PROCEDURE

The present case was referred to the Court by the European Commission of Human Rights (“the Commission“) on 11 July 1985, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention. The case originated in an application (no. 9248/81) against the Kingdom of Sweden lodged with the Commission on 2 November 1980 under Article 25 (art. 25) by a Swedish citizen, Mr. Torsten Leander.

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Sweden recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision from the Court as to whether the facts of the case disclosed violations by the respondent State of its obligations under Articles 8, 10 and 13 (art. 8, art. 10, art. 13) of the Convention.

In response to the inquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings pending before the Court and designated the lawyer who would represent him (Rule 30).

The Chamber of seven judges to be constituted included, as ex officio members, Mr. G. Lagergren, the elected judge of Swedish nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 2 October 1985, the President drew by lot, in the presence of the Registrar, the names of the five other members, namely Mr. J. Cremona, Mr. G. Wiarda, Mr. L.-E. Pettiti, Sir Vincent Evans and Mr. R. Bernhardt (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). Mr. J. Gersing, substitute judge, subsequently replaced Mr. Wiarda, whose term of office as judge had expired before the hearing, and at a later stage Mr. F. Gölcüklü and Mr. C. Russo, substitute judges, replaced Mr. Gersing and Mr. Cremona, who were prevented from taking part in the consideration of the case (Rules 2 § 3, 22 § 1 and 24 § 1).

Mr. Ryssdal assumed the office of President of the Chamber (Rule 21 § 5). He ascertained, through the Registrar, the views of the Agent of the Swedish Government (“the Government“), the Delegate of the Commission and the lawyer for the applicant regarding the need for a written procedure (Rule 37 § 1). On 12 December 1985, he directed that the lawyer and, should he so decide, the Agent should each have until 4 February 1986 to file a memorial and that the Delegate should be entitled to reply in writing within two months from the date of the transmission to him by the Registrar of whichever of the aforesaid documents should last be filed. The applicant’s memorial was received at the registry on 3 February. By letter the same day, the Agent of the Government stated that the Government did not intend to file any memorial. On 21 March, the Secretary to the Commission informed the Registrar that the Delegate would present his observations at the hearing.

On 3 April 1986, after consulting, through the Registrar, the Agent of the Government, the Delegate of the Commission and the lawyer for the applicant, the President directed that the oral proceedings should open on 26 May 1986 (Rule 38). On 28 April, the Commission communicated to the Registrar a number of documents whose production he had requested on the instructions of the President. On 12 May, certain additional documents furnished by the applicant were received at the registry.

The hearing was held in public at the Human Rights Building, Strasbourg, on the appointed day. Immediately before it opened, the Court had held a preparatory meeting. There appeared before the Court:

for the Government Mr. H. Corell, Ambassador, Under-Secretary for Legal and Consular Affairs, Ministry for Foreign Affairs, Agent, Mr. K. Bergenstrand, Assistant Under-Secretary, Ministry of Justice, Mr. S. Höglund, Head of Division, National Police Board, Advisers;

for the Commission Mr. H. Schermers, Delegate;

for the applicant Mr. D. Töllborg, Counsel, Mr. J. Laestadius, Adviser.

The Court heard addresses by Mr. Corell for the Government, by Mr. Schermers for the Commission and by Mr. Töllborg for the applicant, as well as their replies to questions put by the Court and several judges.

AS TO THE FACTS

I. PARTICULAR CIRCUMSTANCES OF THE CASE

The applicant, Mr. Torsten Leander, is a Swedish citizen born in 1951 and a carpenter by profession.

On 20 August 1979, he started to work as a temporary replacement in a post of museum technician (vikarierande museitekniker) at the Naval Museum at Karlskrona in the south of Sweden. The museum is adjacent to the Karlskrona Naval Base which is a restricted military security zone. The applicant maintained before the Court that the intention was that he should work for ten months in this post, while its ordinary holder was on leave. He alleged that on 3 September he was told to leave his work pending the outcome of a personnel control which had to be carried out on him in accordance with the Personnel Control Ordinance 1969 (personal-kontrollkungörelsen 1969:446 - see paragraphs 18-34 below). According to the applicant, this control had been requested on 9 August 1979. The Government submitted that the applicant was employed only from 20 August to 31 August 1979, as evidenced by a notice to this effect, issued on 27 August 1979 by the Director of the Museum. They further contended that in employing Mr. Leander the Director had committed two mistakes. Firstly, it was not in accordance with the procedure prescribed in the Ordinance and the relevant regulations issued thereunder to employ a person before a personnel control had been undertaken and, secondly, the post had not been properly declared vacant.

The necessary steps were taken on 30 August 1979. The post was opened for application until 28 September 1979. Mr. Leander did not apply.

It appears that on 25 September the Director informed him that the outcome of the personnel control had been unfavourable and that he could therefore not be employed at the Museum.

Following the advice of the Security Chief of the Naval Base, the applicant wrote to the Commander-in-Chief of the Navy (chefen för marinen) requesting to be informed of the reasons why he could not be employed at the Naval Museum. In his reply of 3 October 1979, the Commander-in-Chief of the Navy stated, inter alia: “The Museum possesses several storage rooms and historical objects within the area for the security of which the Chief of the Naval Base (örlogsbaschefen) is responsible. According to the information received by the Commander-in-Chief of the Navy, the person holding the post in question must have freedom to circulate within areas subject to special restrictions regarding access. The rules on access to these areas must therefore also be applied to the personnel employed at the Museum. It is for these reasons that the Chief of the Naval Base requested a personnel control. The control carried out has provided such grounds for the Commander-in-Chief’s assessment of you from a security point of view that the decision has been taken not to accept you. However, if your duties at the Naval Museum will not necessitate that you have access to the naval installations at the Naval Base, the Commander-in-Chief sees no reason to oppose your employment. The decision whether or not to employ you is taken in a procedure distinct from the present one.“

On 22 October 1979, the applicant complained to the Government and requested that the assessment of the Commander-in-Chief of the Navy be cancelled and that he be declared acceptable for the temporary employment at the Naval Museum, irrespective of the possibility of being reinstated in that employment. He pointed out in particular that he had left a permanent position in Dalarna, in the North of Sweden, on being told that he was accepted for employment at the Naval Museum and that a negative outcome of the personnel control could mean social misery, especially considering that he had a wife and child to support. In his original complaint, and also in a letter of 4 December 1979, Mr. Leander further requested that he be given information about the reasons for his not being accepted at the Naval Museum. The Government requested the opinion of the Supreme Commander of the Armed Forces (överbefälhavaren), who in turn consulted the Commander-in-Chief of the Navy. The Commander-in-Chief of the Navy explained in a letter of 7 November 1979 that he had received the result of the personnel control from the Supreme Commander on 17 September 1979 together with the following proposal: “Accepted in accordance with the assessment of the [Commander-in-Chief of the Navy], on condition that L. does not, through access to the Museum’s premises or through his work, obtain insight into secret activities.“ The Commander-in-Chief of the Navy added that, according to his information, the Director of the Museum required the person employed in the post in question to have free access to, and freedom to circulate in, the Naval Base and that accordingly, on 21 September 1979, he had taken the decision not to accept the applicant. In his reply to the Government, the Supreme Commander of the Armed Forces stated, inter alia: “However, the employment of Mr. Leander during this time, 15 August - 1 September 1979, did not involve any access to the Naval Base. The Commander-in-Chief of the Navy has said that he does not oppose such employment. The Director of the Naval Museum has, however, affirmed the requirement that Mr. Leander should have access to the Naval Base. In view of the above and the fact that, if Mr. Leander was given access to the Naval Base, he would have access to secret installations and information, the Commander-in-Chief of the Navy decided not to accept the applicant. When dealing with the present case, the Commander-in-Chief of the Navy has entirely followed existing regulations concerning the assessment of personal qualifications from a security point of view. ... Like the Commander-in-Chief of the Navy, the Supreme Commander of the Armed Forces considers that Mr. Leander may properly be employed by the Naval Museum provided that the holder of the appointment does not require access to the Naval Base.“ The opinion of the Supreme Commander of the Armed Forces was accompanied by a secret annex, containing the information on Mr. Leander released by the National Police Board (rikspolisstyrelsen). This annex was never communicated to the applicant and has not been included in the material submitted to the Court.

In a letter of 5 February 1980, the applicant raised new grievances before the Government. These concerned the decision of the National Police Board not to exercise its powers under section 13 of the Personnel Control Ordinance to communicate to him the information released on him (see paragraph 31 below). The applicant requested that the Government should, before taking a decision on his request of 22 October 1979, give him the right to be apprised of and to comment upon the information thus released by the Board. On this matter, the Government sought the opinion of the Board. In its reply of 22 February 1980, the Board proposed that the applicant’s complaints be dismissed. It added: “The entering of information in the register of the Board’s Security Department is based mainly on a 1973 Royal Decree which is secret. Before information is entered, the question of registration is subject to assessment, at several levels, by civil servants under responsibility to verify compliance with the above-mentioned rules in relation to each item of information. In the event of doubt, the question of registration is decided upon by the Chief of the Security Department. Information from the register is handed out in accordance with section 9 of the Personnel Control Ordinance after decision by the National Police Board in plenary meeting. At least three of the six members of the Board who are appointed amongst parliamentarians should be present when decisions are taken in matters of personnel control. In the case of the applicant, all six members were present. ... Under section 13 of the Personnel Control Ordinance, the person whom the information concerns ought to be given the opportunity to submit observations on the matter if special reasons give cause for this. However, the National Police Board did not see any cause to apply this provision in the case of the applicant as no special reasons were found, and also as the registering had been effected in accordance with the secret Royal Decree and disclosure of the information would have revealed part of the contents of that Decree.“ Mr. Leander replied to this opinion in a letter of 11 March 1980 to the Government, in which he argued, inter alia, that the Board should have communicated to him, at least orally and subject to a duty of confidentiality, the information kept on him.

By decision of 14 May 1980, the Government rejected the whole of the applicant’s complaint. In its operative parts, the decision read: “The question whether or not a person is suitable for certain employment can only be examined by the Government in the context of a complaint about the appointment to a post. Leander has lodged no appeal with the Government in respect of appointment. His request that the Government should declare him acceptable for the provisional employment concerned cannot therefore be examined. In the present case, there are no such special circumstances as are mentioned in section 13 of the Personnel Control Ordinance which would give Leander the right to be acquainted with the information about him released by the National Police Board to the Supreme Commander of the Armed Forces. The remainder of Leander’s petition is a request to be given an extract from, or information about the contents of, a police register. The Government reject [this] request ... The Government do not examine Leander’s request for a revised assessment of his person and take no measure in regard to any other part of his petition.“

The applicant maintained before the Court that he still did not know the content of the secret information recorded on him. Regarding his personal background, he furnished the following details to the Commission and the Court. At the relevant time, he had not belonged to any political party since 1976. Earlier he had been a member of the Swedish Communist Party. He had also been a member of an association publishing a radical review - Fib/Kulturfront. During his military service, in 1971-72, he had been active in the soldiers’ union and a representative at the soldiers’ union conference in 1972 which, according to him, had been infiltrated by the security police. His only criminal conviction stems from his time in military service and consisted of a fine of 10 Swedish Crowns for having been late for a military parade. He had also been active in the Swedish Building Workers’ Association and he had travelled a couple of times in Eastern Europe. The applicant asserted however that, according to unanimous statements by responsible officials, none of the above-mentioned circumstances should have been the cause for the unfavourable outcome of the personnel control.