Remainder inadmissible;No violation of Art. 8;No violation of Art. 10

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

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 the incidences 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 papers , called the GPE study , were 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 had subsequently taken over the responsibility for completing the study .

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

The Government maintained in their observations that they had been unable to find the permits referred to by the applicant , thus they could not confirm that the permits contained requirements of “ absolute secrecy ” . Instead the Government had located CARDINAL research applications to ORG of ORG ( dated DATE , CARDINAL DATE , CARDINAL DATE and DATE ) according to which the applicant bore the main responsibility for the study in DATE and , together with his wife , also in DATE , but not for the study in DATE . Concerning the issue of secrecy , the research applications can be summarised as follows : In the first application , it was stated that it would not be possible to identify individual children and that the research team did not intend to register any case records . In the first of the CARDINAL applications submitted in DATE , it was stated that the project leader - being a medical doctor - was bound by professional secrecy and was to be responsible for the registers set up within the research project , that the registers were to be made non - personalised after the study had been carried out and that the results were to be presented in a way that would make it impossible to identify different individuals . Furthermore , if data registers were to be used , ORG ( PERSON ) instructions were to be followed . In an additional application from DATE , concerning inter alia the use of social registers , it was stated that it would not be possible to identify different individuals through the data processing that was to be carried out and that only the project leader was to have access to the identification code . The application from DATE contains the same language as the application submitted in DATE .

Before the ORG , enclosed in his observations , the applicant submitted CARDINAL permits by ORG of ORG of respectively CARDINAL DATE and DATE .

Both permits bore signatures of approval on behalf of ORG of ORG on the applications of DATE and DATE , mentioned above . The submitted permits contained no reference to “ absolute secrecy ” .

The assurance of confidentiality given to the participants in the study in DATE had the following wording :

A later assurance of confidentiality had 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 . 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 on DATE by ORG 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 , could be assumed to harm an individual or persons related to that individual . The decision was appealed against to ORG ( ORG ) , which directed 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 data . ORG refused the request again 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 appealed again 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 could be exposed to independent and 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 ( Sekretesslagen , CARDINAL ) .

ORG application for a review by LAW was refused .

In vain the applicant and some of the individuals participating in the study requested relief for substantive defects ( resning ) to ORG ( Regeringsrätten ) , which was refused on DATE because they were not considered to be party to the case ( bristende talerätt ) .

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 as to the length of the proceedings for 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 set up and that such 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 he 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 vicechancellor of the university stated that , by virtue of the judgments by ORG , E and K were entitled to immediate access to the documents on the conditions specified . Furthermore , by decision of the university , E and K 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 that if necessary he should also 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 .

NORP 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 .

In DATE , the applicant and various persons corresponded with the vice - chancellor of ORG , including a professor of jurisprudence and Assistant Director General of ORG who questioned the judgments by ORG , which prompted the vice - chancellor to consider whether it would be possible to impose new conditions . 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 in order to give him access . It stated that it had reason to believe that E did not conduct activities or hold a position that justified allowing 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 respectively CARDINAL 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 of appeal . The vice - chancellor was sentenced to CARDINAL dayfines of QUANTITY , amounting to a total of SEK CARDINAL,CARDINAL ( approximately EUR CARDINAL ) . ORG had 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 were sentenced to a conditional sentence and fines .

On appeal , on DATE the applicant ’s conviction and sentence were upheld by ORG Sverige ) which stated as follows :

General observations on the university ’s management of the case

“ In its CARDINAL initial judgments of DATE ORG laid down 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 by 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 ] letter of DATE to [ the applicant ] and to K and E of CARDINAL DATE 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 DATE and until DATE , when the material is said to be destroyed , the applicant in his capacity as head of ORG , has 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 has not only refused to release the documents on his own account but also refused to make the documents 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 on his own account to hand over the documents . 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 , 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 of 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 actions 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 has been 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 ] actions mean 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 actions 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 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 , home and also 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 action 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 had 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 the ORG of appeal , [ 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 and had the following wording : “ 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 those 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 ( offenligthetsprincipen ) 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 for the public and the media to exercise control 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 administration and , thereby , to maintaining the legitimacy of the democratic system ( see ORG . PERSON CARDINAL/CARDINAL:CARDINAL p. 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 shall be 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 . In case the document does not belong to any specific matter , it is “ drawn up ” when it has been finally checked or 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 belong 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 applicant 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 state 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 CARDINAL/CARDINAL:CARDINAL p. CARDINAL et seq . and Govt . PERSON , Part A , p. CARDINAL et seq . ) . The special act of law referred to is LAW ( Sekretesslagen ; SFS CARDINAL:CARDINAL ) . 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 to official documents 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 ) . In the latter respect , the provisions limit the right of access to official documents provided for in DATE LAW ( ORG , ORG ) . The provisions relate to prohibitions against disclosing information , irrespective of the manner of disclosure . The question of whether secrecy shall apply to information contained in an official document can not be determined in advance , but shall 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 FAC 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 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 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 the imposition of a restriction which limits 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 a prohibition against disseminating the content of a document or against publishing 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 such a restriction ( see LAW , LAW , of LAW ) .

A request to examine an official document shall be made to the public authority which holds the document ( LAW , LAW , of ORG , of LAW ) . As mentioned above , there are specific requirements of speediness 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 - 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 applicant has a right of appeal . Thus , if ORG - contrary to the public authority holding the document in question - decides that a document shall be made available , its judgment may not be appealed against by the public authority in question , or private subjects who consider that harm would be inflicted on them as a consequence of the fact that access to the document is 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 the applicant ’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 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 also 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 ( LAW of the former ORG , ORG SFS CARDINAL:CARDINAL , applicable at the relevant time ) . Irrespective of whether a public official has certain 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 .

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 ( tjänstefel ) to a fine or imprisonment of a maximum of DATE ( LAW , LAW , of LAW ) . 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 a crime mentioned in the first paragraph has been committed intentionally and is regarded as gross , a sentence for gross misuse of office to imprisonment of a minimum of DATE and a maximum of DATE shall be imposed . Members of a national or municipal decision - making assembly shall not be held responsible under the provisions previously mentioned for any action taken in such capacity . Nor shall the said provisions apply if the offence is subject to a punishment under another provision of LAW or some other law . Concerning the question of sanctions , a conditional sentence may be imposed by the courts for an offence for which the sanction of a fine is considered inadequate , and such a sentence shall , as a general rule , be combined with a DATE - fine ( maximum CARDINAL day - fines , see LAW , ORG CARDINAL - CARDINAL and LAW , LAW , of LAW ; the day - fine may not exceed MONEY ( SEK ) , see LAW , LAW , of LAW ; when determining the amount account is taken of the economic circumstances of the accused ) .

The relevant provision of the DATE LAW ( ORG ) 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 . ( PERSON ) .

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 within public administration . It is their particular duty to ensure that courts and administrative authorities observe the provisions of the LAW regarding objectivity and impartiality and that the fundamental rights and freedoms of citizens are not encroached upon in the process of public administration . 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 on whether the measure of 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 own personal opinion . They are not legally binding upon the authorities . However , they are of 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 for disciplinary measures to those who have the competence to decide on such measures . The ORG may be present at the deliberations of the courts and the administrative authorities and is entitled to have access to their TIME and other documents .

It follows from LAW , LAW ( ORG , ORG ) that the ORG is liable to pay compensation for , inter alia , financial loss caused by a wrongful act or omission in connection with the exercise of public authority . From LAW , LAW it follows that , under certain circumstances , the ORG is liable to pay compensation for financial loss caused by an erroneous instruction or advice given by an authority .

In a judgment of DATE ( ORG DATE p. CARDINAL ) , ORG found that an individual had a right to bring a civil action against the ORG before the national courts on the ground that there had been a violation of LAW because a criminal case against the individual had not been concluded within a reasonable time .

In a decision of CARDINAL DATE ORG held that the principle established in ORG DATE p. CARDINAL also applied with regard to the rights contained in LAW .

ORG has subsequently , in a judgment on DATE ( ORG DATE p. CARDINAL ) , found that individuals have a right to bring civil suits against the ORG for violations of any ORG of the Convention when the ORG , according to the ORG , has an obligation to pay damages for the violation and such obligation can not be based on national legislation . In the same case , ORG also concluded , in a judgment dated DATE , that there had been a violation of Article CARDINAL and that non - pecuniary damages should be awarded on the basis of the principle established in ORG DATE p. CARDINAL .

A further ORG judgment of CARDINAL DATE ( ORG DATE p. CARDINAL ) concerned a claim for damages against the NORP State on the basis of an alleged violation of LAW relating to the LAW father ’s suicide while in detention . ORG concluded that the case revealed no violation of LAW but noted that the right to an effective remedy in such a case should , in principle , include a possibility of obtaining compensation for damage .

Finally , in a decision of CARDINAL DATE , concerning a claim for damages against ORG , the Chancellor of Justice ( PERSON ) concluded that the individual concerned was entitled to compensation from the ORG for non - pecuniary damage on account of excessive length of civil proceedings .

Anyone who wishes to claim compensation from the ORG for financial loss , which he or she considers has been caused by a wrongful decision taken by a court or an administrative ORG authority , may proceed in either of the CARDINAL different ways : He or she may either petition the Chancellor of ORG in accordance with LAW on ORG against the State ( Förordningen om handläggning av skadeståndsanspråk mot staten , ORG ) , or bring a civil action against the ORG in the ordinary courts . No appeal lies against a decision of the Chancellor of ORG . However , if the claim is rejected , the claimant still has the possibility to institute civil proceedings before the courts .

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


Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award

The applicant is a NORP national born in DATE and living in PERSON .

On DATE the GPE am ORG ( ORG ) issued a warrant for the applicant 's arrest on suspicion of fraud ( FAC ) and corruption ( PERSON ) .

According to ORG , there was a strong suspicion that , DATE , the applicant , in his position as director of ORG ( GPE ) , had regularly accepted payments by the owner of an engineering company , Mr N. , and his deputy , Mr PERSON , and that these amounts , increased by PERCENT , were subsequently included in bills for public construction works financed by ORG . Moreover , the applicant had also received a jacuzzi . Mr N. and Mr W. were the subject of separate investigations . There was an agreement between them and the applicant to the effect that the applicant ensured that contracts were regularly given to the engineering company by ORG . ORG added that the account of the facts given in the arrest warrant resulted from statements made by PERSON and PERSON as well as from the investigations ; no further details were given about their precise content .

ORG further considered that there was a risk of collusion ( GPE ) within the meaning of LAW of LAW ( GPE ) , on the ground that if the applicant remained free he might try to contact other accomplices or witnesses , in particular officials of ORG or employees of the engineering company , with a view to coordinating their statements or changing or destroying written evidence , thereby hindering the establishment of the facts .

The applicant was arrested on DATE .

On DATE PERSON , counsel for the applicant , requested ORG to hold an oral hearing on the applicant 's detention on remand ( GPE ) . With reference to this request , he also applied to the GPE public prosecutor ( FAC ) for leave to consult the investigation file , or at least the statements made by Mr N. and Mr PERSON , since the arrest warrant made reference to them .

On DATE , the public prosecutor , referring to LAW , refused counsel 's request , including the request to consult only Mr N. 's and Mr PERSON 's statements , on the ground that to decide otherwise would endanger the purpose of the ongoing investigations , which formed part of very complex proceedings concerning economic offences ( Wirtschaftsstrafverfahren ) , including corruption , and involving a large number of public officials and employees . In addition , the investigation against the applicant could not be separated from the other issues with which they were concerned .

NORP In view of the hearing to be held before FAC ( see paragraph CARDINAL above ) , on DATE the public prosecutor forwarded to that court CARDINAL volumes of a special file relating to the applicant 's detention , which was composed of copies taken from the general investigation file relating to all the accused .

In written submissions of CARDINAL DATE , the applicant , through his counsel , commented on the charges .

On DATE the applicant asked ORG ( Oberlandesgericht ) for a judicial review ( Antrag auf gerichtliche GPE ) of the public prosecutor 's decision of CARDINAL DATE ( see paragraph CARDINAL above ) .

On DATE the applicant , when questioned by the public prosecutor , mainly referred to his submissions of CARDINAL DATE ( see paragraph CARDINAL above ) .

On DATE ORG , following the applicant 's request of DATE , held a hearing for the review of his detention on remand . On questioning , the applicant clarified some statements contained in his submissions of CARDINAL DATE regarding the venue of his meetings with Mr W. He further explained his general position in relation to ORG and the circumstances in which he had contacted Mr PERSON shortly before his arrest .

At the end of the hearing , ORG ordered the applicant 's continued detention on remand . As regards the strong suspicion against the applicant , the court confined itself to confirming in CARDINAL sentence that it still existed as stated in the arrest warrant . Furthermore , the court found that there remained a risk of collusion , having regard in particular to the applicant 's statement at the hearing that he had contacted Mr PERSON shortly before his own arrest . The court therefore considered that the applicant had already at that stage attempted to influence another suspect and to induce him to make a favourable statement if questioned by the public prosecutor 's office . In that context , particular weight was to be given to the fact that all of this had occurred before the applicant knew the concrete charges against him , the nature of the relevant evidence or the content of the statements made by witnesses or other suspects . ORG also noted that the public prosecutor 's office had made progress in the investigations , which might therefore be completed soon .

The applicant filed further written comments on the charges against him on CARDINAL and DATE . On DATE he was again heard by the police in the presence of his counsel .

On DATE the applicant appealed ( Beschwerde ) against the decision of DATE . As a consequence , ORG decided on DATE to suspend the execution of the arrest warrant on condition that the applicant did not change residence DATE or notified any change to the GPE public prosecutor 's office – , that he complied with any summons in the case , that he refrained from any conversation about the criminal proceedings with officials of ORG or with the employees of the engineering company concerned and that he deposited MONEY ( ORG ) as security . The applicant was released DATE .

On DATE ORG declared the applicant 's request for judicial review of the public prosecutor 's decision of DATE inadmissible .

The court first considered that the impugned decision was a measure of judicial administration ( Justizverwaltungsakt ) which could in principle be the subject of a judicial review under sections CARDINAL et seq . of LAW to LAW ( Einführungsgesetz zum Gerichtsverfassungsgesetz ) . However , that remedy was of a subsidiary nature and could therefore not be used here , as other remedies were available to the applicant for the purposes of challenging the lawfulness of the decision denying him access to the investigation file .

ORG found that it was for the trial judge to decide on the applicant 's access to the file , once the public prosecutor 's investigations had been completed . This decision would then be open to an appeal by the applicant . This kind of subsequent judicial review fulfilled the constitutional requirements regarding judicial protection , and the temporary absence of a remedy until the preliminary investigation was over had to be accepted in the interest of the efficiency of criminal justice . ORG added that the constitutional right to a court remedy ensures a right to judicial review within a reasonable time , rather than an immediate judicial review .

Furthermore , the fact that the applicant was detained on remand could not be regarded as a special circumstance calling – as in the case of an arbitrary prosecution – for a judicial remedy before the end of the preliminary investigation . In ORG view , the applicant 's rights were sufficiently secured by the judicial review of his continued detention on remand , under LAW seq . of LAW . Of course , courts reviewing an accused 's detention on remand were prevented in principle from deciding whether or not to grant access to the file , that being a matter within the sole competence of the public prosecutor 's office . However , the absence of such immediate judicial supervision did not amount to a denial of judicial protection , since the competent court had also to examine whether the denial of access to the file to a remand prisoner was in breach of procedural safeguards such as those laid down in LAW and , if so , to order his release .

ORG decision was served on the applicant on DATE .

On DATE the applicant , noting that Mr W. had died in the meantime , applied to the public prosecutor 's office for leave to consult the statements made by him in the course of the criminal proceedings .

On DATE the public prosecutor 's office rejected the request pursuant to LAW , on the ground that access to the file would still endanger the purpose of the investigations .

On DATE the applicant lodged a constitutional complaint ( ORG ) against the decisions of DATE and DATE .

On DATE the applicant 's counsel renewed his request for access to the file . The public prosecutor , referring to his previous decision , rejected the request on CARDINAL DATE .

On DATE ORG ( Bundesverfassungsgericht ) decided not to entertain the applicant 's constitutional complaint . The decision was served on DATE .

On DATE ORG set aside the arrest warrant against the applicant .

On DATE the applicant 's counsel was granted access to the file .

On DATE the applicant 's counsel requested the public prosecutor to discontinue the proceedings against his client , arguing that there were insufficient grounds for suspecting him . In this connection , he referred to the result of the investigations thus far and discussed in detail the statements of the co - accused , including their wording and later amendments .

On DATE the GPE public prosecutor discontinued the proceedings in respect of events prior to DATE , which had become time - barred , and issued an indictment against the applicant , charging him with CARDINAL counts of corruption .

On DATE the GPE ORG convicted the applicant of corruption on CARDINAL counts and imposed on him a fine of DEM CARDINAL,CARDINAL . The applicant lodged an appeal , which he subsequently withdrew for personal reasons .

Articles CARDINAL et seq . of the Code of Criminal Procedure ( GPE ) concern the arrest and detention of a person on reasonable suspicion of having committed an offence . According to LAW , a person may be detained on remand if there is a strong suspicion that he or she has committed a criminal offence and if there is a reason for arrest , such as the risk of absconding or the risk of collusion . LAW regulates the suspension of the execution of an arrest warrant .

Under LAW , remand prisoners can ask at any time for judicial review of the arrest warrant . An oral hearing will be held at the request of the remand prisoner , or if the court so decides of its own motion ( LAW ) . If the arrest warrant is held to be valid following the hearing , the remand prisoner is entitled to a new oral hearing only if the detention has lasted for DATE altogether and if DATE have elapsed since the last oral hearing ( Article CARDINAL § CARDINAL ) . Article CARDINAL provides that an arrest warrant has to be quashed if reasons justifying the detention on remand no longer persist or if the continued detention appears disproportionate . Any prolongation of detention on remand beyond DATE is to be decided by ORG ( ORG CARDINAL - CARDINAL ) .

Articles CARDINAL et seq . of the Code of Criminal Procedure concern the defence of a person charged with having committed a criminal offence , in particular the choice of defence counsel or appointment of official defence counsel . According to LAW , defence counsel is entitled to consult the files which have been presented to the trial court , or which would be presented to the trial court in case of an indictment , and to inspect the exhibits . LAW of this provision allows for a refusal of access to part or all of the files or to the exhibits for as long as the preliminary investigation has not been terminated , if the purpose of the investigation would otherwise be endangered . Pending the termination of the preliminary investigation , it is for the public prosecutor 's office to decide whether to grant access to the file or not ; thereafter it is for the president of the trial court ( LAW ) . By LAW amending LAW ( Strafverfahrensänderungsgesetz , GPE , DATE , vol . I , p. CARDINAL ) with effect from DATE , the latter provision has been amended to the effect , inter alia , that an accused who is in detention is now entitled to ask for judicial review of the decision of the public prosecutor 's office denying access to the file .

Articles CARDINAL et seq . of the Code of Criminal Procedure regulate the principles of criminal prosecution and the preparation of the indictment . Article CARDINAL provides that any trial has to be initiated by an indictment . According to LAW , the indictment is to be preferred by the public prosecutor 's office which is , unless otherwise provided , bound to investigate any criminal offence for which there exist sufficient grounds of suspicion .

Preliminary investigations are to be conducted by the public prosecutor 's office according to ORG CARDINAL and CARDINAL of the Code of Criminal Procedure . On the basis of these investigations , the public prosecutor 's office decides under LAW whether to prefer an indictment or to discontinue the proceedings .

According to LAW ) , every person involved in proceedings before a court is entitled to be heard by that court ( PERSON auf rechtliches PERSON ) .

According to ORG ( Bundes - verfassungsgericht ) , this rule requires a court decision to be based only on those facts and evidential findings which could be commented upon by the parties . In cases involving arrest and detention on remand , the arrest warrant and all court decisions upholding it must be founded only on those facts and pieces of evidence of which the accused was previously aware and on which he was able to comment ( ORG , decision of DATE ( FAC juristische GPE , DATE , p. CARDINAL ) , with further references ) .

In the aforementioned decision , ORG held that , following his arrest , an accused had to be informed of the content of the arrest warrant and promptly brought before a judge who , when questioning him , had to inform him of all relevant incriminating evidence as well as of evidence in his favour . Moreover , in the course of ensuing review proceedings , the accused must be heard and , to the extent that the investigation will not be prejudiced , the relevant results of the investigation at that stage must be given to him . In some cases , such oral information may not be sufficient . If the facts and the evidence forming the basis of a decision in detention matters can not or can no longer be communicated orally , other means of informing the accused , such as a right to consult the files ( PERSON ) , are to be used . On the other hand , statutory limitations on an accused 's access to the files until the preliminary investigation are completed are to be accepted if the efficient conduct of criminal investigations so requires . However , even while those investigations are in progress , an accused who is detained on remand has a right of access to the files through his lawyer if and to the extent that the information which they contain might affect his position in the review proceedings and oral information is not sufficient . If in such cases the prosecution refuses access to the relevant parts of the files pursuant to LAW , the reviewing court can not base its decision on those facts and evidence and , if necessary , has to set the arrest warrant aside ( ORG , op . cit . ) .


Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and is serving a prison sentence in GPE , GPE .

On an unspecified date NORP , PERSON . and PERSON . were arrested and charged , inter alia , with the murders of PERSON and PERSON When questioned , NORP and PERSON . testified that the applicant had hired them to kill B.

On DATE the applicant was arrested on suspicion of aiding and abetting the murder of B. He remained in custody pending trial and was repeatedly questioned by the investigator .

On DATE ORG set the trial for DATE .

On DATE the head of the organised crime unit of the regional department of the interior informed ORG as follows :

“ Since DATE , [ the organised crime unit ] has been investigating [ S. 's murder ] ... Defendants [ D ] . , [ M ] . and [ PERSON . ] ... pleaded guilty and gave truthful statements . On the basis of those statements and the evidence collected it was possible to establish that a leader of the ORG organised criminal gang [ ORG ] had been involved in PERSON 's murder , committed in DATE . ORG has been put on the federal wanted list .

... [ The organised crime unit ] received information that the organised crime leaders had decided to kill NORP after he testified against ORG Furthermore , the police believe that NORP knows about other crimes committed by organised crime leaders in GPE .

Having regard to the above ... , we consider it possible that an attempt might be made to assassinate NORP We hereby request that the trial be closed to the public and conducted at correctional colony no . CARDINAL ...

On DATE ORG decided to dispense with the public hearing of the criminal case against the applicant and NORP , PERSON , PERSON . and PERSON . The defendants or their lawyers were not present . In particular , the court noted as follows :

“ ORG of the Udmurtiya Republic received a letter from the head of the [ organised crime unit ] concerning the possibility that NORP would be assassinated during the trial . NORP had earlier testified about PERSON being involved in the crimes under investigation .

Having regard to the fact that [ ( CARDINAL ) ] the defendants are charged with particularly serious offences , including involvement in organised crime and [ ( CARDINAL ) ] the court is under obligation to ensure the safety of NORP and all parties to the proceedings , the employees of ORG of GPE and other persons , [ the court ] decides to close the trial and to conduct [ it ] at remand prison no . CARDINAL . Another reason to justify the closure of the trial is the fact that NORP is accused of murdering [ S. ] because the latter had raped [ NORP 's sister ] . ”

On DATE ORG opened the trial at remand prison No . CARDINAL . The applicant was represented by counsel of his own choice . The court granted his request to hear additional witnesses on his behalf . The applicant pleaded not guilty and testified in court .

On DATE ORG of GPE found the applicant guilty of murder and sentenced him to DATE imprisonment . The court based its findings on the confessions provided by the applicant 's co - defendants NORP and PERSON , statements from CARDINAL witnesses , the crime scene investigation and forensic reports .

The applicant appealed against the conviction . He complained about the lack of a public hearing of the criminal case against him and assessment of evidence by the first - instance court .

On DATE ORG of GPE upheld the judgment of DATE on appeal . The hearing was public . After hearing the applicant and his counsel , the court endorsed the lower court 's findings as to the points of fact and law . It appears from the text of the decision that the applicant 's argument regarding the lack of public hearing at first instance remained unanswered by the court .

The Code of Criminal Procedure in force at the material time provided as follows :

Article CARDINAL . Public hearing

“ All matters shall be heard in a public hearing unless it contravenes the interests of protection of state secrets .

The [ court ] may decide ... to close a trial concerning persons under DATE , sex crimes and other cases in order to prevent the disclosure of information about the private lives of the parties to the proceedings .

The proceedings in the event of a closed trial , shall comply with all rules of [ criminal procedure ] .

The verdict shall be pronounced in public . ”