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GILLBERG v. SWEDEN - 41723/06 [2010] ECHR 1676 (2 November 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1676.html
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[2010] ECHR 1676
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THIRD
SECTION
CASE OF GILLBERG v. SWEDEN
(Application
no. 41723/06)
JUDGMENT
STRASBOURG
2
November 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gillberg v. Sweden,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Alvina Gyulumyan,
Ineta
Ziemele,
Luis López Guerra,
Ann Power,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 41723/06) against the Kingdom
of Sweden lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Swedish national, Mr Christopher Gillberg
(“the applicant”), on 10 October 2006.
The
applicant was represented by Mr Bertil Bjernstam, a Bachelor of Laws
from Gothenburg. The Swedish Government (“the Government”)
were represented by their Agent, Mrs Inger Kalmerborn from the
Ministry for Foreign Affairs.
The
applicant alleged, in particular, that in civil proceedings
concerning access to various research material, and in subsequent
criminal proceedings against him, his rights under Articles 6, 7, 8,
10 and 13 of the Convention had been breached.
On
17 June 2008 the Court decided to give notice of the application to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
The
applicant and the Government each filed written observations (Rule 59
§ 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1950 and lives in Gothenburg.
He
is a professor, specialising in child and adolescent psychiatry, at
the University of Gothenburg.
In
the period between 1977 and 1992 a research project was carried out
at the University of Gothenburg in the field of neuropsychiatry
focusing on the incidences of Attention Deficit Hyperactivity
Disorder (ADHD)
or Deficits in Attention, Motor
Control and Perception
(DAMP) in children. The aim was to elucidate the
significance thereof and associated problems from a long-term
perspective. Parents to a group of one hundred and forty one
pre school children volunteered to participate in the study,
which was followed up every third year. Certain assurances were made
to the children's parents and later to the young people themselves
concerning confidentiality. The research papers, called the
Gothenburg 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 Gothenburg study. The
material was stored by the Department of Child and Adolescent
Psychiatry, 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 the Ethics Committee of the University of
Gothenburg 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 four research
applications to the Ethics Committee of the University of Gothenburg
(dated 13 January 1978, 26 January 1984, 9 October 1984 and
24 March 1988) according to which the applicant bore the main
responsibility for the study in 1988 and, together with his wife,
also in 1984, but not for the study in 1978. 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 two
applications submitted in 1984, 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, the Data Inspection Board's (Datainspektionen)
instructions were to be followed. In an
additional application from the same year, 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 1988 contains the same
language as the application submitted in January 1984.
Before
the Court, enclosed in his observations, the applicant submitted two
permits by the Ethics Committee of the University of Gothenburg of
respectively 9 March 1984 and 31 May 1988.
Both
permits bore signatures of approval on behalf of the Ethics Committee
of the University of Gothenburg on the applications of
26 January 1984 and 24 March 1988, mentioned above. The
submitted permits contained no reference to “absolute secrecy”.
The
assurance of confidentiality given to the participants in the study
in 1984 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 Östra Hospital and its
present results will, as was the case for the previous study three
years ago, 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.”
A. Proceedings concerning access to the research
material
In
February 2002, a sociologist K requested access to the background
material. She was a researcher at Lund University 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 Chapter 14, section 9, of the Secrecy Act. 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 27 February 2002 by the
University of Gothenburg because K had not shown any connection
between the requested material and any research and on the ground
that the material contained data on individuals' health status which,
if disclosed, could be assumed to harm an individual or persons
related to that individual. The decision was appealed against to the
Administrative Court of Appeal (Kammarrätten i Göteborg),
which directed the matter to the University of Gothenburg to examine
whether the material could be released after removal of identifying
information or with a condition restricting K's right to pass on or
use data. The University of Gothenburg refused the request again on
10 September 2002 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
the Administrative Court of Appeal.
In
the meantime, in July 2002, 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 the University of Gothenburg
on 30 August 2002 for the same reasons as its refusal to K, a
decision against which E appealed to the Administrative Court of
Appeal.
By
two separate judgments of 6 February 2003, the Administrative Court
of Appeal 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 the University of Gothenburg in order to protect
the interests of the individuals concerned in accordance with various
named provisions of the Secrecy Act (Sekretesslagen,
1980:100).
The
University of Gothenburg's application for a review by the Supreme
Administrative Act was refused.
In
vain the applicant and some of the individuals participating in the
study requested relief for substantive defects (resning) to
the Supreme Administrative Court (Regeringsrätten), which
was refused on 4 April 2003 because they were not considered to be
party to the case (bristende talerätt).
On
7 April 2003 the University of Gothenburg 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 the
University of Gothenburg. They also reported the University of
Gothenburg's handling of the case to the Parliamentary Ombudsman,
which in decisions of 10 and 11 June 2000 criticised the University
of Gothenburg, notably as to the length of the proceedings for
replying to the request for access.
In
two separate judgments of 11 August 2003, the Administrative Court of
Appeal lifted some of the conditions imposed by the university. It
pointed out that in the judgments of 6 February 2003, 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,
six conditions were set regarding K's access, including that the data
was only to be used within the Swedish Research Council funded
research project called “The neurological paradigm: on the
establishment of a new grand theory in Sweden” which K had
specified before the Administrative Court of Appeal, that she was not
allowed to remove copies from the premises 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 31
December 2004. Six 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.
The
University of Gothenburg did not have a right to appeal against the
judgments and on 5 November 2003 the applicant's request to the
Supreme Administrative Court 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 14 August 2003 to the applicant, the
vice chancellor of the university stated that, by virtue of the
judgments by the Administrative Court of Appeal, 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
the Department of Child and Adolescent Psychiatry without delay. The
letter stated that the transportation of the documents was to begin
on 19 August 2003 at 9 a.m. 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 18 August 2003 that he did not
intend to hand over either the material or the keys to the filing
cabinets to P. On the same day the vice-chancellor had a meeting with
the applicant.
On
instruction by the vice-chancellor, on 19 August 2003 P visited the
Department of Child and Adolescent Psychiatry. 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 1 September 2003, the vice-chancellor of the University of
Gothenburg 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 the
Public Disciplinary Board (Statens ansvarsnämnd) on
grounds of disobedience.
In
autumn 2003, the applicant and various persons corresponded with the
vice-chancellor of the University of Gothenburg, including a
professor of jurisprudence and Assistant Director General of the
Swedish Research Council who questioned the judgments by the
Administrative Court of Appeal, which prompted the vice-chancellor to
consider whether it would be possible to impose new conditions. The
case was discussed within the University Board and subsequently by
decision of 27 January 2004 the University of Gothenburg decided to
refuse to grant access to K because in the light of a memorandum
drawn up on 12 March 2003 by the Swedish Research Council there was
no connection between K's research and the research project that she
had specified before the Administrative Court of Appeal. Likewise, in
a decision of 2 February 2004 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 the Administrative Court of Appeal by two
separate judgments of 4 May 2004.
The
applicant's request to the Administrative Supreme Court for relief
for substantive defects was refused on respectively 28 September 2004
and 1 July 2005, because he was not considered to be party to the
case.
In
the meantime, according to the applicant, the research material was
destroyed during the weekend of 8 and 9 May 2004 by three of his
colleagues.
B. Criminal proceedings against the applicant
On
18 January 2005 the Parliamentary Ombudsman decided to initiate
criminal proceedings against the applicant and by a judgment of
27 June 2005 the District Court (Göteborgs
Tingsrätt) convicted the applicant of misuse of office
pursuant to Chapter 20, Article 1 of the Penal Code (Brottsbalken).
The applicant was given a suspended sentence and ordered to pay fifty
day-fines of 750 Swedish kronor (SEK), amounting to a total of
SEK 37,500, (approximately 4,000 Euros (EUR). 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 the Administrative Court of appeal. The
vice-chancellor was sentenced to forty day fines of SEK 800,
amounting to a total of SEK 32,000 (approximately EUR 3,400).
The Parliamentary Ombudsman had also decided to initiate criminal
proceedings against the Chair of the Board of Gothenburg University,
but the charges were later dismissed. Finally, by a judgment issued
on 17 March 2006, the three 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 8 February 2006 the applicant's conviction and sentence
were upheld by the Court of Appeal (Hovrätten för Västra
Sverige) which stated as follows:
General observations on the university's management
of the case
“In its two initial judgments of 6 February 2003
the Administrative Court of Appeal laid down that K and E were
entitled to have access to the documents requested. In its two
subsequent judgments of 11 August 2003 the Administrative Court of
Appeal decided on the conditions that would apply in connection with
the release of the documents to them. The judgments by the
Administrative Court of Appeal 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 the Administrative Court of Appeal,
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
February 2003, whether or not the university considered that they
were based on erroneous or insufficient grounds had no significance.
After the February 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 the Administrative Court of Appeal for the formulation
of the conditions it had chosen. After the Administrative Court of
Appeal 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
K's and E's right of access to the documents.
Therefore, in the period referred to in the indictment
[from 11 August 2003 until 7 May 2004] it was no longer the
secrecy legislation that was to be interpreted but the judgments of
the Administrative Court of Appeal. Their contents were clear. [The
vice-chancellor's] letter of 14 August 2003 to [the applicant] and to
K and E of 1 September 2003 show that the university
administration had understood that it was incumbent on the university
to release the documents without delay.
The promptness required by the Freedom of the Press Act
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 the Administrative Court of Appeal 11 August 2003 and until 7 May
2004, when the material is said to be destroyed, the applicant in his
capacity as head of the Department of Child and Adolescent
Psychiatry, has wilfully disregarded the obligations of his office by
failing to comply with the judgments of the Administrative Court of
Appeal 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
the Department of Child and Adolescent Psychiatry, where [the
applicant] was the head. [The vice-chancellor's] letter of 14 August
2003, to which copies of the judgments of the Administrative Court of
Appeal 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 18 August 2003 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, the Court of Appeal, like the District Court, 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 14 August 2003. Here he has
referred in particular to the meeting on 18 August 2003, 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 14 August 2003,
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 18 August 2003 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 18 August 2003 W was given the task of
drawing up a complaint to the Government Disciplinary Board 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 the Board met on 17 December 2003,
[the vice-chancellor] was still considering making a complaint to the
Disciplinary Board. Finally, [a witness, AW] has testified that at a
meeting with [the applicant] shortly after the beginning of 2004,
when asked whether he still persisted in his refusal, he confirmed
that this was the case.
All things considered, the Court of Appeal 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 the
Administrative Court of Appeal on 14 August 2003. 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 E. 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
Constitution and that is also of fundamental importance in principle.
All things considered, the Court of Appeal 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 the World Medical Association and to the Convention.
The nature of the international declarations agreed on
by the World Medical Association is not such as to give precedence
over Swedish law. [The applicant's] objections on the basis of the
contents of these declarations therefore lack significance in this
case.
Article 8 of the Convention 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 the Secrecy Act
are intended, in accordance with Article 8 of the Convention, 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 Convention and the
judgments of the Administrative Court of Appeal 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
Convention cannot 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 the
Administrative Court of Appeal had determined once and for all that
the secrecy Act 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 Court 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 1984 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 Östra Hospital and its
present results will, as was the case for the previous study three
years ago, 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. The Court of Appeal
notes that there is no possibility in law to provide greater secrecy
than follows from the Secrecy Act 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 Swedish 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. The
Court of Appeal 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 cannot be divulged. What [the applicant] has adduced on
this issue cannot 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
the Administrative Court of Appeal. His offence cannot be considered
a minor one. [The applicant] shall therefore be found guilty of
misuse of office for the period after 14 August 2003, when he was
informed of the judgments of the Administrative Court of Appeal. 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, the Court of Appeal concurs with the judgment of the
District Court.
Leave
to appeal to the Supreme Court was refused on 25 April 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The right of public access to official documents
The
principle of public access to official documents
(offenligthetsprincipen) has a history of more than two
hundred years in Sweden and is one of the cornerstones of Swedish
democracy. One 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 State,
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
Govt. Bill 1975/76:160 p. 69 et seq.). The principle of public access
to official documents is enshrined in Chapter 2, Sections 1 and 12,
of the Freedom of the Press Act. Thus, every Swedish 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 (Chapter 2, Section 1; foreign nationals
enjoy the same rights in this respect as Swedish citizens, Chapter
14, Section 5).
A
document is official if it is held
by and is regarded as having been
received or “drawn up” by a public authority (Chapter 2,
Sections 3 and 6-7, 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 Justice, 1986 p. 139), it cannot 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
Chapter 2, Section 9, 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. Chapter 15, Section 1, of the Secrecy Act).
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 (Chapter 2, Section 12). Such a decision
should normally be rendered the same day or, if the public authority
in question has to consider whether the requested document is
official or whether the information is public, within a few days
(see, for example, the Parliamentary Ombudsman's decision of
23 November 2007 in case no. 5628-2006). A certain delay may
also be acceptable if the request concerns very extensive material.
If a document cannot 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 12). A public authority is under no
obligation to make a document available at the place where it is
held, if this presents serious difficulty.
B. Restrictions on the right of public access to
official documents
38. 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 Chapter 2, Section 2
(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
1.
the security of the State or its relations with another state or an
international organisation;
2. the central fiscal, monetary or
currency policy of the State;
3. the inspection, control or other
supervisory activities of a public authority;
4. the interest of
preventing or prosecuting crime;
5. the economic interest of the
public institutions;
6. the protection of the personal or
economic circumstances of private subjects;
7. the preservation
of animal or plant species.
According
to paragraph 2 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. Bill 1975/76:160 p. 72 et
seq. and Govt. Bill 1979/80:2, Part A, p. 48 et seq.). The
special act of law referred to is the Secrecy Act (Sekretesslagen;
SFS 1980:100). 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 the Swedish
Parliament (Riksdag), 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.
The
Secrecy Act contains provisions regarding the duty to observe secrecy
in the activities of the community and regarding prohibitions against
making official documents available (Chapter 1, Section 1 of Act). In
the latter respect, the provisions limit the right of access to
official documents provided for in the Freedom of the Press Act
(Tryckfrihetsförordningen, SFS 1949:105). 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 cannot 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 the Secrecy Act 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, the Administrative
Court of Appeal, in its judgments of 6 February 2003, found that
secrecy applied to the research material under Chapter 7, Sections 1,
4, 9 and 13, of the Secrecy Act (Chapter 7 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 (Chapter 14, Section 9, of the Secrecy Act). 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. Bill 1979/80:2, Part A, p. 349). 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 Chapter 20, Section 3,
of the Penal Code).
C. Procedure concerning requests for public access to
official documents
A
request to examine an official document shall be made to the public
authority which holds the document (Chapter 2, Section 14, of the
Freedom of the Press Act and Chapter 15, Section 6, of the Secrecy
Act). As mentioned above, there are specific requirements of
speediness regarding the handling of such requests. A decision by an
authority other than the Swedish Parliament 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 the
Supreme Administrative Court (Chapter 2, Section 15, of the Freedom
of the Press Act; Chapter 15, Section 7, of the Secrecy Act and
Sections 33 and 35 of the 1971 Administrative Court Procedure Act
(Förvaltningsprocesslagen; SFS 1971:291), leave to appeal
is required in the last mentioned court). Only the applicant has a
right of appeal. Thus, if the Administrative Court of Appeal -
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 2005 note 1 and RÅ 2005 ref. 88). 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. Bill
1975/76:160 p. 203 and RÅ 2003 ref. 18, which concerned the
applicant's request for relief for substantive defects).
D. Responsibility of public officials and criminal
provisions
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 (Chapter 15, Section 6, second paragraph
of the Secrecy Act). 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 daily activities. Such delegation has
to be in accordance with the regulations of the authority (Section 21
of the former Government Agencies and Institutes Ordinance,
Verkförordningen SFS 1995:1322, 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
two years (Chapter 20, Section 1, of the Penal Code). 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 six months and a maximum of six years
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 the Penal Code 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 day-fine (maximum 200 day-fines, see Chapter
27, Sections 1-2 and Chapter 30, Section 8, of the Penal Code; the
day-fine may not exceed 1,000 Swedish kronor (SEK), see Chapter 25,
Section 2, of the Penal Code; when determining the amount account is
taken of the economic circumstances of the accused).
The
relevant provision of the 1962 Swedish Penal Code (Brottsbalken)
reads as follows:
Chapter 20, Article 1:
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 two years. 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 at least six months and
at most six years. 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 Law. (Law 1989:608).
E. The Parliamentary Ombudsmen
The
functions and powers of the four Parliamentary Ombudsmen are laid
down in particular in Chapter 12, Section 6 of the Instrument of
Government (Regeringsformen) and in the Act with Instructions
for the Parliamentary Ombudsmen (Lagen med instruktion för
Riksdagens ombudsmän; SF5 1986:765), 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 Constitution
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 Ombudsman 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
Ombudsman'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 Ombudsman 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 Ombudsman may also report an
official for disciplinary measures to those who have the competence
to decide on such measures. The Ombudsman may be present at the
deliberations of the courts and the administrative authorities and is
entitled to have access to their minutes and other documents.
F. Compensation for violations of the Convention
It follows from Chapter 3, Section 2 of the Tort
Liability Act (Skadeståndslagen, SFS 1972:207) that the
State 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 Chapter 3, Section 3 of the
Act it follows that, under certain circumstances, the State is liable
to pay compensation for financial loss caused by an erroneous
instruction or advice given by an authority.
In
a judgment of 9 June 2005 (NJA 2005 p. 462), the Supreme Court found
that an individual had a right to bring a civil action against the
State before the national courts on the ground that there had been a
violation of Article 6 § 1 of the Convention because a criminal
case against the individual had not been concluded within a
reasonable time.
In a
decision of 4 May 2007 the Supreme Court held that the principle
established in NJA 2005 p. 462 also applied with regard to the rights
contained in Article 5 of the Convention.
The
Supreme Court has subsequently, in a judgment on 21 September 2007
(NJA 2007 p. 584), found that individuals have a right to bring
civil suits against the State for violations of any Articles of the
Convention when the State, according to the Convention, has an
obligation to pay damages for the violation and such obligation
cannot be based on national legislation. In the same case, the Court
of Appeal also concluded, in a judgment dated 12 January 2006, that
there had been a violation of Article 8 and that non-pecuniary
damages should be awarded on the basis of the principle established
in NJA 2005 p. 462.
A
further Supreme Court judgment of 28 November 2007 (NJA 2007 p. 891)
concerned a claim for damages against the Swedish State on the basis
of an alleged violation of Article 2 of the Convention relating to
the plaintiffs' father's suicide while in detention. The Supreme
Court concluded that the case revealed no violation of Article 2 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 11 October 2007, concerning a claim for damages
against the Swedish State, the Chancellor of Justice
(Justitskanslern) concluded that the individual concerned was
entitled to compensation from the State for non-pecuniary damage on
account of excessive length of civil proceedings.
Anyone who wishes to claim compensation from the State
for financial loss, which he or she considers has been caused by a
wrongful decision taken by a court or an administrative State
authority, may proceed in either of the two different ways: He or she
may either petition the Chancellor of Justice in accordance with
Section 3 of the Ordinance on the Administration of Claims for
Damages against the State (Förordningen om handläggning
av skadeståndsanspråk mot staten, SFS 1995:1301), or
bring a civil action against the State in the ordinary courts. No
appeal lies against a decision of the Chancellor of Justice. However,
if the claim is rejected, the claimant still has the possibility to
institute civil proceedings before the courts.
III. THE HELSINKI DECLARATION
The
Helsinki Declaration, adopted by the 18th World Medical Association's
General Assembly, Helsinki in Finland in June 1964, with later
amendments states inter alia:
INTRODUCTION
1. The World Medical Association (WMA) 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.
2. Although the Declaration is addressed primarily to
physicians, the WMA encourages other participants in medical research
involving human subjects to adopt these principles.
3. 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.
4. The Declaration of Geneva of the WMA binds the
physician with the words, "The health of my patient will be my
first consideration," and the International Code of Medical
Ethics declares that, "A physician shall act in the patient's
best interest when providing medical care."
5. 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.
6. In medical research involving human subjects, the
well-being of the individual research subject must take precedence
over all other interests.
...
10. 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
11. 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.
...
14. 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.
15. 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 Declaration. 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.
...
23. 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.
24. 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 cannot be expressed in writing,
the non-written consent must be formally documented and witnessed.
...
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION
The
applicant complained under Articles 6 and 13 of the Convention that
in the civil proceedings concerning access to the research material
he did not have a standing before the Administrative Court of Appeal
and the Supreme Administrative Court.
Admissibility
In
its two initial judgments of 6 February 2003 the Administrative Court
of Appeal laid down that K and E were entitled to have access to the
documents requested. In its two subsequent judgments of 11 August
2003 the Administrative Court of Appeal decided on the conditions
that would apply in connection with the release of the documents to
them. Subsequently, in two separate judgments of 4 May 2004
the Administrative Court of Appeal annulled the decisions by the
University of Gothenburg of 27 January 2004 and 2 February 2004 to
refuse respectively to grant access to K and to impose a new
condition on E in order to give him access to the research material.
The judgments by the Administrative Court of Appeal had therefore
settled the question of access.
Several
times the applicant's requests for relief for substantive defects to
the Supreme Administrative Court were refused because he could not be
considered a party to the case. Such decisions were taken on
4 April and 5 November 2003, 28 September 2004 and 1
July 2005, thus more than six months before 10 October 2006, which is
the date on which the application was lodged before the Court.
It
follows that this part of the application has been submitted too late
and must be rejected pursuant to Article 35 §§ 1 and 4
of the Convention
II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
The
applicant also complained under Article 7 of the Convention that in
the criminal proceedings he was punished without law because he did
not have a standing in the civil proceedings.
Admissibility
The
Court has examined the applicants' complaint under Article 7 of the
Convention as it was submitted for the first time in his observations
of 12 January 2009, which is more than six months after leave to
appeal to the Supreme Court was refused on 25 April 2006 in the
criminal proceedings.
It
follows that this part of the application has been submitted too late
and must be rejected pursuant to Article 35 §§ 1 and 4
of the Convention
III. ALLEGED VIOLATION OF ARTICLES 8 AND 10 OF THE
CONVENTION RELATING TO THE CIVIL PROCEEDINGS CONCERNING ACCESS TO THE
RESEARCH MATERIAL
The
applicant invoked Articles 8 and 10 in relation to the civil
proceedings concerning access to the research material.
Admissibility
In
so far as these complaints related to the private
and family life of the individuals participating in the study carried
out by him and his research team or related to the
question of whether the Administrative Court of Appeal's judgments
were in accordance with the Swedish secrecy legislation or the
Convention, the Court notes that before the Court the applicant does
not represent the individuals participating in the study carried out
by him. In any event, as stated above, these issues were dealt with
by the Administrative Court of Appeal in its judgments of
6 February and 11 August 2003, and of 4 May 2004.
The
applicant did not by himself initiate any court proceedings and his
requests for relief for substantive defects to the Supreme
Administrative Court were refused because he could not be considered
a party to the case on 4 April and 5 November 2003, 28
September 2004 and 1 July 2005. All the said judgments and
decisions were taken more than six months before 10 October
2006, which is the date on which the application was lodged before
the Court.
It
follows that this part of the application has been submitted too late
and must be rejected pursuant to Article 35 §§ 1 and 4
of the Convention.
IV. ALLEGED VIOLATION OF ARTICLES 8 AND 10 OF THE
CONVENTION RELATING TO THE CRIMINAL PROCEEDINGS AGAINST THE APPLICANT
The
applicant also complained that the outcome of the criminal
proceedings infringed his rights under Article 8 or Article 10 of the
Convention, notably because allegedly the promise of confidentiality
was imposed on him as a precondition for carrying out his research by
the public authority, the Ethics Committee of the University of
Gothenburg.
A. Admissibility
The
Government submitted that this part of the application should be
declared inadmissible for non-exhaustion of domestic remedies.
They
maintained that Swedish law provided a remedy in the form of
compensation for both pecuniary and non-pecuniary damage in respect
of any violation of the Convention, including the violations alleged
in the present case and that the applicant had failed to avail
himself of this remedy.
The
said remedy had been established for the first time by a Supreme
Court judgment of 9 June 2005, whereby compensation for
pecuniary and non pecuniary damage on account of excessive
length of criminal proceedings was awarded. Subsequently, by decision
of 4 May 2007 and judgments of 21 September and 28 November 2007 the
Supreme Court had examined compensation claims on the basis of
Articles 2, 5 and 8 of the Convention and had, in the two former
cases, found the individual entitled to compensation for
non-pecuniary damage due to violations of Articles 5 and 8
respectively. Finally, the Government referred to a decision of
11 October 2007 by the Chancellor of Justice granting
compensation for non-pecuniary damage for excessive length of civil
proceedings. Thus, in the Government's view, Swedish law provided a
remedy in the form of compensation for both pecuniary and
non-pecuniary damage in respect of any violation of the Convention,
including the violations alleged in the present case. In their
submission, that remedy had been available to the applicant at the
time when he lodged the present application or was at least currently
available.
The
applicant disputed the Government's submissions and claimed that the
remedy suggested was not effective in regard to his complaints.
The
Court has set out the general principles pertaining to the exhaustion
of domestic remedies in a number of judgments (see, for example
Akdivar and Others v. Turkey [GC], 16 September 1996, §§
66-69), Reports of Judgments and Decisions 1996-IV).
In
the present case, the applicant was convicted by the District Court
on 18 January 2005. This was upheld by the Court of Appeal on 8
February 2006. The latter judgment became final when the Supreme
Court on 25 April 2006 refused leave to appeal. Before the
Swedish courts, the applicant relied among other things on the
Convention and argued that he was prevented by medical ethics and
research ethics from disclosing information about the participants in
the study and their relatives. He thus did what was required of him
in order to afford the national authorities the opportunity to remedy
the violation alleged by him.
The
Government claimed, however, that the applicant failed to avail
himself of available remedies capable of affording him sufficient
redress in the form of compensation for the alleged violations. In
this respect, the Court notes that, of the final domestic judgments
and decision referred to by the Government, only one was delivered
before the introduction of the present application, namely the
Supreme Court's judgment of 9 June 2005. Although that case and the
present application concerned criminal proceedings, the former
concerned excessive length of criminal proceedings whereas the latter
concerned Article 8 of the Convention in relation to a charge for
misuse of office for having failed to comply with obligations as a
public official arising from previous judgments by the Administrative
Court of Appeal. In these circumstances, in the Court's view, it has
not been shown that, at the time of the applicant's lodging the
present application, there existed a remedy which was able to afford
redress in respect of the violations alleged by the applicant (see
also Bladh v. Sweden (dec.), no. 46125/06, 10 November
2009, §§ 23-27).
The
Government further claimed that the existence of such a remedy had,
in any event, become certain through several decisions and judgments
issued by the Supreme Court in 2007 and that, consequently, the
applicant had had the opportunity to claim compensation before the
Swedish courts after the introduction of the present application.
Leaving open the question of whether the applicant could have been
obliged to institute domestic compensation proceedings after the date
of introduction, the Court notes, again, that the underlying issues
in the cases mentioned by the Government were different to the ones
raised in the present case. While the Court welcomes the development
in Swedish law concerning the possibility to claim compensation on
the basis of alleged violations of the Convention, it must be kept in
mind that this development is a rather recent one. Consequently, it
cannot generally be required of an individual applicant to pursue a
compensation claim in respect of Convention issues that have not been
determined by the domestic courts or are not closely related to
issues that have been so determined. The reason for this is that, in
many of these cases, the existence of the remedy cannot yet be
considered as sufficiently certain. This consideration is even more
important in a situation where the decisions allegedly establishing
the remedy were issued after the introduction of the application
before the Court.
The
Court finds that, in the instant case, it could not be required of
the applicant to pursue the remedy invoked by the Government. The
Government's objection as to the exhaustion of domestic remedies must
therefore be dismissed.
It
also noted that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. The merits of the complaint under Article 8 of the
Convention
The
applicant maintained that, having regard to his promise of
confidentiality to the families of the children who took part in the
research, his criminal conviction infringed his right to private
life or his right to negative freedom of expression as set out in
Article 8 of the Convention:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
1. Submissions to the Court
From
the outset the Government noted that the applicant was convicted of a
crime relating to his duties as a public official, or his
professional activities, and that the invoked “assurances of
confidentiality” were also given by him in his professional
capacity. Thus, although the Court has found that certain activities
of a professional or business nature could, in some particular
circumstances, affect a person's private life, in the Government's
view there is no support in the Court's case law for the conclusion
that the applicant's conviction had any bearing on his “private
life” within the meaning of Article 8 of the Convention.
Moreover,
they questioned that a conviction in a criminal case in itself could
constitute an interference with the applicant's rights under Article
8. In addition they noted that in the present case, the applicant
was convicted of misuse
of office
for having disregarded his
duties as a public official, as he had not complied with the orders
of his employers and the Administrative Court of Appeal's judgments
to grant access to the research material on certain conditions.
Moreover, it was not possible in law to provide greater secrecy than
followed from the Secrecy Act, or to make decisions concerning
confidentiality until the release of a document was requested. Nor
was it possible, for that reason, to refuse access to official
documents by invoking “assurances of confidentiality”
previously made or to be exempted from criminal responsibility for
having acted in this way. In these circumstances the
Government questioned whether it could reasonably
be argued that the applicant's conviction amounted to an
“interference” within the meaning of Article 8 §
2 for the sole reason that the grant
of access to the documents at issue would have been in breach of
“assurances of confidentiality” given to the patients
involved.
Nevertheless,
should the Court find that there had been an interference with the
applicant's “private life” the Government contended that
it was in accordance with the law, pursued the legitimate aims of
preventing crimes and disorder, and protecting the rights and
freedoms of others, and was necessary in a democratic society.
As
to the latter assessment, the primary issue was whether and to what
extent the right of public access to official documents should be
given priority or precedence over other public and individual
interest or rights. They pointed out that the
purpose of the principle of public access to official documents was
to allow for the public and the media to exercise control of the
State, the municipalities and other parts of the public sector which,
in turn, contributed to the free exchange of opinions and thoughts,
and to efficient and correct management of public administration and,
thereby, to maintain the legitimacy of the democratic system.
In
the context of the present case, where K and E were two professionals
critical of the applicant's research, it could also be argued that
access to the documents was in the interest not only of contributing
to the free exchange of opinions and thoughts, but also to the
advance of science.
Furthermore,
it should be kept in mind that the applicant acted as a public
official at the university, that the research material was the
property of the university, and that by virtue of the Administrative
Court of Appeal's judgments of 6 February 2003 and 11 August 2003 the
applicant, in his capacity as a public official, was under an
obligation to make the documents available to the University
administration. Accordingly, after 14 August 2003, when the
applicant was informed about the judgments, there was no room for
interpreting and applying the secrecy legislation, but only for
interpreting and applying the Administrative Court of Appeal's
judgments.
Nevertheless,
when examining the issue of whether the applicant should be held
criminally responsible, the Court of Appeal did take the “assurances
of confidentiality” given by the applicant into consideration.
It concluded that the relevant legislation did not permit public
authorities to make “assurances of confidentiality” that
are more far-reaching than the secrecy legislation provides or to
decide that secrecy should apply before a request for access to
certain documents has been received.
Finally,
the Court
of Appeal took into consideration that the applicant, over a long
period of time, had intentionally disregarded his duties as a public
official by not complying with the
Administrative Court of Appeal's
judgments and thus set aside the constitutional right of public
access to official documents.
The
applicant complained that the outcome of the criminal proceedings
infringed his rights under Article 8 of the Convention, notably
because his promise of confidentiality to the participants in the
research allegedly was imposed on him by the public authority, the
Ethics Committee of the University of Gothenburg, as a precondition
for carrying out his research.
He
maintained that he had suffered personally, socially, psychologically
and economically, although he had followed in every respect the
relevant ethical regulatory system provided by the State and despite
the fact that the rulings of the Administrative Court of Appeal were
allegedly probably completely mistaken. The applicant submitted that
the rulings of the Administrative Court of Appeal implied that he
would have to share sensitive, personalised psychiatric medical
record data, contained in non archived working material in
progress from a research project with allegedly two private
individuals with no approved research agendas, although he had given
promises of confidentiality about the material under the instruction
of the State, and although such would have violated the integrity and
human rights of hundreds of individuals participating in the research
project. Thus, although the case also concerned the applicant's
criminal conviction for misuse of office, in the applicant's view he
was subjected to violations of his rights under the Convention due to
a whole chain of negative events stemming from the probably mistaken
rulings by the Administrative Court of Appeal, which the applicant
could not have reviewed.
The
applicant contended that he was given only two options by his
employer, the State, both of which would render him liable to
prosecution or defamation: either he did not break the promises with
the consequence that he would be prosecuted for misuse of office and
defamed, or he did break the promises for which he would be reported
in the media with undesired consequences as a result. He further
alleged that it would also have had detrimental effects on the
conduct of scientific research in general in Sweden.
Furthermore,
he alleged that the research material was probably not the property
of the university. The Administrative Court of Appeal just assumed
this without analysing the context of the study in which the material
had been collected and did not realise that the material was an
unfinished longitudinal study containing only non-registered,
non-archived data, which therefore was not in the public domain, but
in the domain of the researcher responsible.
The
applicant also maintained that his criminal conviction was based on
judgments by the Administrative Court of Appeal, which were not “in
accordance with the law” and that it was illogical that he, who
was not a party to the proceedings before the Administrative Court of
Appeal, could be convicted for misuse of office by the criminal
courts or that the latter did not identify any mitigating
circumstances. He referred in this respect, inter alia, to the
applicant's compliance with the Helsinki Declaration, and to other
professions, for example priests and journalists, for whom it would
be taken as a mitigating circumstance that they were protecting the
integrity of their informants.
Finally,
the applicant pointed out that he had no part in the destruction of
the research material or the decision to destroy it. It was three
members of the research team who decided to destroy the material, and
did so on 7 to 9 May 2004.
2. Clarification of the complaint to be examined
On
the face of it, the present case raises important ethical issues
involving, among other things, the interest of the children
participating in the research, their parents who under certain
conditions gave their consent to the children's participation in the
study, the researchers, including the applicant, medical research in
general, the public and public access to information. In order to
avoid confusion, however, the Court finds it necessary to clarify the
complaint to be examined and emphasise the following.
92. As
to the notion of public access, it will be recalled that in the
present case, access was granted only to K and E. The former was a
sociologist and a researcher at
Lund University, who maintained that 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 (see paragraph
15). E was a paediatrician, who 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 (see paragraph 16). Both were
granted access on certain conditions (see paragraph 22). K and E were
not allowed to remove copies from the premises where they were given
access to the documents and 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 them, would be destroyed
when the above research project was completed. When granting access
the Administrative Court of Appeal 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.
93. As
to the children participating in the research and their parents, it
will be recalled that the applicant does not represent them before
the Court. Nor are they parties
in the proceedings before the Court and there is no indication that
they instituted any proceedings before the domestic authorities
relating to the circumstances of the present case.
There
is no indication either that the applicant acted as the children's
private physician or psychiatrist. He was a professor and a
researcher who, at the time when he became part of the research team,
and later when he became responsible for the study, every third year
followed a group of one hundred and forty one pre school
children with the aim of elucidating the significance of
Attention Deficit Hyperactivity Disorder (ADHD)
or Deficits in
Attention, Motor Control and Perception
(DAMP) in children and the
associated problems from a long-term perspective.
The
domestic courts noted that the research material consisted of a large
number of records, test results, interview replies, questionnaires
and video and audio tapes and contained a very large amount of
privacy sensitive data about the children and their relatives.
Before the Court the applicant maintained that the background
material also contained non-registered, non-archived data, personal
handwritten documents and copies of medical/psychiatric reports. The
latter submission can neither be confirmed nor excluded as the
material was destroyed.
It
will be recalled that in various judgments, inter
alia, Z v. Finland,
Reports 1997 I, §§ 95- 99, and M.S. v. Sweden,
Reports 1997 IV, § 41, the Court stated that “respecting
the confidentiality of health data is a vital principle in legal
systems of all the Contracting Parties to the Convention. It is
crucial not only to respect the privacy of a patient but also to
preserve his or her confidence in the medical profession and in the
health service in general”. The Court accepted, however, in the
former judgment “that the interests of a patient and the
community as a whole in protecting the confidentiality of medical
data may be outweighed by the interest in investigation and
prosecution of crime and in the publicity of court proceedings, (see,
mutatis mutandis,
Article 9 of the above-mentioned 1981 Data Protection Convention),
where such interests are shown to be of even greater importance”.
It
will also be recalled from the Court's finding above, that the
applicant's complaints relating to the Administrative Court of
Appeal's judgments of 6 February 2003, 11 August 2003
and 4 May 2004 concerning K's and E's access to the
background material were lodged out of time and that the Court is
therefore prevented from examining any alleged violation in this
connection.
Accordingly,
the Court can only examine whether the outcome of the criminal
proceedings against the applicant contravened the Convention.
In
this respect it will be recalled that by the Court of Appeal's
judgment of 8 February 2006, which became final on 25 April 2006,
when the Supreme Court refused leave to appeal, the applicant was
convicted pursuant to Chapter 20, Article 1 of the Penal Code for, in
his capacity as head of the Department of Child and adolescent
Psychiatry, from 11 August 2003 until 7 May 2004, wilfully
having disregarded the obligations of his office by failing to comply
with the judgments of the Administrative Court of Appeal, allowing E
and K access to the research material on certain conditions, by
refusing to make the documents available for removal in accordance
with the instructions he had received from the university
administration. He was given a suspended sentence and ordered to pay
fifty day-fines of 750 Swedish kronor, amounting to a total of
approximately EUR 4,000 Euros.
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. He was sentenced to forty day fines of
SEK 800, amounting to a total of approximately EUR 3,400.
The
conviction of the applicant and the vice-chancellor were exclusively
related to their roles as public officials at a public institution,
namely the University of Gothenburg. The disputed material, to which
the Administrative Court of Appeal had decided that K and E could
have access under various conditions, was the property of the
university and it was therefore considered to be in the public
domain.
The
applicant was not convicted for having destroyed the research
material. Nor did he risk criminal prosecution for breach of
professional secrecy, if he had released the documents to K and E.
The Court refers in this respect to the finding by the Court of
Appeal that “the Administrative Court of Appeal had determined
once and for all that the Secrecy Act 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 Court of Appeal, the applicant must have realised”.
Hereafter,
what is left for the Court to examine is whether it was in violation
of Article 8 (or 10) of the Convention that the applicant was
convicted for, in his capacity as head of the Department of Child and
adolescent Psychiatry, from 11 August 2003 until 7 May
2004, wilfully having disregarded the obligations of his office by
failing to comply with the judgments of the Administrative Court of
Appeal, allowing E and K access to the research material on certain
conditions, by refusing to make the documents available for removal
in accordance with the instructions he had received from the
university administration.
3. The Court's assessment
The Court reiterates that the concept of “private
life” is a broad term not susceptible to exhaustive definition.
It covers the physical and psychological integrity of a person (see
Pretty v. the United Kingdom, no. 2346/02, § 61,
ECHR 2002-III, and Y.F. v. Turkey, no. 24209/94,
§ 33, ECHR 2003-IX) and may extend to certain activities of
a professional nature (see, for example Halford v. the United
Kingdom, 25 June 1997, Reports of Judgments and Decisions
1997 III). Moreover, in several cases concerning consequences of
a criminal conviction, Article 8 has been found applicable (see, for
example, Üner v. the Netherlands [GC], no. 46410/99, ECHR
2006 XII, and Maslov v. Austria [GC], no. 1638/03, 23
June 2008) or concerning measures related to criminal proceedings
(see, for example, S. and Marper v. the United Kingdom [GC],
nos. 30562/04 and 30566/04, 4 December
2008). However, there appears to be no case-law where the Court has
assumed that a criminal conviction in itself constituted an
interference with the right to respect for private life within the
meaning of Article 8 of the Convention.
In
the circumstances of the present case the Court leaves it open
whether there has been an interference with the applicant's right to
respect for his private life, because even assuming that there has
been an interference, it finds that there has been no violation of
the invoked provision for the reasons set out below.
In
the Court's view the conviction of the applicant was in accordance
with the law, namely Chapter 20, Article 1 of the Penal Code, and it
pursued legitimate aims, namely preventing disorder and crime, and
the protection of the rights and freedoms of others.
In
the examination of whether the disputed assumed interference was
necessary in a democratic society the Court notes the
Government's observation that the purpose of the principle of public
access to official documents was to allow for the public and the
media to exercise control of the State, the municipalities and other
parts of the public sector which, in turn, contributed to the free
exchange of opinions and thoughts, and to efficient and correct
management of public administration and, thereby, to maintain the
legitimacy of the democratic system. That observation relates rather,
however, to the outcome of the judgments by the Administration Court
of Appeal, which are not under examination for the reasons stated
above.
What
is crucial in the examination at hand is whether the disputed
interference, namely the conviction of the applicant for misuse of
office, was necessary in a democratic society.
The
Court reiterates in this connection that the Contracting States'
domestic legal systems must ensure that a final binding judicial
decision does not remain inoperative to the detriment of one party
and that the execution of a judgment given by any court must be
regarded as an integral part of the “trial” for the
purposes of Article 6 (see Burdov v. Russia,
no. 59498/00, § 34, ECHR 2002-III, and Hornsby v.
Greece, judgment of 19 March 1997, Reports of Judgments
and Decisions 1997-II, p. 510, § 40).
Seen
in this light, the Swedish State had to react to the applicant's
refusal to execute the judgments by the Administrative Court of
Appeal granting E and K access to the research material on various
conditions.
In
the examination of whether the conviction and the sentence imposed on
the applicant were proportional to the aims pursued, the applicant
has submitted that the criminal courts failed to take various
mitigating elements into account.
Firstly,
the Court notes that before the Court the applicant has submitted two
permits by the Ethics Committee of the University of Gothenburg dated
9 March 1984 and 31 May 1988, but that they do not constitute
evidence that the Ethics Committee of the University of Gothenburg
required an absolute promise of confidentiality as a precondition for
carrying out his research. Moreover, in the criminal proceedings the
applicant 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 Court of Appeal stated in that
connection that “the assurances of confidentiality given to
those participants in the study go, at least in some respects,
further than the Secrecy Act permits. The Court of Appeal notes that
there is no possibility in law to provide greater secrecy than
follows from the Secrecy Act 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.”
In
the Court's view, while different interpretations of the
legislation at issue cannot be excluded, it does not overstep the
State's margin of appreciation in this case if the Court of Appeal
found that the assurances of confidentiality cited
above could not take precedence over the law as it stood. The
decision thereon did not appear arbitrary.
The
same can be said as to the Court of Appeal's finding that the
nature of the international declarations agreed on by the World
Medical Association was not such as to give precedence over Swedish
law.
The
applicant also submitted that, had he been a member of another
profession, such as a priest or a journalist, the Court of Appeal
would have taken into account as a mitigating circumstance the fact
that he had attempted to protect the integrity of the
informants/participants in the research. In so far as the applicant
invoked this argument in the criminal proceedings, the Court finds
that the Court of Appeal replied to them by emphasising that the
judgments by the Administrative Court of Appeal had settled once and
for all the question of whether the documents were to be released to
K and E, that before the Administrative Court of Appeal the
university had had the opportunity to present reasons why the
documents requested should not be released to K and E, and that it
had no significance for the validity of the Administrative Court of
Appeal's judgments whether or not the university considered that they
were based on erroneous or insufficient grounds. What mattered was
that the university administration had understood that it was
incumbent on it to release the documents without delay and that for a
considerable period the applicant, in his capacity as head of the
Department of Child and Adolescent Psychiatry, intentionally failed
to comply with his obligations as a public official arising from the
judgments of the Administrative Court of Appeal.
Such
a finding, or the fact that the Court of Appeal did not take into
account as a mitigating circumstance the fact that the applicant had
attempted to protect the integrity of the participants in the
research does not, in the Court's view,
overstep the State's margin of appreciation in this case.
Finally,
the sentenced imposed on the applicant cannot be said to be
disproportionate.
In
these circumstances, there are no elements which could suggest that
the Court of Appeal's judgment was arbitrary or disproportionate to
the legitimate aims pursued.
Accordingly,
the Court considers that in the present case there has been no
violation of Article 8 of the Convention.
B. The merits of the complaints under Article 10 of the
Convention
The
Court will proceed to examine whether the applicant's complaint, that
having regard to his promise of confidentiality to the families of
the children who took part in the research, his criminal conviction
infringed his right to freedom of expression under Article 10 which
reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
It
notes from the outset that the applicant was not prevented from
exercising his “positive” right to freedom of expression
under the provision: rather he was convicted for failing to make the
disputed documents available in compliance with the judgments of the
Administrative Court of Appeal.
The
applicant submitted that it should have been taken into account as a
mitigating circumstance that he, like for example priests and
journalists, had attempted to protect the integrity of their
informants. The Court observes in this respect that doctors,
psychiatrists and researchers may have a similar interest to that of
journalists in protecting their sources (see e.g. Fressoz and
Roire v. France [GC], no. 29183/95, ECHR 1999 I and
Roemen and Schmit v. Luxembourg, application no.
51772/99, 25 February 2003).
Moreover,
doctors, psychiatrists and researchers may have a similar interest to
that, for example, of lawyers in protecting professional secrecy with
clients (see e.g. Niemietz v. Germany, judgment of 16 December
1992, series A no. 251-B, Foxley v. The United Kingdom, no.
33274/96, 20 June 2000 and Strohal v. Austria, no. 20871/92,
Commission decision of 7 April 1994). In the latter case,
the former Commission stated “that the right to freedom of
expression by implication also guarantees a “negative right”
not to be compelled to express oneself, i.e. to remain silent”.
However, when referring to the aspect of remaining silent, the former
Commission referred to K. v. Austria, Commission
Report of 13 October 1992, § 45, cf. also Ezelin v. France,
judgment of 26 April 1991, Series A no. 202, § 33,
where the Court stated that a refusal to give evidence does not in
itself come within the ambit of Article 10 of the Convention.
However, as opposed to doctors, psychiatrists and researchers, where
a lawyer is involved an encroachment on professional secrecy may have
repercussions on the proper administration of justice and hence on
the rights guaranteed by Article 6 of the Convention (see Niemietz
v. Germany and Foxley v. The United Kingdom,
both cited above).
Moreover,
the applicant in the present case was not convicted for having
refused to give evidence, he was convicted for misuse of office, in
his capacity as head of the Department of Child and Adolescent
Psychiatry at the University of Gothenburg, from 11 August 2003 until
7 May 2004, for having wilfully disregarded the obligations of
his office by failing to comply with the judgments of the
Administrative Court of Appeal, by refusing to make the documents
available for removal in accordance with the instructions he had
received from the university administration. He was thus part of the
university that had to comply with the judgments of the
Administrative Court of Appeal.
In
addition, the conviction of the applicant did not as such concern the
university's or the applicant's interest in protecting professional
secrecy with clients or the participants in the research. That part
was settled by the Administrative Court of Appeal's judgments of 6
February 2003, 11 August 2003 and 4 May 2004, in
relation to which the Court is prevented from examining any alleged
violation of the Convention, as stated above.
In
these circumstances, the Court is not convinced that the outcome of
the criminal proceedings against the applicant amounted to an
interference with his rights within the meaning of Article 10 of the
Convention, but finds it unnecessary to examine this issue further
since in any event it finds that there has been no violation of
Article 10 for the reasons stated when examining the complaint under
Article 8 of the Convention, and concludes that there are no elements
which could suggest that the Court of Appeal's judgment was arbitrary
or disproportionate to the legitimate aims pursued, namely preventing
disorder and crime, and the protection of the rights of others.
Accordingly,
the Court considers that in the present case there has been no
violation of Article 10 of the Convention.
FOR THESE REASONS, THE COURT
Declares unanimously the complaint under
Articles 8 and 10 relating to the criminal proceedings against the
applicant admissible and the remainder of the application
inadmissible;
Holds by five votes to two that there has been
no violation of Article 8 of the Convention;
Holds unanimously that there has been no
violation of Article 10 of the Convention.
Done in English, and notified in writing on 2 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) concurring
opinion of Judge Power;
(b) joint
dissenting opinion of Judges Gyulumyan and Ziemele.
J.C.M.
S.Q.
CONCURRING OPINION OF JUDGE POWER
I
voted for a finding of no violation of Articles 8 or 10 of the
Convention but I would like to add some additional remarks to the
reasoning of the majority. Relying on his promise of confidentiality
given to research participants, the applicant obstructed,
intentionally, the University of Gothenburg from complying with a
Court Order for disclosure of documents under restricted conditions.
The documents, which related to a research project conducted from
1977 to 1992 were subsequently destroyed thus frustrating compliance
with a lawful Court Order.
The
documentation in question had been sought by third party researchers
who had established, before the domestic courts, a legitimate
interest in having certain access to the material. According to the
Judgment of the domestic court, their interest did not relate to the
personal data of the research subjects, as such, but only to “the
methods used in the research and the evidence the researchers had for
their conclusions”. It was “important to the
neuropsychiatric debate that the material in question could be
exposed to independent and critical examination”.
The public has an obvious interest in the findings and implications
of research. Progress in scientific knowledge would be hampered
unduly if the methods and evidence used in research were not open to
scrutiny, discussion and debate. Thus, the requests for access, in my
view, represented important matters of public interest.
The
public also has an interest in protecting the confidentiality that
attaches to the doctor-patient and other kinds of fiduciary
relationship, including the one that arose in this case. The purpose
of the duty of confidence is to support the development of fiduciary
and other special relationships that involve an element of reliance
or trust between persons for the social and personal benefits they
provide. It is important to note, however, that the applicant was not
the children's treating doctor but acted, rather, in his capacity as
Director of Research.
The Administrative Court of Appeal was thus faced with two competing
public interests. In balancing those interests, it listened to the
arguments against disclosure submitted by the University of
Gothenburg (in which, it would appear, ownership of the records
vested, the research not being the private research of the applicant)
and it heard the submissions of the third party researchers who
wanted to test the reliability of that University's research
findings. In reaching its decision, it balanced the competing
interests and imposed rather stringent and restrictive conditions
prior to the making of the Order for disclosure. During the course of
the dispute it directed the matter back to the University to examine
whether the material
could be released “after
the removal of identifying information –
a condition which, to my mind, appeared entirely appropriate and
which would indicate that the applicant's concerns regarding
confidentiality had been considered, at least in substance, by the
domestic courts.
Further conditions also attached to the Order granting access, the
breach of which gave rise to criminal liability on the part of those
to whom access had been granted. Notwithstanding the existence of
such safeguards, the applicant nevertheless persisted in his
opposition to the release of the documentation insisting upon the
binding nature of his promise of confidentiality to the research
participants.
Part
of the applicant's difficulty seems to lie in his perception of the
legal boundaries of a doctor's duty of confidence. It seems to me
that, as a general principle, once a doctor is required to give
evidence or, by order of the court, to disclose confidential notes
concerning a patient's treatment, no privilege exists which would
entitle the patient to prevent disclosure of the relevant
information. The corollary is, of course, that in the absence of a
court order or of patient consent, medical records cannot be
released by a doctor to third parties.
The fact is that in this case the records that related to the
research participants (who were not the applicant's “patients”)
were the subject of a court order.
The
applicant complains, essentially, that he had to choose between
breaking the law or breaking a promise of confidentiality (which he
was obliged both by his profession and by the state, to make). He
chose to break the law even though a court of law had previously
considered the confidential nature of the records in question in its
balancing of the interests involved and had imposed strict
conditions attaching to disclosure. The applicant was thus protected
by law and I do not accept that in complying with a court order his
future career as a doctor would have been destroyed.
Confidentiality
in medical research relationships, although an important matter of
public interest and meriting the law's protection, cannot be said to
be absolute. There may be times when a person owing a duty of
confidence is obliged to disclose information that was given “in
confidence” as, for example, where disclosure is necessary to
prevent a risk of foreseeable harm to a patient or to a third party
or where it is made on foot of a court order. Thus, at the outset of
any clinical research project or other “confidential”
therapeutic relationship, the legal boundaries within which the duty
of confidence arises ought to be clearly established.
If
what appears to be the applicant's perception of the binding nature
of his promise of confidentiality were correct, then courts could
rarely, if ever, order disclosure of “confidential”
records even where the protection of other important interests were
in issue. Yet case law from various jurisdictions indicates that
applications for disclosure of “confidential” records
are frequently brought before the courts
and it is not unusual for courts to engage in a balancing exercise
of the competing interests involved.
No
medical practitioner or academic researcher, no matter how committed
to the principle of confidentiality, is permitted to act outside the
law. Respect for the rule of law upon which the foundations of
democracy rest requires respect for lawful Court orders. The
applicant was not entitled to do what he did and his conviction with
a suspended sentence was not, in my view, disproportionate having
regard to all the circumstances of the case.
JOINT DISSENTING OPINION
OF JUDGES GYULUMYAN AND
ZIEMELE
We
do not share the view of the majority that the criminal conviction of
the applicant was a proportionate measure and that his rights under
Article 8 were therefore not violated.
First
of all, we would point out that the reasons for the destruction of
the research material by the applicant's research team (see paragraph
31) concerned the best interests of the children and the protection
of the families involved in this research at the University of
Gothenburg. The researchers had promised confidentiality of the
information collected about the individuals concerned. There is no
question that the promise of confidentiality is essential for the
purposes of medical, social and behavioural studies. It is only with
this guarantee that researchers can expect research subjects to
submit the most accurate data. In other words, if science is to make
progress in areas that are important for human beings, the
confidentiality and protection of research data is of key importance.
Admittedly, the protection of research data for the advancement of
science is another legitimate aim to be protected. However, the two
aims are closely linked: the first sets the limits on the second. It
has been repeatedly emphasised within the framework of professional
debate and the World Health Organization in particular that
“Advancement of medical knowledge depends, to a large extent,
on expansion of research involving experimentation on human subjects.
[However] it is not acceptable that the respect of the individuals be
compromised in the pursuit of benefits that may accrue to science and
society. ...The principle of respect implies that participation in
the research should be completely voluntary and based on informed
consent. Where research involves collection of data on individuals,
privacy should be protected by ensuring confidentiality” (see
http://whqlibdoc.who.int/emro/2004/9290213639_chap2.pdf visited on
18 October 2010).
Article
8 of the Convention in this case not only refers to the protection of
the privacy of third persons, it also refers to the notion of privacy
which covers the applicant's work as a researcher in a sensitive
medical sphere and his authority as a professional medical
researcher. Therefore, the arguments advanced by the applicant in the
criminal proceedings – namely, that his behaviour had been
dictated by both medical and research ethics and the Convention –
ought to have been examined in much more detail then the court
actually did (paragraph 33). Likewise, the arguments advanced by the
applicant to the effect that the promise of confidentiality given to
the children and their families and the importance of upholding the
value of confidentiality for the future of research in Sweden, which
form the core of the professional debate on how to carry out medical
research in compliance with human rights (see World Medical
Association Declaration of Helsinki – Ethical Principles
for Medical Research Involving Human Subjects, as last amended in
October 2008), were dismissed in two short paragraphs by the Court of
Appeal.
We
note that the Helsinki Declaration addresses the question of
publication of the results of research. It provides that “Authors,
editors and publishers all have ethical obligations with regard to
the publication of the results of research. Authors have a duty to
make publicly available the results of their research on human
subjects and are accountable for the completeness and accuracy of
their reports. They should adhere to accepted guidelines for ethical
reporting. Negative and inconclusive as well as positive results
should be published or otherwise made publicly available. Sources of
funding, institutional affiliations and conflicts of interest should
be declared in the publication. Reports of research not in accordance
with the principles of this Declaration should not be accepted for
publication.” The approach in the field of medical research is
not to maintain secrecy. On the contrary, it is recognised that
public debate about research results is important for quality,
transparency and various other reasons. There is a duty to make
public the results of research irrespective of whether the outcome
has been positive or negative. However, this has to be balanced
against the principle of confidentiality as it applies to research
subjects (see point 2 above). The question arises whether the system,
as developed in Sweden over a long period of implementing the
principle of public access to official documents (see paragraphs
35-41) is adapted to the modern challenges of medical research and
the right of privacy in its various forms in this context. The main
aspects of this issue had to be debated within the framework of
administrative proceedings which fall outside the Court's competence.
It is, in our view, misleading, however, to think that these
questions are irrelevant in criminal proceedings (see point 3 above).
It
is true that the values of science may clash with the values of law,
as in the case before us. The national courts and the European Court
of Human Rights should bear this in mind and accordingly be prepared
to balance all the arguments. In our view, the Swedish courts, in
adjudicating the criminal charges against the applicant, were too
formalistic and, in a sense, self-righteous. Of course, the State has
every right and obligation to see to it that order is maintained and
that court judgments are complied with. We agree that the State had
to make sure that the applicant complied with the judgment of the
Administrative Court of Appeal, even if we have a number of questions
regarding this judgment (see point 4 above). However, in the criminal
proceedings the national courts should have had regard to the major
chilling effect that an imposition of a criminal sentence on a
researcher and the subsequent criminal record will have. A criminal
sentence is clearly disproportionate in view of the important
interests involved, even if balanced against the fundamental
principle of access to information as regulated in Sweden. Surely,
the State would want to promote medical science both in the interests
of the population and also for reasons of competition and economic
development. Surely, Sweden would want to be among those States which
promote medical research in compliance with the human rights of those
individuals who agree to participate in such research and with
respect for the researchers. It is therefore desirable that a more
nuanced approach to the principle governing access to information be
called for today.
It
may very well be that the applicant was liable to disciplinary
punishment for his behaviour, but criminal responsibility for
protecting at least equally important public and State interests
seems to be an exaggerated reaction. It is relevant in this respect
to note that there was an ongoing expert debate at the University
concerned about the release of the documents ordered by the
administrative courts. A Swedish Research Council report attested
that there was no connection between the research carried out by one
of the people requesting access to the applicant's research data and
the former's research project as specified before the Administrative
Court, and the University decided that this person should not have
access; there is also no evidence that any disciplinary proceedings
were brought between the beginning of 2004 and the start of criminal
proceedings in 2005 (see paragraphs 28 and 32).
We
consider that the protection of the right to privacy in the context
of medical research is a complex matter and that the courts of law
should try not to overlook all the interests at stake. Against this
big picture, the line taken against the applicant in domestic
criminal proceedings was clearly inadequate and the result
disproportionate.
