDINAL:CARDINAL p. CARDINAL and RÅ DATE ref . CARDINAL , which concerned an institution ’s request for relief for substantive defects ) .

The principle of public access to official documents is applicable to all activities within the public sector and every public official is obliged to be acquainted with the laws and regulations in this area . This is in particular the case where a certain official – following a special decision or otherwise – has the duty to examine requests for access to official documents ( LAW , LAW , second paragraph of LAW ) . Formally , the head of the public authority has the primary responsibility to ensure that such requests are duly examined . However , the task may be delegated to other office holders within the authority and this is what is usually done in practice for the purposes of the authority ’s DATE activities . Such delegation has to be in accordance with the regulations of the authority ( Section CARDINAL of the former ORG , PERSON , applicable at the relevant time ) . Irrespective of a public official ’s particular competence or power under the regulations of the authority in question , he or she has a general duty to perform the tasks that are part of his or her official duties . As previously mentioned , this duty involves the obligation to assist in making official documents available forthwith , or as soon as possible , to persons who are considered to have the right of access to them under the legislation described above .

By virtue of LAW , LAW , of LAW a person who , in the exercise of public authority , by act or by omission , intentionally or through carelessness , disregards the duties of his office , will be sentenced for misuse of office ( tjänstefel ) . The provision reads as follows :

“ A person who , in the exercise of public authority , by act or by omission , intentionally or through carelessness , disregards the duties of his office , shall be sentenced for misuse of office to a fine or a maximum term of imprisonment of DATE . If , having regard to the perpetrator ’s official powers or the nature of his office considered in relation to his exercise of public power in other respects or having regard to other circumstances , the act may be regarded as petty , punishment shall not be imposed . If an offence mentioned in the first paragraph has been committed intentionally and is regarded as serious , the perpetrator shall be sentenced for gross misuse of office to a term of imprisonment of DATE and at DATE . In assessing whether the crime is serious , special attention shall be given to whether the offender seriously abused his position or whether the crime occasioned serious harm to an individual or the public sector or gave rise to a substantial improper benefit . A member of a national or municipal decision - making assembly shall not be held responsible under the provisions of the first or second paragraphs of this Article for any action taken in that capacity . Nor shall the provisions of the first and second paragraphs of this Article apply if the crime is punishable under this or some other PERSON . ”

A suspended sentence may be imposed by the courts for an offence for which a fine is considered an inadequate penalty , and such a sentence is , as a general rule , combined with day - fines . A maximum total of CARDINAL day - fines may be imposed . When determining the amount , account is taken of the economic circumstances of the accused , but a dayfine may not exceed MONEY ( SEK ) ( LAW , LAW , LAW , Sections CARDINAL and DATE , and LAW , LAW ) .

In GPE a suspended sentence does not refer to any specific number of DATE of imprisonment . Under LAW of LAW a suspended sentence is always subject to DATE . A suspended sentence may be linked to specific conditions . If the person convicted commits a new crime during the probationary period the courts may , having due regard to the nature of the new crime , revoke the suspended sentence and impose a joint sanction for the crimes ( LAW of LAW ) .

The functions and powers of the CARDINAL Parliamentary Ombudsmen are laid down in particular in LAW , LAW ( ORG ) and in LAW with Instructions for the Parliamentary Ombudsmen ( ORG med instruktion för PERSON ombudsmän ; SFCARDINAL CARDINAL:CARDINAL ) . Their main task is to supervise the application of laws and other regulations in the public administration . It is their particular duty to ensure that public authorities and their staff comply with the laws and other statutes governing their actions . An Ombudsman exercises supervision , either on complaint from individuals or of his or her own motion , by carrying out inspections and other investigations which he or she deems necessary . The examination of a matter is concluded by a decision in which the ORG states his or her opinion whether the measure taken by the authority contravenes the law or is otherwise wrongful or inappropriate . The Ombudsmen may also make pronouncements aimed at promoting uniform and proper application of the law . An ORG ’s decisions are considered to be expressions of his or her personal opinion . They are not legally binding upon the authorities . However , they do have persuasive force , command respect and are usually followed in practice . An ORG may , among many other things , institute criminal proceedings against an official who has committed an offence by departing from the obligations incumbent on him or her in his or her official duties ( for example , as in the present case , misuse of office ) . The ORG may also report an official to the competent authority for disciplinary measures . The ORG may attend deliberations of the courts and the administrative authorities and is entitled to have access to their TIME and other documents .

LAW , adopted by the CARDINALth ORG in GPE in DATE , with later amendments , states , inter alia :

INTRODUCTION

The World Medical Association ( ORG ) has developed the Declaration of Helsinki as a statement of ethical principles for medical research involving human subjects , including research on identifiable human material and data . The Declaration is intended to be read as a whole and each of its constituent paragraphs should not be applied without consideration of all other relevant paragraphs .

Although the Declaration is addressed primarily to physicians , the ORG encourages other participants in medical research involving human subjects to adopt these principles .

It is the duty of the physician to promote and safeguard the health of patients , including those who are involved in medical research . The physician ’s knowledge and conscience are dedicated to the fulfilment of this duty .

The Declaration of GPE of the WMA binds the physician with the words , " The health of my patient will be my first consideration , " and LAW declares that , " A physician shall act in the patient ’s best interest when providing medical care . "

Medical progress is based on research that ultimately must include studies involving human subjects . Populations that are underrepresented in medical research should be provided appropriate access to participation in research .

NORP In medical research involving human subjects , the well - being of the individual research subject must take precedence over all other interests .

Physicians should consider the ethical , legal and regulatory norms and standards for research involving human subjects in their own countries as well as applicable international norms and standards . No national or international ethical , legal or regulatory requirement should reduce or eliminate any of the protections for research subjects set forth in this Declaration .

BASIC PRINCIPLES FOR ALL MEDICAL RESEARCH

It is the duty of physicians who participate in medical research to protect the life , health , dignity , integrity , right to self - determination , privacy , and confidentiality of personal information of research subjects .

The design and performance of each research study involving human subjects must be clearly described in a research protocol . The protocol should contain a statement of the ethical considerations involved and should indicate how the principles in this Declaration have been addressed . The protocol should include information regarding funding , sponsors , institutional affiliations , other potential conflicts of interest , incentives for subjects and provisions for treating and/or compensating subjects who are harmed as a consequence of participation in the research study . The protocol should describe arrangements for post - study access by study subjects to interventions identified as beneficial in the study or access to other appropriate care or benefits .

NORP The research protocol must be submitted for consideration , comment , guidance and approval to a research ethics committee before the study begins . This committee must be independent of the researcher , the sponsor and any other undue influence . It must take into consideration the laws and regulations of the country or countries in which the research is to be performed as well as applicable international norms and standards but these must not be allowed to reduce or eliminate any of the protections for research subjects set forth in this LAW . The committee must have the right to monitor ongoing studies . The researcher must provide monitoring information to the committee , especially information about any serious adverse events . No change to the protocol may be made without consideration and approval by the committee .

Every precaution must be taken to protect the privacy of research subjects and the confidentiality of their personal information and to minimize the impact of the study on their physical , mental and social integrity .

NORP In medical research involving competent human subjects , each potential subject must be adequately informed of the aims , methods , sources of funding , any possible conflicts of interest , institutional affiliations of the researcher , the anticipated benefits and potential risks of the study and the discomfort it may entail , and any other relevant aspects of the study . The potential subject must be informed of the right to refuse to participate in the study or to withdraw consent to participate at any time without reprisal . Special attention should be given to the specific information needs of individual potential subjects as well as to the methods used to deliver the information . After ensuring that the potential subject has understood the information , the physician or another appropriately qualified individual must then seek the potential subject ’s freely - given informed consent , preferably in writing . If the consent can not be expressed in writing , the non - written consent must be formally documented and witnessed . ...


CASE OF COORPLAN-JENNI GMBH AND HASCIC v. AUSTRIA

Violations of Art. 6-1;Not necessary to examine further complaint under Art. 6-1;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

NORP In DATE the second applicant entered GPE on a tourist visa . He made CARDINAL unsuccessful requests for a residence permit ( ORG ) in DATE and DATE respectively . In DATE he made a new request for a residence permit , which was granted in DATE for DATE for the purpose of family reunification with his wife and baby daughter , both of whom lived in GPE . His leave to remain was subsequently extended for successive DATE periods .

DATE the second applicant worked for the applicant company .

After ORG had advised that an employment permit was required for the second applicant , the applicants lodged a request with ORG Arbeitsmarktservice ) on DATE for the grant of an employment permit to the applicant company .

On DATE ORG refused the request in accordance with s. CARDINAL(CARDINAL ) of ORG ( GPE ) . It found that the maximum quota fixed for the employment of foreign workers DATE in PERSON had been exceeded and none of the exceptional conditions of s. CARDINAL ) of the above Act were met .

On DATE the applicants appealed . They submitted that the second applicant had been living in GPE since DATE and was a shareholder in the PERSON OEG company . They claimed that the second applicant had a right to employment in GPE and referred in that connection to LAW , LAW and LAW . They further referred to ORG between ORG and GPE and submitted that that treaty had to be applied by analogy to their case .

On DATE ORG dismissed the applicant company ’s complaint and rejected the second applicant ’s complaint . It noted that only the applicant company as the proposed employer , not the second applicant , had the right to lodge a request for the grant of an employment permit . According to s. CARDINAL of ORG an alien only became a party to proceedings concerning the issue of a work permit if his personal circumstances were relevant to the decision or if there was no employer . In the present case , however , neither of these conditions applied . In particular , ORG had based its decision exclusively on the situation of the labour market , and in particular the fact that the maximum quota for the employment of foreign workers had been exceeded . For that reason , the second applicant was not a party to the proceedings .

As regards the applicant company ’s complaint , it noted that only certain refugees DATE namely , those who had indefinite leave to remain , were married to an NORP national or had a child of NORP nationality – were exempted from the regulations of ORG . However , throughout the proceedings it had been common ground that the second applicant was not a refugee . ORG between ORG and GPE was not applicable in the present case as the second applicant was not a NORP national .

On DATE the applicants filed a complaint with ORG and requested an oral hearing . They contested the lawfulness of the fixed maximum quota system and the accuracy of the official statistics according to which the maximum quota had been exceeded . They submitted in that connection that , in view of the number of foreign workers in employment that had been given in the official statistics DATE before , the number that was now being quoted could not be correct . They further complained that ORG had failed to establish objectively in adversarial proceedings that the maximum quota for PERSON had been exceeded .

They further submitted that the second applicant had a right to take up employment in GPE and had standing to join the proceedings . The applicant had been living with his wife in GPE since DATE and they had a daughter who was born in DATE . The applicant was in possession of a settlement permit ( Niederlassungsbewilligung ) limited in time while his wife and his daughter had been granted indefinite residence permits ( GPE ) . The applicants referred to LAW and submitted that it should be applied by analogy to nationals of GPE who had come to GPE before the civil war . They further referred to LAW and LAW . They also relied on LAW .

On DATE ORG submitted its comments .

As regards the second applicant it found that none of his rights had been violated , as it was in principle for the employer to request the issue of an employment permit . It further referred to the case - law of the Constitutional Court according to which a decision whether or not to issue an employment permit did not concern a “ civil right ” within the meaning of LAW .

As regards the applicant company ’s complaint , ORG noted that the official statistics showing that the maximum quota had been exceeded constituted documentary evidence which it had been open to the company to contest by adducing proof to the contrary . The company had , however , failed to make any valid objection to ORG to the statistical evidence that the maximum quota had been exceeded . The complaint now made before ORG that ORG had failed to establish objectively in adversarial proceedings that the maximum quota for PERSON had been exceeded was unsubstantiated and , in any event , inadmissible , as it had not previously been raised before ORG .

As regards the reference to LAW and ORG between ORG and ORG noted that those treaties were not applicable to the present case as the second applicant had never claimed to be a refugee within the meaning of FAC and was not NORP . It further noted that no right for the second applicant to take up employment could be deduced from LAW or LAW .

In accordance with s. CARDINAL ) of LAW ( PERSON ) , ORG dismissed the ORG request for a hearing as it found that an oral hearing was not likely to contribute to the clarification of the case . Referring to its case - law it found that the proceedings did not concern a “ civil right ” within the meaning of LAW . This decision was served on the applicants’ counsel on DATE .

Meanwhile , on DATE , the second applicant ’s wife acquired NORP citizenship . Consequently , ORG is no longer applicable to the second applicant .

The Employment of Aliens Act ( ORG ) regulates foreign workers’ access to the NORP labour market . The relevant parts of the Act at the material time were as follows :

Section CARDINAL of the LAW stated that it was not applicable inter alia to :

- certain refugees who had indefinite leave to remain in GPE , who were married to an NORP national or who had a child of NORP nationality ( s. CARDINAL(CARDINAL)(a ) ) ;

- aliens married to an NORP national if they were in possession of a residence document ( ORG ) within the meaning of the LAW ( s.CARDINAL(CARDINAL)(CARDINAL ) ) ; under LAW ( PERSON ) there are CARDINAL types of residence document : residence permits ( GPE ) and settlement permits ( Niederlassungsbewilligung ) . The relevant provisions of LAW make it easier for aliens married to an NORP national to obtain a settlement permit .

Under s. CARDINAL(CARDINAL ) of ORG the competent ORG had to certify that the alien concerned fulfilled the requirements of s. CARDINAL(CARDINAL ) ( l ) before he could take up employment .

S. CARDINAL(CARDINAL ) and ( CARDINAL ) of the LAW laid down the principle that a proposed employer required an employment permit ( PERSON ) if he wished to take on a foreign employee . Without such a permit the contract of employment between the employer and the foreign employee was null and void . However , while he was actually employed an alien hired without an employment permit had the same rights against his employer as he would have had if the contract of employment had been valid . If the lack of an employment permit was due to the employer ’s negligence , the foreign employee further enjoyed all the rights to which he would have been entitled upon the termination of a valid employment relationship ( s. CARDINAL ) .

S. CARDINAL of the Act provided that a request could be made for an “ exemption certificate ” ( PERSON ) in respect of aliens who had been continuously legally employed within the meaning of the LAW in GPE for DATE during DATE , and for aliens who had been married to an NORP national for DATE and had their residence ( ORG ) in GPE . The exemption certificate subsequently relieved the alien or potential employer from the obligation to apply for an employment permit . S. CARDINAL provided that the alien concerned could apply for an exemption certificate to the competent ORG .

If an alien had been continuously legally employed within the meaning of the LAW for DATE in DATE , he was entitled to request a personal work permit ( Arbeitserlaubnis ) which was normally valid for CARDINAL region only and could be restricted to certain kinds of employment ( s. PERSON ) ) .

S. CARDINAL provided that in order to obtain an employment permit the employer had to submit details of the proposed employment of the individual employee to ORG concerned . The application could be made by the alien only if there was no employer .

According to s. CARDINAL ) an employment permit could only be granted if the situation and evolution of the labour market so allowed and important public or economic interests would not be harmed . Furthermore , specific conditions listed in s. CARDINAL ) had to be fulfilled .

S. CARDINAL(b)(CARDINAL ) laid down that the situation and evolution of the labour market only allowed an employment permit to be granted in respect of a proposed foreign employee if there were no prior - ranking foreign job applicants . Prior - ranking foreign job applicants included aliens who were in possession of an exemption certificate within the meaning of s. CARDINAL of the LAW or who were in receipt of unemployment insurance payments ( PERSON ) ( s. CARDINAL(b)(CARDINAL ) and ( CARDINAL ) ) .

S. CARDINAL(c ) provided that an employment permit had to be issued ex officio in respect of NORP nationals falling within the relevant provisions of ORG between ORG and GPE .

Under s. CARDINAL ) the Minister for ORG could fix maximum quotas for the employment of aliens in a specific region ( PERSON ) for DATE . PERSON ) provided that once the maximum quota had been exhausted , no further employment permits could be issued unless there were certain exceptional circumstances .

S. DATE provided that , in principle , the foreign job applicant was not a party to the proceedings concerning the issue of the employment permit . Exceptions were made where the personal circumstances of the alien were relevant to the decision or where there was no employer .

According to the settled case - law of ORG and ORG a refusal to issue an employment permit under PERSON CARDINAL(CARDINAL ) and ( CARDINAL ) of ORG could not violate a proposed foreign employee ’s rights because he had no legal entitlement to the grant under that LAW ( see PERSON , PERSON DATE ; and ORG decision of DATE , CARDINAL/CARDINAL/CARDINAL ) .

ORG and ORG have further held that the refusal of an employment permit to a proposed employer is not a decision concerning the employer ’s “ civil rights ” ( see , for example , PERSON DATE and ORG decision of DATE , CARDINAL/CARDINAL/CARDINAL with further references ) .

According to s. CARDINAL(CARDINAL ) of LAW , ORG must hold a hearing after its preliminary investigation of the case if a complainant so requests within the time - limit . PERSON ) and ( CARDINAL ) provides , however , that , notwithstanding such a request , ORG may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings that an oral hearing is unlikely to help clarify the case and that the lack of a hearing will not violate LAW .