AS TO THE ADMISSIBILITY OF
by Lars VALQUIST
The European Court of Human Rights (Third Section), sitting on 9 February 2010 as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra, judges,
and Stanley Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 15 October 2008,
Having deliberated, decides as follows:
1. The applicant, Mr Lars Valquist, is a Swedish national who was born in 1956 and lives in Staffanstorp.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
2. On 12 November 2007 the applicant sent an e-mail to the headquarters of the Swedish Armed Forces (Försvarsmakten) in which he requested access to all information about him held by the Armed Forces. He was convinced that the Armed Forces had information about him as he claimed that he had been under surveillance since the early 1980s, when he had given a tip about a person to them and he had later turned down an offer to work for them. He alleged that he had, inter alia, been the victim of telephone tapping, camera surveillance, invasion of his correspondence, intrusion into his home, bugging and monitoring of his computer, e-mail and Internet as well as of involuntary medication. As the applicant now wished to initiate proceedings against the Swedish State for illegal surveillance and harassment in order to obtain compensation, he needed all the information about him kept by the Armed Forces to prove his case.
3. On 7 December 2007 the Armed Forces granted his request as concerned four official documents, namely three e-mails and one print-out from the Armed Forces' register, which all concerned the applicant's present request. As concerned eight other internal documents, which had also been created as a result of the applicant's request, the Armed Forces rejected the request on the ground that these documents had not yet been dispatched (expedierade). As the documents related to a case which was not yet finalised, they were not considered to have been created within the meaning of the Freedom of the Press Act (Tryckfrihetsförordningen, 1949:105 –hereafter “the 1949 Act”) and, consequently, they had not yet become official. Thus, the applicant could not obtain access to them. Lastly, the Armed Forces noted that most information held by the Armed Forces about individuals was not secret in relation to the person it concerned. However, certain information could be confidential under the Secrecy Act (Sekretesslagen, 1980:100), such as information relating to national security. In this respect, it could be harmful to national security to inform a person that the Armed Forces either had or did not have information about him or her. For this reason, it rejected the remainder of the applicant's request about whether or not there existed any more information about him.
4. The applicant appealed against the decision to the Administrative Court of Appeal (kammarrätten) in Stockholm. On 28 February 2008, after having visited the Armed Forces' headquarters and examined the files, the appellate court upheld the Armed Forces' decision in full.
5. Upon further appeal, the Supreme Administrative Court (Regeringsrätten) refused leave to appeal on 23 April 2008.
B. Relevant domestic law
6. Chapter 2, section 1, of the 1949 Act stipulates that every Swedish citizen shall be entitled to free access to official documents in order to encourage the free exchange of opinion and the availability of comprehensive information. However, according to Chapter 2, section 2, of the 1949 Act, the right of access to official documents may be restricted in specific circumstances, such as if the restriction is necessary having regard to the security of the State or its relations with another State or an international organisation. Any restriction on the right of access to official documents must be carefully specified in a special law, or if more appropriate in a particular situation, in another law to which the special law refers (Chapter 2, section 2, paragraph 2).
7. Moreover, Chapter 2, section 3, of the 1949 Act stipulates that a document is considered to be official if it is kept by a public authority and if it can be deemed to have been received or created by a public authority (Chapter 2, section 3). In this respect, Chapter 2, section 7, of the 1949 Act states that a document is deemed to have been created by a public authority when it has been dispatched. A document which has not been dispatched is considered to have been created when the matter to which it relates has been finally settled by the authority or, if the document does not relate to a specific matter, when it has been finally checked and approved by the authority, or has otherwise received final form.
8. According to Chapter 2, section 2, of the Secrecy Act, as in force at the relevant time, information which related to activities to defend the country or planning or preparing such activities or otherwise related to the Armed Forces was secret if the disclosure of such information was likely to harm the country's defence or otherwise endanger national security.
9. The applicant complained under Articles 3 and 8 of the Convention that he had been under surveillance by the Armed Forces since the early 1980s and harassed by them in various ways. Taken together, he considered that this amounted to inhuman and degrading treatment and a grave violation of his private life. The applicant further complained that the Armed Forces' refusal to give him access to all the information they had about him violated his right to an effective remedy under Article 13 of the Convention since it hindered him from initiating proceedings against the State to claim compensation for illegal surveillance and harassment. Lastly, invoking Article 1 of Protocol No. 1 to the Convention, the applicant complained that he had been promised a monetary reward for a tip he had given the Armed Forces at the beginning of the 1980s, and which had resulted in a large imbroglio of espionage being sorted out, but that this money had never been paid to him. Instead, he claimed that it had been used to fund his surveillance.
10. The applicant complained under Articles 3 and 8 of the Convention that the Armed Forces had conducted illegal surveillance and harassed him, which amounted to inhuman and degrading treatment and constituted a violation of his right to his private life. He also complained under Article 1 of Protocol No. 1 to the Convention that the Armed Forces had withheld money promised to him.
11. The Court has examined the applicants' complaints as they have been submitted. However, in the light of all the material in its possession, and in so far as the criteria set out in Article 35 § 1 of the Convention have been complied with and the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
12. It follows that these complaints must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.
13. The applicant further complained under Article 13 of the Convention that the Armed Forces' decision not to grant him access to all the documents about him held by the Armed Forces deprived him of essential evidence that he needed in order to initiate proceedings to claim compensation from the State and, thus, violated his right to an effective remedy. This provision reads:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
14. The Court notes from the outset that it is clear that the applicant had an effective remedy as to his request for information from the Armed Forces since he could, and in fact did, appeal both to the Administrative Court of Appeal and the Supreme Administrative Court. The Administrative Court of Appeal also visited the Armed Forces' headquarters and consulted the files before it decided the case on its merits.
15. However, the Court observes that the applicant complains that he did not have an effective remedy in relation to a future legal process which he wanted to institute against the State, using information which he believed the Armed Forces possessed about him.
16. In this respect, the Court reiterates that it has consistently interpreted Article 13 as requiring a remedy in domestic law only in respect of complaints which can be regarded as “arguable” in terms of the Convention (see, for example, Leander v. Sweden, 26 March 1987, § 77, Series A no. 116, and Çakıcı v. Turkey [GC], no. 23657/94, § 112, ECHR 1999-IV). In the present case, the Court notes that the 12 documents held by the Armed Forces were directly related to the applicant's request: the three e-mails and the print-out from the Armed Forces' register which were provided to the applicant and the remaining eight documents not yet official in accordance with the 1949 Act and which therefore, at the time, could not be legally released to the applicant. In view of this and since the Court has concluded above that the applicant has not substantiated his claims under Articles 3 or 8 of the Convention or Article 1 of Protocol No. 1, the Court considers that the applicant has no arguable claim under the Convention or its Protocols which would require a remedy within the meaning of Article 13.
17. Consequently, this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stanley Naismith Josep Casadevall
Deputy Registrar President